Bombay High Court
Soyab Rashid Ahmed Khan vs The Chief Secretary Of The Government Of ... on 22 August, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-OS:14045-DB
503-WP(L)-26501-2025.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.26501 OF 2025
Modern Paint & Auto Corporation & Ors. ...Petitioners
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ...Respondents
_________
Mr. Navroz Seervai, Senior Advocate a/w Mr. Akash Rebello, Mr. Vishal Hegde,
Mr. S.V. Rao i/b. Ms. Aishwarya Jose, Ms. Anuja Apte, Mr. Rohit Maurya i/b.
Samudra Legal LLP, for the Petitioners.
Mr. Girish Godbole, Senior Advocate, a/w Ms. Rutaja Bodake, for the BMC.
__________
CORAM: G. S. KULKARNI &
MANJUSHA DESHPANDE, JJ.
DATE: 22 AUGUST, 2025.
P.C.
1. Not on board. Taken on board on a praecipe moved on behalf of the
petitioners.
2. We have heard Mr. Seervai, learned Senior Counsel for the petitioners and
Mr. Godbole, the learned counsel for the respondent-Municipal
Corporation.
3. This is a second round of litigation before this Court on the very subject
matter, the petitioners intend to canvass in this petition, which is in regard
to the unauthorized alterations, additions/constructions being undertaken
by the petitioners, and subject matter of a notice dated 9 th January 2025
issued by the Municipal Corporation under Section 351(1A) of the
Mumbai Municipal Corporation Act, 1888 (for short the "BMC Act"). In
assailing the said notice, the petitioners earlier filed Writ Petition Lodging
No.9816 of 2025 which came to be adjudicated by a judgment and order
dated 9th May 2025 rendered by a Co-ordinate Bench of this Court, in
which the said notice issued by the Municipal Corporation has been
upheld and in terms of the following relevant observations :
"7) Upon examining the photographs and documents on record, certain
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structure/s may have been in existence prior to datum line. We posed a
query to Mr. Seervai regarding whether the Petitioners had applied for
and obtained permissions for the alterations they claimed were mere
tenantable repairs. Upon seeking instructions, Mr. Seervai candidly
submitted that, no permissions were sought or granted, as the
Petitioners believed the works were limited to tenantable repairs.
However, in our view, the nature of the work undertaken extends far
beyond the scope of tenantable repairs. Illustratively, the construction
of a mezzanine cannot reasonably be classified as a tenantable repair.
The Schedule to the Notice at page 55 clearly discloses all that was
considered illegal and for which no permissions were sought.
8) In the present case, it is evident that the Petitioners have, under the
guise of tenantable repairs, undertaken extensive and unauthorized
alterations. While there is nothing inherently wrong with improving
the facade of an old structure, such improvements cannot be used as a
pretext to alter the core structure in a manner that transforms its
fundamental character. Here, extensions have been made on such a
scale that it is difficult, if not impossible, to distinguish between the old
and the newly constructed portions. Accordingly, we find no infirmity
in the BMC's Notice Courts cannot extend protection any part or
portion of unauthorised construction under the pretext of it being a
part or portion of a "tolerated structure". Very often the Corporations
do not have any record of the dimensions of the so-called "tolerated
structures". The absence of these records is frequently exploited,
resulting in entirely new structures under the false pretense of being a
part of a pre-existing tolerated structure."
(emphasis supplied)
4. The Municipal Corporation now has proceeded to execute the said
notice(dated 9th January 2025) so as to remove the unauthorized
construction as specifically set out in the "Schedule" of the said notice. The
grievance of Mr. Seervai is to the effect that under the garb of executing
the notice, an Official of the Municipal Corporation has orally informed
that the entire structure would be removed. Mr. Seervai submits that the
Division Bench, in paragraph no.12 of the said order, has protected the
tolerated structure. It is his contention that, hence no action can be taken
against the authorized structure. It is on such apprehension, the petitioner
has moved this petition praying for the following reliefs :
"a. That this Hon'ble Court may be pleased to issue a writ of
Mandamus or a writ in the nature of Mandamus or any other appropriate
writ, order or direction to quash and set aside the Impugned Notice, being
Notice dated 09.01.2025 issued by the Respondents, as well as the
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Impugned Order, being Order dated 21.02.2025, bearing reference No.
194526 passed by the Respondents, being Exhibit-'A'. for being illegal,
unlawful, violative of Article 14, Article 19(1)(g), Article 21 and Article
300 A of the Constitution of India and hence unenforceable as they are de
hors the provisions of the said Act and the constitutional guarantees, given
the documentary evidence on record showing the existence of the structure
as far back as 1958 which is much prior to the datum line of 01.04.1962 for
tolerated structures.
b. That this Hon'ble Court be pleased to issue a writ, order or direction in
the nature of Mandamus commanding and directing the Respondents, its
Officers, Agents, Servants, and/or anybody claiming or through it,
restraining it from implementing and/or in any manner acting upon the
Impugned Notice, being Notice dated 09.01.2025 issued by the
Respondents, as well as the Impugned Order, being Order dated
21.02.2025 bearing reference No. 194526 passed by the Respondents,
being the Exhibit-'A'. hereto in respect of the Said Premises.
c. That pending the hearing and final disposal of the present Writ Petition
the Respondent, its Officers, Agents, Servants, and/or anybody claiming
through or it be restrained by the issuance of a writ, order or direction in
the nature of Mandamus commanding and directing the Respondents from
acting upon and/or in any manner implementing and or taking any
coercive steps in respect of the Impugned Notice, as per the Notice dated
09.01.2025 issued by the Respondents, as well as the Impugned Order
being Order dated 21.02.2025 bearing reference No. 194526 passed by
Respondents, being the Exhibit-'A' hereto in respect of the Said Premises.
d. That this Hon'ble Court may be pleased to issue a Writ, Order or
direction in the nature of Mandamus, commanding and directing the
Respondents to file a Compliance Report qua the Hon'ble Supreme Court
judgement in Municipal Corporation of Greater Mumbai & Ors. vs. M/s.
Sunbeam High Tech Developers Private Ltd.
e. That this Hon'ble Court may be pleased to grant interim and ad-interim
reliefs in terms of prayer clauses (b-c).
f. That this Hon'ble Court may be pleased to grant any other relief and
issue such other directions as this Hon'ble Court may deem fit and proper
in the facts and circumstances of the case and in the interest of justice."
5. Responding to the contentions as urged by Mr. Seervai and Mr. Godble,
the learned Senior Counsel for the Municipal Corporation has drawn our
attention to the specific observations made by the Division Bench and
more particularly, made in paragraph nos.7 and 8 of the said judgment
(supra), which clearly record a finding that the Court had found no
infirmity in the said notice issued by the Municipal Corporation, and that
the Court cannot extend protection in regard to any part or portions of
unauthorized construction under the pretext of it being a part or portion of
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a tolerable structure. The findings of the Division Bench are crystal clear.
6. The notice dated 9th January 2025 issued under Section 351(1A) is also
clear in its "Schedule", as to what is the nature of such unauthorized
alterations, constructions, additions, etc. Mr. Godbole on instructions has
submitted that the petition is filed only on apprehension and there is no
written communication whatsoever that the Municipal Corporation in
executing such notice under removal of the structures would in fact
demolish any authorized structure.
7. We are thus of the clear opinion that only the unauthorized construction as
described in the "Schedule" of the said notice is being removed by the
Municipal Corporation. The petitioner cannot reopen concluded issues
raising any questions on the description of the objectionable construction
as set out in the Schedule of the notice dated 9 th January 2025, when such
notice was wholesomely the subject matter of adjudication before the
Division Bench as noted hereinabove.
8. In this view of the matter, we are not inclined to interfere in this petition as
any interference or granting any relief would amount to taking a second
view of the matter on the issues which had fell for adjudication before the
Division Bench in the previous proceedings. All contentions in that regard
are already considered in such detailed judgment of the Co-ordinate Bench
of this Court. There cannot be a second round of adjudication on such
concluded issues which were integral to the earlier petition.
9. The writ petition is summarily dismissed. No costs.
(MANJUSHA DESHPANDE, J.) (G. S. KULKARNI, J.)
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