Introduction:

In the case of Javed Abdul Rahim Attar & Others v. The Maharashtra Housing & Area Development Authority & Others [Writ Petition (L) No. 34771 of 2024], the Bombay High Court, through a significant judgment dated July 2025, took serious cognizance of allegations pointing to a large-scale misuse of state machinery in the issuance of redevelopment notices under Section 79-A of the Maharashtra Housing and Area Development Act, 1976 (MHADA Act). The case came before a Division Bench comprising Justice G. S. Kulkarni and Justice Arif S. Doctor, who were hearing a batch of writ petitions challenging the issuance of as many as 935 notices served by Executive Engineers of the Mumbai Building Repairs and Reconstruction Board—a statutory body functioning under the MHADA. These notices, petitioners contended, were not just procedurally flawed but reflected a grave abuse of power by public authorities who acted without jurisdiction, thereby encroaching upon the fundamental and constitutional rights of the affected residents. At the heart of the petitions was the concern that these notices were issued indiscriminately and without the mandatory prerequisite of classifying the buildings in question as “dangerous” under Section 354 of the Mumbai Municipal Corporation Act or via a declaration from the competent authority defined under Section 65 of the MHADA Act. The petitioners, including numerous owners and tenants of the affected buildings, alleged that the authorities had assumed powers that were never conferred upon them by statute, thereby turning the statutory mechanism of redevelopment into a tool of arbitrary and coercive administrative control. They argued that the impugned notices under Section 79-A had not just violated the statutory safeguards but amounted to a structural abuse of the legal process, wherein administrative discretion was exercised without any foundation in law, effectively leaving hundreds of property stakeholders vulnerable to forced redevelopment without due process.

Arguments:

The petitioners further contended that the Executive Engineers had no authority whatsoever under the MHADA Act to unilaterally issue Section 79-A notices, particularly in the absence of any classification of the buildings as structurally dangerous. They submitted that the scheme of Section 79-A envisages specific preconditions, including either the issuance of a Section 354 notice by the Municipal Corporation or a formal declaration by the competent authority identifying the building as dilapidated or unsafe. In these cases, they argued, no such foundational determination had occurred. Instead, the notices were issued in a sweeping and arbitrary manner, exposing a pattern of systemic overreach. It was further emphasized that such high-handed issuance of notices had disrupted lives, particularly of those residing in buildings that were neither dangerous nor subject to any official survey declaring them as uninhabitable. According to the petitioners, the entire exercise appeared to be coloured by extraneous considerations, perhaps aimed at accelerating forced redevelopment for pecuniary or political reasons, without considering the interests or rights of the affected occupants. They also raised concerns about the constitutional ramifications of these actions, particularly under Article 14 (equality before the law), Article 21 (protection of life and personal liberty), and Article 300A (right to property). The magnitude of the notices—935 in total—demonstrated, in their view, not an isolated lapse, but a systematic breakdown in lawful governance.

The State and MHADA, on the other hand, attempted to defend their actions, arguing that the notices were issued as part of their obligation to ensure the safety and welfare of residents living in old or dilapidated structures. They claimed that the notices were not arbitrary but followed from a policy imperative aimed at timely redevelopment in the interest of public safety. The State contended that Mumbai has a long-standing issue with cessed buildings that are prone to structural damage and collapse, and the invocation of Section 79-A was part of a broader strategy to prevent untoward incidents. MHADA submitted that the engineers acted within the bounds of their administrative responsibilities and insisted that there was no mala fide intention in issuing the notices. Additionally, they maintained that the residents would still have the opportunity to raise objections and participate in the redevelopment process under the rules, and no final prejudice was caused solely by issuance of the notice. However, this defense did not find favour with the Court, primarily because the procedural prerequisites under Section 79-A—being of mandatory nature—had not been followed in most of these cases.

Judgement:

The Court, in its detailed judgment, dissected the scheme of the MHADA Act and emphasized that Section 79-A is not a carte blanche for authorities to issue notices without following the statutory preconditions. Justice Kulkarni, writing for the Bench, referred to the earlier order dated July 8, 2025, in which the Court had unequivocally held that the sine qua non for invoking Section 79-A is either a categorisation of the building as dangerous by a Section 354 notice or a declaration by a competent authority under Section 65. Without one of these two foundations, any notice under Section 79-A is ultra vires the statute. The Court found that in all 935 cases under scrutiny, the Executive Engineers had acted beyond their jurisdiction and without lawful authority. It was further noted that the engineers assumed quasi-judicial functions which were neither assigned to them by law nor sanctioned by any valid delegation of power. Referring to the conduct as a “brazen non-compliance” of the statutory framework, the Court observed that such unilateral actions were issued on mere ipse dixit and thus lacked any legal sanctity. The Court also expressed grave concern over the failure of the Vice-Chairman of MHADA to exercise due diligence and administrative oversight. It questioned why no steps were taken to halt or review the issuance of such notices when the pattern of illegality was so apparent. The Court pointed out that this failure amounted to an abdication of constitutional duty and reflected systemic indifference to the rights of citizens. In a stern tone, the Bench noted, “Considering the proportion and/or magnitude of the illegality and the high-handedness of such actions… and the very severe impact of such actions on the Constitutional rights guaranteed under Article 300A read with Articles 14 and 21… it is difficult to brush aside such actions lightly.” The Court underscored that the judiciary, particularly a constitutional court, cannot afford to remain a passive spectator when state power is being misused to the detriment of the citizens’ rights.

Given the magnitude of the matter and its impact on hundreds of residents, the Court took the unprecedented step of constituting a high-level fact-finding committee to probe into the matter in depth. The committee is to be chaired by Justice J. P. Devadhar, former Judge of the Bombay High Court, and Mr. Vilas D. Dongre, retired Principal District Judge. The committee has been tasked with examining the issuance of all 935 notices under Section 79-A, evaluating the procedural compliance, the legal justification behind each notice, the subsequent actions to withdraw or retain those notices, and most crucially, identifying the role of each official involved in this mass issuance. The objective, according to the Court, is not only to undo any unlawful actions already taken but also to lay down a template for accountability and transparency in future redevelopment activities under the MHADA framework. The Bench reiterated that while urban redevelopment is essential, it must be carried out in strict conformity with the law and in a manner that respects and protects the rights of all stakeholders. In conclusion, the Court’s judgment sends a powerful message that administrative convenience cannot override constitutional rights and that any abuse of public power will be met with judicial scrutiny and remedial action.