Bombay High Court
MR. SHAIKH ISRAR AHMED NIYAZ AHMEDversusTHE STATE OF MAHARASHTRA THROUGH ITS PRINCIPAL SECRETARY AND ORS.
- Decided
- Disposal
- Disposed Off
Holding
The Court disposed of the petition, directing the Municipal Corporation to act in accordance with law and to provide at least seven clear days’ notice before any hearing, while upholding the Division Bench’s permission for the developer to reconstruct the structures.
Summary
The petitioner, Shaikh Israr Ahmed, sought a writ directing the State and the Municipal Corporation to demolish unauthorized construction comprising three shops and a flat that were built after an occupancy certificate was issued. The Municipal Corporation had ordered demolition, which was carried out, but the developer challenged the demolition on the ground that no hearing was afforded, leading the Division Bench to permit reconstruction of the demolished structures and to direct the Corporation to issue any fresh notice with at least seven clear days’ notice before a hearing. The petitioner argued that the reconstruction violated the earlier demolition order, while the Court noted that the grievance had been redressed by the demolition and that the Division Bench had not expressed any view on the merits of the construction's legality. The Court affirmed the Division Bench’s direction, emphasizing that any future action by the Municipal Corporation must follow due process, including the seven‑day notice requirement. Consequently, the writ petition was disposed of with a direction to the Corporation to act in accordance with law.
Issues considered
- Whether demolition of the alleged unauthorized construction without a prior hearing violated principles of natural justice.
- Whether the developer is entitled to reconstruct the demolished shops and flat.
- Whether the Municipal Corporation may issue a fresh notice and proceed with demolition, and what procedural safeguards (e.g., seven days’ notice) are required.
- Whether the petitioner’s grievance remains viable after the demolition and subsequent reconstruction order.
Subjects
- unauthorized construction
- demolition
- occupancy certificate
- municipal corporation
- notice period
- natural justice
- writ petition
- civil appellate jurisdiction
Judgment
NISHA Digitally signed by
NISHA SANDEEP
SANDEEP CHITNIS
Date: 2026.09.16
CHITNIS 15:50:54 +0530
4-wp.14336.2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14336 OF 2018
Shaikh Israr Ahmed Niyaz Ahmed
Chairman of Stone Flower Cooperative
Housing Society Ltd. ...Petitioner
Versus
The State of Maharashtra and Ors. ...Respondents
Mr. A. R. Gole for the Petitioner.
Mr. O. A. Chandurkar, Addl.G.P. with Ms. G. R. Raghuwanshi, A.G.P.
for the Respondent-State.
CORAM: BHARATI DANGRE &
ASHISH S. CHAVAN, JJ.
DATE : 10th SEPTEMBER 2026
P.C. :
1. This petition, filed by the petitioner in the year 2018,
sought a direction to respondent Nos. 2 and 3 to forthwith demolish
the unauthorized construction in the subject building, comprising three
shops in the parking space and a flat constructed in the refuge area on
the 8th floor. It was admitted that the occupancy certificate was granted
on 2nd November 2017, and it was specifically alleged that the
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aforesaid unauthorized construction was carried out after the grant of
the occupancy certificate. The petition continued to remain pending
for adjudication before us and, in the meantime, some developments
have taken place.
2. The learned counsel, Mr. Gole, submitted that when the
Assistant Commissioner of the Bhiwandi Nizampur Municipal
Corporation issued notices to the developer in regard to the said
construction, which is the subject matter of Writ Petition No. 14336 of
2018, the developer challenged the impugned order dated 11 th July
2019 and sought permission to reconstruct the flat and three galas
demolished pursuant to the said order dated 11th July 2019.
Therefore, it emerges with clarity before us that the
grievance of the petitioner, in fact, stood redressed by the demolition
of the unauthorized construction. However, it was the developer who
approached this Court, challenging the action on the ground that,
when the impugned order was passed and implemented by
demolishing the structure alleged to be unauthorized, no opportunity
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was given to it to defend itself.
This resulted in the Division Bench permitting the
developer to restore his flats and galas to the position in which they
stood as on 10/11th July 2019, with no additions or alterations.
Further, the Division Bench directed as under in paragraph 11:-
“11. We make it clear that the Petitioner will be
entitled to restore his flat and galas to the position that
they stood as on 10/11th July 2019 with no additions or
alterations The Municipal Corporation is at liberty to
issue a fresh notice in respect of any irregular or
unauthorised works and to proceed with that notice but
strictly in accordance with law. We make it clear that if
any notice of a hearing is to be given to the Petitioner,
that notice must allow for at least seven clear days
before the hearing is conducted.”
With the aforesaid direction, the petition was disposed of
with a clarification that the Bench did not express any opinion on the
merits of the construction or of the notices and whether the works
done by the petitioner therein are or were authorized, irregular,
eligible for regularization, or utterly illegal, and all contentions in that
regard are kept open.
N. S. Chitnis 3/5
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3. Mr. Gole, the learned counsel for the petitioner, is under
instructions to make a statement that, pursuant to the aforesaid order,
respondent No. 4, the partner of Sai Shradha Enterprises,
reconstructed the structure in the form of three galas on the ground
floor and a flat in the refuge area on the 8 th floor. However, the
grievance of Mr. Gole is that, though the Division Bench, by its order
dated 5th September 2023, granted liberty to the Municipal
Corporation to issue a fresh notice if such structure was found to be
irregular or unauthorized and to take action in accordance with law, it
was also made clear that, if such a notice was to be issued, at least
seven clear days' notice ought to be given before the hearing was
conducted.
4. Today, the Corporation is not before us; however, we do
not wish to await its appearance. From reading of the order dated 5 th
September 2023 passed in Writ Petition No. 5254 of 2021 and reading
of the pleadings in the present petition, one thing is clear that the
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structure which, according to the petitioner, was unauthorized was, in
fact, directed by the Corporation to be demolished, but since no
proper procedure was followed, the Division Bench of this Court, at
the request of the developer/builder, permitted it to be reconstructed,
while granting liberty to the Bhiwandi Nizampur City Municipal
Corporation to take appropriate action if, according to it, the structure
was unauthorized or illegal. With a clear-cut direction, we expect the
Corporation to act in accordance thereof.
With this direction, the Writ Petition is disposed of.
ASHISH S. CHAVAN, J. BHARATI DANGRE, J.
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