Encroachment In Mumbai Has Assumed Character Of Disease: Bombay High Court Directs BMC To Submit Encroachment Removal Plan On A "Private Street"
The High Court held that where statutory duties cast obligations on a municipal authority to maintain streets and remove obstructions, it cannot evade responsibility merely by labelling a heavily used road as private, particularly when public access has continued for decades.
The Bombay High Court held that the BMC cannot ignore encroachments on a street that the public has continuously been using for decades, on the ground that the road is privately owned and directed the Municipal Commissioner to formulate and place before the Court a concrete removal plan within ten days.
The Court was hearing a writ petition concerning persistent encroachments on a road in Mumbai, allegedly causing severe obstruction and hardship to residents who had long used it as a regular thoroughfare.
A Division Bench of Justice Ravindra V. Ghuge and Justice Abhay J. Mantri noted that despite statutory powers and duties, the municipal body declined to take action, taking the stand that the road was private. The Court, while stating that there would be no disagreement “among the residents of Mumbai City that encroachment has assumed the character of a disease”, emphasized that “the Corporation, being a civic body, is under an obligation to discharge its functions in such a manner that it does not appear to be at the mercy of encroachers.”
Background
The dispute concerned a stretch of road in the Powai region where encroachments allegedly narrowed a wide concrete road into a single-lane passage. The Municipal Corporation filed an affidavit stating that the strip of land formed part of privately owned property, had never been vested in the Corporation, and therefore fell outside its statutory responsibility for removal of encroachments.
The Corporation asserted that its statutory powers regarding construction, maintenance, and obstruction removal primarily apply to public streets vested in or controlled by it, and that deploying public funds to clear encroachments on private property would improperly shift a private owner’s responsibility onto public resources.
It further pointed out that while encroachments on an adjoining public road had been removed using public resources, no such action was taken on the disputed road because it was privately owned.
The petitioners, however, contended that the road had been used uninterruptedly by residents for decades and therefore possessed the characteristics of a public street within statutory definitions, imposing duties upon the Corporation.
Court’s Observation
The Court examined definitions under the Mumbai Municipal Corporation Act, noting that a “street” includes any road or passage over which the public has enjoyed uninterrupted access for twenty years, while a “public street” includes those vested in or maintained by the Corporation.
It also considered statutory provisions imposing obligations on municipal authorities to construct, maintain, and remove obstructions from public streets, emphasising that these duties are mandatory rather than discretionary.
The Bench noted that the road was earlier shown as a proposed Development Plan road and later recognised as an existing road in planning regulations. It found the Corporation’s position, that it would not deal with encroachments merely because the road was not technically classified as public, to be untenable in light of its long public use.
Photographs showed heavy traffic and continuous public usage. The Court observed that a road used for decades as a thoroughfare and capable of accommodating multiple lanes could not practically be treated as outside civic responsibility.
The Bench relied on precedent holding that when statutes impose duties on local authorities in the implementation of planning schemes, courts may issue mandamus compelling performance of such duties.
“Several applications have been made to the Corporation, and Sub-Section (2) of Section 308 of the MMC Act, 1888 permits the Commissioner to exercise his powers to remove encroachments on such a street, that has assumed the character of a public street. The Corporation cannot justify contending that it would not even venture to make a statement before the Court regarding the serious inconvenience and difficulties faced by hundreds of localites, like the Petitioners, in order to ensure the smooth flow of traffic and avoid congestion”, the Court stressed.
It highlighted that town-planning statutes entrust local authorities with broad powers to remove unauthorised structures across areas governed by planning schemes, reinforcing their obligation to act in the public interest.
The Court expressed surprise at the Corporation’s reluctance, stating it was “astounding” that it would refuse even to make a statement about alleviating public inconvenience caused by encroachments.
It questioned whether the civic body intended to abdicate its powers despite residents’ complaints and remarked that relying on technical classification to avoid action amounted to a “weak excuse.”
Interpreting statutory provisions on obstruction removal, the Court noted that the language refers broadly to “any street” rather than restricting authority to “public streets,” indicating that the legislature did not intend such powers to be narrowly confined.
Conclusion
The High Court directed the Municipal Commissioner to examine the order and submit, within ten days, a concrete plan for removing encroachments on the road, specifying actionable steps to be executed within sixty days.
The Court further ordered the removal of mobile toilets and water tankers within forty-eight hours, with police assistance if necessary.
The matter has been again listed for hearing on February 27th 2026.
Cause Title: Beaumont HFSI Pre-Primary & Anr. v. Municipal Corporation of Greater Mumbai & Ors.
Appearances
Petitioners: Senior Advocate Naushad Engineer, Advocate Yash Momaya
Respondents: Advocates Dhruti Kapadia, Kavita Dhanuka, Anjali Ghuge, Rakesh Pathak