Bombay High Court
Snehdeep Krida Mandal Th. Chairman, P K … vs Maharashtra Housing And Area … on 17 April, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-OS:6553-DB
sns 16-oswp-2174-2024-J (F) .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2174 OF 2024
1. Snehdeep Krida Mandal, ]
a trust registered under the ]
Bombay Public Trsut Act, 1950 ]
BEARING register No. F-40744 ]
having address at 15, ]
Bhatwadi Hill Seva mandal, 1st ]
floor, Ghatkopar (W) Mumbai ]
400084 through its chairman ]
Pravin Krishna Bandivdekar. ]
2. Ganesh Narayan Smant, ]
age 50 years, Occ. Business ]
residing at ½ Kranti Seva ]
Mandal Chawl, Bhatwadi ]
Ghatkoper (W), ]
Mumbai 400084.
3. Ganesh Harishchandra Sankpal, ]
residing at Gurav Chawl, ]
Room No.13, Hanuman ]
Nagar, Bhatwadi Ghatkopar ]
(W) Mumbai 400084. ]
4. Maidan Bachav Samiti, ]
near Siddhi Ganesh Temple, R B ]
Kadam Road, Bhatwadi, ]
Ghatkopar (W) Mumbai ]
400084 through its secretary, ]
Ganesh Samant ] ...Petitioners.
V/s
1. Maharashtra Housing & Area ]
Development Authority, Grih ]
Nirman Bhavan, Bandra (E), ]
Mumbai 400 050. ]
SUMEDH
NAMDEO
SONAWANE 2. Municipal Corporation of ]
Digitally signed by Greater Mumbai having its ]
SUMEDH NAMDEO
SONAWANE
Date: 2025.04.17
office at Municipal ]
20:48:14 +0530
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Corporation Building, P M ]
Road, Mumbai 400001. ]
3. Akhil Bhatwadi Sarvajanik ]
Utsav Mandal, a Public Trust ]
registered under the Bombay ]
Public Trust Act 1950, and also ]
a society registered under the ]
societies Registration Act ]
having office at Shree Siddhi ]
Ganesh Mandir, Bhatwadi, ]
Ghatkopar (E) Mumbai 400084. ] ...Respondents.
Mr. Akshay Patil a/w. Adv. Devika Madekar, Adv. Mayur Thorat i/by Adv.
Sameer K. Sawant, for the Petitioners.
Mr. P. G. Lad a/w. Adv. Sayli Apte, Adv. Shreya Shah for Respondent No.1-
MHADA.
Mr. Chaitanya Chavan a/w. Adv. Smita Tondwalkar, Adv. Rahul Rathod i/by
Adv. Komal Punjabi for Respondent NO.2-BMC.
Mr. Viraj Parikh a/w. Adv. Tejas S. Mahamuni i/by Adv. S.G. Mahamuni for
Respondent No.3
Mr. Vijaykumar Wagh, Asst. Engineer (B&F) 'N' Ward, present.
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 12th March, 2025.
PRONOUNCED ON : 17th April, 2025.
JUDGMENT (Per Kamal Khata, J.):
–
1) This Petition under Article 226 of the Constitution of India is
filed to challenge the arbitrary, capricious and patently illegal actions and
omissions of Maharashtra Housing and Area Development Authority
(MHADA)-Respondent No. 1 and Respondent No.2-BMC, regarding plot of
land admeasuring 585 sq.mtrs. that is a part of Cadastral Survey No.68A in
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Survey No.24, Hissa No.4(p) and 6(p) of Village Kirol, Ghatkopar (West),
Mumbai 400084 (writ plot) permitting construction of a purported
community hall on the large chunk of land, that was reserved as open space
for playground (ROS 1.4) under Development Control and Promotion
Regulation, 2034 (“DCPR”). The Petitioners are aggrieved as the authorities
are depriving the residents of open space in the crowded area of Ghatkopar,
Mumbai despite the reservation as open space for playground on the writ
plot.
2) Heard Mr. Akshay Patil, learned Advocate for the Petitioner;
Mr. P.G. Lad, learned Advocate for Respondent No.1-MHADA; Mr. Chaitanya
Chavan, learned Advocate for Respondent No.2-BMC and Mr. Viraj Parikh,
learned Advocate for Respondent No.3. Perusal entire record and the
Affidavits in replies filed by the Respondents.
BRIEF FACTS:
3) Respondent No.3-Trust was registered in the year 1977 for
celebrating Ganesh festival. A Ganesh Mandir was constructed on the writ
plot and the balance open area was used for sports, religious programs,
political meetings, social activities and recreational activities for senior
citizens.
3.1) Apparently, in 1994, Respondent No.3-Trust had illegally
constructed ground + upper floor structure admeasuring 90 sq. mtrs. which
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was let out on rent for small functions like engagement, naming ceremony
etc. Thereafter, sometime in December 2023, Respondent No.3-Trust
demolished the structure and started constructing new structure. A
hoarding put up on the writ plot claimed that through the financial aid
from the Member of Parliament (‘MP’) a ‘community hall’, under the Local
Area Development Scheme, would be constructed by MHADA.
3.2) The Petitioners were informed that, Respondent No.3-Trust has
purchased the writ plot from Zaverbhai Purshottam Nathu Charitable Trust,
under the deed of conveyance dated 28 th September, 2017. After obtaining
the information, the Petitioner No.2 addressed letters to the local MP, MLA
as well as the CEO of MHADA, requesting them to take cognizance of the
reservation of open space for playground on the writ plot and not to permit
illegal constructions thereon at the behest of Respondent No.3-Trust. They
also requested to stop the illegal construction that had commenced on the
writ plot that was reserved for Public purpose.
3.3) The Petitioners allege that, due to this illegal construction the
debris blocked the sewerage lines and the wastewater started oozing out on
the road causing hardships to the residents. Various letters were addressed
by Petitioner No.2 requesting the authorities to take cognizance and stop
the illegal construction of the proposed community hall.
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sns 16-oswp-2174-2024-J (F) .doc 3.4) On 27th February 2024, the Respondent No.1-MHADA by its
letter advised Petitioners to apply to Respondent No.2 for conducting survey
and handing over playground. Upon such application and information
submitted to Respondent No.2-BMC, they on the same day, i.e. on 27 th
February 2024, called upon Respondent No.3 to handover the open plot of
land by removing all illegal construction since the writ plot was reserved for
playground as per DCPR with remark ROS 1.4.
3.5) The Petitioner No.4 by its letter dated 1 st March, 2024
requested Respondent No.1-MHADA not to disburse the public fund since
the Respondent No.2-BMC has directed Respondent No.3-Trust to handover
the open space after removing the illegal construction thereon. The
Petitioners through an Application under Right To Information Act, 2005
discovered that the amount of Rs.41,00,000/- was approved by Respondent
No.1 for construction of Samaj Mandir on the writ plot for Respondent
No.3-Trust . The Petitioners also discovered that the Respondent No.3-Trust
have claimed the earlier illegal construction to be a school building being in
a dilapidated condition, requiring urgent reconstruction. Pertinently, the
said illegal construction was neither a school building nor was it in a
dilapidated condition.
3.6) The Respondent No.1-MHADA by its letter dated 5 th March
2024 addressed letters to the Petitioners stating that, the handing over of
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the open plot does not come within the purview of Respondent No.1-
MHADA and refused to interfere and stop the construction work of the
community hall. The Respondent No.2 by their letters dated 12 th March,
2024 and 28th March, 2024 directed Respondent No.3 to remove the illegal
construction and hand it over to Respondent No.2 as the land was reserved
for playground under DCPR 2034. Despite the communication, the
Respondent No.3-Trust continued the illegal construction using public fund
of Respondent No.1-MHADA. It is in these circumstances the Petitioners
have filed the present Petition.
4) Mr. Akshay Patil for the Petitioners submitted that, the plot
reserved as open space for playground under the DCPR 2034 with remark
ROS 1.4 meant that only construction of toilets, gardeners rooms, security
cabin, are permissible on the said plot and no other construction can be
permitted. He submitted that, the permission for construction by
Respondent No. 3-Trust was obtained on the basis of false information and
false declarations submitted to the concerned Authorities. He asserted that,
the Respondent No.3’s Application dated 25 th January, 2024 falsely claimed
the earlier construction to be a school building in a dilapidated condition,
requiring urgent reconstruction. He submitted that, the Respondent No.2, a
Planning Authority by its letter dated 29 th February 2024 had asked
Respondent No.3 to hand over the open plot of land by removing the illegal
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construction on the plot, as the same was reserved for playground under
DCPR 2034 with remark ROS 1.4. He submitted that if this construction
was not stopped the Petitioners action would be made fait accompli as the
public funds would be utilized by Respondent No.1 for this illegal
construction contrary to the reservation under the DCPR 2034. He
submitted that, there are no documents to show evince/prove that the
earlier structure was a school building. No structural audit was carried out
either by BMC or MHADA declaring the structure as “dangerous” or
“dilapidated” as required under the Statute. He submitted that, Ghatkopar
(West) is very densely populated area and there is no other Public Ground
available for this locality. That, the conveyance of writ plot in favour of the
Respondent No.3 will have no effect or bearing on the reservation. The
construction of community hall on the writ plot would amount to modifying
the reservation which cannot be permitted. That, the Respondent No.1-
MHADA has acted illegally and in a clandestine manner to create interest in
favour of the Respondent No.3-Trust overlooking the provisions of DCPR
2034.
5) He emphasized that Mr. Prakash Kondiba Gole being an
employee of BMC in the Shops and Establishment department, has misused
his position to engage in illegal construction on the writ plot. That is why
no action was taken, nor were the grievances or complaints of the
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Petitioners addressed. He relied on the judgment in the case of Bangalore
Medical Trust V/s. BS Muddappa reported in (1991) 4 SCC 54, to submit
that the open spaces in a congested urban environment would be of a
fundamental importance. He submitted that, in the above circumstances the
illegal construction ought to be demolished and the writ plot be handed
over to Respondent No.2 who in turn should leave it as an open space for
playground as per the reservation under DCPR 2034.
6) Mr. Lad for Respondent No.1 MHADA relied on the Affidavit of
Mr. Ravindra Anandrao Patil dated 10 th March 2025. He submitted that, the
Mumbai Slum Improvement Board (“MSIB”) is appointed for taking up
work of improvement in the slum area as per the object of MHADA. The
MSIB is a nodal agency appointed for executing work which receives
administrative approval from the Collector’s Office, Mumbai Suburban
District particularly from the DPC. Relying on the said Affidavit he
submitted that, the Respondent No.3-Trust had approached the M.P. who
had recommended the work of construction of the community center on the
writ plot through Mahanagarpalika Shetrat Mulbhut Soi Suvidhanchaya
Vikasasathi Vishesh Tartud (U.D. Department Fund). It was on the basis of
the recommendation of the then MP, the Collector’s Office had processed
the work and prepared an estimate for approval of the DPC, who in turn
had approved the construction of Samaj Mandir at Bhatwadi on the writ
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plot as proposed by Respondent No.3-Trust.
6.1) The Mumbai Slum Improvement Board had approached the
Assistant Municipal Commissioner, N Ward, for NOC by its letter dated 4 th
October, 2023. The necessary approval was granted by the DPC for
construction of Samaj Mandir by its letter dated 31 st October, 2023. By its
letter dated 10th February 2024, the Respondent No.2-BMC informed the
MSIB that, the land on which the Samaj Mandir was proposed was not of
BMC and therefore asked to take an NOC from the concerned owner. In the
meantime the Respondent No.3 issued the NOC by its letter dated 25 th
January, 2024 stating that, the existing building is 35 years old and in
dilapidated condition and that they had no objection for construction of
Samaj Mandir. He submitted that, the MSIB appointed M/s. M.M. Shewani
as a contractor and issued work Order dated 21 st February 2024. That, the
MSIB had received a letter from Maidan Bachav Samiti dated 28 th February,
2024 objecting to the construction of the Samaj Mandir. He further
submitted that, the MSIB by its letter dated 12 th June, 2024 had informed
the Respondent No.2-BMC that, they had no objection for taking over the
possession of the land reserved for playground. He hastened to submit that
no monies have been paid to the contractor.
7) Mr. Chaitanya Chavan, learned counsel for Respondent No.2-
BMC submitted that, upon receiving letter from the Respondent No.1-
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MHADA on 4th October, 2023 requesting for a ‘No Objection’ for
construction of Welfare Center on the writ plot, they informed them that,
the writ plot was not belonging to the BMC and hence they could not issue
the NOC. He also submitted that, having received letters dated 20 th
February, 2024 and 19th April, 2024 from the Secretary of the Maidan
Bachav Samiti objecting to the construction work of Welfare Center, the
BMC by its letters dated 28 th March, 2024 and 11th June, 2024 had
informed the Respondent No.3-Trust that, the subject plot was reserved for
playground (ROS 1.4) as per DCPR 2034. Moreover, the Executive Engineer
had visited the site and found that the MSIB had undertaken the
construction work. They accordingly, made a complaint to Executive
Engineer of MHADA slum board for necessary action. By their letters dated
12th March, 2024 and 28th March, 2024 they also informed the Respondent
No.3-Trust to remove the encroachments and hand over the writ plot to the
BMC. He accordingly submits that BMC had taken all necessary action in
accordance with law.
8) This is yet another case which highlights the BMC’s deliberate
and willful inaction permitting illegal constructions. BMC simply stops after
issuing notices and takes no preventive action to stop illegal construction.
This inaction encourages and promotes illegal constructions. In this case it
also involves MHADA.
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sns 16-oswp-2174-2024-J (F) .doc 9) This Petition was filed on 30 th March, 2024 and was heard on
various dates thereafter. The Respondents as usual had sought time to file
Affidavits in response to the Petition which was granted. However, pending
the hearing and disposal of this Petition, we were informed that the
Respondent No.3-Trust had abused the process by filing a Suit in the City
Civil Court and had obtained an injunction restraining the BMC from
demolishing the structure pursuant to the Notices issued by BMC under
Sections 351 and 354A of the Brihanmumbai Municipal Corporation
Act,1888. This is the usual modus operandi, by those who put up illegal
constructions.
10) By our Order dated 28th February, 2025 we have recorded that,
despite the bar under Section 515A of BMC Act for the Civil Court in
entertaining the Suit challenging Notices the City Civil Court had granted
an injunction for demolition. Having heard the counsel we had passed the
following Order:
“1) This is yet another unfortunate case wherein the
Respondent No.3 by misusing the jurisdiction of City Civil Court,
has filed Suit No. 0100478/2025. As usual, the Advocates
appearing for BMC in City Civil Court did not oppose the grant
of any relief and also failed to point out the decision of this
Court in the case of Abdul Razzaq Sunesra v/s. Municipal
Corporation of Greater Mumbai & Ors., (2014) 1 Mah LJ 275,
upholding the constitutional validity of Section 515-A which
bars jurisdiction of the Civil Court for entertaining a suit
challenging notices under Sections 351 and 354-A of the BMC
Act.
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2) We are not surprised by this situation, as it is a routine
approach of the BMC before the Civil Courts. The intention of
legislature in introducing Section 515-A has been discussed by
the Division Bench of this Court in great detail in the said
judgment of Abdul Razzaq Sunesra (supra).
3) We therefore call upon Advocate Mr. Rahul Rathod to
furnish his explanation to this Court as to whether on the very
first date of hearing i.e. on 24 th February 2025 he pointed out
the said decision to the learned Judge of the City Civil Court
with a request not to grant any relief in favour of the Plaintiffs
therein and if not why not.
4) The Advocate Mr. Rahul Rathod is directed to submit his
response to this notice on or before 6th March, 2025.
5) The Prothonotary and Senior Master, High Court,
Mumbai is directed to call for the original record of Suit
No.0100478/2025 from the registry of the City Civil Court,
Mumbai, on or before 6th March, 2025.
6) The Registrar, City Civil Court is directed to send the said
record strictly in adherence to the provisions of Civil Manual.
7) Mr. Chaitanya Chavan appearing in the present Petition is
directed to communicate this Order to Advocate Mr. Rahul
Rathod to enable him to submit his response to the notice.
8) Stand over to 7th March, 2025." 11) In pursuance to our Order dated 28 th February, 2025 we had
called for the original record of Suit filed by Respondent No.3-Trust from
the City Civil Court for our perusal. Upon perusal of the Roznama of 24 th
February, 2025 we found that BMC Advocates as usual had simply sought
time to file an Affidavit in reply. Neither the BMC’s Officers nor their
Advocate pointed out the settled law and the statutory bar as per Section
515A of the BMC Act.
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mislead and misguided the Court. Mr. Tejas Mahamuni the Respondent
No.3’s Advocate also represents the same party as the Plaintiff in the Suit
filed in the City Civil Court. We find that Mr. Mahamuni has deliberately
and with a malafide intention to procure a favourable Order not informed
the City Civil Court that, the High Court is seized with the matter at hand
pertaining to illegal structure constructed/erected by Respondent No.3.
Though argued to the contrary before us, the failure to disclose is apparent,
as there is no mention about the same in the Order passed by the learned
Judge. We accordingly called upon Mr. Mahamuni to file his say on the
allegation of abuse of the process. We also called upon the Advocates for
the BMC to file an Affidavit to state why the provisions of law and the
decisions of this Court upholding the constitutional validity of Section 515A
of B.M.C. Act, were not pointed out to the learned Judge to assist him to
take the proper decision.
12.1) We have perused the Affidavit of Mr. Mahamuni Advocate for
the Respondent No.3. In his defense he claims that he has disclosed the
filing and pendency of Writ Petition to the learned Judge of the City Civil
Court and pointed out the Affidavit of the BMC in the Writ Petition that was
annexed to the Plaint. He however submits that, it was wrong of him and
an error of Judgment on his part to move the City Civil Court pending the
hearing of the Writ Petition before this Court and consequently tenders an
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unconditional apology for the same. He has stated so in his Affidavit. He
also relies on the Affidavit of Mr. Prakash Kondiba Gole, the Secretary of
Respondent No.3 who agrees and undertakes to withdraw the L.C. Suit
No.429 of 2025 and also tenders an unconditional apology for having filed
the Suit without taking permission of this Court. In this context, it would be
necessary to reproduce the Order passed by the learned Judge of the City
Civil Court to understand the reasons for our conclusions:
“24-02-2025
Coram Dr. Shri. S.D. Tawshikar, City Civil Court, Mumbai.
(C.R.08) Matter pertains to C.R. No.09 NOB TOB By praecipe
taken on board (Exh.5) Exh.1 Plaint. Exh.2 Vakalatnama. Exh.3
Address Memo. Exh.4 List of documents. Adv. S.G. Mahamuni
for plaintiff present. He tendered draft Notice of Motion. O-
Leave to register granted. Adv. Rahul Rathod for defendant
No.1/ MCGM present. Adv. Sneha Bhange for defendant
No.2/MHADA present. Heard Mr. Mahamuni Ld. Adv. for
plaintiff. He apprehends demolition action against the suit
premises at the hands of defendant No.1/. Ld. Adv. for
defendant No.1 is present. He seeks time to file reply. Ld. Adv.
for defendant No.2 MHADA is present. She too seeks time to file
reply. Mr. Mahamuni took this Court through all the documents
annexed with the plaint. It transpires that, the suit premises i.e.
Samaj Mandir is constructed on the land of plaintiff trust
through MHADA by using funds made available by Government
of Maharashtra. The impugned speaking order dated
11.02.2025 reveals the main objection of MCGM is about not
seeking prior permission of MCGM before raising construction.
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However Mr. Mahamuni points out letter dated 10.02.2024
issued by Assistant Commissioner N Ward of MCGM address to
MHADA explaining inability of MCGM to issue NOC to carry out
construction on the suit premises. It is the stand of the MCGM
that, the NOC needs to be taken from the owner of plot or
competent authority. It further appears that, a long drown
procedure was followed before carrying out the construction
work, MCGM prima facie seems to be aware about the same.
Therefore, the suit structure per se cannot be said to be illegal.
Hence, it needs to be protected till filing reply by
defendant/MCGM. Hence, I pass ad-interim order as under In
view of the above, the defendant No.1/MCGM is hereby
temporarily restrained from taking action against the suit
premises based on the speaking order dated 11.02.2025 till
further order. Issue writ of summons as per rules. Matter
adjourned for filing reply to NM to 28.02.2025. I/c Judge.”
12.2) A mere perusal of the Order would reveal that Respondent
No.3’s Advocate had not pointed out that, the Writ Petition is filed in this
Court regarding same illegal structure and the reply to the Petition filed by
the BMC, to the learned Judge of City Civil Court. According to us, if the
Order had incorrectly recorded or not recorded a fact, plea or conduct that
transpired, it ought to have been brought to the attention of the Court,
while the matter was still fresh, to correct the record. We can only accept
the Order as it reads and cannot imply or accept contentions raised across
the bar that are not recorded in the Order. We are bound to accept the
wordings of the Order as recorded, as they are conclusive and
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unquestionable. Our view gets support from the decision of Supreme Court
in the case of State of Maharashtra vs Ramdas Shrinivas Nayak and Anr.
reported in (1982) 2 SCC 463, which enumerates as under:-
“4. …… Matters of judicial record are unquestionable. They are
not open to doubt. Judges cannot be dragged into the arena.
Judgments cannot be treated as mere counters in the game of
litigation. We are bound to accept the statement of the judges
recorded in their judgement, as to what transpired in court. We
cannot allow the statement of judges to be contradicted by
statements at the Bar or by affidavit and other evidence. If the
judges say in their judgement that something was done, said or
admitted before them, that has to be the last word on the
subject. The principal is well- settled that the statements of fact
as to what transpired at the hearing, recorded in the judgement
of the court, are conclusive of the fact so stated and no one can
contradict such statements by affidavit or other evidence. If a
party things that the happenings in court have been wrongly
recorded in a judgment, it is incumbent upon the party, while
the matter is still fresh in the minds of the Judges, to call the
attention of the very Judges who have made the record to the
fact that the statement made with regard to his conduct was a
statement that had been made in error. That is the only way to
have their record corrected. If no such step is taken, the matter
must necessarily end there.
13) The Order is self-explanatory. We are unable to accept that, Mr.
Mahamuni has pointed out about the High Court being seized of the same
subject matter. We also cannot accept that he mentioned about the BMC’s
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sns 16-oswp-2174-2024-J (F) .docstand in the Petition as alleged or the bar under Section 515A of BMC Act
or the judgments upholding the constitutional validity of Section 515A of
BMC Act and the jurisdiction of City Civil Court to entertain the suit as
filed. The BMC’s Advocate too has failed to point out all of the above which
would have assisted the learned Judge to arrive at a correct conclusion.
Evidently, the learned Judge was unaware of the law and the Judgments of
this Court regarding bar under Section 515A of the BMC Act and the
decision of this Court upholding its Constitutional validity.
14) In the case of Abdul Razzaq Sunesra vs Municipal Corporation
of Greater Mumbai and others reported in 2013 SCC OnLine Bom 832,
Dr. Chandrachud, in paragraphs Nos. 11,17,19 observed that:
“11. Ordinarily a Civil Court under the provisions of section 9
of the Code of Civil Procedure, 1908, shall have the jurisdiction
to try all suits of a civil nature excepting suits of which
cognizance is either expressly or impliedly barred. The
conferment of jurisdiction on Civil Courts to try suits of a civil
nature is, therefore, subject to a law which may be enacted by
the competent legislature either expressly barring the
jurisdiction or impliedly taking away the jurisdiction of the
Court. There is nothing uncommon, as a first principle of law,
in a competent legislature barring the jurisdiction of a Civil
Court to entertain a civil suit of a specified nature. The
legislature in the State of Maharashtra has introduced section
515-A to exclude the jurisdiction of the Civil Court in matters
involving demolition of unauthorized constructions in order to
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sns 16-oswp-2174-2024-J (F) .doctaking of steps against illegal structures and constructions due
to the pendency of suits before the Civil Courts. The legislature
was entitled to take cognizance of these delays and to enact a
suitable statutory provision. In the judgment in Dhulabhai etc.
v. State of M.P., 1969 Mh.L.J. (S.C.) 1 : AIR 1969 SC 78, the
Supreme Court summarized the principles of law governing the
interpretation of finality clauses and statutory provisions
ousting the jurisdiction of Civil Courts. In regard to the express
bar of jurisdiction, the principle enunciated in the judgment of
the Supreme Court is as follows:
“35(2). Where there is an express bar of the jurisdiction of the
Court, an examination of the scheme of the particular Act to
find the adequacy or the sufficiency of the remedies provided
may be relevant but is not decisive to sustain the jurisdiction of
the Civil Court.
Where there is no express exclusion the examination of the
remedies and the scheme of the particular Act to find out the
intendment becomes necessary and the result of the inquiry
may be decisive. In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the
determination of the right or liability and further lays down
that all questions about the said right and liability shall be
determined by the Tribunals so constituted, and whether
remedies normally associated with actions in Civil Courts are
prescribed by the said statute or not.
17. The State of Maharashtra and more particularly its urban
areas are plagued by a menace of unauthorized constructions.
The object of introducing section 515-A was to ensure that
recourse to civil remedies is not utilized with a view to abuse
the process as would generally result when those responsible
for unauthorized constructions use every possible means to18/32
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once a stay is obtained. In this background, the legislative
provision cannot be regarded as being arbitrary.
19. Having regard to these well settled principles, it is not
possible to accede to the submission that the bar of jurisdiction
which has been enacted by section 515-A of Mumbai Municipal
Corporation Act, 1888, as amended, is arbitrary or
unconstitutional. The provisions of sections 351 and 354-A
contain adequate safeguards, both procedural and substantive,
to ensure due notice, an opportunity to represent, the
consideration of the cause shown and an application of mind to
relevant and germane circumstances. A reasoned order must be
passed. The legislature was, in our view, acting in the public
interest in ensuring that the urgent need of taking expeditious
action against unauthorized constructions does not get lost in a
maze of dilatory remedies in Civil Courts.”
15) Subsequently, in the case of Abdul Karim Ahmed Mansoori V/s.
Municipal Corporation of Greater Mumbai reported in (2014) (1) Mh. L.J.
227 the division bench in paragraph 10 has clarified the duty of the Court
which is quoted herein below for ready reference:
“10. At this stage, we must take note of the apprehension
expressed by Mr. Sakhare, learned Senior Counsel appearing for
the Municipal Corporation. His submission is that if this process
is permitted in all matters, parties like the Petitioner would
request the Civil Court to brush aside the bar under Section
515A or would not take any note of it. We do not think that the
Civil Court would be influenced by our order and clarification
given today to this extent and as apprehended by Mr. Sakhare.
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In every individual case depending upon the pleadings, the
issue of jurisdiction would have to be decided by the Civil
Court. The applicability of Section 515A and the issue of
jurisdiction must be, therefore, gone into, dealt with and
decided in each case depending on the pleas raised by parties.
The law is well settled inasmuch as the learned Judge will have
to decide the issue of jurisdiction by considering the averments
in the plaint. If the averments in the plaint do not make out any
case which would enable the Court to apply the legal principles
set out above, he would then apply the provision in question,
namely, Section 515A and return a appropriate finding on the
point of jurisdiction depending on the materials placed before
him. It is not as if by our clarification and enabling parties to
file a Civil Suit, that we have observed that the bar should be
ignored or should not be taken note of. The Civil Court is
obliged to take note of the provision and the statutory bar
whenever that plea is raised by the Corporation before it. In
such circumstances, no further clarification is needed. All that
we state and observe is that we have not expressed any opinion
on the rival contentions including on the point of jurisdiction of
the Civil Court in this matter. Even if the Petitioner seeks to
revive the Suit as it is still pending and seek interim relief
therein, the Corporation can raise the plea of jurisdiction and
the learned Judge should consider and decide in accordance
with law.”
16) Therefore, in our view, when a Civil Court receives a plaint and
an application for interim relief–such as a stay or status quo order–
challenging notices issued by the Municipal Corporation under Sections 351
or 354 of the BMC Act, or under similar provisions ( pari materia) of the
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Maharashtra Municipal Corporations Act, 1949 it must first determine
whether the parties have exhausted the statutory remedies available to
them. This includes pursuing the appropriate mechanisms for grievance
redressal before seeking judicial intervention.
17) The Trial Court must also address the issue of jurisdiction by
examining the averments in the plaint. If these do not warrant the
application of the legal principles in question, then provisions analogous to
Section 515A of the BMC Act or Section 433A of the MMC Act, 1949, must
be considered. Importantly, the Civil Court is duty-bound to take
cognizance of the statutory provisions and any legal bar–whether or not
such an objection is raised by any party thereto. Finally, the Civil Court
must keep in mind the principles of law enumerated by the Division Bench
of this Court in the case of Abdul Razzaq Sunesra (supra).
18) We find that, both the Respondent No.3 and the concerned
Authorities namely MHADA and BMC were responsible for these illegal
constructions. Yet again the Officers of BMC have failed to inform and
instruct their Advocates to point out the correct facts and the law.
Suppression of material facts and the law from the Court has led to the City
Civil Court passing Orders, overreaching the Orders of the High Court. This
is unacceptable and will not be tolerated.
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bounden duty to bring out the true and correct facts before the Court and
not to mislead the Court into passing erroneous Orders. According to us,
the Advocate for Respondent No.3 is clearly at fault of suppression of
material facts and has mislead the Civil Court to procure an Order of
injunction in favour of his clients, the Respondent No.3-Trust herein, behind
the back of the High Court though the High Court was seized of the matter
as noted earlier.
19.1) We are unable to accept the unconditional apology tendered by
Mr. Mahamuni. Affidavits are only like lip service. There is a growing trend
of filing such Suits and obtaining injunctions on notices by suppressing
material facts and law. This vindicates the apprehension expressed by the
counsel for BMC in the case of Abdul Karim Ahmed Mansoori (supra) in
paragraph No.10 as mentioned hereinabove. We see an urgent need to stem
this. We therefore refer his case to the Bar Council of Maharashtra and Goa
to take necessary action for professional misconduct against Mr. Mahamuni
as per Section 35 of Advocates Act, 1961.
20) We find that this is a gross case of illegal and unauthorised
construction. The Respondent No.3 has failed to produce any documentary
evidence to prove that the earlier structure demolished was an authorized
structure in the first place. We have in the case of High Court on its Own
Motion V/s. State of Maharashtra, Through Principal Secretary and Others ,
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reported in 2024 SCC OnLine Bom 918, held that, a party cannot claim to
be entitled to construct without due permissions from the concerned
Authorities and have rejected the contentions that, if they are owners of
their land they can construct without seeking permissions.
21) This is a clear case where the purported trustees of the Trust
have used their influence with the MP and the local Authorities to construct
an illegal structure with public funds. It is extremely fortunate that the
public funds so sanctioned for the construction have not been disbursed to
the contractor. In our view MSIB was wrong in even granting the work
Order to the contractor without having verified the sanctions and
permissions granted for such construction. The MHADA is a Planning
Authority and it cannot shrug off its responsibility and permit illegal
construction or at least to ensure that the structure for which they had
sanctioned funds was indeed authorized with sanctioned plans by the
concerned Authorities.
22) The Affidavit of MSIB is also a sad story. MHADA cannot be
seen to be passing the buck onto BMC by simply stating that, they did what
they were asked to do. It is the duty of MHADA to see that the construction
was an authorized construction in the least. The sanctioning of funds by
MHADA certainly gives an impression, as it did to the BMC and all
concerned, that the structure was indeed an authorized structure. MHADA
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has even failed to check whether the construction was being carried out on
BMC land or private land. According to us, public funds could be spent for
public purposes on public land and not lands owned by private entities.
23) We are also unable to accept the stand of the BMC. We cannot
understand how the BMC, who is being forewarned and informed through
various communications that, there is illegal construction going on a land
that is reserved for a playground under the DCPR 2034 permit the
construction being completed by Respondent No.3-Trust.
24) In Rajendra Kumar Barjatya and another vs U.P. Avas Evam
Vikas Parishad & Others reported in 2024 SCC OnLine SC 3767 in
paragraph 20 this Court has held:
“20. In the ultimate analysis, we are of the opinion that
construction(s) put up in violation of or deviation from the
building plan approved by the local authority and the
constructions which are audaciously put up without any
building planning approval, cannot be encouraged. Each and
every construction must be made scrupulously following and
strictly adhering to the Rules. In the event of any violation
being brought to the notice of the Courts, it has to be curtailed
with iron hands and any lenience afforded to them would
amount to showing misplaced sympathy. Delay in directing
rectification of illegalities, administrative failure, regulatory
inefficiency, cost of construction and investment, negligence
and laxity on the part of the authorities concerned in
performing their obligation(s) under the Act, cannot be used as
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a shield to defend action taken against the illegal/unauthorized
constructions. That apart, the State Governments often seek to
enrich themselves through the process of regularisation by
condoning/ratifying the violations and illegalities. The State is
unmindful that this gain is insignificant compared to the long-
term damage it causes to the orderly urban development and
irreversible adverse impact on the environment. Hence,
regularization schemes must be brought out only in exceptional
circumstances and as a onetime measure for residential houses
after a detailed survey and considering the nature of land,
fertility, usage, impact on the environment, availability and
distribution of resources, proximity to water bodies/rivers and
larger public interest. Unauthorised constructions, apart from
posing a threat to the life of the occupants and the citizens
living nearby, also have an effect on resources like electricity,
ground water and access to roads, which are primarily designed
to be made available in orderly development and authorized
activities. Master plan or the zonal development cannot be just
individual centric but also must be devised keeping in mind the
larger interest of the public and the environment. Unless the
administration is streamlined and the persons entrusted with
the implementation of the act are held accountable for their
failure in performing statutory obligations, violations of this
nature would go unchecked and become more rampant. If the
officials are let scot-free, they will be emboldened and would
continue to turn a nelson’s eye to all the illegalities resulting in
derailment of all planned projects and pollution, disorderly
traffic, security risks, etc.”
25) According to us, the BMC ought to have sprung into action
immediately upon receiving on such a complaint and not waited for several
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months to take appropriate action. We find the inaction clearly as
dereliction of duty on the part of the BMC Officers.
The questions that arise in our mind are:-
(1) How, since 1994, illegal construction was permitted and tolerated,
which officers were involved and why no action was taken?
(2) Why no action was initiated, when due to the illegal construction the
debris blocked the sewerage lines and waste water started oozing out
on the road?
(3) Why no steps were taken since 27th February 2024 when MHADA
called upon BMC to handover plot by removing illegal construction?
(4) What steps were taken by BMC to verify the declarations made in
Respondent Nos.3’s application dated 25th January 2024?
(5) Why no action should be taken against Mr. Prakash Gole (Shops &
Establishment) Department who has abused his position in the BMC?
25.1) An oral unconditional apology tendered by Mr. Chavan for the
concerned officers is rejected because it appears only to be a lip service. We
expect that the Municipal Commissioner to take action against all
concerned officers for abuse of their post and misrepresentation before
Court. He being a public servant ought to have known the law and the bar
under Section 515A of BMC Act. The BMC is duty bound to protect the
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public lands, to protect the rights of citizens under the statute and the
implementation of the statutes in its true letter and spirit. The BMC ought
to have verified the permissions obtained by the Respondent No.3-Trust
even before the construction was started. It ought to have checked its
record whether or not any notice was issued by Respondent No.3 to the
BMC for such a construction as per the provisions of the BMC Act. We find
that, the provisions of the BMC Act, to permit construction, are not
complied with in most cases and the persons are permitted, by BMC’s sheer
inaction, to start and complete construction of the illegal/unauthorised
structure in the State and particularly in Mumbai.
26) The communications from either public or law-abiding citizens
as such are completely ignored by the BMCs Officers. This frustrates the
law-abiding citizens who are conscious of the illegalities being committed
around them and are trying to prevent them. The Officers of the BMC are
duty bound and must respond to the communications received from a
citizen of this country. Their officer ought to acknowledge complainants and
inform them through any electronic form i.e. by SMS, WhatsApp or email
about the actions taken, so as to keep them abreast. This is sheer courtesy
that is expected from a public officer. It would be sheer dereliction of their
duties if they failed to communicate by either electronic media or in writing
to the complainant the action initiated by them. It is possible that, the BMC
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do not have sufficient staff to overlook every square foot of their
jurisdiction. It is therefore extremely necessary for them to be vigilant and
take due cognizance of the complaints received through public
participation and thereby stem the growth of illegal construction which are
plaguing the city since decades.
27) As observed by us in our previous Orders these illegal
constructions completely jeopardize the planned development of the city
and drain the existing resources. We find that the law-abiding citizens who
have authorized structures are faced with several difficulties and shortages
since the resources are being shared by these illegal constructions.
According to us once an action is initiated by the BMC through its Officers,
these Officers must communicate the action to their Advocates immediately.
We are unable to accept that, in this digital era the BMC’s Officers are
unable to communicate with their Advocates for giving instructions well in
time. We therefore are unable to accept the apologies or excuses for not
having been able to give instructions to their Advocates. This inaction only
leads us to believe that the Officers themselves have interests in permitting
illegal constructions for reasons best known to them only. We do not find
any logical reason for the Officer not being able to telephonically instruct
the Advocate appearing in the matter to oppose the grant of an injunction,
allowing the BMC Authorities to demolish the construction. In most cases
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these injunctions remain in force on account of the huge backlog which the
Courts are burdened with. As a result the illegalities perpetuate. Despite
there being settled law and statutory provisions which are entirely
unambiguous.
28) In view of the above deliberation we direct that:-
28.1) We do not find fault with the recently appointed Advocate Shri
Rahul Rathod who appeared for the BMC before the Bombay City Civil
Court. We accept the explanation tendered by him on Affidavit, however,
we simply caution him to be updated with the law.
28.2) The concerned Officers Mr. Dnyaneshwar Ukirde, Mr. Gajanan
V. Bellale and Mr. Wagh of the BMC too are responsible for dereliction of
their duty. Mr. Ukirde the Assistance Engineer (Maintenance) being the
affiant of the BMC’s reply dated 29 th July 2024 was aware of the entire
matter. So also Mr. Bellale, Assistance Commissioner, the affiant of Affidavit
dated 28th February 2025. Each of them were and are duty bound to ensure
and inform the BMC’s Advocate, that the Writ Petition on the same subject
matter and the issue between the same parties is pending before the High
Court. By withholding true facts from their Advocate, they have attempted
to overreach this Court and thereby undermining the dignity of this Court.
According to us the Municipal Commissioner of Respondent No.2 must take
appropriate action against each of the Officers in accordance with
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prevailing laws including action under Section 64C of the BMC Act
immediately.
28.3) The CEO of MHADA must initiate an enquiry in this matter and
take appropriate action against all such persons responsible for granting
this work Order dated 21st February 2024.
29) In view of the above, we pass the following order:
(i) Petition is made absolute in terms of prayer clauses
(a), (b) and (c).
(ii) We direct the Respondent No.2 to demolish the illegal
construction carried out by Respondent No.3 within a
period of one week from the date of uploading of the
present Order on the official website of the High Court of
Bombay. We also direct the Respondent No.2 to retain
this writ plot as an open space as per the Reservation
under DCPR 2034 and not to permit any construction on
the writ plot.
(iii) We call upon the Municipal Commissioner of BMC to take
appropriate action against the erring Officers including
Mr. Prakash Kondiba Gole in accordance with prevailing
laws including action under Section 64C of the BMC Act
and file a compliance report in this Court within a period
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Order on the official website of the High Court of
Bombay and explain what action has been taken.
(iv) We also call upon the CEO MHADA to initiate an inquiry
against the concerned Officers for having
permitted/sanctioning approval of Public Funds for
illegal construction against the erring Officers and file a
compliance Affidavit in this court within a period of six
months.
(v) We direct the Bar Council of Maharashtra and Goa to
initiate necessary action against Mr. Mahamuni under
Section 35 of the Advocates Act, 1961.
(vi) We also direct the BMC to look into the complaints made
by Respondent No.3 against the Petitioners having
carried out illegal constructions and take necessary
action and file a compliance report within six months
from the date of uploading this Order on the official
website of High Court, Mumbai.
(vii) The Petition is accordingly allowed in the above terms
with no Order as to costs.
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appearing for the Petitioner informed us that on 18 th March, 2025 as per
statement made before this Court, the officers of BMC in fact attempted to
demolish the unauthorized writ structure. However, since it was resisted by
the members of Respondent No.3 therefore it could not be demolished.
30.1) We are unable to accept such a situation. According to us the
concerned officers of BMC ought to have sought necessary police assistance
to perform their lawful duty as per Section 522 of the BMC Act
31) As we have now pronounced the Judgment, it is imperative for
the Authorities of the BMC to comply with our Judgment within the
stipulated period. In view of the Affidavit filed by Mr. Prakash Kondiba Gole
dated 11th March, 2025 we permit Respondent No.3 to withdraw the Suit
that is now before us. The Suit is accordingly disposed off.
32) We direct the Registrar of City Civil Court, Mumbai to
incorporate necessary entry in the Register of Disposal after notifying our
directions to the concerned learned Single Judge seized of the said Suit.
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