Bombay High Court
Idris Abdul Hamid Shaikh vs Bhiwandi Nizampura City Municipal ... on 8 October, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
Digitally
signed by
PRASHANT
PRASHANT VILAS RANE
VILAS
Date:
RANE 2025.10.09
11:46:21
+0530
909 WP-3830-2018.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3830 OF 2018
Idris Abdul Hamid Shaikh ...Petitioner
Vs
Bhiwandi Nizampura City Municipal
Corporation & Ors. ...Respondents
_______
Mr. Shivshankar D. Patil, for Petitioner.
Mr. Gautam Jain i/b. Mr. Manoj J. Bhatt, for Respondent Nos.1 to 4.
Mr. Dipesh V. Siroya i/b. LIM LEG TI, for Respondent No.69.
_______
CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.
DATE: 8 October 2025
P.C.
1. The petitioner claims to be the owner of the land in question described as Survey No.9, Hissa No.7P admeasuring 11.4 R. The grievance of the petitioner is in regard to illegal construction which was undertaken on the said land by respondent Nos.5, 6 and 7. The other private respondents are stated to be the occupants of such illegal construction who have also formed a society namely Gurudev Niwas Co-op. Housing Society Ltd. which is represented by learned Counsel Mr. Siroya. It appears from the record that no permission whatsoever was taken from the municipal corporation to put up the construction which is more particularly described in prayer clause (a) of the petition being Survey No.9, Hissa No.7P situated at Temghar-3, House Nos.14, 15, 16, 17, 18 and 20, Temghar, Bhiwandi, District Thane.
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2. It also appears from the record that the Bhiwandi Nizampur City Municipal Corporation (for short 'BNCMC') had resorted to take action to demolish the illegal construction. It has repeatedly attempted to take action, however, the said actions in some manner were obstructed by respondent Nos.5, 6 and 7. In regard to such cause of action, respondent Nos.5 filed a civil suit being Regular Civil Suit No.376 of 2009 against the BNCMC - the only defendant, praying for an injunction. The prayers as made in the plaint of the said suit are required to be noted which read thus:
"a) By an order and decree of permanent injunction the defendant, its servants, agents, officers, subordinates, contractors, workers or any one claiming through it may kindly be restrained from demolishing the suit house i.e. the house bearing No.14 to 18 and 20 Temghar-3 situated on the land bearing Survey No.9 Hissa No.7 paiki Temghar Kalyan Road Pipe Line Bhiwandi Dist - Thane, in any manner whatsoever and/or without following due process of law.
b) That ad-interim reliefs in terms of prayer (a) may be granted to the plaintiff.
c) Cost of this suit be granted in favour of the plaintiff.
d) Any other and further relief in the circumstances of the present case be granted in favour of the plaintiff as this Hon'ble Court may deem fit and proper."
3. However, the said suit was not pursued and the same came to be dismissed by an order dated 29 August 2015 passed by the learned 4 th Jt. Civil Judge, Jr. Division & JMFC, Bhiwandi. In pursuance of dismissal of the suit in which the said plaintiff/respondent No.5 enjoyed certain ad-interim protection and which stood vacated by dismissal of the suit, a fresh notice of demolition under Section 268 of the Maharashtra Municipal Corporations Act, 1949 , came to be issued by the municipal corporation on 5 March 2016, in regard to the said illegal construction undertaken by respondent Nos.5, 6, and 7.
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4. It appears that despite earlier suit being rejected, respondent No.5 again filed a fresh suit before the Court of Civil Judge, Junior Division, Bhiwandi, being Regular Civil Suit No.316 of 2016 and on 10 May 2016 for the same reliefs, has obtained status quo order in regard to the said illegal structure. The suit is in respect of the very same structure as seen from paragraph 1 of the plaint which reads thus:-
" The plaintiff is filing present suit for perpetual injunction against the defendant corporation praying to state as follows:
1. That the following old structure were owned by the predecessor in title Shri. Abdul Hamid Aladdin; Mauje - Temghar, Tal - Bhiwandi, Dist. Thane, within the local limits of the defendant corporation bearing S.No.9, Hissa No.7 paiki B, CTS Nos.1997 to 1222. M.H.Nos.14 to 18 and 20, Temghar, Division No.3, Bhiwandi, collectively admeasuring about 90 feet X 85 feet or thereabout facing Kalyan-Bhiwandi main road on its north side.
(which old house property and land beneath it are collective hereinafter referred to as the 'said old' property for the sake of brevity)"
5. The prayer in the said suit appears to be cleverly and deceptively framed so as to cover up the fact that in the earlier suit same reliefs were prayed for. The prayers as made by respondent No.5 are also required to be noted which read thus:-
"a) The Hon'ble Court may be pleased to admit present suit.
b) The Hon'ble Court may be pleased to pass a decree and judgment for perpetual injunction restraining the defendants, their attorneys, assignees, agents, workers, employees or any other persons acting & claiming on their behalf from demolishing the suit house or any part thereof without following the due procedure of law or otherwise interfere with the plaintiff's lawful possession, use and occupation over the suit house in any manner whatsoever.
c) The Hon'ble Court may be pleased to pass an Ex-Parte Ad-
interim injunction in favour of the plaintiff in terms of aforesaid prayer clauses 16(b), pendent-lite this suit.
d) The Hon'ble Court may be pleased to award cost of present suit in favour of the plaintiff.
e) Any other and further relief/s which the Hon'ble Court may deem fit and proper in the given circumstances of present case kindly be awarded in favour of the plaintiff."
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6. We are informed that the status quo order was obtained in the said suit in regard to the illegal construction in the year 2016, and in our opinion with the blessings of the officers of the municipal corporation which did not take any effective steps to vacate the status quo which continued to operate from 2016 till 6 February 2025.
7. The Municipal Commissioner, in our opinion, needs to inquire as to who were the concerned officers at the relevant time who were under the official obligation to defend the said suit and as to why steps were not take to get the status quo vacated and more particularly on the backdrop that the earlier suit of respondent No.5 being dismissed and a fresh suit being filed for the same reliefs.
An inquiry report in this regard be placed on record on or before the adjourned date of hearing.
8. In these circumstances, in the fresh suit, on 9 April 2025, respondent No.5/plaintiff moved the Court and again obtained an order of 'status quo' qua the illegal structure and it is in these circumstances, the rank illegal construction put up without any permission whatsoever from the Municipal Corporation have continued to subsist and that too encroaching on the petitioners' plot of land. In any event, once construction has no permission from the municipal corporation/ planning authority and/or it is rank unauthorised, such construction cannot be protected. The principles of law in this regard are well settled as laid down in the decisions of the Supreme Court in M. I. Builders Pvt. Ltd. Vs. Radhey Shyam 1, 1 (1999) 6 SCC 464 Page 4 of 19 P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 ::: 909 WP-3830-2018.DOC Friends Colony Development Committee Vs. State of Orissa & Ors.2, Dipak Kumar Mukherjee Vs. Kolkata Municipal Corporation & Ors. 3, Supertech Ltd. Vs. Emerald Court Owner Resident Welfare Association & Ors. 4, and Kerala State Coastal Zone Management Authority Vs. Maradu Muncipality & Ors.5 and the decision of this Court in High Court on its own motion (In the matter of Jilani Building at Bhiwandi) Vs. Bhiwandi Nizampur Municipal Corporation & Ors. 6 wherein it has been consistently held that brazen unauthorized and illegal construction cannot be tolerated and the same would be required to be demolished.
9. We may also observe that such issues fell for consideration of this Court in the case Smt. Subhadra Ramchandra Takle Vs. State of Maharashtra & Ors.7, which concerned construction of 17 structures / building illegally constructed at Thane.
We may also observed that Bhiwandi is also a taluka falling within the Thane district. The Division Bench considering the decisions of the Supreme Court (supra) directed the municipal corporation to take action against the illegal constructions in accordance with law. The relevant observations as made by the Division Bench are required to be noted which read thus:
"4. In considering such gross illegality, this large unauthorised construction, we are reminded of the law of the land as laid down by the Supreme Court in a line of decisions. In M. I. Builders Pvt. Ltd. vs. Radhey Shyam, the Supreme Court in dealing with unauthorised construction held, it needs to be demolished, made the following observations with regard to the illegal construction:
2 (2004) 8 SCC 733 3 (2013) 5 SCC 336 4 (2021) 10 SCC 1 5 Civil Appeal Nos. 4784-4785 of 2019, decided on 8th May, 2019 6 2022 SCC OnLine Bom 386 7 Writ Petition no.5898 of 2025, decision dt. 12/06/2025 Page 5 of 19 P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 ::: 909 WP-3830-2018.DOC
73. The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law.
Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles........."
(emphasis supplied)
5. In Friends Colony Development Committee vs. State of Orissa & Ors., the Supreme Court has made the following observations :
"20. The pleadings, documents and other material brought on record disclose a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorized constructions in the city of Cuttack. Builders violate with impunity the sanctioned building plans and indulge deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffer unbearable burden and are often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the design of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorized constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop, some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non- compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders. At the same time, in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorized constructions, but who failed in doing so either by negligence or by Page 6 of 19 P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 ::: 909 WP-3830-2018.DOC connivance."
(emphasis supplied)
6. In Dipak Kumar Mukherjee vs. Kolkata Municipal Corporation & Ors., the Supreme Court held following observations:
"29. It must be remembered that while preparing master plans/zonal plans, the Planning Authority takes into consideration the prospectus of future development and accordingly provides for basic amenities like water and electricity lines, drainage, sewerage, etc. Unauthorized construction of buildings not only destroys the concept of planned development which is beneficial to the public but also places unbearable burden on the basic amenities and facilities provided by the public authorities. At times, construction of such buildings becomes hazardous for the public and creates traffic congestion. Therefore, it is imperative for the concerned public authorities not only to demolish such construction but also impose adequate penalty on the wrongdoer."
(emphasis supplied)
7. In a recent decision of the Supreme Court in Supertech Ltd. vs. Emerald Court Owner Resident Welfare Association & Ors., the Supreme Court ordering demolition of large illegal construction, made the following observations:
159. The rampant increase in unauthorised constructions across urban areas, particularly in metropolitan cities where soaring values of land place a premium on dubious dealings has been noticed in several decisions of this Court. This state of affairs has often come to pass in no small a measure because of the collusion between developers and planning authorities.
160. From commencement to completion, the process of construction by developers is regulated within the framework of law.
The regulatory framework encompasses all stages of construction, including allocation of land, sanctioning of the plan for construction, regulation of the structural integrity of the structures under construction, obtaining clearances from different departments (fire, garden, sewage, etc.), and the issuance of occupation and completion certificates. While the availability of housing stock, especially in metropolitan cities, is necessary to accommodate the constant influx of people, it has to be balanced with two crucial considerations -- the protection of the environment and the well- being and safety of those who occupy these constructions. The regulation of the entire process is intended to ensure that constructions which will have a severe negative environmental impact are not sanctioned. Hence, when these regulations are brazenly violated by developers, more often than not with the connivance of regulatory authorities, it strikes at the very core of urban planning, thereby directly resulting in an increased harm to the environment and a dilution of safety standards. Hence, illegal construction has to be dealt with strictly to ensure compliance with the rule of law.
161. The judgments of this Court spanning the last four decades emphasise the duty of planning bodies, while sanctioning Page 7 of 19 P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 ::: 909 WP-3830-2018.DOC building plans and enforcing building regulations and bye-laws to conform to the norms by which they are governed. A breach by the planning authority of its obligation to ensure compliance with building regulations is actionable at the instance of residents whose rights are infringed by the violation of law. Their quality of life is directly affected by the failure of the planning authority to enforce compliance. Unfortunately, the diverse and unseen group of flat buyers suffers the impact of the unholy nexus between builders and planners. Their quality of life is affected the most. Yet, confronted with the economic might of developers and the might of legal authority wielded by planning bodies, the few who raise their voices have to pursue a long and expensive battle for rights with little certainty of outcomes. As this case demonstrates, they are denied access to information and are victims of misinformation. Hence, the law must step in to protect their legitimate concerns."
(emphasis supplied)
8. In Kerala State Coastal Zone Management Authority vs. Maradu Muncipality & Ors., the Supreme Court again made the following observations:
"...............This Court in Vaamika Island (Green Lagoon Resort) vs. Union of India & Ors. [(2013) 8 SCC 760], has observed:-
"26. The petitioner had affected the construction in violation of the provisions of 1991 and 2011 Notifications as well as Map No.32-A, so found by the High Court. The factual details of the same and where actually the portion of some of the properties of the petitioner in Vettila Thuruthu will fall has been elaborately dealt with by the High Court in its judgment in paras 109 to 119. We notice that the High Court has dealt with the issue pointing out that so far as buildings which have been constructed by the petitioner during the currency of the Notification issued in 1991 are concerned, they are clearly in violation of this notification, hence, action has to be taken for the removal of the same. The Director of Panchayat also vide letters dated 7.3.1995, 17.7.1996 directed all the panchayats to strictly follow the provisions of CRZ notification which it was found not followed by granting permission. The High Court has also found on facts that reconstruction work appeared to have been done during the currency of the 2011 Notification and two buildings (193/D and 193/E) were also constructed illegally. The High Court has also noticed another new construction underway. These all are factual findings which call for no interference by this Court. The High Court has clearly noticed that reconstruction work has been done contrary to 1991 as well as 2011 Notifications and the report of the Expert Committee constituted by the Kerala State Committee on Sciences Technology and Environment (KSCSTE) was accepted.
28. Further, the directions given by the High Court in directing demolition of illegal construction effected during the currency of the 1991 and 2011 CRZ Notifications are perfectly in tune with the decisions of this Court in Piedade Filomena Gonsalves v. State of Goa [(2004) 3 SCC 445], wherein this Court has held that such notifications have been issued in the interest of protecting environment and ecology in the coastal area and the construction raised in violation of such regulations cannot be lightly condoned."Page 8 of 19
P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 ::: 909 WP-3830-2018.DOC In Piedade Filomena Gonsalves vs. State of Goa & Ors. [(2004) 3 SCC 445], this Court has observed :
"4. We do not think that any fault can be found with the judgment of the High Court and the appellant can be allowed any relief in exercise of the jurisdiction conferred on this Court under Article 136 of the Constitution. Admittedly, the construction which the appellant has raised is without permission. Assuming it for a moment that the construction, on demarcation and measurement afresh and on HTL being determined, is found to be beyond 200 meters of HTL, it is writ large that the appellant has indulged into misadventure of raising a construction without securing permission from the competent authorities. That apart, the learned counsel for the respondent, has rightly pointed out that the direction of the High Court in the matter of demarcation and determination of HTL is based on the amendment dated 18.8.1994 introduced in the notification dated 19.2.1991 entitled the Coastal Regulation Zone notification issued in exercise of the power conferred by section 3(1) and Section 3(2)(v) of the Environment Protection Act, 1986, while the appellant's construction was completed before the date of the amendment and, therefore, the appellant cannot take benefit of the order dated 25.9.96 passed in writ petition No. 102 of 1996.
6. The Coastal Regulation Zone notifications have been issued in the interest of protecting the environment and ecology in the coastal area. Construction raised in violation of such regulations cannot be lightly condoned. We do not think that the appellant is entitled to any relief. No fault can be found with the view taken by the High Court in its impugned judgment."
We find that the view taken by the Kerala High Court in the aforesaid decision is appropriate.
In the instant case, permission granted by the Panchayat was illegal and void. No such development activity could have taken place in prohibited zone. In view of the findings of the Enquiry, Committee, let all the structures be removed forthwith within a period of one month from today and compliance be reported to this Court."
(emphasis supplied)
9. In a decision of the Division Bench of this Court in High Court on its own motion (In the matter of Jilani Building at Bhiwandi) vs. Bhiwandi Nizampur Municipal Corporation & Ors. in which one of us (G. S. Kulkarni, J.) was a member, this Court taking into consideration the decisions of the Supreme Court in Friends Colony Development Committee Vs. State of Orissa and Dipak Kumar Mukherjee V. Kolkata Municipal Corporation & ors. reached to a conclusion that the unauthorised and illegal construction cannot be tolerated and would be required to be demolished. The Court issued several directions in disposing of the Public Interest Litigation. The observations as made by the Division Bench as also its directions relevant for the present proceedings are required to be noted, which read thus:
"93. We also cannot forget the role of the municipal officers and its law officers in not showing promptness and/or in delaying to move the Courts for vacating any orders passed on illegal constructions and dilapidated buildings. They cannot remain mute spectators in the event the situation requires a stay or injunction, warranting to be Page 9 of 19 P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 ::: 909 WP-3830-2018.DOC urgently vacated. The Municipal Commissioner needs to take appropriate actions on the concerned officials, if it is found that prompt actions are intentionally not being taken or are delayed for extraneous purposes and for unexplainable reasons.
99. In the scheme of Constitutional governance, it is not possible for us to assume that a public official, howsoever high, or mighty or low, can remain without public accountability to "We the People". Failure of accountability and discharge of public duties and responsibilities which the law would mandate them to discharge, in our opinion, are anathema not only to the expectations of lawful governance, but would also bring about a colossal case of derailment of the Constitutional and legal machinery, resulting into patent societal injustice and a civic regime opposed to the rule of law. The issues, which we have discussed above, certainly cast a serious doubt as to whether the above expectations of the rule of law are at all fulfilled and/or are followed in breach. It is for such reason, when there is a glaring and an apparent failure on the part of the statutory authorities to comply their lawful duties and Constitutional expectations, and/or when there is a dent or a breach in enforcement of the laws, the Courts unhesitantly are required to step in, so as to correct those who are failing in the discharge of their lawful duties, of not only to remind them of such duties and obligations but use the strong arm of law to set the same enforced and restore the confidence and expectations of the citizens, in the rule of law. This would also certainly require the Court to strictly deal with such officials, as the law would mandate the Court to so deal with them. They ought not to be under any impression that they can evade law with impunity. The famous quote of Lord Acton that "power corrupts and absolute power corrupts absolutely" ought to be realized to be untrue and something of the past, in its applicability in public governance. This, more particularly, when the aim is to compete with the other countries of the world where not only the building laws are stringently followed but also the aesthetics in relation to constructions and building designs are given a great impetus, so that the cities do not become eye sores of brick and mortar. This apart, as echoed in every public policy, corruption in municipal governance should be brought to the books by establishing multiple layers of anti-corruption mechanism within and outside the organization and achieve strict application of the provisions of the Prevention of Corruption Act, 1988. This ought to be implemented with immediate urgency by keeping a vigil on those officers who in the absence of any hurdles are deliberately not taking actions against illegal and unauthorized constructions. It is only then that there can be a ray of hope and sunshine for the future generations.
101. It is with the above parting words, we close the present proceedings by the following orders:
ORDERS
i) .......
ii) .......
iii) The planning authorities through its Competent Officers shall keep informed the Urban Development Department of the Page 10 of 19 P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 ::: 909 WP-3830-2018.DOC Government of Maharashtra on the numbers of illegal constructions in the respective municipal and jurisdictional areas and the action being taken in regard to such illegal constructions, which shall be notified on the website of the planning authority.
iv) The names and designations of the officers/Municipal Officers and employees in charge of the respective municipal and jurisdictional areas, reposed with the authority to initiate action in regard to the illegal, unauthorized and ruinous structures, shall be notified by the planning authorities/Municipal Corporations ward- wise on its official websites, so that accountability can be attributed and fixed in deciding complaints which may be filed by the aggrieved persons.
v) Municipal Commissioner and/or the competent authority of a designated planning authority, is directed to take a review of the illegal buildings/structures in every ward and actions taken thereon, periodically between the 25th to 30 th day of every month.
vi) Except for an acceptable and lawful reason, if an illegal and unauthorized construction is found to have subsisted and/or its non- removal is aided and/or abetted by the municipal officers or its employees for a substantial time of more than six months, the Municipal Commissioner shall take penal action against such erring municipal officers including lodging of prosecution under the Municipal laws, in addition to the relevant provisions of the Indian Penal Code, apart from initiating disciplinary proceedings.
ix) The persons who put up illegal or unauthorized constructions cannot claim any immunity by undertaking such illegal acts. The Municipal Commissioner apart from taking action for demolition of such illegal structures, shall also institute criminal proceedings against such persons, who are found to have violated municipal laws and constructed unauthorized or illegal structures apart from taking action for demolition of such structures in a manner known to law.
x) The concerned Municipal Commissioners are directed to give effect to the provisions of Section 152A of the MMC Act and Section 267A of the Maharashtra Municipal Corporations Act to levy penalty which shall be equal to twice the property taxes leviable on such building, so long as it remains unlawful and recover such amounts as arrears of property taxes.
xi) The Permanent Standing Committee (Encroachment Prevention Committee) as constituted under the Government Resolution dated 15th December 2004, shall forthwith be made functional by the State Government so as to commence its functioning with effect 15th March 2022. Such committee shall hold periodical sittings twice every month so as to take account of the actions on illegal structures in Mumbai. Such Committee shall also be constituted in respect of other cities in Maharashtra and it shall hold sittings accordingly."
(emphasis supplied)
10. It is thus clear that any construction which is unauthorised and illegal would be required to be removed/demolished. We may observe that those who purchase tenements in illegal construction are greedy purchasers, who are a different category of citizens as opposed to those citizens who would purchase tenements which are lawfully constructed, they cannot assert rights in regard to illegal construction.
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11. The question however is that how such construction can come up and as to whether the Municipal Officers would not be responsible and/or accountable when such rampant illegal construction is undertaken within their jurisdiction and more particularly when the land, on which the construction in the present case has been undertaken, is an agricultural land/green zone, on which no permission for construction can ever be granted by the Corporation.
12. As noted hereinabove, in High Court on its own motion (In the matter of Jilani Building at Bhiwandi) (supra), the Court has categorically ordered on the accountability to be affixed on the Municipal Officers which would include the Municipal Commissioner, who is the Chief Executive Officer of the Municipal Corporation. If such large construction, which is about 17 buildings can illegally come up, we do not know as to whether the officials of the Municipal Corporation are at all discharging their duties in a manner as known to law. Merely filing complaints with the Police and issuing notices of demolition certainly is not sufficient as no action whatsoever is taken when rampant illegal construction is in progress. No efforts are taken to stop such construction in a manner known to law. This would all require an inquiry to be undertaken as per the principles of law as laid down by this Court in the said proceedings. We may state that the Municipal Officers are supposed to discharge their duties as the law mandates. They discharge such duties on the principles of public trust as reposed in them. It appears that every single officer of the Municipal Corporation who is possibly supposed to take action, has failed to take action, and unless there was an implied support of these persons to enable such persons to undertake illegal constructions, it would have never come up."
10. The aforesaid order passed by the Division Bench in Smt. Subhadra Ramchandra Takle (supra) were assailed before the Supreme Court and such orders were not interfered by the Supreme Court. Consequent thereto the Thane Municipal Corporation had taken action and all 17 buildings and further more buildings were demolished and brought to ground zero. This has been recorded by the Division Bench in the subsequent order passed on the said proceedings. On such real conspectus, the present proceedings are also required to be considered.
11. In the present case it appears that the municipal corporation is clearly shielding respondent Nos.5, 6 and 7 as it is extremely surprising as to why only paper service is effected and no action was taken against the construction although Page 12 of 19 P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 ::: 909 WP-3830-2018.DOC the earlier suit filed by respondent No.5 was dismissed. The municipal corporation is still in a state of deep slumber, it has neither acted effectively nor is pursuing the action against these illegal constructions. This more particularly in view of the rank unauthorised constructions which were happening in the jurisdiction of this municipal corporation and in regard to which years back proceedings had reached this Court in a batch of petition in the case of Shri. Ishratali Mohmad Naim Shaikh Vs. The Commissioner, Bhiwandi Nizampur Municipal Corporation & Ors. (Writ Petition No. 11466 of 2016) and other several petitions which were rejected by the order dated 3 August 2017 passed by the Division Bench of the Court comprising of Hon'ble A. S. Oka, J. (as His Lordship then was) and Smt. Vibha Kankanwadi, J.
wherein serious orders were passed against the municipal corporation in regard to illegal constructions. The operative order as passed by the Court in such proceedings are required to be noted which reads thus:
"16. Hence, we pass the following interim directions:
I. We request the learned Principal District Judge, Thane to examine whether all suits concerning the illegal structures could be assigned to more than one Civil Judge with a view to ensure that the interim applications and the suits are expeditiously disposed of. We are making this request in the light of the fact that there very large number of illegal structures have come up within the limits of the said Municipal Corporation of the city of Bhiwandi Nizampur. We request the learned Principle District Judge, Thane to decide in what manner the suits and pending interim application can be given priority for its disposal;
II. We direct that the Deputy Commissioner (Encroachments) on the establishment of the said Corporation shall be responsible for prevention of the illegal structures within the limits of the said Municipal Corporation and for taking prompt action for demolition of the same;
III. We direct the Commissioner of Police, Thane to appoint a Nodal Officer not below the rank of Assistant Commissioner of Police, who shall be responsible for providing adequate police protection to the municipal staff for carrying out the work of survey of illegal structures and for carrying out the work of its demolition. Necessary appointment Page 13 of 19 P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 ::: 909 WP-3830-2018.DOC shall be made by the Commissioner of Police within a period of two weeks from the date on which an authenticated copy of this order is received in his office;
IV. The Nodal Officer so appointed, shall hold weekly or fortnightly meetings with the Deputy Commissioner (Encroachments) of the said Corporation to ensure that the work of demolition of illegal structures is not postponed due to nonavailability of police protection. While providing police protection, the Nodal Officer shall ensure that few police personnel attached to the concerned local police station are a part of the police party;
V. We direct the said Municipal Corporation to undertake a survey of illegal structures in the entire city in a phase wise manner. We direct the Municipal Corporation to complete the work of survey within a period of six months from the date on which an authenticated copy of this order is produced in the office of the Municipal Corporation;
VI. We direct the said Corporation to fill in the posts of 03 Assistant Law Officers and other Class III posts as provided in the letter dated 8th December, 2015, addressed by the State Government to the Government pleader, which is taken on record and marked 'A1' in Writ Petition No. 2878 of 2014. As stated in the said letter, the posts will have to be filled in on contract basis. The Municipal Corporation will ascertain the number of additional staff members required within a period of one month from today and commence the process of recruitment as provided in the letter dated 8th December, 2015;
VII. Within the period of one month from the date on which an authenticated copy of this order is produced in the office of the Municipal Commissioner, he shall ensure that the Grievance Redress Mechanism is established to enable the citizens to lodge complaints as regards the illegal structures in the city in the following manner:
a) By complaints in writing, addressed to the Deputy Commissioner (Encroachments) or any officer appointed by him;
b) On a toll free telephone number provided by the Municipal Corporation;
c) On cell phone number provided by the Municipal Corporation;
d) By uploading the complaint and the photographs of the illegal structures on a designated website and
e) By uploading complaints and photographs of the illegal structures on mobile applications provided by the Municipal Corporation.
VIII. The said Municipal Corporation shall ensure that all the complaints are immediately entered in a Register maintained manually and / or electronically. Each complaint received by aforesaid modes shall be assigned a number. The said Municipal Corporation shall ensure that the complaints are processed as expeditiously as possible and after Page 14 of 19 P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 ::: 909 WP-3830-2018.DOC carrying out site visit, action is initiated within a maximum period of one month from the date of filing of the respective complaints. The Municipal Corporation shall lay down a time bound schedule for dealing with each complaint. The same shall be placed on record of these Petitions within six weeks from today;
IX. The Municipal Corporation shall enter the details of the action taken on the complaints. If the complainant has disclosed his name, postal address or email address, then within a period of 15 days from the date of his lodging the complaint, the complainant shall be informed about the action taken on his complaint. Even anonymous complaints shall be entertained and action shall be taken thereon as directed earlier;
X. Whenever the municipal staff visits the sites of illegal construction, apart from drawing a panchanama, they shall take digital photographs of the illegal constructions which shall be uploaded on a computer. A centralized record of such photographs shall be maintained;
XI. Whenever the illegal construction is in progress, endeavor shall be made to immediately stop the same by issuing a notice. The police shall render all possible assistance for stopping the illegal construction;
XII. Wide publicity shall be given to the availability of the Grievance Redress Mechanism by prominently displaying all the details of the Grievance Redress Mechanism at all the municipal offices including ward offices as well as in the offices of the Revenue Officers. Wide publicity shall be given in Marathi, Hindi, English and Urdu newspapers to the details of the availability of the Grievance Redress Mechanism once in every three months. Wide publicity shall be also given on local television channels, FM radio Channels etc;
XIII. The Municipal Corporation shall ensure that one or more Law Officers are entrusted with the job of looking after the suits/appeals filed in connection with the action of demolition of the illegal structures;
XIV. The Registrar (Judicial-I) shall provide copies of this order to the learned Principal District Judge, Thane, the Commissioner of Police, Thane and the Municipal Commission of the said Corporation.
17. We direct the Deputy Commissioner (Encroachments) to file a compliance affidavit recording compliance with the aforesaid directions on or before 14th September, 2017."
(emphasis supplied)
12. Despite aforesaid clear orders passed by this Court almost a decade back, it appears that the municipal corporation is not taking effective action. The present case is a classic case as to how the Officers of the municipal corporation are protecting the illegal constructions and certainly for extraneous reasons. We may Page 15 of 19 P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 ::: 909 WP-3830-2018.DOC observe that it is a matter of routine affair for the Officers of the municipal corporation not to take action against illegal constructions and only when the proceedings are brought before the Court, the municipal machinery is activated.
This is the usual experience in these matters. The reasons are not too far to be seen. It is in such context, this Court in several proceedings passed strictures against the municipal officers. However, time has come that insofar as Bhiwandi-
Nizampur Municipal Corporation is concerned, it appears that timely actions against illegal construction are not being taken hence a series of matters are coming to the Court in regard to the illegal constructions. Something still fundamentally goes wrong and more particularly, despite the orders passed by the Division Bench of this Court in Shri. Ishratali Mohmad Naim Shaikh Vs. The Commissioner, Bhiwandi Nizampur Municipal Corporation & Ors. (supra), such illegalities are being neglected.
13. There cannot be such lawlessness or no rule of law in compliance of the Court orders as also following the mandate of law in taking action against illegal construction and encroachments. We are informed that the municipal corporation itself is under an Administrator. The Administrator needs to be appraised of such serious issue which appears to have already gone out of hand. However, it is never too late.
14. In this view of the matter, today we are not in a position to proceed to issue directions to the municipal corporation to demolish the illegal structures as there is status quo order in operation as granted by the Civil Court and on what consideration, we do not know, as we have not been pointed out any reasoned Page 16 of 19 P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 ::: 909 WP-3830-2018.DOC order passed by the learned Civil Judge as to why an order of status quo has been granted. We also may remind the Civil Judge, the clear observations which have passed by this Court not only in the decision of the Division Bench of this Court in Writ Petition No.11466 of 2016 (Shri. Ishratali Mohamad Naima Shaikh vs. The Commissioner) but also in the case of High Court on its motion High Court on its own motion (In the matter of Jilani Building at Bhiwandi) (supra), wherein in regard to the care and caution which is required to be taken by the Civil Court while granting injunction in respect of illegal constructions, the following observations were made:
ROLE OF THE CIVIL COURT :
78. We also caution the Civil Courts which might be approached with civil suits/proceedings when the Municipal Corporations/Planning Authority/Competent Authority commence action against illegal and unauthorized constructions or actions being taken against dilapidated buildings. The Civil Court needs to be extremely cautious and ought to have a well considered approach in dealing with such suits. When applications for temporary injunction are moved in civil suits which are filed assailing any action being taken by the municipal officers on unauthorized/illegal constructions or actions being taken against dilapidated buildings, the injunction applications ought to be decided without any delay and not later than one week from the date of its presentation, so that in legitimate cases, the actions against illegal structures being taken by the Municipal Officers, are not delayed by any undeserving judicial intervention. In this context, we may usefully refer to a decision of the Division Bench of this Court in Mohd. Talib Habib Shaikh v. Mohammad Siddaqi Haji and Others (2019 SCC OnLine Bom 1265). Justice G.S.Patel speaking for the Bench, made the following observations on the role of the Civil Courts in considering matters arising from unauthorized and illegal construction, also referring to the previous orders passed by the Division Bench: -
"6. We are surprised that when the demolition was scheduled, the persons concerned promptly approached a Civil Court. The Civil Court in Regular Civil Suit No. 716 of 2018 passed an ex parte ad-interim order dated 31st December 2018. That order was served on the Municipal Corporation. That is taken to be a handicap and an obstacle
7. We are shocked and surprised firstly at the approach of the Municipal Corporation, which by now through its officials is experienced enough to pre-empt the passing of such ex parte orders. The officials should be aware that those constructing buildings unauthorisedly and illegally are Page 17 of 19 P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 ::: 909 WP-3830-2018.DOC bound to go to every Court right up to the highest Court in the country to stall the inevitable. Therefore, a caveat should have been filed and entered. That was not done. That possibly indicates that the Municipal Corporation is giving its blessing to such construction activity within its limits. If the order of this Court can be neutralised or set at naught and the directions therein set at naught in this manner, then we are equally disturbed by the approach of the Civil Court.
9. We would only invite the attention of the Civil Court to several judgments of this Court as also of the Supreme Court particularly in the case of Shiv Kumar Chadha v Municipal Corporation of Delhi [(1993) 3 SCC 161] wherein the Hon'ble Supreme Court has highlighted the element of public interest which is paramount in matters of this nature and particularly while considering an application for interlocutory orders, including prohibitory directions and injunctions restraining public bodies from demolishing unauthorised constructions or removing obstacles in implementation of a public project.
10. If public interest is not to be considered a vital element as highlighted in this judgment, then possibly everything would be subsidiary. The civil court must be mindful that an illegal construction poses a threat to the public at large and that there is good reason for the statutory requirement that every construction has to be authorised so that it conforms inter alia to safety and other norms."
15. In this view of the matter, we direct that the present proceedings be listed on 15 October 2025.
16. We direct the municipal corporation to move the learned Civil Judge on any application as filed by the municipal corporation for vacating of the status quo order and whatever order that may be passed by the Civil Court, be placed on record of this Court. We are at this stage being informed that such application filed by the municipal corporation is pending for quite some time and possibly for the reason that as the municipal corporation being the only defendant, is not taking earnest steps to move the application before the Court. We expect that the municipal corporation would immediately move the Civil Court by tomorrow and request the Civil Court to pass orders on the Interim Application filed for vacating of the status quo order passed in the matter.
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17. We also direct the Registrar (Judicial -I) to inquire from the learned Civil Judge, Junior Division, on whose record the said R.C.S. No.376/09 is pending, as to why the proceedings of the status quo application are not being taken and as to when the orders would be passed. Let a report to that effect be placed on record of this Court and more particularly, considering the observations of the Division Bench in High Court on its own motion (In the matter of Jilani Building at Bhiwandi)(supra).
18. Needless to observe that the interim application filed by the municipal corporation in the suit be decided on its own merit.
19. Stand over to 15 October 2025 (F.O.B.).
(AARTI SATHE, J.) (G. S. KULKARNI, J.) Page 19 of 19 P.V.Rane ::: Uploaded on - 09/10/2025 ::: Downloaded on - 10/10/2025 00:29:49 :::