Difficult To Brush Aside Such Actions Lightly: Bombay High Court Directs Examination Of Issues Regarding 935 Notices Under MHAD Act

The Bombay High Court has directed the examination of issues regarding 935 notices issued under the Maharashtra Housing and Area Development Act, 1976 (MHAD Act).

A batch of Petitions were preferred before the Court, assailing the notices issued by the Executive Engineer(s) of the Mumbai Building Repairs and Reconstruction Board.

A Division Bench of Justice G.S. Kulkarni and Justice Arif S. Doctor remarked, “Thus, considering the proportion and/or magnitude of the illegality and the high-handedness of such actions of the Executive Engineers of the MHADA/ Board, and the very severe impact of such actions on the Constitutional rights guaranteed under Article 300A read with Articles 14 and 21 of the Constitution, it is difficult to brush aside such actions lightly. Such valuable rights of the different stakeholders are brazenly violated by such actions of the Executive Engineers, thereby bringing about a situation of total lawlessness and absence of the rule of law, affecting hundreds of properties.”

The Bench appointed Justice J. P. Devadhar, former High Court Judge and Vilas D. Dongre, retired Principal District Judge to examine the issues.

Senior Advocates N. V. Walawalkar, G. S. Godbole, and Surel Shah appeared for the Petitioners while Senior Advocate Janak Dwarkadas and Advocate P.G. Lad appeared for the Respondents.

Facts of the Case

It was informed to the Court that 935 notices were issued by different Executive Engineers and many of them singularly issued hundreds of such notices in a short span against different properties. It was alleged that these notices were issued wholly without jurisdiction. The entire controversy revolved around the exercise of power by the officials under Section 79-A of the MHAD Act. Earlier, the Court observed that the Executive Engineer has no jurisdiction to issue the impugned notices and the action on the part of the Executive Engineer was highhanded. The Court also observed as to how many such notices were issued by these officers, be informed to the Court, as several matters had reached to the Court on such issue.

Thereafter, recording that the case involved a patent defiance of the mandate of sub-section (1) of Section 79-A and the purport of the jurisdiction and powers, which were in fact vested, with the Board under Section 79-A as envisaged under sub-section (1) of Section 79-A, the Court passed a detailed Order while adjourning the proceedings, directing the Vice-Chairman to take appropriate decision and inform the Court in regard to the issue. Considering the case of the Petitioners of a gross illegality at the hands of the Executive Engineer(s) and on the tacit approval of the high-ranking officials, the High Court proceeded to examine the issues.

Court’s Observations

The High Court after hearing the contentions of the counsel, observed, “We are also not aware as to how and in what manner, authority and purpose the Vice-Chairman quite belatedly has issued the said SOP and that too after more than 800 notices were issued by the Executive Engineers. Was the Vice-Chairman not duty bound to apply his mind to the provisions of Section 79-A and the requirements to be fulfilled in taking any action under Section 79-A. We are in fact surprised as to why the Vice-Chairman would not apply his mind, to such basic requirements the law would mandate him to adhere.”

The Court noted that the rights guaranteed under Article 14 of such stakeholders are rendered wholly illusory and such is the seriousness of the matter. It added that the Executive Engineers could not have issued such notices.

“The last contention of Mr. Lad referring to the Government Resolution dated 22 August 2016 that would give the Executive Engineers power to declare a building as dangerous and to issue notice under Section 79-A, also cannot be accepted. The said Government Resolution only prescribes guidelines in regard to any mishap to be prevented of the buildings which have been declared to be dangerous by the Municipal Corporation by issuance of a notice under Section 354 of the MMC Act. The Government Resolution in no manner has intended to supplant the provisions of Section 79-A or dilute its rigours”, it further said.

The Court was of the view that the contentions as urged on behalf of the Respondents cannot be accepted, considering the clear position in law and the implications which are brought about by the provisions of the MHAD Act.

“Thus, our conscience would not permit us to merely grant an interim order of stay on such notices considering the seriousness of the issue. We are of the clear opinion that it would be imperative as also our duty as the Constitutional Court, to order an inquiry into such issues of highhandedness and abuse of powers by the concerned officials, to be undertaken by an independent committee appointed by the Court”, it concluded.

Directions

The Court, therefore, passed the following Order –

(i) A Committee headed by Justice J. P. Devadhar, Former Judge of the Court alongwith Vilas D. Dongre, Retired Principal District Judge, is appointed to examine the issues in regard to the 935 notices issued under Section 79-A including, the subsequent actions to withdraw such notices, and the role of the different officials and/or motives if any, in issuance of these notices.

(ii) The MHADA shall place before such Committee the entire record in regard to all such notices, the details of the properties involved, names of the officials who have issued such notices, and all other relevant details as the Committee may intend to have and/or it may deem fit and proper, in regard to the decisions taken to issue such notices.

(iii) Insofar as the 46 notices issued after the decision of the Division Bench in Vimalnath Shelters (supra) are being withdrawn. Let the MHADA/Board issue a notice of withdrawal of such notices along with the names of the parties to whom such notices were issued. Appropriate intimation of the withdrawal of these notices be issued to the concerned parties within one week.

(iv) 889 notices shall be kept in abeyance and no further action shall be taken under them, unless the parties have consented in the redevelopment and the redevelopment has progressed. However, all the 935 notices shall form subject matter of consideration of the Committee, so as to enable the Committee to form an overall opinion on these notices.

(v) Insofar as the impugned notices as assailed in the Petitions are concerned, if they are not included in those being withdrawn by the MHADA/Board, the same shall remain stayed.

(vi) All other legal issues and larger contentions as urged on behalf of the Petitioners, to be examined after the reply affidavits are filed on the legality of the provisions.

(vii) The Committee shall hear all these stakeholders in relation to the notices and the SOP in examining the issues as underscored by us and make its report to the Court.

(viii) All contentions of the parties in that regard, to be urged before the Committee, are expressly kept open.

(ix) The report be placed before the Court preferably within a period of six months.

(x) The Vice Chairman of MHADA shall provide suitable venue/conference hall for the Committee to hold its sittings as also provide appropriate administrative and Secretarial assistance.

Accordingly, the High Court listed the proceedings on August 12, 2025.

Cause Title- Javed Abdul Rahim Attar & Ors. v. The Maharashtra Housing & Area Development Authority & Ors. (Neutral Citation: 2025:BHC-OS:11998-DB)

Appearance:

Petitioners: Senior Advocates N. V. Walawalkar, G. S. Godbole, Surel Shah, Advocates A.S. Rao, Panthi Desai, and Sameer R. Bhalekar.

Respondents: Senior Advocates Janak Dwarkadas, Ranjit Thorat, AGP Uma Palsuledesai, Advocates P.G. Lad, Namrata Vinod, Aparna Kalathi, Sayali Apte, Suryajeet Chavan, Aparna Kalathi, Meena Dhuri, Komal Punjabi, Sameer Singh, and Mayur Mohitre.

Click here to read/download the Judgment