Shah Constructions Co Ltd vs Municipal Corporation Of Greater Mumbai

CNR No : HCBM020228612026

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.22853 OF 2026
WITH
WRIT PETITION (L) NO.22860 OF 2026
Shah Constructions Co. Ltd. ]
A Company registered under the Companies ]
Act 1956 Through its Director ]
Mr. Dinesh Keshardeo Poddar ]
Age-62 years Occupation Business ]
Having office at : CTS 844/13, ]
New Link Road, Andheri West, Mumbai ]
Mumbai – 400 056 ] … Petitioner
V/s.
1. Municipal Corporation of Greater Mumbai ]
Through its Municipal Commissioner, ]
Having office at: ]
Mahanagarpalika Marg, ]
Mumbai – 400 001. ]
2. Assistant Commissioner ]
Municipal Corporation of Greater Mumbai, ]
K/West Ward, ]
Having office at: ]
Paliram Road, near S.V. Road, ]
Opposite Andheri Railway Station ]
Andheri (West), Mumbai – 400 058 ]
3. Designated Officer ]
Municipal Corporation of Gretaer Mumbai, ]
K/West Ward, ]
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Digitally
signed by
SUMEDH
NAMDEO
SONAWANE
Date:
2026.08.25
16:49:01
+0530
SUMEDH
NAMDEO
SONAWANE
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Having office at: ]
Paliram Road, near S.V. Road, ]
Opposite Andheri Railway Station ]
Andheri (West), Mumbai – 400 058 ] … Respondents

Mr. Girish Godbole, Senior Advocate i/by Mr. Sumit Kothari for the
Petitioner.
Ms. Smita Tondwalkar for the Respondent – BMC.
Mr. Pawan Kulkarni, Sub Engg (B & F) K/W Ward, Present.

CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
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RESERVED ON : 17 July, 2026.
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PRONOUNCED ON : 25 August, 2026.
Judgment (Per: Kamal Khata, J.):-
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1) The Petitioner challenges the two Notices issued dated 13 May,
st
2026 (impugned Notices) and two Orders dated 1 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:
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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.)
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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
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commercial structures constructed prior to 1 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
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1978. He submitted that, Notices dated 26 July 1983 issued under Section
351 of the Brihanmumbai Municipal Corporation Act, 1888 (B.M.C. Act)
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were later dropped by letter dated 18 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
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and garments on 8 February, 2002. Thereafter, on 11 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
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Notice dated 13 May, 2026 under Section 351 of the B.M.C. Act, 1888.
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After considering the Petitioner’s reply letter dated 22 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
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Petitioner has failed to prove the existence of the structure prior to 1 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.
th
Act, was withdrawn by the B.M.C. on or around 18 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
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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.
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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
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property. Moreover, the permit dated 21 September 1961 was valid only up
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to 31 March 1963. The unauthorised structure/s certainly cannot be
deemed to be authorised by virtue of issue of licence.
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12) The letter dated 19 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,
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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.”
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13) Similarly, the Notice dated 26 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
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the two Petitions.
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14) The reliance placed on the letter dated 18 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
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line has always been 1 April, 1962. It does not refer to any document to
suggest that the structure/s existed prior to the datum line.
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16) The letter dated 12 May, 1982 reveals that five porta cabins
having dimensions 8ft x 40ft x 16.40ft were sought to be repaired. It
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obviously does not substantiate the existence of structures prior to 1 April,
1962.
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17) Apart from a bare claim that the structures existed prior to 1
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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
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structure predates 1 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
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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
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13 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
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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.
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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
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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
Account Number :- 000120110001327
Bank Name :- Bank of India
Branch Name :- Mumbai Main
IFSC Code :- BKID0000001
Type of Account :- Current A/c
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
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