Case No : Writ Petition (L) Nos. 22853, 22860 of 2026
Judges: THE HONOURABLE MR. JUSTICE A.S. GADKARI & THE HONOURABLE MR. JUSTICE KAMAL KHATA
Parties : Shah Constructions Co. Ltd., Through its Director, Dinesh Keshardeo Poddar, Mumbai Versus Municipal Corporation of Greater Mumbai, Through its Municipal Commissioner, Mumbai & Others
Appearing Advocates : For the Petitioner: Girish Godbole, Senior Advocate i/by Sumit Kothari, Advocate. For the Respondents: Smita Tondwalkar, Pawan Kulkarni, Advocates.
Date of Judgment : 25-08-2026
Head Note :-
B.M.C. Act, 1888 - Section 351 -
Judgment :-
Kamal Khata, J.
1) The Petitioner challenges the two Notices issued dated 13th May, 2026 (impugned Notices) and two Orders dated 1st July, 2026 (impugned Orders) passed by the Designated Officer K/West Ward regarding unauthorised construction on Land bearing CTS No.844/12, New Link Road, Industrial Area, Andheri West, Mumbai 400 053 (subject property).
2) Mr. Godbole, learned senior counsel appearing on behalf of the Petitioner, submits that the Petitioner is owner of the structures on the subject property and runs a registered company from the said location. The six noticed structures referred to in Writ Petition No.22853 of 2026 are as under:
1) 5 nos. of porta cabins (Container Office) on open plot & temporary shed to cover it adm. 18 M X 13 M X 5 M (ht.) with the help of bamboo & tarpaulin.
2) Temporary shed used as car workshop adm. 41.5 M X 13.5 M X 5 M (ht.) with the help of GI sheet roof supported with MS Pipe frame structure.
3) 3 nos. of halls used as Banquet Halls adm. 40.5 M X 26 M X 5 M (ht.) with the help of partly Brick masonry walls & partly wooden plywood walls covered by GI sheet roof supported by MS pipe frames.
4) Temporary sheds for various purpose adm. 60 M X 12 M X 5.5 M (ht.) with the help of GI sheet/tarpaulin sheet as roof supported with Bamboo & MS Pipe frame.
5) Structure used as office adm. 8.6 M X 2.7 M X 2.5 M (ht.) with the help of partly wooden & glass partition walls covered by GI sheet roof supported by MS pipe frames.
6) Temporary sheds for storage purpose adm. 27 M X 8 M with the help of tarpaulin sheet as roof supported with Bamboo frame structure. and three noticed structures in Writ Petition No.22860 of 2026 are as under:
1) Structure used as shop adm. 19 M X 8.5 M X 3 M (ht.) with the help of stone masonry walls & GI sheet roof supported by MS pipe frames.
2) Structure used as office adm. 16.5 M X 7.5 M X 3 M & 5 M X 4 M with the help of stone masonry walls & GI sheet roof supported by MS pipe frames.
3) Structure used as Toilet adm. 7.5 M X 4.5 M X 3 M (ht.) with the help of Brick masonry walls & GI sheet roof supported by MS pipe frames.
3) According to the Petitioner, the structures are tolerated commercial structures constructed prior to 1st April 1962 (the datum line). Mr. Godbole places reliance on the letter issued by the B.M.C. by which it granted permission to carry out repair work on four structures in the year 1978. He submitted that, Notices dated 26th July 1983 issued under Section 351 of the Brihanmumbai Municipal Corporation Act, 1888 (B.M.C. Act) were later dropped by letter dated 18th November, 1983, stating that the suit structures were protected as per the B.M.C. policy. Later, the B.M.C had even issued a Registration Certificate under Rule 5(1) for sale of appliances and garments on 8th February, 2002. Thereafter, on 11th December, 2015, the B.M.C. issued a Registration Certificate to run an office of Civil Engineering Construction.
4) Mr. Godbole submits that, despite all these certificates and permissions, the Designated Officer K/West Ward issued the impugned Notice dated 13th May, 2026 under Section 351 of the B.M.C. Act, 1888. After considering the Petitioner’s reply letter dated 22th May, 2026, annexing copies of various documents namely, (i) the assessment bills, (ii) the Property Registration card (PR card) and (iii) the license issued by the Municipal Department in the year 1961, the said Officer held that the Petitioner has failed to prove the existence of the structure prior to 1st April, 1962, the datum line fixed by the B.M.C. for a tolerated commercial structure. By the said Order, the Petitioner was directed to remove the unauthorised construction within a period of 15 days from the receipt of the Notice.
5) Mr. Godbole submitted that, the Petitioner had only the aforesaid documents available with it, as its records, documents and equipment had been damaged sometime in August of 2005, in respect of which a police complaint was lodged for the record. He relied heavily upon the licence issued by the authority to run the business of stone cutting at the subject premises in the year 1961, after completion of the construction, as per grant dated 1959 by the Additional Collector, Mumbai Suburban District. He asserted that the fact that the Section 351 Notice issued under B.M.C. Act, was withdrawn by the B.M.C. on or around 18th November, 1983, has a bearing on his assertion that the structures were protected because they were constructed prior to the datum line. Consequently, he submitted, the impugned Notice issued once again under Section 351 of the B.M.C. Act is barred by the principle of res judicata.
6) He further submitted that, the Petitioner is a law-abiding citizen and has been paying the assessment charges and all other outgoings as required under law and therefore the prayers sought in the Petition be granted.
7) Per Contra Ms. Tondwalkar, learned Advocate appearing on behalf of the Respondent Corporation, supported the impugned Notices as well as the impugned Orders. She submitted that the B.M.C. had followed the entire procedure. They had carefully examined all the documents submitted by the Petitioner and had rightly concluded that the captioned structures were unauthorized and therefore, liable to be removed. Relying on the impugned Orders, which were self-explanatory, she submitted that, the Petition be dismissed and the B.M.C. be permitted to remove the unauthorized structures.
8) We have heard the learned senior counsel for the Petitioner as well as Ms. Tondwalkar for the B.M.C. We have also carefully perused the entire record in both matters.
9) At the first blush, Mr. Godbole’s submission appears very convincing, and the entire action of the B.M.C. appears tainted with malafide intent. However, on close scrutiny, we find this to be yet another case where an owner of a piece of land has constructed structures without permissions on the presumption that later it will be regularised.
10) Upon a query being posed to the learned senior counsel, as to whether they had any documents to prove that any of these said structures were authorised by the B.M.C. or they had sanctioned plans for any of them, he fairly submitted that there were none.
11) The Petitioner, who claims to be a landowner and a law-abiding citizen, has not conducted himself as one. It is a blatantly false assertion. He has failed to produce any sanctioned plan for the constructions held to be unauthorised. A closer examination of the documents on record reveal that the issuance of licence by the B.M.C. in 1961 in favour of the Petitioner, permitting stone cutting, does not prove the existence of any structure, nor does it specify the nature and size of the structure. Consequently, the reliance on such licence to support the contention of existence of any structure(s), or as to its nature and size, is wholly unsubstantiated. At most, it would reveal authorization of stone-cutting activity on the subject property. Moreover, the permit dated 21st September 1961 was valid only up to 31st March 1963. The unauthorised structure/s certainly cannot be deemed to be authorised by virtue of issue of licence.
12) The letter dated 19th January, 1978, purportedly granting repair permission, does not establish that the original structure was authorised, nor its nature or size. Importantly, though the notice annexed separately in both Petitions – suggesting that separate Notices were issued for the structures in each Petition – it is, in fact, the same Notice. It appears that, the Petitioner by annexing it in both Petitions attempted to mislead the Court into believing that two separate Notices were issued for the Petitioned structures. A closer examination of the Notice reveals that, it attempts to create evidence of structure/s which probably never existed. The permission reads as under:
“(I) To subdivides the existing structure No. IV into three (3) separate portions by erecting portions comprising partly B.M. Walls and partly G1 sheets as shown in the annexed sketch.
(II) To repair & re-plaster the existing B.M. Walls internally and externally in all four (4) structures.
(III) To replace the damaged flooring in all four (4) structures.
(IV) To repair and replace the rusted and damages GI Sheets roof of all four (4) structures.
Note: All four (4) structures are constructed partly B.M. Walls and partly GI Sheets.”
13) Similarly, the Notice dated 26th July, 1983 issued by the B.M.C. under Section 351 of the B.M.C. Act is a single Notice for four unauthorised structures, though annexed in both Petitions. No averments are made in either Petition to suggest that it was only for the four structures in one Petition. Thus, this is clearly an attempt to mislead the Court into believing that they were issued for the unauthorised structures mentioned in each of the two Petitions.
14) The reliance placed on the letter dated 18th November, 1983 prima facie reveals that it is a procured document. The contents of the relevant paragraph are reproduced hereinbelow for ready reference:
“….As per the documents you provided specifically, Repair Permission No. WOK/W/900/Bldg. & Fact dated 19/01/1978 and further Repair permission No. KW/347/AEB/JR dated 12/05/82 with reference to structures under reference and other relevant documents – it is evident that the notice structures are old and as per the permissions granted through the above mentioned Repair Permissions. Hence, the structures are protected as per the policy of the B.M.C., therefore by direction, I have to inform you that the notice issued to you is considered favourably and the notice is hereby dropped”.
15) In our view, this letter could not have been granted, as the datum line has always been 1st April, 1962. It does not refer to any document to suggest that the structure/s existed prior to the datum line.
16) The letter dated 12th May, 1982 reveals that five porta cabins having dimensions 8ft x 40ft x 16.40ft were sought to be repaired. It obviously does not substantiate the existence of structures prior to 1st April, 1962.
17) Apart from a bare claim that the structures existed prior to 1st April, 1962, the Petitioner has failed to produce any document demonstrating the nature and size of the structure as originally constructed. The Petitioner has failed to show that any steps were taken to regularise the structure over the decade and more that has since elapsed.
18) A mere entry in the assessment bills of later years, stating that the structure predates 1st April, 1962 (the datum line), does not by itself lend credibility to either the nature or the size of the structure built. A closer examination of the same reveals that, it concerns only three units and not to all the nine unauthorised structures for which notices have been issued. In the absence of any plans, sanctioned or otherwise, or any document proving the nature and area of the structure, no protection can be claimed as of right, or granted by this Court. To claim a lawful right, a citizen must first have discharged his own duty; otherwise a Court is not bound to protect or grant any relief. In the present case, the Petitioner, who claims to be a law-abiding citizen, has conducted himself entirely to the contrary. Apart from the extensive illegal construction, he has admittedly put up a portable cabins without any permissions from the B.M.C.
19) The legal position is no longer res integra. In Ashok Tukaram Ramugade vs. M.C.G.M. reported in 2026 SCC OnLine Bom 5080, this Court held that an unauthorised structure being subsequently assessed to property tax by the B.M.C. would not change the unauthorised character of the structure nor would it make the structure authorised from the date of assessment. In Sidharam M. Yanagandul vs. State of Maharashtra reported in 2026 SCC OnLine Bom 971, affirmed by the Division Bench in Laxmi Gopinath Shetye vs. MHADA in Civil Writ Petition No.1546 of 1996 dated 13th March, 2024, it has been authoritatively held that assessment of an unauthorised structure to property tax neither alters its unauthorised character nor amounts to regularisation. In the present case the Petitioners have relied precisely upon such documents which reliance cannot be countenanced.
20) Besides the Assessment bills, electricity bills, shop and establishment licence or any other licence issued by the B.M.C. or any authority, cannot have the effect of rendering an unauthorised structure legal or authorised. The reliance placed on assessment bills, repair permissions, property tax receipts, electricity bills and licence issued by B.M.C. is wholly misplaced and cannot be used to prove the structure to be authorised.
21) We find that, in several Petitions, Petitioners have claimed protection on the strength of repair permissions. Such pleas are baseless and cannot be countenanced. The B.M.C. has, over the years, failed the law-abiding citizens by granting such repair permissions without verifying whether the structures were lawfully constructed, for reasons not too far to seek. In the absence of verification by the B.M.C. as to whether the structures were authorized, it is impossible for the Courts to accept that the structure/s existed prior to the datum line.
22) Unfortunately, having dealt with several cases, it is evident that the public mindset is to carry out construction first and seek regularisation only if, and when, the concerned authority ever acts. There are only negligible instances where the authority has taken prompt action. Most constructions are being carried out overnight and later expanded as required over a period of time. Later, under the garb of repair permissions, such constructions are expanded further. As a matter of record, the B.M.C. has, over the years, miserably failed to take any action against numerous such unauthorised constructions, whether residential or commercial, despite being duty-bound to do so. The reasons are obvious though best left unsaid. The elected representatives are equally liable, if not more so; having been elected by the people, they were duty bound to control it.
23) From time to time, the concerned Officers have taken advantage of their positions and issued such letters granting permissions, under the garb of which structures have been unscrupulously and illegally constructed across the city. It is rather disturbing that, citing decisions of the Supreme Court, water and electricity connections are granted to these illegal structures. The whole purpose of setting up the B.M.C. was to oversee planned growth in the city. However, by misusing, misreading and misapplying the law, the B.M.C. has permitted illegal structures to be inhabited.
24) Be that as it may, we are bound by the mandate and directions issued by the Supreme Court in their Judgment of Rajendra Kumar Barjatya & Anr. vs. U.P. Avas Evam Vikas Parishad & Ors. reported in 2024 SCC OnLine SC 3767, and followed by Kaniz Ahmed vs. Sabuddin & Ors. reported in 2025 SCC OnLine SC 995. We accordingly dismiss the two Petitions.
25) Before parting, we note that the learned senior counsel had filed an Undertaking from the Petitioner to remove such unauthorized constructions as were, according to them, unauthorized for want of permissions. Although we appreciate the offer to voluntarily remove those illegalities, in our view, this is nothing but an attempt to retain what is entirely unauthorized. The constructed areas admeasure approximately thirty-four thousand (34,000) square feet and the Petitioner has volunteered to remove almost eighteen thousand (18,000) square feet. There is not even an iota of evidence about the original area of the structure assuming there was one constructed prior to the datum line. Presently old structures cannot be identified from the new ones. Permitting its continuance would send out a wrong message that illegalities are pardoned if backed by money. This would send a wrong signal to all the law-abiding citizens, who strive hard to follow the law of the land. Thriving lawlessness not only discourages the law-abiding citizen but also encourages him to turn into a law-breaker. The Court is duty bound to uphold the truth and values. The wrongdoers must be brought to justice, thereby upholding the values and the principles enshrined in the Constitution of India.
26) We, accordingly, deem it fit to dismiss both the Petitions with costs of Rs.5 lakhs for each Petition totaling to Rs.10 lakhs to be paid to Bar Council of Maharashtra and Goa’s Advocate Academy and Research Center within a period of two weeks from the date of uploading of the present Judgment on the official website of the High Court of Bombay with the hope that this decision would act as a deterrent for all law-breakers.
26.1) Details of the bank Account for payment of cost are as under:-
Account Name :- BCMG’S Advocate Academy & Research Center
