For unauthorised 34,000-sq-ft construction, Bombay HC dismisses two pleas and imposes Rs 10 lakh costs

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, directing removal of nine alleged unauthorised 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.

The Petitioner contended that the structures were tolerated commercial structures existing before 1 April 1962, the applicable datum line.

During hearing, the Petitioner conceded that it had no sanctioned plans or documents proving that the structures had been authorised by the Corporation.

Whether the Petitioner established that the nine structures were authorised or protected tolerated structures existing before the 1 April 1962 datum line.

Whether assessment bills, licences, electricity or other municipal permissions, and repair permissions could regularise or otherwise establish the lawful character of unauthorised structures.

Whether the withdrawal of the earlier Section 351 notice in 1983 operated as res judicata or otherwise barred the fresh proceedings.

Whether the impugned notices and orders directing removal of the structures warranted interference under writ jurisdiction.

The Court applied Section 351 of the Brihanmumbai Municipal Corporation Act, 1888, which empowers the Corporation to require removal of unauthorised constructions.

The Court held that a claimant seeking protection as a pre-datum-line or tolerated structure must produce credible evidence establishing the structure’s existence, nature and dimensions before the relevant datum line; a licence to conduct an activity does not prove the existence or authorisation of a structure.

Assessment to property tax, payment of municipal charges, electricity connections, shop and establishment licences, and other permissions do not legalise an unauthorised structure or amount to regularisation, as recognised in Ashok Tukaram Ramugade v. M.C.G.M., 2026 SCC OnLine Bom 5080, Sidharam M. Yanagandul v. State of Maharashtra, 2026 SCC OnLine Bom 971, and Laxmi Gopinath Shetye v. MHADA, Civil Writ Petition No. 1546 of 1996, decided on 13 March 2024.

Repair permissions, without verification of the original structure’s lawful status, likewise cannot establish authorisation or pre-datum-line existence.

The Court further relied on Rajendra Kumar Barjatya v. U.P. Avas Evam Vikas Parishad, 2024 SCC OnLine SC 3767, followed in Kaniz Ahmed v. Sabuddin, 2025 SCC OnLine SC 995, concerning the mandatory approach towards unauthorised constructions.

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

The 1961 stone-cutting licence established, at most, permission to conduct stone-cutting activity; it neither proved the existence of a structure nor established its nature or dimensions, and in any event was time-limited.

The 1978 and 1982 repair permissions similarly failed to demonstrate that the structures existed before 1 April 1962 or were lawfully constructed.

The Court also found that the 1983 withdrawal letter did not identify evidence establishing pre-datum-line existence and therefore could not confer protection; the earlier notice and related documents had also been presented in a misleading manner across the two petitions.

The assessment bills referred only to three units and did not establish the nature or area of all nine structures.

Consistent with the cited precedents, assessment, payment of charges and municipal licences could not transform unauthorised construction into authorised construction.

In the absence of reliable evidence of the original structures, their dimensions or lawful status, the Court held that no enforceable protection could be claimed.

It therefore declined to interfere with the Corporation’s statutory action, particularly in view of the extensive construction and the Supreme Court’s directions against retention of unauthorised structures.

It rejected the Petitioner’s claims based on the pre-1 April 1962 datum line, municipal assessment, licences, repair permissions and the alleged effect of the 1983 withdrawal.

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