Repair Permissions From BMC Do Not Prove Legality Of Structure: Bombay High Court Refuses Relief Against Demolition

 In our view, the repair permissions granted by the BMC, would not by itself, conclusively prove that a structure existed prior to the datum line. Any permission/s granted by the BMC either for alteration or modification a structure, though it may carry a presumption regarding the existence of such structure, cannot conclusively establish that the structure existed prior to the datum line unless the same is independently substantiated by supporting documents. In our view, such a permission granted would only show the abysmal state of BMC affairs. The BMC could not have granted any such permission without ascertaining the legality of the said structure. {Para 16}

17) In our considered view, the concerned Officers who gave such permissions are responsible and the cause of these rampant illegalities in the State. It is imperative for the Officers of the BMC to check as to whether the structure is authorized before granting any such repair permission. The failure per se cannot inure to the benefit of the wrongdoer. A permission to repair a structure, given subsequent to the datum line, cannot prove either its existence prior to datum line or it being authorised. In our view, granting reliefs to the Petitioners would only encourage the public perception that one can construct illegally and regularise the same by obtaining such permissions subsequently. It would render the entire object of the legislature to have a planned development and having the Municipal Act nugatory and otiose resulting in illegalities being confirmed and ratified by subsequent repair permissions.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.3448 OF 2023

 Siesta Industrial & Trading Corporation,  V/s. The Municipal Corporation of  Greater Mumbai, 

CORAM : A. S. GADKARI AND KAMAL KHATA, JJ.

PRONOUNCED ON : 29th April, 2026.

Judgment (Per : Kamal Khata, J) :-

Citation: 2026:BHC-OS:11078-DB

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Can a trespasser claim that their construction is authorized if they have performed construction after obtaining permission?

Further this Court in the case of Mr. G.S.J. Shapoorjee v. Allahabad Development Authority & Ors., 2016 11 ADJ 524 has held in paragraph 45, 46, 56, 57 and 58 as under:-

45. ........Mere fact that map was sanctioned and thereafter constructions were raised, would make no difference for the reason that all transactions were void ab initio. The petitioners had no right over land, they were unauthorised occupants, hence question of making construction by getting a map sanctioned by ADA does not arise at all. Any act of ADA would not create any legal right in favour of petitioners which otherwise they also do not possess.

46....... A trespasser is not entitled to get sanction and raise constructions on a land over which it has no right,so as to create right over land. The entire things are illegal and void ab initio. {Para 41}

 ALLAHABAD HIGH COURT

Case :- WRIT - C No. - 6183 of 2016

 D.B. Kauser Vs  State Of U.P. And 4 Others

Coram: Hon'ble Kshitij Shailendra,J.

Delivered on 10.05.2023.

Neutral Citation No.-2023:AHC:102783.

Read full Judgment here: Click here

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Whether unauthorized construction of a person is compounded if offence as per Compounding Byelaws is compounded?

The Act of 1973 does not contain any provision for compounding of constructions. However, there is a provision for composition of offences under Section 32 of the Act 1973 which reads as follows:-

“32. Composition of Offences.- (1) Any offence made punishable by or under this Act may either before or after the institution of proceedings, be compounded-by ¹[the Vice-Chairman (or any officer authorised by him in that behalf by General or Special order)] on such terms, including any terms as regards payment of a composition fee, as ²[the Vice-Chairman] (or such officer) may think fit.

(2) Where an offence has been compounded, the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of the offence compounded.” {Para 24}

27. Therefore, the offences which can be compounded are the offences of prosecution/fine and there is no provision, under which, unauthorized constructions can be compounded at least under the Act. However, at the same time, the effect of Compounding Bye-laws would also be examined but one thing is clear that even in the Bye-laws of 2009 relied upon by the Development Authority as quoted hereinabove, the word “constructions” has not been mentioned, rather the word “अपराध ” (“offence”) has been used, meaning thereby, that even the Bye-laws speak of composition of “offences” and not compounding of “constructions”.

28. This Court finds that there is no provision under the Act, 1973 which entitles the Authority to go for profiteering on an illegal act of encroachment or unauthorized construction in the name of compounding. The compounding contemplated in Section 32 is certainly in respect to offences punishable under the Act. It nowhere provides that once an offence is compounded, an act, which is in violation of Plan, shall also stand regularized or become valid. The effect of compounding is provided in Sub-section (2) of Section 32 that an offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect to the "offence" compounded. This is with regard to the criminal liability fastened upon the person for committing an offence under the Act, 1973. But the prohibition contained in the Act and statutory obligation upon Authorities to set right a person who has faulted/breached such provision by taking appropriate action, e.g. demolition of building by exercising power under Section 27 has not been made un-operated when an offence is compounded. The proceeding prevented as a result of compounding an "offence" relates to offence and illegality/irregularity so prohibited/controlled under another provision. It may also be noticed that by U.P. Act No. 3 of 1997 (hereinafter referred to as "Act, 1997"), certain other offences have been provided vide Sections 26D and 28A. However, removal of any construction raised in contravention of Plan and removal of encroachment etc. are governed by a different procedure and steps which would remain uneffected by such compounding. In other words, the compounding under the Act, 1973 is to avoid the criminal liability and punishment on conviction but not to regularize a construction prohibited under the Act for which no relaxation is permissible except when the plan is amended in accordance with Section 13 of the Act.

56. There is another contention that since compounding charges have been paid and therefore, construction whatsoever raised by petitioners must be taken to be valid construction, also has no force for the same reason that petitioners have no right over the land at all. Even otherwise, we are of the view that unauthorized construction would not stand regularized on payment of compounding charges, since concept of compounding charges is not to regularize unauthorized construction but to compound an offence so that otherwise punishment in the Court of law in a trial may not be inflicted.

 ALLAHABAD HIGH COURT

Case :- WRIT - C No. - 6183 of 2016

 D.B. Kauser Vs  State Of U.P. And 4 Others

Coram: Hon'ble Kshitij Shailendra,J.

Delivered on 10.05.2023.

Neutral Citation No.-2023:AHC:102783

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Can a court pass disadvantageous order against the appellant's interest beyond their prayers and pleadings in an appeal?

 However, it appears that in the appeal filed by the Petitioner, the Appellate Authority has directed to evict the Appellant from the premises allotted to her. The direction to evict the Appellant from the premises allotted to her cannot be allowed to sustain for the simple reason that, in an appeal filed by the Petitioner, no disadvantageous order to his interest beyond the prayers and pleading in the appeal can be allowed. Therefore, this Court is of the opinion that the direction of the Competent Authority as confirmed by the Appellate Authority by the impugned judgment and order dated 15th November, 2011 to evict the Appellant from the premises allotted to her, deserves to be interfered with and the same is quashed and set aside. However, the rest of the impugned judgment and order dismissing the appeal.

16. However, if the Authorities feel it appropriate in accordance with the relevant provisions to initiate proceeding against the Petitioner to evict the Petitioner from the premises allotted to her for breach of Rules and Regulations, in that case, the Authorities would be free to initiate separate proceeding and merely because in this petition this Court has quashed and set aside the direction of the Appellate Authority to evict the Appellant from the premises allotted to her, is no impediment to initiate such action. It is merely because no disadvantageous order can be passed in an appeal filed by the Petitioner beyond the prayers and pleadings, this Court has set aside the direction of the Appellate Authority to evict the Appellant from the premises allotted to her. In light of the above, the writ petition is allowed to above extent.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9149 of 2011

Decided On: 10.09.2013

 Vachalabai Haribhau Lingayat  Vs. Estate Manager, Aurangabad

Hon'ble Judges/Coram:

Sambhaji Shiwaji Shinde, J.

Citation: 2014(2) MHLJ 190,MANU/MH/1442/2013

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Whether a person can claim that his construction is authorized as per deemed permission if his construction is on open space?

 Deemed permission to an application under section 44 of  MRTP Act can apply only to cases where permission is otherwise capable of sanctioned in law.

    The provision that the permission shall be deemed to have been granted within a period of 60 days from the date of receipt of the application if the Planning Authority does not communicate its decision whether to grant or refuse permission can apply only to cases where the permission is otherwise capable of being sanctioned in law. If an application cannot be sanctioned, it certainly cannot be said that it is capable of a deemed sanction. In the present case, it is clear that no permission for development could have been granted by the Planning Authority since the site in question was not buildable at all being reserved as an open space for extension of Maharajbagh.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Public Interest Litigation No. 34 of 2010 & Writ Petition No. 125 of 2011

Decided On: 21.10.2011

The Court on its own motion and Ors. Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.A. Bobde & M.N. Gilani, JJ.

Author: S.A. Bobde, J.

Citation : 2012 (1)MhLj 232

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How to ascertain whether a person was doing minor repairs or unauthorized construction?

  In the plaint the appellant has admitted that he

was carrying out minor repairs and renovations. For

ascertaining whether what was being constructed by the

respondent was within ambit of Section 254 of the B.P.M.C.

Act or not, the appellant ought to have given details as to

what she was doing and what she meant by minor repairs and

renovations. If the repairs and renovations which she has

carried out are covered by Section 254 of the B.P.M.C. Act,

in that case the appellant ought to have given notice to the

Commissioner of her intention to make repairs or additions

etc. Admittedly, no such notice was given. It is also not

case that any plan, structural drawing etc. were submitted as

per Section 255 of the B.P.M.C. Act. Even in oral evidence

that is led by the appellant, nowhere it is explained what

‘repairs & renovations’ she was carrying out to make house

habitable and proper. In fact, the examination in chief is

nothing but almost copy of the plaint in the form of

affidavit. So, on the material before this Court and in

absence of any details, it cannot be said that the repairs or

renovations which the appellant was carrying out was not

covered by Section 254 of the B.P.M.C. Act. {Para 5}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO. 427 OF 2005

Ashabai Murlidhar Karpe Vs The Municipal Corporation of Aurangabad, 

CORAM : P.R. BORKAR,J.

DATED : 30.06.2009.

Read full Judgment here: Click here

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What is duty of municipal commissioner if he issues notice for removal of unauthorized construction?

A perusal of the impugned notice shows that respondent No. 1 has not dealt with the explanation of the petitioner and has rejected the same with a cryptic observation that the same is not satisfactory and "it may not be considered". In the opinion of this Court, the very purpose of issuing a notice under Section 452(1) of the Act is to give an opportunity for a person, who has constructed the building in an illegal or unauthorised manner, to submit his explanation. It is, therefore, obligatory on the part of respondent No. 1 to consider the explanation. If satisfactory explanation is offered by the owner of the building, respondent No. 1 shall drop further proceedings. It is only in cases where such explanation is not offered, respondent No. 1 is not entitled to proceed further. Unless the Commissioner refers to the contents of the explanation and gives reasons for coming to the conclusion that the explanation is not satisfactory, he cannot proceed with further action and issue notice under Section 636 of the Act. Failure to deal with the explanation renders the very purpose of issuing notice nugatory.{Para 7}

8. As noted above, the Commissioner failed to deal with the plea of the petitioner raised in the explanation that the additions or alterations or repairs effected by him do not fall under Section 433 of the Act. The Commissioner, therefore, ought to have referred to the nature of the structure raised by the petitioner in comparison with the pre-existing structure and given his reasons for his satisfaction that construction made by the petitioner falls under Section 433 of the Act warranting action under Sections 452(1) and 636 of the Act. As the Commissioner failed to give any such reasons, the impugned notice cannot be sustained in law and the same is accordingly set aside.

 IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

Writ Petition No 18839 of 2011,

Poonamchand and Ors.  Vs.  Greater Hyderabad Municipal Corporation and Ors.

Hon'ble Judges/Coram:

Hon'ble Sri Justice C.V. Nagarjuna Reddy

Decided On: 19.09.2011

Citation: MANU/AP/0712/2011

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Can Municipal corporation refuse to remove unauthorized construction on a public road if it is a religious structure?

 As noted above, once the Apex Court had way back in the year 2009 directed that no such unauthorized construction would be

permitted by any of the States or the UTs, in the name of any temples, church, mosque etc., it was incumbent upon the respondents to ensure that these directions of the Apex Court are meticulously complied with. In my view, in the light of these directions issued by the Apex Court way back in 2009 and lastly in 2018, the respondents could not have been permitted to carry out any unauthorized constructions on any public land. The encroachment in question which has taken place only on account of the utter negligence on the part of respondent no. 1, is clearly in blatant violation of the specific directions issued by the Supreme Court. In the light of these facts, the respondents cannot be permitted to take the plea that the matter still needs to be referred to the religious committee for its approval. From a perusal of the report of the concerned SHO noted hereinabove, it is crystal clear that the aforesaid unauthorized platform is not really being used as a religious structure as neither any prayers are being held there nor any offerings being made nor is any priest available at the site.”

5. As this Court reads the Circular of 05 May 2014 as well as the

observations entered in W.P.(C) 10949/2021, it is manifest that the state respondents remain duty bound to remove all unauthorised constructions which may exist on public land. The mere fact that those encroachments represent religious structures, a place of worship or are given the colour of a religious structure cannot possibly detract or dilute from that obligation. This position also stands duly explained and enunciated by the Supreme Court in its two orders which were noticed by the learned Judge in W.P.(C) 10949/2021. On a conjoint reading of the Circular as well as the decision in W.P.(C) 10949/2021, it is evident that all that the Circular intends to achieve is to ensure that the removal of encroachments is conducted in a structured manner and untoward incidents or a law and order situation being created avoided. The contents of that Circular also cannot be read as tempering the primal obligation of the respondents, namely to remove all unauthorised constructions, religious or otherwise.

IN THE HIGH COURT OF DELHI AT NEW DELHI

 W.P.(C) 12715/2021

KINGS FURNISHING AND SAFE CO Vs THE COMMISSIONER & ORS.

CORAM:

HON'BLE MR. JUSTICE YASHWANT VARMA

Dated: 14.03.2022

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Whether Municipal Corporation can reject application for regularization of Gunthewari without following proper procedure?

 It is seen from the impugned order that application of the petitioners for regularization of their plot bearing Nos.89 to 94 falling in Khasra No.254/4, Mouza Zingabai Takali, Nagpur located in Progressive Co-operative Housing Society having refused to be regularized under the Maharashtra Gunthewari (Regularization, Upgradation and Control) Act, 2001 by the impugned order dated 01.01.2020. The only ground taken in the impugned order is that the plots in question have been shown as lying within the open space in the approved layout plan and that these plots are not forming part of any approved layout plans. Section 3 of the Maharashtra Gunthewari (Regularization, Upgradation and Control) Act lists out the grounds on which Gunthewari Development can be disallowed. According to the learned counsel for the respondents, the contingencies envisaged in second proviso (e) to section 3(1) of the said Act are applicable to the case of the petitioners. These contingencies, relate to the circumstances when in the opinion of the Planning Authority, such regularization is not in the public interest or because of the matter being sub-judice or same being barred by some Court’s decision or order. These grounds do not form any part of the impugned order dated 01.01.2020. Therefore, even though these grounds have been stated in the reply filed on behalf of the respondents cannot be looked into to support the impugned order, as held in the case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and ors. Reported in (1978) I SCC, 405. Besides, it appears that no opportunity of hearing has been granted to the petitioners which ought to have been granted in such cases.

Bombay High Court

JUSTICE SUNIL B. SHUKRE JUSTICE AVINASH G. GHAROTE

Smt. Samsunnissa Wd/o Mohd Ismail Pathan & Ors. Vs. Nagpur Municipal Corporation & Anr.

WRIT PETITION NO. 1386 OF 2021

4th May 2021

Author: Sunil B.Shukre, J.

Citation: 2021 NearLaw (BombayHC Nagpur) Online 453

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Guidelines of Bombay high court for regularization of unauthorized construction

  We thus propose to dispose of the two petitions and interim applications therein by giving certain directions which flow from the discussion and the conclusions reached by us hereinabove.{Para 18}

19. It is thus directed that the tentative offers for regularisation in the 128 cases (111 cases where regularisation is proposed and 19 cases where regularisation was effected prior to the grant of interim relief, excluding the 2 cases mentioned in paragraphs 4(e) and 4(d) of this judgment) are not approved and these cases will be re-considered for regularisation/retention by the Municipal Commissioner in accordance with the following directions:

(a) That the power and duty to decide the question of retention/regularisation of any unauthorised development or grant of any modification/relaxation and which is required to be decided by this grant of a special permission will not be delegated by the Municipal Commissioner to any other officer. The Commissioner may take the opinion of the concerned Engineers but the final decision must be his for reasons to be recorded in writing (however the reasons may be brief, but they will be adequate).

(b) That while deciding such a question, the Municipal Commissioner will consider all representations made by affected parties on the questions in issue including any hardship or loss caused to them, which will include the affected residents/proposed buyers, and affected residents at least in the immediate neighbourhood.

(c) That if any unauthorised development is in violation of any dimensions pertaining to F.S.I, (unless where permitted by the Development Control Regulations), as on the date of decision, the same will not be regularised;

(d) If on the date of decision, the unauthorised development is found to be in violation of any rule, regulation or law, which violation cannot be waived/ relaxed, then the said development should not be regularised. T.D.R. will not be permitted to reduce the amenities under the D.C. Regulations without adequately and fully compensating the residents/purchasers of the regular part of the structure for good reasons to be recorded in writing by the Commissioner.

(e) That the final order allowing retention must reflect application of mind as regards the "demonstrable hardship" for which the retention of an unauthorised development has been permitted;

(f) That similarly the final order allowing retention must indicate that the relaxation/concessions granted will not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood;

(g) Where a question of structural modification involving a further burdening of a structure is involved, the structural safety will be certified by a structural engineer of B.M.C., who will grant such a certificate after inspecting the premises.

(h) If there is any loss of a facility, requirement or amenity suffered by any person/persons having interest in the authorised part of any further unauthorised development of which is sought to be retained/regularised, then such loss should be assessed at the market value of the concession granted and must form an ingredient computing premium. Whenever possible this ingredient may be directed to be distributed to the persons who suffer such a loss. In addition the B.M.C. may also add to the premium any amount which may be reasonably required to be invested by it to put up additional infrastructure, if any, in or around the regularised structure. An amount of fine for violation of law should be the third ingredient of the premium. The overall premium to be levied should be sufficiently deterrent so as to discourage a tendency to violate rules and building regulations. In the future, it will be desirable that the consent of such persons who would suffer any loss of facility, requirement or amenity should be filed along with an application for retention.

20. Before we part we would like to impress upon the Commissioner that reg. 64 contains the discretionary powers and by their very nature these are powers to be sparingly exercised in specific cases where a demonstrable hardship is caused. Thus this provision is to be utilised as an exception and not by way of a rule. In normal cases the D.C. Regulations must be applied as they are. What we find here is an unfortunate phenomenon of a planned subversion of these regulations by persons who are beneficiaries thereof, 128 cases is not a small number and it clearly shows a modus operandi. Besides demonstrable hardship will normally mean a situation arising inspite of attempting to follow the regulations. If a plan of a builder is sanctioned on a certain layout for certain number of floors normally no additional floors can be permitted. This undermines the strength of the building affecting the health and safety. The Commissioner will appreciate that he represents the interests of the citizens and must function as a watchdog. He must appreciate that these departures from rules for the benefit of a few is severally undermining the quality of life in urban areas. 

Bombay High Court

Mr. Rajendra Thacker vs Municipal Corporation Of Gr. ... on 5 May, 2004

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Whether court can grant permanent injunction to restrain municipal corporation from demolishing suit house?

  Only question of law which involves is whether the relief of permanent injunction in the nature it is granted is sustainable in law. The learned trial court granted relief of permanent injunction as under:

"(iii) The defendant, its agents and servants are hereby restrained permanently from demolishing the suit house and to that effect permanent injunction is granted."

Ex-facie, in the facts and circumstances of the case, and particularly against the public authority, such relief cannot be granted. It should not have been in the nature of restraining the defendant permanently from taking steps of demolition in any circumstance. If such relief is allowed to operate, it would permanently restrain the defendant from taking steps despite the fact that the plaintiff carries out illegal alteration or construction against provisions of C.N.C. Act. In that view of the matter, the appeal will have to be allowed partly by modifying the Judgment and decree passed by the learned trial court and confirmed by the district judge as under:

Defendant, his agents, servants are permanently restrained from taking steps like demolition etc. of the suit house on the basis of the notice no.238/EPS/Z-10 dated 3.4.2002. {Para 8}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

M.N. GILANI, J.

The City Of Nagpur Municipal Corporation Vs. Shailendra Kumar

Second Appeal No.39 of 2011

15th June, 2012

Citation: 2013(1) ALL MR 850,

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When civil court has jurisdiction to try suit regarding Municipal Corporation?

 Now,   Section   433A   of   the   Maharashtra   Municipal
Corporations Act creating a bar of jurisdiction of the Civil Court,

being relevant, is reproduced below :
“433A. Bar of jurisdiction – Save as otherwise provided
in this Act, any notice issued, order passed or direction
issued  by the Designated Officer,  under  sections  260,
261, 264, 267 or 478 shall not be questioned in any suit
or other legal proceedings.”
Undoubtedly,   if   the   plaintiff   comes   before   the   Civil   Court
alleging that a notice issued under Section 260 of the said Act is
illegal in any manner and seeks a declaration to that effect, then
the bar of jurisdiction to try such a suit under Section 433A of the
said   Act   shall   operate.   However,   nonetheless,   the   inherent
jurisdiction of a Civil Court in a suit challening the notice under
Section 260 of the said Act, on the limited grounds, viz. that the
act of issuance of such notice is nullity, or that while issuing such
notice, the mandatory provisions of the said Act have not been

complied with, or that the Authority issuing such a notice has not
acted in conformity with the fundamental judicial procedure, or
that it is an abuse of exercise of power, or that the offending act
has not been done in good faith, remains intact, in view of the
aforestated law laid down in judicial pronouncement.  The Civil
Court is not precluded of its inherent jurisdiction to entertain and
decide such challenge to a notice under Section 260 of the said
Act, on such limited grounds, particularly when there is no forum
available   under   the   said   Act   to   ventilate   such   grievances   in
respect   of  it.     Hence,  the   question   of  law   at   Serial   No.(i)  is

answered accordingly {Para 7}

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Civil Revision Application No.14 of 2013
The Commissioner, Akola Municipal Corporation, Akola Vs
Bhalchandra s/o Govind Mahashabde,

Coram : R.K. Deshpande, J.

Date of Pronouncing the Judgment : 29­-4-­2013 

Citation: 2013(4) MHLJ 45 Bom HC

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