Bombay High Court
Nazma Begaum Khan vs The State Of Maharashtra And 2 Ors. on 4 September, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-OS:14892-DB
2.WP2503_2018.DOC
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2503 OF 2018
Nazma Begaum Khan ... Petitioner
Vs.
The State of Maharashtra & Ors ... Respondents
_______ Mr. Prince Kumar Upadhyay a/w. Mr. Patrick Gomen & Mr. Gitesh Sawant for the petitioner.
Mr. Nishigandh Patil, AGP for the State.
Mr. Ram Apte, Senior Advocate a/w. Ms. Vaishali Ugale i/b/ Ms. Komal Punjabi and Ms. Rupali Adhate for respondent nos. 2 and 3-BMC. Mr. Bhavin Gada a/w. Mr. Dhaval M. Viawadia, Ms. Vaishali Sharma i/b. Harakchand & Co. for respondent nos. 4 and 5.
_______
CORAM: G. S. KULKARNI &
MANJUSHA A. DESHPANDE JJ.
DATED: 4 SEPTEMBER, 2025
P.C.
1. This petition under Article 226 of the Constitution of India is filed on 8 January 2018 essentially challenges the notice dated 6 January 2018 issued by the Municipal Corporation for Greater Bombay (for short "MCGM") under section 488 of the Mumbai Municipal Corporation Act, 1888 (for short "MMC Act"). The only prayer as made in the petition is that the said notice be quashed and set aside, or it be directed to be withdrawn by the Municipal Corporation.
2. The first and foremost question which would arise for consideration is, as to what is the legal right asserted and demonstrated by the petitioner in seeking a relief in respect of the impugned notice. A question also arises as to what is the legal right of the petitioner to occupy the construction, which admittedly appears to be an illegal construction undertaken on the land in question, by one Mr. Noor Page 1 of 14 4 September 2025
2.WP2503_2018.DOC Mohammad Shaikh, who himself had no legal rights in respect of the land in question.
3. Respondent No. 4-Fine Brading Works and Respondent no. 5-Shakila Banu Mohd Muslim Ansari, who is a senior citizen, are stated to be the owners of the land. The litigation insofar as the illegal construction on the land described to be "Puttu Seth Compound" appears to have a checkered history. Several proceedings were filed by different occupants and/or persons who were undertaking illegal construction on such land, which apart from Mr. Noor Mohammad Shaikh, was also by one Iqbal Ghulam Dastgir Ansari. Being aggrieved by such rank unauthorized construction, the said owners of the land approached the Municipal Corporation for actions to be taken to remove the unauthorized constructions. Such persons who had put up illegal construction have not left a single stone unturned to defeat such attempts of the owners of the land, so as to safeguard such illegal construction undertaken without a semblance of a legal right. This is what is indicated from the record, on such persons resorting to several legal proceedings not only dragging the Municipal Corporation, but also the owners into litigation.
4. We need not delve on the details of the several proceedings resorted by these persons suffice it to observe that before the City Civil Court at Mumbai, Civil Suit No. 2917 of 2014 was filed by one Iqbal Ghulam Dastgir Ansari against the Municipal Corporation and the owners asserting legality of the unauthorized construction. A Notice of Motion was filed praying that the Page 2 of 14 4 September 2025
2.WP2503_2018.DOC Municipal Corporation be restrained by a temporary injunction from taking action on a notice issued under section 354A of the MMC Act. This Notice of Motion came to be adjudicated by the learned Judge of the City Civil Court, Mumbai and vide order dated 20 January 2017, it came to be dismissed, recording findings that the notice structures were illegal, and that they were not protected structures. It was observed that there was no permission obtained from the Municipal Corporation in the manner, the law would recognize, much less with any permission of the landlords to construct the said structures.
5. This apart, also there were proceedings which were filed by one Mr. Noor Mohammed Sheikh, who had approached this Court by filing Writ Petition No. 3452 of 2017, which came to be rejected by the order dated 7 December 2017 passed by the co-ordinate Bench of this Court, which reads thus:
" This is the fourth proceedings in which the petitioner has approached to this Court. This proceedings is an abuse of the process of the Court.
The petitioner had filed a writ petition bearing lodging no.3244/2017 challenging the order passed by the State Government under section 47 of the Maharashtra Regional and Town Planning Act, rejecting the application of the petitioner. After we dismissed the writ petition, the learned counsel for the petitioner, on instructions, from the petitioner who was present in the Court on the said date and whose presence was noticed by us stated that the petitioner would vacate the premise within two weeks and the Corporation may be restrained from taking any coercive steps till then. By accepting the statement made by the counsel for the petitioner, which we have recorded to be binding on the petitioner, we had restrained the Corporation from demolishing the unauthorized construction for two weeks.
After the said order was passed, the petitioner again approached this Court with a review petition. The review petition was dismissed. Certain observations were made by the court while dismissing the review petition. A couple of days after the review petition was Page 3 of 14 4 September 2025
2.WP2503_2018.DOC dismissed, the petitioner again approached the Court with a notice of motion in the disposed of writ petition. By the prayer in the said notice of motion, the petitioner had sough a stay to the order in the writ petition by three weeks. After observing that it was not possible to grant the prayer made in the notice of motion as the petitioner had undertaken to vacate the premises within two weeks, we had dismissed the notice of motion. Two days after the dismissal of the notice of motion, the present writ petition is filed for a direction to the Mumbai Municipal Corporation to regularise the illegal construction in pursuance of the letter dated 20.11.2017.
We are surprised that the petitioner has moved this Court for the fourth time in respect of the same matter pertaining to regularization. The petitioner had approached the Corporation for regularization of his structure and the application was rejected. After the application was rejected, the petitioner had filed an appeal before the State Government under Section 47 of the Maharashtra Regional and Town Planning Act. The order dismissing the appeal was challenged in writ petition (L) No.3244/2017. After dismissing the said writ petition the Court recorded a statement made on behalf of the petitioner that he would vacate the premises within two weeks. When the writ petition was argued, it was conveyed to this Court by Mr. Chawan, the counsel for the petitioner that the petitioner has again applied for regularisation and the acknowledgment of the receipt, is dated 20.11.2017. Though we had not referred to the said fact in the order dismissing the writ petition filed by the petitioner, the said fact was pointed out to us. At that time, we had not referred to the said fact in our order dismissing the writ petition as it is well settled that a party cannot again approach the authority for the same relief that is earlier rejected by that authority and the appeal against it is also rejected. Since we were deciding about the correctness or otherwise of the order passed by the State Government in the appeal under section 47 of the Act, we had not specifically mentioned about the filing of an application by the petitioner before the Corporation again, more so, when it was not the prayer of the petitioner that the application made by the petitioner again, should have been decided by the Corporation. Even if the petitioner had made that prayer and had sought a direction against the Corporation to decide the second application for regularization, we would have refused to grant a mandamus against the Corporation, specially when the order passed by the Corporation refusing to regularise the construction was upheld by the State Government in an appeal and the order of the State Government was confirmed in the writ petition filed by the petitioner.
In the circumstances of the case, since the petitioner has vexed the Court time and again in respect of the same matter, we dismiss the writ petition with costs."
6. The aforesaid order passed by this Court was challenged before the Page 4 of 14 4 September 2025
2.WP2503_2018.DOC Supreme Court by Mr. Noor Mohammed Shaikh, who himself had no legal right in respect of the premises much less in the land and it is this person from whom the right in the present tenement is being claimed by the petitioner. The Supreme Court by an order dated 12 January, 2018 passed on Petition for Special Leave to Appeal (C) No. 243 of 2018 granted time till end of June 2018 to remove the unauthorized construction, failing which the petitioner therein was directed to be held liable for contempt of Court. The said order passed by the Supreme Court needs to be noted, which reads thus:
" Having heard learned counsel for the parties, though we are not inclined to interfere, yet we think it appropriate to grant time till end of June, 2018 to remove the unauthorized construction, failing which the petitioner shall be liable for contempt of this Court.
That apart, it will be open to the Municipal Corporation to demolish the construction after expiry of the time granted.
With the aforesaid direction, the special leave petition is disposed of.
Pending interlocutory applications, if any, also stand disposed of."
7. We also find that being continuously faced with such illegality in respect of their property, the owners-respondent nos. 4 and 5 filed Suit No. 88 of 2017 (Fine Braiding Works & Anr. vs. Mohd. Shamim Mohd. Amin Idris & Ors.) on the Original Side of this Court. There are several interim orders passed in the said suit. However, what is important to be noted is an order dated 6 March 2017 passed on Notice of Motion No. 265 of 2017 wherein insofar as defendant no. 2- Noor Mohammed Shaikh is concerned, the Court in the said order observed that the defendant no. 2 had failed to establish any right to enter upon and/or Page 5 of 14 4 September 2025
2.WP2503_2018.DOC construct on the suit property. It was also observed that there were no sanctioned plans or permissions on record. Further, the case as urged on behalf of the Municipal Corporation is that the Assistant Engineer (L) Ward had confirmed such position in his report made to this Court. Despite which with impunity, construction was being carried out on the suit property, and orders passed by this Court were being rampantly violated, was the observation of the Court. It was also observed that Noor Mohammed Shaikh had no regard to the authority of law, and that he had unlawfully carried out unauthorized construction on the suit property, violating the status quo order passed by the Court. The relevant observations as made in the said order are required to be noted, which reads thus:
"6. In fact, the Defendant No. 2 has failed to establish any right to enter upon and / or construct on the suit property. Admittedly the Plaintiff Firm is the lessee of the suit property and the owner of the structures thereon. Admittedly, there are no sanctioned plans or permission/s on record. The Assistant Engineer (L) ward has confirmed this in his Report to this Court. In spite of this, construction has been carried out on the suit property and orders of this Court have been violated. This cannot be permitted.
8. In view of what is set out above, it is clear that Defendant No.2 has no regard for the authority of law. Not only has he unlawfully carried out unauthorised construction on the suit property, but despite the status quo order being passed, he has sought to carry out construction and induct persons into the suit property. As noted by me in my earlier orders, there is complete lawlessness at the suit site. It is clear that the Defendant No.2 is not abiding by the status quo order. Therefore, it is imperative that the Court Receiver, High Court, Mumbai be appointed as the receiver of the property. At this stage I am not physically dispossessing those who are found in possession. The Receiver shall only take symbolic possession of the property, shall prepare a fresh list of the occupants in the presence of Mr. Ketan Trivedi who has earlier submitted his report inter alia qua the occupants of the premises / structures of the suit property, shall take necessary photographs and shall put up his boards at the suit property. The appointment of Court Receiver is necessary in order to ensure that the suit property is not wasted or alienated, thereby defeating the rights of the Plaintiffs. The claim of the Plaintiffs is substantial and needs to be Page 6 of 14 4 September 2025
2.WP2503_2018.DOC adequately protected. The Plaintiff has made out a strong prima facie case and the balance of convenience is also in favour of the Plaintiffs. Irretrievable harm, loss, injury and prejudice would be caused to the Plaintiffs if the interim protection is not extended in their favour.
9. Hence the following order is passed:
(i) Court Receiver, High Court Bombay is appointed as the Receiver of the suit property. The Court Receiver shall take symbolic possession of the suit property, prepare a fresh list of the occupants in the presence of Mr. Ketan Trivedi who has earlier submitted his report inter alia qua the occupants of the premises / structures of the suit property, shall take necessary photographs and shall affix his name boards at prominent places on the suit property.
(ii) Those premises which are found to be vacant shall be locked and sealed with the seal of the Court Receiver.
(iii) The Deputy Commissioner of Police, Zone 5 shall render all assistance to the representative of the Court Receiver to enable him to comply with this Order."
(emphasis supplied)
8. It is significant that the Court Receiver as appointed by the learned Single Judge had caused an inspection of the property and placed on record his report dated 30 March 2017. Insofar as the premises in regard to which the petitioner is asserting rights, the following was recorded:
20. Room No. 101 at First floor Occupant informed that Fazle Ahmed Khan Occupant: Nazma Khan is owner of said room and she is residing in said room with her family since last 3 years.
She not shown any original document, however, furnished xerox copies of following documents : Ration card no, 602954 dated 19/6/2000, Reliance energy bill dated 10/3/2017 for A/c no. 152305968.
9. Thus, the relevant facts which have come on record clearly show the brazen illegality resorted by such persons in putting up unauthorized Page 7 of 14 4 September 2025
2.WP2503_2018.DOC construction.
10. Insofar as the present Writ Petition is concerned, we have perused the reply affidavit filed on behalf of the owners/respondent nos. 4 and 5. Also, there is reply affidavit filed on behalf of the Municipal Corporation by Mr. Dhanaji Herlekar, Assistant Commissioner "L" Ward, in which it has been categorically pointed out that the complaints of illegal construction being undertaken in "Puttu Seth Compound" were examined and it was observed that Noor Mohammed Shaikh and Tabrez Khan and Iqbal Gulam Dastagir, were undertaking such illegal and unauthorized construction on the said land described as Puttu Seth Compound. It was found that no permission whatsoever was obtained by these persons in undertaking such construction. They failed to furnish any documents in regard to any permission granted by the owner for putting up construction and/or any approvals which can be sought from the Municipal Corporation prior to putting up any construction. It is stated that in fact notices for illegal construction were issued to the owners and all the occupiers. A reference is also made to several litigations which were filed challenging the notices issued by the Municipal Corporation, which acted in accordance with law, to remove the unauthorized construction. It is contended in the reply affidavit that all such litigations having failed, demolition action was earlier planned, however, could not be completed and it would now be required to be undertaken in view of several orders passed by the High Court and Supreme Court and accordingly, notice under section 488 of the MMC Act was issued as impugned in the present Page 8 of 14 4 September 2025
2.WP2503_2018.DOC petition. It is stated that demolition programme was arranged from 9 January 2018 to 12 January 2018 and that the petitioner is now the only occupant who approached this Court by the present petition and obtained ad-interim orders. The affidavit also indicates that whenever action was proposed to be taken, litigations were filed by approaching different forums, hence, the petition needs to be accordingly dismissed.
11. Also, reply affidavit is filed on behalf of respondent nos. 4 and 5 annexing all the orders which were passed and to which they have made a brief reference hereinabove.
12. We have heard learned counsel for the parties and we have perused the record. In our clear opinion, this petition appears to be a gross abuse of the process of the Court. The petitioner is not in a position to show any legal right whatsoever to occupy the construction, which is indisputedly illegal and unauthorized. The petitioner is asserting her occupation only on the basis of a rent receipt issued by Mr. Iqbal Gulam, who himself had no legal right whatsoever in respect of the land much less undertake any construction of the structure, which is unauthorisedly constructed. The landlord/respondent nos. 4 and 5 have never recognized the occupation of the petitioner and more particularly, when the structure occupied by the petitioner itself was not constructed by the landlords and it being constructed without any permissions and/or sanction being obtained from the planning authority, namely, the Municipal Corporation. In this view of the matter, on this basic requirement of the petitioner failing to demonstrate any Page 9 of 14 4 September 2025
2.WP2503_2018.DOC legal right on the premises the petitioner cannot assert protection of an authorized structure.
13. This apart, it is not in dispute that in regard to the illegal construction on the land in question as undertaken by the persons which we have indicated hereinabove, several litigations had reached different forums including this Court and the Supreme Court. All such orders passed by the Courts consistently take a view that the unauthorized occupants have no legal right and construction in question was rank illegal. To grant relief to the petitioner would require us to take a view different from what has been taken in the several orders passed by this Court and which were confirmed by the Supreme Court. The petition also needs to fail on this count alone.
14. We may also observe that the petitioner informed the Court Receiver appointed by this Court, as seen from the report as extracted hereinabove that the petitioner was granted possession by Mr. Fazle Ahmed Khan, who according to her was the owner of the room, and the petitioner occupies the said room with her family for the last three years prior to the filing of this Writ Petition, however, without any document whatsoever being furnished in that regard. Thus, the occupation of the petitioner itself appears to be based on bogus and/or unsubstantial material which cannot be recognized in law.
15. It is a settled principle of law that persons who occupy illegal construction would not have any legal right to occupy much less to seek any protection of theh structures when Municipal Corporation has resorted to machinery as known to Page 10 of 14 4 September 2025
2.WP2503_2018.DOC law to remove such illegal construction. In such context, we may refer to recent decision of a co-ordinate Bench of this Court in Subhadra Ramchandra Takle vs. State of Maharashtra & Ors.1, in which the Court referring to several decisions in this regard passed by the Supreme court in M.I. Builders Pvt. Ltd. vs. Radhey Shyam2; Friends Colony Development Committee vs. State of Orissa & Ors. 3; Dipak Kumar Mukherjee vs. Kolkata Municipal Corporation & Ors. 4; Supertech Ltd. vs. Emerald Court Owner Resident Welfare Association & Ors. 5; Kerala State Coastal Zone Management Authority vs. Maradu Muncipality & Ors. 6 and a decision of 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.7 has held that brazen unauthorized and illegal construction cannot be tolerated and the same would be required to be removed/demolished. We may also refer to the recent decision of the Supreme Court in Rajendra Kumar Barjatya & Anr. Vs. U. P. Avas Evam Vikas Parishad & Ors. 8, wherein the Supreme Court has reiterated the following principles in regard to illegal and unauthorized constructions:
"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 1 Writ Petition No. 5898 of 2025 decided on 12 June 2025 2 1999 (6) SCC 464 3 (2004) 8 SCC 733 4 (2013) 5 SCC 336 5 (2021) 10 SCC 1 6 Civil Appeal Nos. 4784-4785 of 2019 7 (2022) SCC OnLine Bom 386 8 2024 SCC OnLine SC 3767 Page 11 of 14 4 September 2025
2.WP2503_2018.DOC 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 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."
(emphasis supplied)
16. We may also refer to the observations as made by the Division Bench of this Court in Feroz Talukdar Khan vs. The Municipal Commissioner, Thane Municipal Corporation & Anr.9, in which referring to the decision of Division Bench of this Court in Subhadra Ramchandra Takle, the Division Bench observed that any occupant of the unauthorized and illegal premises can have no legal right 9 2025 SCC OnLine Bom 2423 Page 12 of 14 4 September 2025
2.WP2503_2018.DOC whatsoever and that there can neither be any equity nor sympathy, which can be shown to such occupants who have purchased premises in illegal constructions. The observations of the Division Bench are required to be noted, which reads thus:
"25. Also as observed by this Court in Smt. Subhadra Ramchandra Takle (Supra), any occupant of the said unauthorized and illegal premises can have no legal right whatsoever. There can neither be any equity nor sympathy, which can be shown to such occupants who have purchased premises in illegal constructions. The Court has referred them to be greedy purchasers, who have ample means to purchase premises in illegal constructions.
26. For the aforesaid reasons, we have no manner of doubt that the Municipal Corporation needs to proceed further to demolish the unauthorized construction in question as per the lawful measures as initiated. There can be no protection to such illegal construction."
17. We are surprised that the petitioner could drag this proceeding for almost six years and it is the only illegal structure in the said compound which is now being occupied. We are also quite surprised at the bulk of the record which is created and without a semblance of legal right being shown by the petitioner to maintain this petition. There is something more sinister that a mere room the petitioner claims. We would not be surprised that the land sharks are at work when the landlords intend to develop the land.
18. For the aforesaid reasons, we are of the clear opinion that the petition deserves to be dismissed. This petition is a grossest abuse of the process of this Court. It cannot be dismissed simplicitor. It is accordingly dismissed with cost of Rs.15,000/- to be deposited by the petitioner with Maharashtra State Legal Services Authority within two weeks from the day a copy of this order is made Page 13 of 14 4 September 2025
2.WP2503_2018.DOC available.
19. Intimation of deposit of the cost be given by the Advocate for the petitioner to the advocate for the Municipal Corporation. If such intimation is not received, liberty to advocate for Municipal Corporation to move the Court and inform non-compliance of the orders.
20. Writ Petition is dismissed.
(MANJUSHA A. DESHPANDE , J.) (G. S. KULKARNI , J.)
Page 14 of 14
Signed by: Vidya S. Amin 4 September 2025
Designation: PS To Honourable Judge
Date: 11/09/2025 13:20:58