Bombay High Court
Safwan Jafar Hussain Sayyad vs Ward Officer 3/C Ward Kalyan And Ors on 21 July, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-AS:30174-DB WP-18574-2024.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 18574 OF 2024
Safwan Jafar Hussain Sayyad )
R/at 102, A-Wing, Shri Complex )
Chetana Naka, Kalyan East, )
Taluka Kalyan, District Thane )...Petitioner
Versus
1. Ward Officer, "3/C" Ward, Kalyan )
Dombivali Municipal Corporation, Kalyan, Thane. )
2. The Commissioner, Kalyan Dombivali Municipal)
Corporation, Kalyan, Thane. )
3. The State of Maharashtra )
4. Shagaf Shanawaz Karel, )
Siyam Villa, C.T.S No.507, behind )
Namak Bandar Masjid, Kalyan (W), Dist. Thane. )
5. Faraz Shanawaz Karel, )
Siyam Villa, C.T.S No.507, behind )
Namak Bandar Masjid, Kalyan (W), Dist. Thane. )...Respondents
_______
Mr. Kishor Patil a/w Mr. Pratik B. Rahade for the Petitioner.
Mr. Sarang S. Aradhye a/w Gauri Velankar and Shantanu Gurav for Respondent
Nos. 1 and 2.
Mr. P. V. Nelson Rajan, AGP a/w Ms. Bane, AGP, for Respondent No. 3-State.
Mr. Surel Shah, Senior Advocate, a/w Mr. Durgaprasad Sabnis a/w Mr. Arjun
Jeswani a/w Mr. Hitenlata a/w Saakshat Relekar i/b Arjun Jeswant for Respondent
Nos. 4 and 5.
_______
CORAM: G. S. KULKARNI &
ARIF S. DOCTOR, JJ.
DATE: 21st JULY 2025
Page 1 of 9
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ORDER:
( Per : Arif S. Doctor, J.)
1. The Petitioner has been constrained to approach this Court in its jurisdiction
under Article 226 of the Constitution of India seeking the following substantive
reliefs:
"a. Issue and appropriate Writ/Order directing the Respondent No.1 & 2 to
decide the pending representation dated 22.10.2024 annexed at Exhibit-"E" to
the present Petition.
b. Issue and appropriate Writ/Order directing the Respondent Nos.1 & 2 to take
steps to execute and implement the Order/Notice dated 06.08.2024 (Exh-"D")
issued by the Respondent No. "
2. The facts which lie within an extremely narrow compass, and which are not
disputed, are as follows:
2.1 On 23rd July 2024, one Sagar Joshi filed a complaint with Respondent No. 1
and 2 i.e. the Ward Officer "3/C" Ward and the Commissioner of the Kalyan
Dombivali Municipal Corporation (for convenience collectively referred to as
"KDMC") pointing out that the building comprising of ground plus six stories
called 'Siyam Villa' ("the said building") which had been constructed by
Respondent No. 4 and 5 ("the Developers") situated at S. No. 507 Govindwadi,
Kalyan Dombivali was illegal and unauthorized.
2.2 Respondent No. 1 taking cognizance of the complaint issued a Show Cause
Notice dated 6th August 2024 ("the said Notice") under Section 260(1)1 of the
Maharashtra Municipal Corporation Act, 1949 ("MMC Act") to the Developers
calling upon them to (i) remain present on 13 th August 2024 at a personal hearing
1 260. (1) The Commissioner shall, by notification in the Official Gazette, designate an officer of the Corporation to
be the Designated Officer for the purposes of this section and of sections 261, 264, 267 and 478. The Designated
Officer shall have jurisdiction over such local area as may be specified in the notification and difference officers may be
designated for different local areas.
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along with all the necessary documents to demonstrate how the said building was a
legal structure, and (ii) putting the Developers to notice that in the event they
failed to appear, Respondent No. 1 would initiate proceedings as per Section
260(2)2of the MMC Act.
2.3 Since no further action was taken by the KDMC after issuance of the said
Notice, the Petitioner made a representation dated 22nd October 2024 ("the
representation") to the KDMC, a translation of which reads as follows:
" ...However, I request you to remove the said unauthorized construction as soon
as possible and cooperate with us. If you do not take action in accordance with
this complaint, we will file a complaint against you in the Hon'ble Bombay High
Court. Mr. Tushar Sonawane Ward Officer has taken an amount of Rs.
5,00,000/- from Shagaf Karel and Faraz Karel. However, no action has been
taken. This information has been given to us by Mr. Gaikwad, an employee of
the Ward Officer..."
2.4 Since despite the above, the KDMC, has neither acted upon the said notice
nor the said representation, the Petitioner has filed the present Petition seeking the
reliefs extracted above.
3. Mr. Rahade, Learned Counsel for the Petitioner pointed out that given the
inaction on the part of the KDMC, it was clear that the Officers of the KDMC
were hand in glove with the developers. He pointed out as per Section 260 of the
MMC Act, a duty is cast upon the KDMC to take action against any building
which was illegally constructed i.e. constructed without any permission.
2 260. (1) ... (2) If such person shall fail to show sufficient case, to the satisfaction of the Designated Officer, why such
building or work shall not be removed altered or pulled down, the Designated Officer may remove, alter or pull down
the building or work and the expenses thereof shall be paid by the said person.
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4. He submitted that the KDMC had however in the present case other than
issuing the said notice, not taken any steps in pursuance thereof and had thus failed
to discharge its statutory duty under Section 260 of the MMC Act. He pointed out
that all these facts had been brought to the notice of the KDMC vide the said
representation despite which the KDMC had failed to act. He, therefore, submitted
that it was imperative that this Court direct the KDMC to act upon the said
representation and to take steps to execute and implement the said notice dated 6 th
August 2024.
5. Per contra, Mr. Shah, learned Counsel appearing on behalf of the Developers
submitted that the Petition was misconceived and was liable to be dismissed as such
since the Developers had filed an application dated 24 th July 2024 for
regularization of the said Building, which application was pending. He submitted
that until such time that the Application was pending, the question of action upon
either the said Notice or the said representation did not arise.
6. Mr. Shah then tendered a compilation of documents basis which he
submitted that the Developers were the owners of the said plot in question and had
carried out construction thereon within the permissible FSI. Mr. Shah, further
pointed out that pursuant to the application for regularization, the Assistant
Commissioner, KDMC had issued a notice dated 24 th February, 2025 by which the
Developers had been granted a personal hearing. He also pointed out that a letter
dated 26th March 2025 had been issued by the "Bhumi Abhilek" department for
carrying out a survey/measurement of the said property and its sub-division.
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7. Basis the above, Mr. Shah submitted that since an application for
regularization had been filed and was pending adjudication the said Notice ought
not be acted upon. He submitted that if the said Notice was acted upon, before the
regularization application was decided the same would amount to the Developers
being deprived of their property without following the due process of law and
would therefore be in the teeth of the directions issued by the Hon'ble Supreme in
the case of Re: Directions in the matter of Demolition of Structures 3. Basis this, Mr.
Shah submitted that the petition be dismissed, and the regularization application
be heard and disposed of.
8. At this stage, we inquired of Mr. Shah, as to whether the Developers had
obtained even a single permission prior to constructing the said building, to which
Mr. Shah fairly responded by saying that the Developers had not. He, however,
reiterated that a regularization application was filed and pending as also that the
Developers had constructed within the permissible FSI.
9. Having heard learned Counsel for the parties and having considered the
material that is placed before us as also the case law both relied upon, and to which
reference was made by Mr. Shah, we find that the Petition deserves to succeed for
the following reasons:
A. It is not in dispute that the construction of the said building is wholly illegal
i.e., without a single permission. The only ground on which the Petition is
opposed is that the Developers have filed an application for regularization,
3 (2025) 5 SCC 1
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pending which, the said Notice must not be acted upon. We find that such a
contention needs only to be stated to be rejected in view of the law laid
down by the Hon'ble Supreme Court in the case of Kaniz Ahmed Vs.
Sabuddin & Ors.4 in which the Hon'ble Supreme Court while deprecating
the practice of regularization of illegal construction observed as follows:
"6. The learned counsel appearing for the petitioner would submit that her
client be given one chance to pray for regularisation of the unauthorised
construction. We do not find any merit in such submission. A person who has no
regards for the law cannot be permitted to pray for regularisation after putting up
unauthorised construction of two floors. This has something to do with the rule
of law. Unauthorised construction has to be demolished. There is no way out.
Judicial discretion would be guided by expediency. Courts are not free from
statutory fetters. Justice is to be rendered in accordance with law. We are at pains
to observe that the aforesaid aspect has not been kept in mind by many State
Governments while enacting Regularisation of Unauthorized Development Act
based on payment of impact fees.
7. Thus, the Courts must adopt a strict approach while dealing with cases of
illegal construction and should not readily engage themselves in judicial
regularisation of buildings erected without requisite permissions of the
competent authority. The need for maintaining such a firm stance emanates not
only from inviolable duty cast upon the Courts to uphold the rule of law, rather
such judicial restraint gains more force in order to facilitate the well-being of all
concerned. The law ought not to come to rescue of those who flout its rigours as
allowing the same might result in flourishing the culture of impunity. Put
otherwise, if the law were to protect the ones who endeavour to disregard it, the
same would lead to undermine the deterrent effect of laws, which is the
cornerstone of a just and orderly society.[See: Ashok Malhotra v. Municipal
Corporation of Delhi, W.P. (c) No. 10233 of 2024 (Delhi High Court)]"
The aforesaid exposition by the Hon'ble Supreme Court,
conclusively determines the issue. Thus, it matters little that
Developers have filed a regularisation application as any such is a
nullity in the eyes of law. The said building being wholly illegal,
must first be demolished and after which, the Developers if they so
desire may apply for a permission, and if such permission is
sanctioned, carry on construction in accordance with such
permission. To permit otherwise would not only be contrary to
4 2025 SCC OnLine SC 995
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every cannon of the rule of law but also embolden others to put up
constructions without first obtaining the necessary permissions.
B. This Court recently in the case of Feroz Talukdar Khan vs. The
Municipal Commissioner Thane Municipal Corporation & Anr .5
while dealing with the issue of illegal construction, in which a similar
argument of a regularization was made, inter alia held as follows:
"16. It is no rule of law that a person with impunity would breach law by
undertaking such defiant illegal construction and thereafter take recourse to
regularization. Regularization can never be of an illegal and/or of rank
unauthorized construction. It can be considered by the planning authority of
some minor deviation in the construction which would not disturb the sanctity of
the permitted legal construction made as per the sanctioned plans and can be
effected only on genuine and bonafide reasons. If we accept a proposition that a
planning authority having not taken an action and/or permitted such
unauthorized construction to take place, and thereafter it considers an application
to regularize the same, this would amount to recognizing a regime unknown to
the provisions of law opposed to the settled constitutional principles, as also to
the settled principles and norms on municipal planning. According any
legitimacy to such actions would create a situation of absolute lawlessness of
unauthorized and illegal constructions, being permitted to come up, with the
municipal/planning authorities doing nothing to arrest unauthorized
construction and subsequently considering regularizing such constructions. This
would also evolve a regime of total lawlessness and recognize illegality of the
persons who have resources to undertake such construction without obtaining
any permission from the planning authorities, as per the requirements of law.
This is a case where no construction permission was applied for."
We find the above observations would also apply on all fours to the
facts of the present case.
C. Reference by Mr. Shah to the judgment of the Hon'ble Supreme
Court in the case of in Re: Directions in the matter of Demolition of
Structures6 is not only entirely misplaced but is infact against the
Developers since the only issue which fell for consideration in the said
cases was as follows:
5 2025 SCC OnLine Bom 2423
6 (2025) 5 SCC 1
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"15. The scope of the present petitions is limited. The question that will have to
be considered is, as to whether the properties of the persons, who are accused of
committing certain crimes or for that matter even convicted for commission of
criminal offences, can be demolished without following the due process of law or
not?."
In the facts of the present case, the aforesaid issue does not arise at
all. The issue at hand pertains to brazenly illegal and unauthorized
construction carried out by Developers who have scant regard for
law and then seek shelter under the garb of a regularisation
application.
D. Also and crucially, in the facts of the present case, the KDMC has
infact, taken steps in accordance with law by issuing the said Notice,
and is thus followed the due process of law. Regrettably however, the
KDMC has, after issuing the said Notices, not taken any further
steps to complete the action initiated by it after issuance of the said
Notice under Section 260 of the MMC Act. It is this process which
has been duly commenced in accordance with law, which must be
taken to its logical conclusion, failing which, the KDMC will not
only be in breach of its statutory duties but also will be complicit in
aiding and encouraging such patently illegal and unauthorized
construction.
Operative Order:
10. For the aforesaid reasons, the Petition must succeed and hence we pass the
following Order :
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(i) KDMC is hereby directed in terms of prayer clause (a) to decide the pending
representation dated 22.10.2024 annexed at Exhibit-"E" to the present
Petition within a period of four weeks from today by inquiring into the
allegations made against Mr. Tushar Sonawane, Ward Officer, and file a report to
that effect.
(ii) The KDMC is directed in terms of prayer clause (b) to take steps to execute
and implement the said Notice dated 06.08.2024 (Exh-"D" to the Petition),
after following due process of law within a period of two months from today.
(iii) List for compliance on 10th September 2025.
(ARIF S. DOCTOR, J.) (G. S. KULKARNI, J.)
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