Sanchayita Lahkar

The High Court of Judicature at Bombay Division Bench of Justice G. S. Kulkarni and Justice Arif S. Doctor held that the issuance of 935 notices under Section 79-A of the Maharashtra Housing and Area Development Act, 1976 by Executive Engineers of the Maharashtra Housing and Area Development Authority (MHADA) constituted prima facie abuse of statutory power. The Court directed a judicially monitored inquiry into what it termed a "colossal misuse" of authority and issued interim orders to stay all actions under the impugned notices. The Bench stated that "such illegality needs to be differently dealt by the Court" given the potential breach of Article 14 and Article 300-A of the Constitution.

The Court appointed a two-member committee headed by Justice J. P. Devadhar (Retired Judge, Bombay High Court) and Shri Vilas D. Dongre (Retired Principal District Judge) to examine the legality of the notices and the role of MHADA officials. It ordered MHADA to furnish records of the notices, officer details, and supporting documents. While directing that 46 notices issued after the judgment in Vimalnath Shelters Pvt. Ltd. be withdrawn, the remaining 889 notices were ordered to be kept in abeyance. The Court stayed the individual notices challenged in the writ petitions and scheduled the matter for further hearing on August 12, 2025.

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The batch of writ petitions challenged the legality of notices issued by Executive Engineers of the Mumbai Building Repairs and Reconstruction Board (MBRRB), a unit of MHADA, under Section 79-A of the MHAD Act. The petitioners included owners, landlords, and trustees who alleged that the issuance of such notices amounted to an abuse of authority. The petitioners contended that the officers lacked jurisdiction and that the notices were issued without compliance with statutory preconditions.

The lead petition, Writ Petition (L) No. 34771 of 2024, filed by Javed Abdul Rahim Attar and others, assailed a notice dated 17 May 2023, which was allegedly issued without any prior declaration of the building as dangerous under Section 354 of the Mumbai Municipal Corporation Act or by a competent authority under Section 65 of the MHAD Act. Several other petitions involving similarly situated parties were tagged together for hearing.

The statutory framework under Section 79-A of the MHAD Act was amended by Act No. 48 of 2022 with effect from December 2, 2022. The provision allows MHADA to undertake redevelopment of cessed buildings declared dangerous either by the Municipal Corporation or a competent authority, if the owner or landlord fails to initiate redevelopment within three months of such declaration. If the owner fails, tenants or occupants can step in to propose redevelopment. Failing both, MHADA may itself undertake redevelopment, including acquisition of the property, with compensation paid to the owner.

The petitioners contended that these jurisdictional conditions were entirely absent in their cases. They submitted that no structural audit reports existed prior to the notices, no declaration under Section 354 of the MMC Act was issued by the BMC, and no competent authority had designated the buildings as dangerous. It was alleged that MHADA issued notices on mere visual inspection.

In one case, the petitioners had even deposited a sum of Rs. 9,75,059 for repairs under Section 89 of the MHAD Act. Despite this, a notice under Section 79-A was issued just 15 days later, suggesting an arbitrary process. The petitioners also challenged the legality of a Standard Operating Procedure (SOP) dated December 5, 2024 issued by the Vice-Chairman of MHADA, arguing that it was ultra vires the Act.

According to data disclosed in Court, 935 such notices had been issued across Mumbai, many by individual Executive Engineers who had issued over a hundred notices in short spans. Petitioners alleged these actions were aimed at enabling redevelopment of prime real estate by creating a facade of legal compliance under Section 79-A, without the statutory foundation.

MHADA, through its counsel, submitted that these notices were issued by qualified engineers on the basis of site inspections. A reply affidavit filed by the Chief Officer of the Board, dated July 16, 2025, admitted that in most cases, buildings had not been declared dangerous by the competent authorities. The affidavit also disclosed that 313 structural audits had been conducted post-facto and that 100 notices had been cancelled. In 119 cases, letters were issued inviting excess repair contributions. In 67 cases, redevelopment proposals had been submitted; of these, 30 had received NOCs.

The SOP issued in December 2024 directed Executive Engineers to conduct inspections and issue Section 79-A notices based on visual assessments or structural audit categorisations such as C1, C2A, and C2B. The SOP also outlined a mechanism for hearings and referrals to the Technical Advisory Committee (TAC). Petitioners argued that this SOP unlawfully expanded the scope of Section 79-A and conferred powers not recognised by the Act.

The Division Bench recorded that the case involved "a patent abuse of the powers vested with such officials" and that "these notices are issued wholly without jurisdiction." The Court stated that the issue reflected "a blatant abuse of the powers by these officers" and observed: "It is such faith of the citizens which, in our opinion, would be the paramount consideration in the adjudication of the present proceedings and in passing the present order."

Referring to Section 79-A, the Court observed: "From a plain reading of the aforesaid provision, it is clear that for the application of Section 79-A in respect of the 'cessed building', the building is required to be declared as dangerous by the Mumbai Municipal Corporation under section 354... or by the Competent Authority."

The Court also cited its prior decision in Pramod Vishwanath Saraf v. State of Maharashtra (9 July 2025), reiterating: "It is only on such basic jurisdictional requirement being fulfilled, the Competent officer of MHADA can assume jurisdiction."

The Bench recorded: "It is hence contended on behalf of respondent no.5, that resultantly, the basic jurisdictional requirement to issue such notice is lacking in the present case."

The Court rejected MHADA's argument that Executive Engineers had jurisdiction: "If the actions of these officials of the Board as impugned are to be accepted to be the correct position in law, it would amount re-writing of the legislative provisions... which certainly cannot be permitted."

Regarding the SOP, the Court stated: "Clause A (1) ... clearly creates a parallel machinery to what has been stipulated under sub-section (1) of section 79-A, which is certainly not permissible."

"We are also not aware as to how and in what manner, authority and purpose the Vice-Chairman quite belatedly has issued the said SOP..."

"There cannot be a higher highhandedness than this."

It found the SOP to be ultra vires the Act: "The SOP being in the teeth of the provisions of Section 79-A is clear..."

The Court found that the magnitude of the illegality and its impact on constitutional rights warranted a judicial inquiry: "Our conscience would not permit us to merely grant an interim order of stay... it would be imperative as also our duty... to order an inquiry into such issues of highhandedness and abuse of powers by the concerned officials."

The Court directed the constitution of a committee comprising Justice J. P. Devadhar (Retired Judge, Bombay High Court) and Shri Vilas D. Dongre (Retired Principal District Judge). This Committee has been entrusted with the task of conducting a thorough inquiry into the issuance of 935 notices under Section 79-A of the Maharashtra Housing and Area Development Act, 1976 by the Executive Engineers of MHADA. The Committee is required to examine the legality of these notices, the process followed in their issuance, the jurisdictional competence of the issuing officers, and any potential administrative or procedural lapses.

The Committee is further mandated to investigate the circumstances surrounding the issuance of the Standard Operating Procedure (SOP) dated 5 December 2024 by the Vice-Chairman of MHADA. Specifically, the Committee is to consider the authority, intent, and legal basis under which the SOP was promulgated, and whether it is consistent with the provisions of the MHAD Act.

The Court directed MHADA to place before the Committee all relevant records, including but not limited to: copies of all 935 notices issued under Section 79-A; structural audit reports, if any; names and designations of the officers who issued the notices; internal files or memos authorising such issuance; details regarding follow-up actions including cancellations or subsequent redevelopment approvals; and all material concerning the issuance and implementation of the SOP.

The Court took note of a statement made on behalf of MHADA that 46 notices issued after the decision in Vimalnath Shelters Pvt. Ltd. would be withdrawn. The Court directed that appropriate withdrawal communications be issued to the concerned recipients of those 46 notices within one week from the date of the order.

In relation to the remaining 889 notices, the Court recorded the submission that these notices would be kept in abeyance. The Court explicitly ordered that no further action be taken in respect of these 889 notices unless both the landlord and tenants have provided consent for redevelopment and the redevelopment process has demonstrably commenced.

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The Court clarified that all notices challenged in the present batch of writ petitions, if not already included among the 46 to be withdrawn, shall stand stayed until further orders.

The Court further directed that the Committee must conduct hearings and allow representations from all relevant stakeholders, including petitioners, affected parties, and MHADA officials. The Committee shall evaluate these submissions in the context of its mandate and submit a detailed report to the Court.

The report of the Committee is to be filed before the Court within a period of six months from the date of the order. MHADA was directed to provide appropriate administrative and infrastructural support to facilitate the Committee's functioning, including a venue, records, staff, and secretarial assistance

Case Title: Javed Abdul Rahim Attar & Ors. v. MHADA & Ors.

Neutral Citation: 2025: BHC-OS:11997-DB

Case Number: Writ Petition (L) No. 34771 of 2024

Bench: Justice G. S. Kulkarni and Justice Arif S. Doctor