[Cites 3, Cited by 0]
Bombay High Court
Mohammed Bashir Ansari vs The State Of Maharashtra, Through ... on 28 April, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:20251
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11769 OF 2012
Mohammed Bashir Ansari ... Petitioner
V/s.
The State of Maharashtra & Others ... Respondents
WITH
WRIT PETITION NO.11770 OF 2012
Talib Hussain Abdul Aziz Qureshi ... Petitioner
V/s.
The State of Maharashtra & Others ... Respondents
WITH
WRIT PETITION NO.11771 OF 2012
Patel Maulana Bee, through Constituted
Attorney Kamrunissa Hamidali Maniyar ... Petitioner
V/s.
The State of Maharashtra & Others ... Respondents
WITH
WRIT PETITION NO.11772 OF 2012
Shaikh Gulab Maulana, through C.A.
Abdul Qayyum Mogis Khan ... Petitioner
V/s.
The State of Maharashtra & Others ... Respondents
WITH
WRIT PETITION NO.11773 OF 2012
Shaikh Garibi Rokiddin, through C.A.
Smt. Saida Shaikh Jaffer ... Petitioner
V/s.
The State of Maharashtra & Others ... Respondents
1
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WITH
WRIT PETITION NO.11774 OF 2012
Mashakabi Patel, through C.A.
Mahesh Laxmanrao Vanprati ... Petitioner
V/s.
The State of Maharashtra & Others ... Respondents
WITH
WRIT PETITION NO.11285 OF 2012
Taranom Sufiyan Khan ... Petitioner
V/s.
The State of Maharashtra & Others ... Respondents
WITH
WRIT PETITION NO.11286 OF 2012
Sufiyan Anwar Khan ... Petitioner
V/s.
The State of Maharashtra & Others ... Respondents
WITH
CIVIL APPLICATION NO.1852 OF 2016
IN
WRIT PETITION NO.11286 OF 2012
Vishwas Pandurang Ghadigaonkar ... Applicant
In the matter between
Sufiyan Anwar Khan ... Petitioner
V/s.
The State of Maharashtra & Others ... Respondents
WITH
WRIT PETITION NO.11287 OF 2012
Sufiyan Anwar Khan ... Petitioner
V/s.
The State of Maharashtra & Others ... Respondents
WITH
WRIT PETITION NO.11288 OF 2012
2
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Shaikh Alimuddin Junde ... Petitioner
V/s.
The State of Maharashtra & Others ... Respondents
Ms. Aditi Naikare with Ms. Priyanka Bhoite i/by Mr.
Pradeep Thorat for the petitioner in all writ petitions.
Smt. Mamta Shrivastav, AGP for State in
WP/11285/2012.
Ms. S.S. Jadhav, AGP for State in WP/11288/2012.
Smt. S.D. Chipade, AGP for State in WP/11286/ 2012.
Ms. S.R. Crasto, AGP for State in WP/11769/2012.
Mr. P.V. Nelson Rajan, AGP for State in
WP/11772/2012.
CORAM : AMIT BORKAR, J.
DATED : APRIL 28, 2026
P.C.:
1. Since all these writ petitions involve common questions of
law and arise out of an interconnected factual background, they
are being heard together and are disposed of by this common
judgment and order. For the sake of convenience, Writ Petition
No.11769 of 2012 is treated as the lead matter, and the facts
therein are referred to as the principal case.
2. By these writ petitions filed under Articles 226 and 227 of
the Constitution of India, the petitioners in each matter have called
in question the legality, validity, and propriety of the notice dated
20 November 2010 and the consequential order dated 29 March
2012 passed by the respondents. The petitioners seek appropriate
writ, order and direction for setting aside the impugned actions as
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being contrary to law.
3. The brief facts giving rise to the present proceedings, as
pleaded in Writ Petition No.11769 of 2012, are thus. The premises
in question are situated upon land bearing Survey No.263,
admittedly belonging to respondent No.1, being the State of
Maharashtra. One Patel Maulanabee was allotted a plot beneath
the said structure pursuant to an order dated 26 June 2000 passed
by respondent No.1, by way of permanent alternate
accommodation, in view of the destruction of the premises earlier
occupied by her at Sanjay Nagar, Kurla. It is the case of the
petitioner that in the year 1996, owing to a natural calamity, the
structures occupied by thirteen families at Sanjay Nagar, Kurla
were destroyed. The said affected families thereafter made
representation to respondent No.1 seeking allotment of alternate
sites for reconstruction of their shelters. Upon consideration of
such request, the Secretary, Ministry of Housing and Special
Assistance, State of Maharashtra, passed an order dated 26 June
2000 directing the Deputy Collector (ENC), Mumbai Suburban
District, to permit the said thirteen persons to erect structures
upon Survey No.263, CTS No.7, opposite Asmita Co-operative
Housing Society. In furtherance of the aforesaid Government order
dated 26 June 2000, the Tahsildar (ENC), Borivali, by
communication dated 17 July 2001, requested the Senior Police
Inspector, Kandivali Police Station, to extend police protection to
the said thirteen families so as to enable them to construct their
structures on the allotted land. It is stated that after the structures
were erected, officers of respondent No.1 threatened demolition
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thereof. Consequently, the said thirteen occupants instituted S.C.
Suit No.3910 of 2002 before the City Civil Court at Bombay
seeking injunctive relief restraining respondent No.1 and its
officers from demolishing the thirteen structures standing on
Survey No.263, CTS No.7, Marve Road, Malad (West), Mumbai. By
order dated 29 July 2002 passed in Notice of Motion No.2717 of
2002, the City Civil Court granted interim relief in terms of prayer
clause (a), thereby restraining respondent No.1 and its officers
from carrying out demolition.
4. According to the petitioner, notwithstanding the subsisting
order of injunction passed by the City Civil Court, respondent No.1
proceeded to demolish the thirteen structures constructed by the
allottees, including the structure of the predecessor of the present
petitioner. Aggrieved thereby, the said thirteen persons approached
this Court by filing Writ Petition No.2618 of 2002. By order dated
22 July 2003, this Court allowed the said writ petition and
directed the respondents to reconstruct the thirteen structures and
to provide basic amenities thereto. This Court further imposed
costs of Rs.10,000/- payable to each of the thirteen petitioners. It
is also stated that contempt proceedings came to be initiated
against the Additional Collector (ENC) and Deputy Collector
(ENC) for having acted in breach of the injunction order passed by
the City Civil Court. Being dissatisfied with the order dated 22 July
2003 passed in Writ Petition No.2618 of 2002, respondent No.1
preferred Appeal (L) No.1071 of 2003 before the Division Bench of
this Court. By order dated 25 February 2005, the Division Bench
disposed of the appeal by holding that the said thirteen persons
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were entitled to reconstruct their structures. It was further
observed that if respondent No.1 intended to take any action for
eviction of the said persons, an opportunity of personal hearing
was required to be granted to them. In pursuance of the aforesaid
orders, the predecessor of the petitioner, namely Patel
Maulanabee, reconstructed the premises in question. A photopass
was thereafter issued in respect of the structure admeasuring 20 x
15 feet, equivalent to 300 sq. ft., situated on Survey No.263 (part).
It is further the case of the petitioner that one Sinami Rajan
transferred her right, title and interest in the said structure in
favour of the petitioner's predecessor, namely Narendra
Laxmanprasad Sharma, who thereafter, by agreement dated 25
October 2011, transferred the said premises in favour of the
petitioner. The petitioner asserts that she thereafter commenced
business activities from the said premises. It is also stated that the
predecessor had obtained a Shop and Establishment Certificate as
well as electricity connection for the said premises.
5. Respondent No.2 issued notice bearing
No.DYCEN/Malad/Sr.38/10 dated 20 November 2010 under
Section 3Z-2 of the Slum Act in the name of the predecessor of the
petitioner, alleging that the premises had been unauthorizedly
constructed. By the said notice, the predecessor was called upon to
produce documentary material showing existence of the premises
prior to 1 January 1995. Upon receipt of the said notice, the
predecessor submitted reply dated 22 December 2010 contending
that he was using the premises for running his business. It was
further stated that the structure had been erected pursuant to the
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Government order dated 28 June 2001 issued by the Deputy
Secretary, Housing Department, Mantralaya. Relevant documents
were also relied upon to contend that the premises had been
reconstructed in pursuance of judicial orders passed by this Court.
Thereafter, by order dated 29 March 2012, the Deputy Collector
(ENC) and Competent Authority, Malad, passed an order under
Section 32-2(4), directing removal of the premises on the
allegation that the same was an unauthorized structure standing
on Government land. Respondent No.2 held that the petitioner's
predecessor had failed to establish existence of the structure prior
to 1 January 1995 and therefore the premises were not entitled to
protection. It was further held that the predecessor had transferred
the premises in favour of one Shri Yogesh Dhanaji Patel without
obtaining prior permission, thereby violating Condition Nos.3 and
12 of the terms and conditions of Photopass
No.80/H/MG/93/700.
6. The petitioner contends that a copy of the order dated 29
March 2012 was served upon her at about 4.00 p.m. and, taking
advantage of the intervening weekend, respondent No.2
proceeded, without affording any reasonable opportunity to
challenge the said order, to demolish a portion of the premises on
31 March 2012. It is further stated that the petitioner thereafter
repaired the damaged portion and continued to carry on business
therefrom. Immediately thereafter, the petitioner preferred Appeal
No.212 of 2012 before the Administrator and Divisional
Commissioner, Konkan Division, Mumbai, challenging the order
dated 29 March 2012 passed by the Deputy Collector (ENC) and
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Competent Authority. It was contended therein that as per a
Circular issued by respondent No.1 in January 2012, transfer of
structures in respect of which pitch cards had been issued could be
regularized upon payment of penalty. The petitioner also sought
permission to reconstruct the portion of the premises demolished
by respondent No.2.
7. By order dated 29 October 2012, the Administrator and
Divisional Commissioner, Konkan Division, Mumbai, dismissed
Appeal No.212 of 2012. Respondent No.3 held that the notice
dated 20 November 2010 under Section 3Z-2 of the Slum Act had
been issued in the name of Sinami Rajan and that the documents
relied upon by the petitioner did not pertain to the premises in
question. It was further held that since the original allottee had
committed breach of Condition Nos.3 and 12 of the photopass
terms, the power of attorney executed by such allottee could not
be recognized. Respondent No.3 also observed that although
reliance was placed on orders of the City Civil Court and the High
Court, no satisfactory proof had been produced. It was therefore
concluded that, since the original structure had been transferred in
violation of the allotment conditions, no fault could be found with
the order passed by respondent No.2. It was further held that the
petitioner had raised unauthorized construction on Government
land and hence issuance of notice under Section 3Z-2 was justified.
According to the petitioner, the said appellate order was never
served upon her, and taking advantage thereof, respondent No.2
pasted a public notice upon the premises on 7 November 2012 and
demolished the structure on the same day. It is alleged that the
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petitioner's goods remained lying on the open site thereafter.
8. Being aggrieved by the order dated 23 October 2012 passed
by the Administrator and Divisional Commissioner, Konkan
Division, Mumbai in Appeal No.212 of 2012, as also by the
preceding actions of the authorities, the petitioner has approached
this Court by way of the present writ petitions seeking appropriate
reliefs in exercise of writ jurisdiction.
9. At this stage of hearing, learned counsel Ms. Naikare
appearing for the petitioners submits that the structures which are
subject matter of all these petitions are in fact not falling within
any notified slum area. It is also her contention that the petitioners
are not claiming any right dehors law, but are only seeking
consideration of their request for regularization of the structures as
well as transfer in their favour in accordance with applicable policy
and circulars.
10. Having considered the said submission, I find that the issue
whether the structures are situated within a slum area or not is a
foundational fact which must be first determined before any
exercise of regularisation is taken.
11. If upon such ascertainment it is found that the structures are
situated within a slum area, then in that event, the request made
by the petitioners for regularization of the structures and transfer
shall not be entertained. However, if it is found that the structures
are not falling within any slum area, in such case, respondent No.2
shall proceed to consider the request of the petitioners for
regularization of the structures as well as transfer in their favour,
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strictly in accordance with law, applicable policies and relevant
circulars.
12. In view of the foregoing discussion and findings, the
following order is passed:
(i) Respondent No.2 shall, as a preliminary exercise,
ascertain and determine whether the structures which are
subject matter of the present petitions are situated within a
notified slum area or otherwise;
(ii) In the event it is found that the said structures are
situated within a slum area, the request of all the petitioners
for regularization of the structures and transfer in their
favour shall not be considered;
(iii) In the event it is found that the said structures are not
situated within a slum area, respondent No.2 shall consider
the request of the petitioners for regularization of the
structures and transfer in their favour, in accordance with
law, applicable policy and relevant circulars;
(iv) While undertaking the aforesaid exercise, respondent
No.2 shall permit all petitioners to place all relevant
documents in support of their claim;
(v) Respondent No.2 shall pass a reasoned order in
accordance with law as expeditiously as possible and
preferably within a period of twelve weeks from the date of
receipt of proposal for regularisation;
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(vi) The writ petitions are disposed of in the above terms.
No order as to costs.
13. In view of disposal of the writ petitions, all pending interim
application(s) stand disposed of.
(AMIT BORKAR, J.)
