Bombay High Court imposes ₹10 lakh costs on company over 34,000 sq ft of unauthorised construction and misleading documents

The Petitioner challenged notices dated 13 May 2026 and orders dated 1 July 2026 issued by the Designated Officer, K/West Ward, under Section 351 of the Brihanmumbai Municipal Corporation Act, 1888 (“BMC Act”), directing removal of nine structures situated on CTS No. 844/12, New Link Road, Andheri West, Mumbai.

The structures included porta cabins, temporary sheds, banquet halls, offices, a shop and a toilet constructed using masonry, GI sheets, bamboo, tarpaulin and MS-pipe frames.

The Petitioner claimed that the structures were tolerated commercial structures existing before 1 April 1962, the applicable datum line, and relied on a 1961 licence, repair permissions issued in 1978 and 1982, a 1983 letter dropping an earlier Section 351 notice, assessment bills, property records and municipal licences.

The Municipal Corporation maintained that the structures were unauthorised and that the relevant documents did not establish their lawful construction or existence in their present form.

The Petitioner also contended that the subsequent notice was barred by res judicata because an earlier notice had been withdrawn.

1. Whether the Petitioner established that the subject structures, in their relevant nature, dimensions and extent, existed before 1 April 1962 and were therefore entitled to protection as tolerated structures.

2. Whether the 1961 licence, repair permissions, assessment bills, municipal licences and the 1983 letter dropping an earlier Section 351 notice authorised, regularised or otherwise protected the structures.

3. Whether the fresh notices and orders under Section 351 of the BMC Act were barred by res judicata on account of the earlier notice having been withdrawn.

4. Whether the impugned notices and orders directing removal of the unauthorised structures warranted interference in writ jurisdiction.

The Court applied Section 351 of the BMC Act, which empowers the municipal authority to require removal of unauthorised construction.

It applied the BMC policy treating 1 April 1962 as the datum line for protection of tolerated commercial structures, while holding that the claimant must establish the existence, nature and dimensions of the structure as of the relevant date.

A licence to conduct an activity does not establish that a particular structure existed or was authorised, and repair permission does not validate the original construction or prove its dimensions.

Assessment to property tax, payment of taxes, electricity connections, licences and similar municipal records neither alter the unauthorised character of a structure nor amount to regularisation, as held in Ashok Tukaram Ramugade v. M.C.G.M., 2026 SCC OnLine Bom 5080, and Sidharam M. Yanagandul v. State of Maharashtra, 2026 SCC OnLine Bom 971, affirmed in Laxmi Gopinath Shetye v. MHADA, Civil Writ Petition No. 1546 of 1996, decided on 13 March 2024.

The Court also followed Rajendra Kumar Barjatya v. U.P. Avas Evam Vikas Parishad, 2024 SCC OnLine SC 3767, and Kaniz Ahmed v. Sabuddin, 2025 SCC OnLine SC 995, concerning strict judicial treatment of unauthorised constructions.

The Court found that the Petitioner had produced no sanctioned plans or other evidence establishing that any of the nine structures was lawfully authorised.

The 1961 stone-cutting licence merely permitted the relevant activity, was time-bound, and did not identify any structure, its size or its construction.

The repair permissions of 1978 and 1982 similarly did not prove that the structures were authorised or that they existed in their present form before the datum line; the 1982 permission in fact referred to five porta cabins, which did not establish pre-1962 existence.

The Court considered the 1983 letter dropping the earlier notice unreliable and inconsistent with the datum-line requirement, as it did not identify evidence proving pre-1962 existence.

Assessment records related only to three units and did not establish the nature or extent of all nine structures; consequently, tax assessment and other municipal records could not confer legality or regularise the constructions.

The Court also rejected the reliance on the earlier notice, observing that the documents annexed in both petitions appeared to concern the same notice and that the earlier administrative action could not protect subsequently expanded or otherwise unauthorised constructions.

In light of the absence of proof and the governing rule against protecting unauthorised construction, no interference under writ jurisdiction was warranted.

The 1961 licence, repair permissions, 1983 withdrawal letter, assessment bills and other licences neither regularised nor protected the structures.

Both writ petitions were dismissed, and the Municipal Corporation was permitted to proceed with removal of the unauthorised constructions pursuant to the impugned notices and orders.

Costs of ₹5 lakh were imposed in each petition, totalling ₹10 lakh, payable within two weeks to the Bar Council of Maharashtra and Goa’s Advocate Academy and Research Center.