[Cites 9, Cited by 0]
Bombay High Court
The Municipal Corporation Of Greater ... vs Siesta Industrial And Trading ... on 29 April, 2026
Author: A. S. Gadkari
Bench: A. S. Gadkari
2026:BHC-OS:11078-DB
sns 41-wp-3448-2023-J (F).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.3448 OF 2023
1. Siesta Industrial & Trading Corporation, ]
a partnership firm Through its partner, ]
Mr. Rakesh Shetty Having office at ]
Kartar Singh Compound, ]
Guru Nanak Nagar, Ghatkopar (West), ]
Mumbai - 400086. ]
2. M/s JAJ Creations Impex Pvt. Ltd. ]
A company incorporated under ]
Companies Act, 1956 having its ]
Office at Gala No.5, Bharat Coal ]
Compound, Plot No.60, Survey ]
No.36, Hiss No.16 & C.T.S. No.66(Part), ]
Kurla (West), Mumbai - 400 070. ]
3. Paresh P. Parekh, ]
Adult, Indian Inhabitant of Mumbai, ]
Having his address at Gala No.3, ]
Bharat Coal Compound, Plot No.60, ]
Survey No.36, Hiss No.16 & ]
C.T.S. No.66 (Part), ]
Kurla (West), Mumbai - 400 070. ] ... Petitioners
V/s.
1. The Municipal Corporation of ]
Greater Mumbai, a Body Corporate ]
Incorporated in accordance with ]
the provisions of M.M.C. Act, 1888 ]
having its head office at Mahapalika Bhavan, ]
Mahapalika Marg, C.S.T., Mumbai - 400 001. ]
2. The Designated Municipal Officer, ]
S.G. Barve Marg, Ambedkar Nagar, ]
L Ward, Kurla (West) - 400 070. ] ... Respondents
1/14
Digitally
signed by
SUMEDH
SUMEDH NAMDEO
NAMDEO SONAWANE
SONAWANE Date:
2026.04.29
19:04:18
+0530
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sns 41-wp-3448-2023-J (F).doc
WITH
INTERIM APPLICATION (L) NO.5806 OF 2026
IN
WRIT PETITION NO.3448 OF 2023
1. Municipal Corporation of Greater ]
Mumbai, A Body Incorporate, ]
incorporated in accordance with the ]
provisions of the MMC Act, 1888 ]
having its head office at Mahapalika ]
Bhavan, Mahapalika Marg, ]
CTS, Mumbai 400001. ]
2. The Designated Municipal Officer, ]
L Ward, Kurla (West) 400 070 ] ... Applicants
In the matter between:
1. Siesta Industrial & Trading Corporation, ]
A partnership firm through its partner, ]
Mr. Rakesh Shetty, Having office at ]
Kartar Singh Compound, Guru Nanak ]
Nagar, Ghatkopar (West), Mumabi 400 086. ]
2. M/s. Jaj Creations Impex Pvt. Ltd. ]
A company incorporated under Companies ]
Act, 1956 having its Office at Gala No.5, ]
Bharat Coal Compound, Plot No.60, Survey ]
No.36 Hissa No.16 & CTS No.66 (part), ]
Kurla (West), Mumbai 400 070. ]
3. Paresh P. Parekh ]
Adult, Indian inhabitant of Mumbai, having ]
address at Gala No.3, Bharat Coal ]
Compound, Plot No.60, Survey No.36, ]
Hissa No.16 & CTS No.66 (part), ]
Kurla (West), Mumbai - 400 070. ] ... Petitioners
V/s.
1. The Municipal Corporation of Greater ]
Mumbai, A Body Incorporate, incorporated ]
2/14
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in accordance with the provisions of the ]
MMC Act, 1888 having its head office at ]
Mahapalika Bhavan, Mahapalika Marg, ]
CST, Mumbai 400001. ]
2. The Designated Municipal Officer, ]
L Ward, Kurla (West) 400070 ] ... Respondents
______________________________________
Mr. S. U. Kamdar, Senior Advocate a/w. Mr. Chirag Kamdar, Ms. Sakshi
Agarwal, Mr. Nilesh Jadhav i/by Mr. Bipin Joshi, for the Petitioners.
Mr. Shailesh Shah, Senior Advocate a/w. Mr. Joel Carlos, Ms. S.V.
Tondwalkar i/by Ms. Komal Punjabi for the Respondent-BMC.
_____________________________________________
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 17th April, 2026.
PRONOUNCED ON : 29th April, 2026.
Judgment (Per : Kamal Khata, J) :-
1) By this Writ Petition under article 226 of the Constitution of
India, the Petitioners seek to quash and set aside seven impugned Notices
dated 22nd December, 2022, as well as seven Speaking Orders dated 10 th
March, 2023, with respect to property situated at Bharat Coal Compound,
Bail Bazar, Kurla West, Mumbai - 400070.
Brief facts.
2) The Petitioner No.1 is carrying on business in partnership from
Bharat Coal Compound on land bearing Survey No.36, Hissa No.15, Old
C.T.S. No.66 (Part) corresponding to new C.T.S. No.704 admeasuring
1340.70 square meters, bearing Survey No.36, Hissa No.16, C.T.S. No.66
sns 41-wp-3448-2023-J (F).doc
(Part) admeasuring 432.33 square meters, aggregating to 1773.12 square
meters, together with industrial shed admeasuring 13061 square feet on the
ground floor of the building. The industrial shed originally consisted of 6
industrial galas which has been assessed to Municipal taxes prior to 1962.
The Petitioners assert that, their premises constitute a tolerated structure
existing prior to the datum line of 1 st April 1962, for non-residential
structures, as supported by Tikka Sheets and Brihanmumbai Municipal
Corporation ('BMC') assessment records.
3) Mr. S.U. Kamdar, learned senior counsel for the Petitioners
argues that, the assessment records bearing No.L3345(3) revealed that said
Gala was assessed to Municipal taxes prior to 1962. He submitted that, the
Petitioners have various documents to show their lawful use and occupation
and possession.
3.1) He submits that, the impugned Notices are issued at the behest
of interested parties who were bound to convey the property to the
Petitioners. He principally relies upon the decision of the Supreme Court in
the case of UMC Technologies Private Limited vs. Food Corporation of India
& Anr. reported in (2021) 2 SCC 551 to contend that, the impugned Notices
should be adequate and set out the grounds necessitating action and the
penalty/action proposed, should be mentioned specifically and
unambiguously. An Order travelling beyond the bounds of Notice is
impermissible and without jurisdiction to that extent. It is essential for the
sns 41-wp-3448-2023-J (F).doc
Notice to specify the particular grounds on the basis of which an action is
proposed to be taken so as to enable the noticee to answer the case against
him. If these conditions are not satisfied, the person cannot be said to have
been granted any reasonable opportunity of being heard. Relying on this
Judgment, he submitted that, the speaking Order was beyond the scope and
purview of the Show Cause Notice issued under Section 351 of the Mumbai
Municipal Corporation Act, 1888 ('MMC Act').
3.2) He invited our attention to the various documents annexed to
the Petition in support of his contention. He particularly relied upon a
communication dated 19th January, 1993, to submit that, the said document
was addressed by the Assistant Assessor and Collector of the BMC to the
partner of the Petitioner No.1 which categorically stated that, the property
bearing No.L3345(3) has been assessed to Municipal taxes since 1 st April,
1962. He also invited our attention to the Assessment bill dated 29 th
December 2012 and particularly to the date 1 st April, 1962 in the row
immediately after the address of the Petitioner with a description first
Assessment date being 1st April, 1962.
3.3) He also drew our attention to the communication addressed by
the BMC dated 26th October, 1993 granting them repair permission to the
said structure, whereby the Petitioner was permitted to construct the
mezzanine floor. He further heavily relied upon the IOD granted by the
BMC to another structure in the said compound which was dated 17 th
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February, 1971. Relying upon the calculations made therein he submitted
that, the fact that the area of the Petitioners' plot was reduced to determine
the FSI and constructed area available to them would indicate that, their
structure existed prior to the datum line. He accordingly submitted that, the
Petitioners would be gravely prejudiced if the prayers in the Petition were
declined.
4) Per contra, Mr. Shailesh Shah, learned senior counsel
appearing for Respondents-Corporation relied upon the Affidavit of Mr.
Sanjay Mallinath Dudhbhate dated 24 th July, 2023. He submitted that, the
Tikka Sheets, relied upon by the Petitioners, clearly reveal that, there were
no structures on the said plot of land prior to the datum line.
4.1) He submitted that, the Petitioners heavily relied upon a layout
plan of the entire plot in support of their contentions. The said layout plan
itself showed structures thereon marked in hatched lines and the empty
plots with dotted line boundaries. The Petitioners' plot was clearly an empty
plot with dotted line boundary. Therefore, the claim of the Petitioner that
structure existed prior to datum line was baseless and unfounded.
Moreover, the City Survey Department had prepared MR plan which
showed the notice structure in a red hatch which indicated structures
erected at a later point in time than the datum line. In that view of the
matter, he submitted that, the Petition deserves to be rejected.
sns 41-wp-3448-2023-J (F).doc
Analysis and Conclusion:
5) This is yet another case which highlights the two classes of
citizens which approach the Court. First, those who scrupulously follow the
law and second, those who blatantly violate it and thereafter raise spacious
pleas to justify their actions. The present case pertains to the later category.
6) Upon carefully examining the documents on record, we posed
a query to Mr. Kamdar as to whether he had any documents other than the
Tikka Sheet and assessment bill, that would prove the existence of a
structure prior to the datum line. He promptly submitted that there were
several other supporting documents to suggest and prove the existence of
the Petitioners' structure prior to the datum line. According to us, there
were no other documents on record to clearly prove that a structure existed
on the plot prior to the datum line, leave aside the exact constructed area.
7) A bare perusal of the notices indicates that, the entire structure
viz. the shed comprising of ground and mezzanine is illegal. The impugned
orders elaborately state as to why the structures are held to be illegal and
deserve to be demolished.
8) A careful perusal of the impugned orders clearly indicates that,
they are well reasoned and have duly considered the documents as well as
the contentions of the Petitioners. The impugned orders are certainly not
lacking reasons or perverse.
sns 41-wp-3448-2023-J (F).doc
9) In our view, an unauthorized structure cannot be tolerated or
protected and is liable to be demolished. It is settled law that, illegality is
incurable.
10) The Apex Court in its Judgment in the case of Shanti Sports
Club vs. Union of India reported in (2009) 15 SCC 705, has observed that
over the last four decades, almost all cities, big or small, have seen
unplanned growth. The menace of illegal and unauthorized constructions
and encroachments have acquired monstrous proportions and everyone has
been paying a heavy price for the same. The Courts have consistently
upheld the principle that, unauthorized constructions and illegal structures
must be removed, irrespective of the identity of the occupants. In a recent
decision, the Hon'ble Supreme Court in the case of Rajendra Kumar
Barjatya vs. U.P. Avas Evam Vikas Parsihad & Ors. reported in 2024 SCC
OnLine SC 3767, reiterated the dictum "illegality is incurable", in paragraph
No.20, has held as under :-
"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 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
sns 41-wp-3448-2023-J (F).doc
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
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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."
10.1) The Hon'ble Supreme Court in case of Kaniz Ahmed Vs.
Sabuddin and Ors., reported in 2025 SCC OnLine SC 995, in paragraph
No.7 has held as under:
"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)]"
11) In our view, the Tikka Sheet relied upon by the Petitioners does
not support them, but on the contrary, supports the case of the BMC - that
sns 41-wp-3448-2023-J (F).doc
no structure existed prior to the datum line. The Petitioners have no
explanation as to why their plot did not indicate any structure with hatched
lines and only showed the plot boundary that with dotted lines to indicate
their plot. None of the other documents relied upon by the Petitioners show
the dimensions of the structure prior to the datum line.
12) In view of the above, we are unable to accept the contention of
Mr. Kamdar that production of an assessment invoice or receipt, by itself,
would mean that both land and building were assessed. The assessment
sheet produced does not record that land and building were assessed.
13) The reliance placed by Mr. Kamdar on the IOD issued to the
adjacent plot owner particularly the calculations shown therein for
evaluating the FSI available to the owners of that plot cannot be a proof of
existence of a structure on the said plot. It may well be a calculation based
on the entitlement to build on the said plot. The contention that the area
shown in the calculation would conclusively prove the existence of a
structure is an unacceptable proposition.
14) In our view, the contents of IOD granted for an adjoining plot,
by itself does not prove the existence of a structure on the Petitioners plot.
The submission of Mr. Kamdar is only a presumption and not based on any
direct evidence of existence of the said structure. The Petitioners have failed
to produce any document that would show that a structure admeasuring a
certain area existed on the plot prior to the datum line.
sns 41-wp-3448-2023-J (F).doc
15) The communication addressed by the BMC on 19 th January,
1993, relied upon by the Petitioners, is a document issued by the Assistant
Assessor and Collector on 15th January, 1993. It categorically records that
the Municipal taxes levied on the property was without reference to the
details of the property under reference. This would indicate that, the said
document by itself is not conclusive evidence that the property was assessed
for land alone or alongwith the structure.
16) In our view, the repair permissions granted by the BMC, would
not by itself, conclusively prove that a structure existed prior to the datum
line. Any permission/s granted by the BMC either for alteration or
modification a structure, though it may carry a presumption regarding the
existence of such structure, cannot conclusively establish that the structure
existed prior to the datum line unless the same is independently
substantiated by supporting documents. In our view, such a permission
granted would only show the abysmal state of BMC affairs. The BMC could
not have granted any such permission without ascertaining the legality of
the said structure.
17) In our considered view, the concerned Officers who gave such
permissions are responsible and the cause of these rampant illegalities in
the State. It is imperative for the Officers of the BMC to check as to whether
the structure is authorized before granting any such repair permission. The
failure per se cannot inure to the benefit of the wrongdoer. A permission to
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repair a structure, given subsequent to the datum line, cannot prove either
its existence prior to datum line or it being authorised. In our view, granting
reliefs to the Petitioners would only encourage the public perception that
one can construct illegally and regularise the same by obtaining such
permissions subsequently. It would render the entire object of the
legislature to have a planned development and having the Municipal Act
nugatory and otiose resulting in illegalities being confirmed and ratified by
subsequent repair permissions.
18) In view of the above, the Petition is dismissed.
19) In view of disposal of the Writ Petition, the Interim Application
(L) No.5806 of 2026 does not survive and is also disposed off.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
20) At this stage, learned counsel for the Petitioners submitted
that, there is an ad-interim relief in favour of the Petitioners since 19 th April,
2023, and it may be extended for a period of four weeks from today to
enable the Petitioners to test correctness of this Judgment before the
Hon'ble Supreme Court.
21) Mr. Shah, learned counsel for the BMC opposed the said
request.
sns 41-wp-3448-2023-J (F).doc
22) In view of the facts mentioned hereinabove and after recording
the evidence that, the suit structure is palpably illegal, we are not inclined
to entertain such a request. The said request is accordingly rejected.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
