Justice A.S. Gadkari, Justice Kamal Khata, Bombay High Court

The Bombay High Court has held that permissions granted by the Municipal Corporation of Greater Mumbai (BMC) for alteration or repair of a structure cannot, by themselves, conclusively establish that such structure existed before the datum line, reiterating that such existence must be independently substantiated through cogent evidence.

The Court was hearing a writ petition under Article 226 of the Constitution challenging demolition notices and speaking orders issued under Section 351 of the Mumbai Municipal Corporation Act, 1888, in respect of structures situated at Bharat Coal Compound, Kurla (West), Mumbai.

A Division Bench of Justice A.S. Gadkari and Justice Kamal Khata observed, “any permission/s granted by the BMC either for alteration or modification… 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.”

The Court further remarked that such permissions reflected “the abysmal state of BMC affairs,” observing that permissions ought not to have been granted without first verifying the legality of the structure.

S.U. Kamdar, Senior Advocate, appeared for the petitioners; Shailesh Shah, Senior Advocate, appeared for the respondents.

Background

The petitioners claimed protection against demolition on the ground that their industrial premises constituted a tolerated structure existing before the datum line of 1 April 1962. In support of this claim, reliance was placed on municipal assessment records, Tikka sheets, communications issued by the BMC, and permissions granted for the repair and construction of additional features such as mezzanine floors.

It was contended that these documents cumulatively demonstrated long-standing existence and lawful occupation of the structure, and that the demolition notices were issued without proper consideration of these materials.

The BMC opposed the petition, relying upon survey records, layout plans, and municipal documents indicating that the plot in question was vacant before the datum line. It was submitted that the structure was erected subsequently without authorisation and was therefore liable to be demolished.

Court’s Observation

At the outset, the Court undertook a detailed scrutiny of the documents relied upon by the petitioners and found that none of them conclusively established the existence of the structure before the datum line.

The Court observed that Tikka sheets and layout plans, far from supporting the petitioners’ case, indicated the absence of any structure on the plot before the cut-off date, with the plot being shown as vacant through dotted boundaries rather than hatched construction markings.

The Court further held that assessment records and tax receipts could not, by themselves, establish the existence of a building, particularly when such records did not clearly indicate whether the assessment pertained to land alone or included any structure. It noted that even the communication relied upon by the petitioners expressly recorded that municipal taxes were levied without reference to detailed particulars of the property.

Addressing the reliance placed on repair permissions, the Court held that such permissions are not determinative of the legality or antiquity of a structure. It clarified that while such permissions may create a limited presumption regarding existence, they do not constitute conclusive proof, especially in the absence of independent corroborating evidence.

In this regard, the Court observed that “a permission to repair a structure, given subsequent to the datum line, cannot prove either its existence prior to the datum line or its being authorised.”

The Court further criticised the conduct of the municipal authorities, observing that the grant of such permissions without verifying the legality of the structure reflects serious administrative lapses. However, it emphasised that such lapses cannot be used as a shield by persons who have constructed or occupied structures illegally.

The Court reiterated the settled principle that illegality in construction is incurable and cannot be legitimised by subsequent permissions or administrative inaction. It relied upon the decisions of the Supreme Court in Shanti Sports Club v. Union of India (2009) and Rajendra Kumar Barjatya v. U.P. Avas Evam Vikas Parishad (2024), which underscore that unauthorised constructions must be dealt with strictly and cannot be protected on equitable considerations.

“The menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions, and everyone has been paying a heavy price for the same. The Courts have consistently upheld the principle that, unauthorised constructions and illegal structures must be removed, irrespective of the identity of the occupants”, the Bench reiterated.

It further cautioned that granting relief in such cases would encourage a culture of impunity, where illegal constructions are later sought to be regularised through piecemeal permissions, thereby defeating the object of planned urban development.

Conclusion

The Court held that the petitioners had failed to establish that the structure existed before the datum line and that the impugned demolition notices and orders were valid and well-reasoned.

Accordingly, the writ petition was dismissed, and the request for continuation of interim protection was rejected.

Cause Title: Siesta Industrial & Trading Corporation & Ors. v. Municipal Corporation of Greater Mumbai & Ors. (Neutral Citation: 2026:BHC-OS:11078-DB)

Appearances

Petitioners: S.U. Kamdar, Senior Advocate; Advocates Chirag Kamdar, Sakshi Agarwal, Nilesh Jadhav

Respondents: Shailesh Shah, Senior Advocate; Advocates Joel Carlos, S.V. Tondwalkar

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