Bombay HC Refuses To Recall Demolition Order | Says Mob Fury And Footfall On Claimed Dargah Can’t Establish Legality
Safiya Malik
The High Court of Judicature at Bombay, Division Bench of Justice A.S. Gadkari and Justice Kamal Khata, on 9th July 2025, dismissed an interim application filed seeking recall of its earlier judgment dated 30th April 2025. The court, in a strongly worded order, directed the concerned municipal authority to demolish an unauthorized structure admeasuring approximately 17,610.02 sq. ft. constructed without requisite permissions.
The Bench held that the applicant had failed to provide any documentary evidence of ownership or valid authorization for the structure in question. It further noted that the applicant had encroached upon the land and claimed rights on a structure which it had not proved to possess legally.
Rejecting the plea, the Court noted that the mere issuance of a public notice by the Assistant Charity Commissioner or entries in the 7/12 extract cannot establish ownership or legal possession over the land or structure. Consequently, the Court directed the demolition of the entire structure within a period of two weeks from the date of uploading of the order.
The interim application was filed by the applicant, who was originally respondent no.3 in the related writ petition, seeking recall of the Bombay High Court's judgment dated 30th April 2025. The application was made pursuant to an order of the Supreme Court dated 17th June 2025, which granted the applicant liberty to pursue appropriate legal remedies.
Senior Advocate Mr. Rajiv Patil appeared for the applicant and submitted that the judgment sought to be recalled had overlooked the dismissal of Regular Civil Suit No.318 of 2002 by the Civil Judge, Thane on 5th April 2025. According to the applicant, this dismissal vitiated the directions contained in paragraphs 12(a), 12(c), and 12(d) of the High Court's earlier judgment.
The applicant argued that the Civil Judge had referred to the Maharashtra State Gazette of Thane District, 1882 (republished in 1982), which listed Borivade village, where the structure/Dargah was allegedly located. According to the applicant, this directory confirmed the existence of a structure dating back to 1882, well before the formation of Respondent No.1, the Thane Municipal Corporation. It was contended that no permission was needed from the respondent authority in light of the historic existence of the structure.
The applicant also relied on a sale deed dated 17th June 1982, between the petitioners and erstwhile owners, which allegedly acknowledged the existence of a structure on the land. A 7/12 land extract from 1989 was cited to assert that the Dargah was shown to be in place.
An application dated 27th July 1990 to the Assistant Charity Commissioner for registration of the applicant trust was also produced, wherein the structure was described as a property of the trust. The public notice issued at the time had allegedly attracted no objections, leading to issuance of a Registration Certificate on 30th August 1980. A letter dated 9th January 2020 from the Superintendent of Police was cited to claim that the structure was in place since 1970.
To support their contention, the applicant referred to the Supreme Court judgment in Muni Suvrat-Swami Jain S.M.P. Sangh vs. Arun Nathuram Gaikwad & Ors. (2006) 8 SCC 590, arguing that the municipal authorities could not proceed with demolition without following due process.
The applicant also challenged the report of the Town Development Officer dated 29th April 2025, which stated that no permission had been granted for the construction. It was argued that the Respondent No.1 corporation had initially reported only 3,600 sq. ft. of illegal structure in its inspection report dated 1st January 2025, but later alleged an additional illegal structure of 17,610.02 sq. ft.
On behalf of the Respondent No.1 (TMC), Senior Advocate Mr. R.S. Apte relied on an affidavit dated 9th July 2025, asserting that no construction permission was granted to the trust in municipal records. Pursuant to the dismissal of the Civil Suit, the Respondent No.1 had issued a notice dated 5th June 2025 to the applicant to furnish documentation of sanctioned construction. No such documents were submitted.
The Respondent Corporation had then sought police protection for demolition between 9th June 2025 and 13th June 2025. Due to conditions imposed by the Police Department, the demolition was delayed. The Supreme Court's interim order on 17th June 2025 directed maintenance of status quo for 10 days, which was extended by the High Court on 27th June 2025.
Advocate Mr. Kunal Dwarkadas for the petitioners submitted that Respondent No.1 had admitted the structure was entirely unauthorized, and there was no valid sanction for any part of the construction. He also argued that the 7/12 extract cited by the applicant pertained to a different land parcel.
The Court observed "The Applicants have not been able to produce a single piece of evidence to suggest that there was any structure owned or possessed by the Trust." It recorded that the only basis of the applicant's claim was the lack of objections to a public notice issued during registration under the Charity Commissioner Act.
It further recorded: "We are unable to accept that a mob fury and the mere footfalls of people on a particular piece of land based on an assertion that, this is a Dargah can prove that it is a legal structure".
The Bench stated "This in our view can never be the basis of ownership of any structure on anybody's land." It noted that the applicant failed to prove ownership of the land or the structure and appeared to have encroached upon it.
Further, the Bench remarked "The existence of a structure in a 7/12 extract cannot be evidence of anything whatsoever. Entry in the 7/12 extract cannot and does not prove anything as such."
The Court was categorical that "Admittedly, there is no permission taken by the Applicants for even a one single square feet of construction." Noting the size of the unauthorized structure, the Court added, "The so-called structure has been increased to a humongous structure of more than 20,000 sq. ft. Such a party in our view cannot claim any equities."
On the issue of natural justice, the Court recorded that a notice dated 5th June 2025 had been issued to the applicant to submit permission documents. It noted "There was no response to this Notice." It also cited an earlier hearing held on 22nd January 2025 under Section 260(1)(2) of the MMC Act before the Assistant Commissioner, where no documents were submitted.
The Court stated, "The Applicants have entirely failed in proving (i) that they own the land or (ii) they have taken permissions from the Municipal Authorities to construct even a square inch on the land."
On the applicant's reliance on the sale deed and gazette records, the Court said, "The Applicants have failed to prove by any evidence whatsoever that the structure was per se a Dargah and that it belonged to them prior to the land being purchased by the Petitioners." It further noted, "It is also not their case that they are the owners by adverse possession."
Rejecting the plea for further inquiry by the municipal authorities, the Court stated, "Such defense cannot give right to an Applicant to claim protection or continuation of a thoroughly illegal structure."
On the alleged suppression of the Civil Suit's dismissal, the Bench stated, "The dismissal of the Suit does not prove that the land belongs to the Applicant. It also does not prove that they were in fact the owners of the erstwhile structure in the sale deed."
The Court also recorded the applicant's own admission that the Dargah mentioned in the 1982 Gazette was on a different property, observing, "Therefore, the Applicant has himself admitted that the Dargah pointed out in the Government Gazette... is on a different property and not on the property for which the Writ Petition was filed."
The Court concluded its judgment with a clear dismissal of the interim application. It directed:"In view of the above, Interim Application is dismissed."
It further ordered: "The structure deserves to be demolished at the earliest and in any event within a period of two weeks from the date of the uploading of this order on the official website of the Bombay High Court."
It held: "This Court cannot protect such illegalities. We have set out the decisions of the Supreme Court in our Judgment and we are bound to follow it."
It concluded: "Such a method and for such a usurpation, the Court cannot grant its imprimatur."
Advocates Representing the Parties:
For the Petitioners: Mr. Kunal Dwarkadas with Advocates Karan Bhide, S.C. Mahimtura, Nilesh Tated, and Ishaan Zaveri, instructed by M/s. Mahimtura and Company
For the Respondents: Mr. Rajiv Patil, Senior Advocate with Advocates Siddharth A. Mehta, Harshada Shrikhande, and Vaibhav for the Applicant; Mr. R.S. Apte, Senior Advocate with Advocates Mandar Limaye and Juilee Joshi for Respondent No.1-TMC
Case Title: Gazi Salauddin Rehmatulla Hoole alias Pardeshi Baba Trust vs New Shree Swami Samartha Borivade & Anr.
Neutral Citation: 2025: BHC-AS:30261-DB
Case Number: Interim Application (ST) No.21468 of 2025 in Writ Petition No.6607 of 2024
Bench: Justice A.S. Gadkari and Justice Kamal Khata
