Bombay High Court Upholds Removal of Society Gates on Government Access Road; Holds Temporary Permission Cannot Become Exclusive and Public Access Must Remain Open to All
Bombay High Court Upholds Collector’s Order Removing Gates From Government Access; Says Society Never Received Exclusive Possession of Road
Facts
The petitioner, The Deccan Co-operative Housing Society Ltd., challenged an order dated 17 March 2026 passed by the Resident Deputy Collector, Mumbai Suburban District, directing removal of gates erected on Government land being used as an access road. The Society also challenged the subsequent attempts by Government officials on 23 March, 27 March and 1 April 2026 to remove the gate.
The Society had originally been granted a larger parcel of land in 1959. A portion was reserved as open space under the Development Plan. In 1976–78, because the Society’s plot was then landlocked and the proposed eastern 44-foot D.P. Road had not yet been constructed, the Municipal Corporation permitted the Society a temporary 30-foot-wide access through Government land.
The permission was expressly conditional. The Society had to discontinue use of that temporary access once the Development Plan road was constructed, and was required to construct and maintain the temporary access at its own cost.
The eastern D.P. Road was subsequently constructed and became operational. Nevertheless, the Society continued using the Government strip and erected gates that effectively restricted access to itself.
Separately, the Society had instituted Civil Suit No. 287 of 2025 claiming ownership by adverse possession over a garden/open-space parcel and obtained interim protection against the BMC. The Society argued that the gate and access area were covered by that suit and therefore could not be disturbed.
Issues
The High Court identified three principal questions:
- Whether the access strip and gate formed part of the subject matter of Civil Suit No. 287 of 2025 and were therefore protected by the interim injunction in that suit.
- Whether the land on which the gate stood formed part of the Society’s original 1959 allotment, and whether the Collector was required to issue a separate notice before directing removal.
- Whether the Collector had jurisdiction to remove the gate without following the procedure contemplated by the Maharashtra Land Revenue Code, particularly Section 53.
Petitioner’s Arguments
The Society contended that it had been in exclusive occupation and use of the access for about 45 years and that no action could lawfully be taken against it without prior notice and an opportunity of hearing.
It argued that the strip belonged to the Society under the original grant, that it had constructed the road at its own cost, and that the Collector had acted at the instance of the adjoining developer, Jasani Realty Pvt. Ltd., after the developer had withdrawn an intervention application in the pending civil suit.
The Society alternatively submitted that even if the strip were Government land, its long-settled possession could not be disturbed without compliance with due process and Section 53 of the Maharashtra Land Revenue Code.
Respondents’ Arguments
The intervenor, Jasani Realty, contended that the access strip was not part of the pending civil suit and that the Society itself had earlier taken that position while opposing Jasani’s intervention in the suit.
It further argued that the strip was Government land being used as access and could not be converted into a private passage by erection of gates. According to the intervenor, adjoining densely populated slum areas also required access, and opening the gates merely maintained an existing public route.
The State similarly argued that the Society had only been permitted temporary access while the D.P. Road remained incomplete. Since the D.P. Road had since been constructed, the Society could not claim an exclusive right over Government land or erect gates excluding other users.
Analysis of the Law
Access Strip Was Outside the Civil Suit
The Court first examined the Society’s own pleadings in Civil Suit No. 287 of 2025.
In that suit, the Society had expressly stated that the 9.15-metre road was not part of the suit property over which ownership by adverse possession was claimed.
The High Court therefore held that the gate and access strip involved in the present writ petition did not form part of Civil Suit No. 287 of 2025. Consequently, the interim order passed in that suit did not protect the gate or access road.
Land Belonged to Government
The Court examined the maps and historic communications and found that the strip was Government-owned land over which temporary access had been granted to the Society.
It specifically held that the strip did not form part of the 1959 allotment made to the Society.
The Society’s expenditure in developing or maintaining a bitumen road over the strip did not convert Government ownership into a private proprietary or exclusive access right.
Temporary Permission Cannot Become Exclusive Possession
The Court emphasised the distinction between a right of access and exclusive possession.
The Society had only been permitted to use Government land as temporary access. By erecting iron gates, it sought to transform that limited permission into exclusive control over the land.
The Court held that Government open land made available as access could not become the exclusive preserve of the Society merely because it had constructed the road.
Precedent Analysis
The Society relied upon Shakuntalabai w/o Shrinivas Dhoot & Ors. v. State of Maharashtra & Anr., where the Bombay High Court had held that persons occupying Government land could not be summarily evicted without following Section 53 of the Maharashtra Land Revenue Code, including an inquiry and reasonable opportunity of hearing.
Justice Arun R. Pedneker distinguished that decision.
In Shakuntalabai, the land had actually been allotted to the predecessors of the occupants through Kabala certificates. In the present case, there was no grant of the Government access strip to the Society. The Society merely had permission to use it as access.
Therefore, removal of the gate was not equivalent to taking possession of land from the Society. The Society’s access itself remained intact.
Court’s Reasoning
The Court found that the Collector had not taken away the Society’s right of access. Removal of the gate merely ensured that the road remained open for use by all persons.
The Society could continue to use the road, but could not place a gate and exclude others from Government land.
The Court also clarified that if the State were subsequently to interfere with or terminate the Society’s access itself, proper notice would have to be issued. But such procedural protection did not justify maintaining an unauthorized gate that blocked access to the public.
The Court further corrected one aspect of the Collector’s order. The Collector had described the Society’s use of the road itself as unauthorized. The High Court held that this was incorrect because the Society’s access had originally been permitted by the Municipal Corporation.
Thus, the problem was not the Society’s continued use of the road; it was its attempt to convert that shared Government access into an exclusive gated passage.
Conclusion
The Bombay High Court upheld the Collector’s direction requiring removal of the gates.
It held that the Society had no exclusive right over the access road, which belonged to the Government and had only been made available for access. The road must remain available to the Society as well as other users.
At the same time, the Court imposed an important safeguard: the State cannot grant exclusive use of the road to any other party either. The access connects the D.P. Road on one side with the public road on the other and must therefore remain open to all concerned.
The writ petition was accordingly partly allowed.
Case Details
Case: The Deccan Co-operative Housing Society Limited v. State of Maharashtra & Anr.
Court: Bombay High Court, Civil Appellate Jurisdiction
Citation: 2026:BHC-AS:37412
Case Number: Writ Petition No. 7981 of 2026 with Interim Application No. 4651 of 2026
Judge: Justice Arun R. Pedneker
Reserved: 28 August 2026
Pronounced: 10 September 2026
Result: Writ petition partly allowed; gate-removal direction upheld; Society’s access protected; Government barred from granting exclusive use of the access road to another party.
