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Bombay High Court

KAUSAR BAUG RESIDENTS FORUM THRU REPRESENTATIVEversusTHE STATE OF MAHARASHTRA THRU SECRETARY AND ORS

Decided
Disposal
Disposed Off

Holding

The Court held that the municipal authority must act in accordance with Section 354 of the Bombay Municipal Corporation Act, 1988, issuing appropriate notice before removal, and therefore the petition was disposed without adjudicating its merits.

Summary

The Kausar Baug Residents Forum filed a writ petition under Article 226 seeking a mandamus directing the State of Maharashtra and municipal authorities to remove illegal encroachments, unauthorized structures, and unlicensed commercial activities in the Kausar Baug area of Pune. The petition alleged massive roadside encroachments and claimed the authorities had failed to act despite the provisions of Section 354 of the Bombay Municipal Corporation Act, 1988. The Court examined whether it could compel the municipal authority to act without the statutory notice and procedural requirements prescribed under the Act. It held that the authority must follow the procedure of issuing adequate notice before any removal or demolition, as mandated by law. Consequently, the Court disposed of the petition without addressing the merits, directing the parties to pursue the matter through the proper statutory process.

Issues considered

  • Whether the High Court can issue a writ of mandamus directing the municipal authority to remove encroachments without compliance with the procedural requirements of the BMC Act.
  • Whether the petition under Article 226 is maintainable in the absence of a statutory notice to the encroachers.
  • Whether the municipal authority has a duty to issue notice under Section 354 of the BMC Act before taking action against illegal structures.

Legislation cited

Subjects

  • encroachment
  • municipal authority
  • mandamus
  • Article 226
  • public road
  • illegal structures
  • notice requirement
  • Bombay Municipal Corporation Act

Judgment

                                                                                              29-WP-9329-2026.odt

    Pallavi

                                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                CIVIL APPELLATE JURISDICTION
           Digitally signed
           by PALLAVI
           MAHENDRA
PALLAVI    WARGAONKAR
MAHENDRA
WARGAONKAR Date:
           2026.09.11
           12:25:48
                                                WRIT PETITION NO. 9329 OF 2026
           +0530




                              Kausar Baug Residents Forum Thru Representative                 ...Petitioner
                                   Versus
                              The State Of Maharashtra Thru Secretary And Ors.              ...Respondent
                                                                    ...
                              Mr. Rahul S. Kate a/w Mr. Hritwik Kate for the Petitioner.

                              Mrs. Neha S. Bhide, GP, a/w Mr. O.A. Chandurkar, Addl. G.P.,
                              Smt. M.P. Thakur, AGP for the Respondent Nos.1 and 5.
                                                                    ...

                                                 CORAM : MAHESH CHANDRA TRIPATHI, CJ. &
                                                         ADVAIT M. SETHNA, J.

                                                 DATE      : 10th SEPTEMBER, 2026.


                              P.C.:
                              1.           The learned counsel for the Petitioner, has, inter alia,

                              sought for the following reliefs under Article 226 of the Constitution

                              of India:-

                                   “b)   Issue an appropriate writ, order or direction, more particularly
                                         a writ in the nature of Mandamus, directing the Respondents
                                         Authorities to forthwith take effective and lawful action for
                                         removal of all illegal encroachments, unauthorized structures
                                         and unlawful commercial activities operating in the Kausar
                                         Baug area, Kondhwa, Pune - 411048;
                                   c)    This Hon'ble Court be pleased to direct the Respondent
                                         Authorities to take strict action against all unauthorized
                                         eateries, hotels, roadside vendors, temporary structures,
                                         marriage halls/lawns and commercial establishments
                                         operating without valid licenses, permissions and statutory
                                         compliances including trade license, GST registration, MPCB
                                         consent and Fire NOC;



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     d)   This Hon'ble Court be pleased to direct the Respondent
          Authorities to regulate and prohibit illegal commercial
          activities in public roads, footpaths, open spaces and
          playgrounds in the said locality, particularly during the
          month of Ramzan;
     e)   This Hon'ble Court be pleased to direct the Respondent
          Authorities to forthwith regulate and remove all illegal
          parking, unauthorized rickshaw stands and instances of
          double parking, and to ensure free and unobstructed
          movement of traffic and pedestrians;
     f)   This Hon'ble Court be pleased to direct the Respondent
          Authorities to ensure that all public roads, footpaths and open
          spaces are kept free from encroachments and are maintained
          in accordance with law;
     g)   This Hon'ble Court be pleased to direct the Respondent
          Authorities to ensure clear and permanent emergency access
          routes for ambulances, fire brigade and other emergency
          services;
     h)   This Hon'ble Court be pleased to direct the Respondent
          Authorities  to   implement    proper   sanitation,  waste
          management and drainage systems and to prevent dumping
          of garbage and discharge of untreated waste water on public
          roads;
     i)   This Hon'ble Court be pleased to direct the Respondent
          Authorities to ensure compliance with fire safety norms
          and prohibit cooking activities involving open fire, grills,
          bhattis or smoke-emitting equipment without valid Fire
          NOC;”

2.          The learned counsel for the Petitioner vehemently

contended that ample evidence has been brought on record to

indicate that there is a massive encroachment at the roadside.

3.          Until date, inspite of the detailed provisions stipulated

under Section 354 of the BMC Act, 1988 the Respondent –

Authority has not taken recourse to carry out removal of the illegal

encroachment. He submits at present, the Petitioner is pressing

reliefs only to the extent that the Respondent – Authorities may take


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a final decision under the Act, on the Petitioner’s complaints. As we

find a detailed procedure prescribed under the statute, the

Authorities may decide in terms of the mandate under the BMC Act,

in accordance with law. For ready reference, Section 354 reads

thus:

     “354. Removal of structures, etc., which are in ruins or
        likely to fall.
     (1)   If it shall at any time appear to the Commissioner that any
           structure (including under this expression any building, wall
           or other structure and anything affixed to or projecting from,
           any building, wall or other structure) is in a ruinous
           condition, or likely to fall, or in any way dangerous to any
           person occupying, resorting to or passing by such structure or
           any other structure or place in the neighbourhood thereof, the
           Commissioner may, by written notice, require the owner or
           occupier of such structure to pull down, secure or repair such
           structure, [subject to the provisions of section 342] [These
           words and figures were inserted by Maharashtra 10 of
           1996, Section 146.] and to prevent all cause of danger
           therefrom.
     (2)   The Commissioner may also if he thinks fit, require the said
           owner or occupier, by the said notice, either forthwith or
           before proceeding to pull down, secure or repair the said
           structure, to set up a proper and sufficient hoard or fence for
           the protection of passers by and other persons, with a
           convenient platform and handrail, if there be room enough for
           the same and the Commissioner shall think the same
           desirable, to serve as a footway for passengers outside of
           such hoard or fence.”


4.           Considering the factual situation as emerged, we are not

inclined to keep the Petition pending by inviting any reply of the

Respondents in the proceedings.

5.           As we find, it is the duty cast upon the Authority to

ensure that there may not be any such encroachment over the


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roadside, we clarify that adequate notice/s are to be issued to the

concerned persons before taking a decision in the matter. We expect

that the proceedings are to be finalised by the Corporation, in

accordance with law.

6.         This order has been passed with due assistance of Mrs.

Neha Bhide, learned Government Pleader.

7.         With the consent of the parties, we dispose of the Writ

Petition, in the above terms without adverting to the merits of the

matter.




[ADVAIT M. SETHNA, J.]                         [CHIEF JUSTICE]




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