S.79-A MHAD Act notices issued by Executive Engineers without a building being declared 'dangerous' are a patent abuse of power: Bombay High Court - 2025-07-29

Bombay HC Brands Mass Issuance of MHADA Redevelopment Notices a "Racket," Orders Judicial Inquiry

Mumbai, July 28, 2025 – The Bombay High Court has ordered a high-level judicial inquiry into the issuance of 935 redevelopment notices by the Maharashtra Housing and Area Development Authority (MHADA), describing the situation as a "racket/scam" and a "colossal misuse of powers." A Division Bench of Justice G. S. Kulkarni and Justice Arif S. Doctor found the actions of MHADA's Executive Engineers to be a "brazen" violation of law, affecting hundreds of prime properties in Mumbai.

The Court has appointed a committee headed by retired High Court Judge, Justice J. P. Devadhar , to investigate the issuance of these notices under Section 79-A of the Maharashtra Housing & Area Development Act, 1976 (MHAD Act).

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Background of the Case

A batch of petitions was filed by property owners and tenants challenging notices issued by Executive Engineers of the Mumbai Building Repairs and Reconstruction Board (a MHADA unit). These notices, issued under Section 79-A, initiate a process for the redevelopment of "cessed buildings" deemed dangerous. The petitioners argued that these notices were issued illegally and without jurisdiction, seriously prejudicing their property rights guaranteed under Article 300A of the Constitution.

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Core Legal Controversy: The Scope of Section 79-A

The entire case hinged on the interpretation of Section 79-A of the MHAD Act. The provision allows MHADA to step in and facilitate redevelopment if a "cessed building" is first declared dangerous.

The court emphasized a critical pre-condition laid out in the section:

An action under Section 79-A can only be initiated after a building is declared dangerous either by the Mumbai Municipal Corporation (BMC) under Section 354 of the MMC Act, or by a "Competent Authority" appointed by the State Government under the MHAD Act.

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Arguments Before the Court

Petitioners' Submissions: - The petitioners, represented by Senior Counsels N. V. Walawalkar and G. S. Godbole, argued that the 935 notices were issued without the mandatory declaration from the BMC or the Competent Authority. -

They contended that the Executive Engineers of MHADA are not the "Competent Authority" and therefore had no power to issue these notices. -

It was highlighted that the notices were issued en masse, based merely on "visual inspection" and without any structural audits, pointing towards a "patent abuse of the powers." -

They alleged that the actions were part of a larger scheme to benefit developers and other vested interests, given the high commercial value of redevelopment in Mumbai.

MHADA's Defense: - MHADA, through its counsel, admitted that 935 notices were issued, primarily based on "visual inspection." -

It conceded that in these cases, no prior declaration of the buildings being dangerous was made by the BMC or the Competent Authority. -

While MHADA agreed to withdraw 46 notices issued after a previous court ruling clarified the law, it sought to keep the remaining 889 notices in abeyance, stating it was considering a legal challenge to the prior ruling.

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Court's Damning Verdict on MHADA's Actions

The High Court came down heavily on MHADA and its officials, terming their actions "high-handed" and a "brazen non-compliance" with the law.

In a pivotal observation, the Court stated:

"It is clear to us from these several notices ... that the basic jurisdictional requirements to attract the applicability of Section 79-A(1) itself was not satisfied... It is thus beyond one’s imagination as to how in such large number the impugned notices under Section 79-A could at all be issued."

The Bench further added:

"...surely the issue has gathered the colour of a racket/scam under a modus operandi of misusing the provisions of law, namely, Section 79A, to foster redevelopment of the property, obviously at the behest of unscrupulous persons with vested interests..."

The Court held that powers conferred by a statute must be exercised strictly in the manner prescribed, or not at all. It ruled that the Executive Engineers usurped jurisdiction they never had, leading to a situation of "total lawlessness." The belatedly issued Standard Operating Procedure (SOP) by MHADA's Vice-Chairman was also criticized as an unsustainable attempt to provide a "colour of legality" to the illegal actions.

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Final Order and Implications

In a significant move to address the "magnitude of the illegality," the Court passed the following orders:

1. Judicial Inquiry: A committee led by Retd. Justice J. P. Devadhar and Retd. Principal District Judge Vilas D. Dongre was appointed to examine all 935 notices, the role of the officials, and the legality of the SOP.

2. Withdrawal of Notices: MHADA was directed to formally withdraw 46 notices issued post the Vimalnath Shelters judgment.

3. Abeyance and Stay: The remaining 889 notices are to be kept in abeyance. The specific notices challenged in the petitions are stayed.

4. Records to Committee: MHADA must provide the committee with all records pertaining to the notices.

The Court rejected MHADA's request to stay the order, underscoring the seriousness of the issue. The case is scheduled for further hearing on August 12, 2025. This judgment serves as a major check on the arbitrary exercise of power by public authorities and reinforces the sanctity of due process in matters affecting citizens' property rights.