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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