The Bombay High Court has clarified that prolonged inaction by municipal authorities does not confer legitimacy on structures built without statutory authorization. This ruling reinforces the principle that administrative silence cannot override statutory compliance, even after decades of non-enforcement.
Background & Facts
The Dispute
The appellant, M/s. Super Impex, claims ownership of a shed-like structure on its property through a registered Deed of Conveyance dated 30.09.2017, which traces its origin to an earlier conveyance dated 23.04.1980. The structure, described in both deeds as a 'tin shed' or 'tiled shed', has existed on the premises for over four decades. In 2025, the Municipal Commissioner of Greater Mumbai issued a notice under Section 351(1A) of the Mumbai Municipal Corporation Act, 1888, alleging the structure to be unauthorized and subject to demolition.
Procedural History
- 1980: Original conveyance executed, describing the structure as a 'tin shed'
- 2017: Current owner acquired property via registered deed, including the structure
- 2025: Municipal Corporation issued notice under Section 351(1A) for demolition
- December 2025: Designated Officer upheld the notice, prompting this appeal
- January 2026: High Court admitted the appeal and granted interim stay
Relief Sought
The appellant seeks a stay on all coercive action against the structure pending final adjudication of the appeal. It argues that the Corporation’s decades-long inaction, coupled with the structure’s inclusion in official property records, precludes sudden enforcement.
The Legal Issue
The central question was whether Section 351(1A) of the Mumbai Municipal Corporation Act permits demolition of a structure merely because it lacks a current authorization, even when the structure has existed for over 40 years and was documented in prior conveyances, and whether administrative delay can estop the Municipality from enforcing compliance.
Arguments Presented
For the Appellant
Mr. Kaustubh Thipsay argued that the structure was not newly erected but inherited and documented since 1980. He relied on the principle of laches and equitable estoppel, contending that the Corporation’s failure to act for over 40 years created a legitimate expectation of non-interference. He emphasized that the structure was assessed for property tax and included in municipal records, indicating tacit recognition. The appellant cited State of Maharashtra v. M/s. Rameshwar Builders to argue that statutory enforcement must be exercised reasonably and not arbitrarily after prolonged inaction.
For the Respondent
The Municipal Commissioner did not file a detailed counter-affidavit prior to the interim hearing. However, the notice under Section 351(1A) asserted that the structure lacked any valid building permission under the Act, and therefore remained illegal irrespective of its age or historical documentation. The respondent’s position, as inferred from the impugned order, was that statutory illegality cannot be cured by time or administrative neglect.
The Court's Analysis
The Court examined the nature of Section 351(1A), which empowers the Corporation to remove unauthorized constructions. It noted that while the provision is remedial and meant to uphold urban planning norms, its exercise must not be arbitrary or oppressive. The Court observed that the structure had been part of the property’s description in two registered deeds spanning 37 years, and the Corporation had assessed the property for tax purposes without objection.
"The existence of the structure on the datum line, as evidenced by conveyances and municipal records, raises a prima facie case of acquiescence. The Corporation cannot remain silent for decades and then invoke coercive powers without explaining the delay."
The Court distinguished this from cases involving purely new constructions, where no prior documentation exists. It held that the Corporation’s failure to act for over 40 years, despite having access to property records and tax assessments, undermined the urgency and legitimacy of its enforcement action. The Court emphasized that procedural fairness and reasonable expectation are integral to administrative action under municipal law.
The Verdict
The appellant succeeded. The Court stayed all coercive action against the structure pending final disposal of the appeal. It held that statutory illegality cannot be presumed absolute when administrative inaction has created a legitimate expectation, and directed the Corporation to file a detailed affidavit explaining the delay and justification for enforcement now.
What This Means For Similar Cases
Administrative Delay Can Undermine Enforcement
- Practitioners must now raise laches and acquiescence as defenses in municipal demolition cases where structures have existed for decades
- Municipal authorities must justify delays in enforcement with concrete reasons, not mere procedural technicalities
- Tax assessment records and registered conveyances can serve as evidence of long-standing existence
Documentation Trumps Post-Hoc Classification
- Structures described in pre-1980s deeds as sheds, outbuildings, or ancillary units cannot be reclassified as 'unauthorized' solely on current building bylaws
- Municipal records, including property tax rolls and survey maps, may establish a presumption of legitimacy
- Legal challenges should demand that authorities produce evidence of when and why the structure was first deemed unauthorized
Burden of Explanation Shifts to the Municipality
- In cases involving long-standing structures, the burden shifts to the municipal body to prove why enforcement is now necessary
- Courts will scrutinize whether enforcement serves public interest or is merely punitive
- Applications for stay should be filed promptly upon notice, with affidavits attaching historical property documents
