Tag: #TheDeccanCo-operativeHousingSocietyLimited

Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

Date: 11.09.2026

Bombay High Court: Temporary Access Over Government Land Cannot Be Converted Into Exclusive Private Right by Erecting Gates

The Bombay High Court has held that a housing society permitted to use Government land as an access route cannot convert such permission into an exclusive private right by erecting gates and restricting access to others. The Court upheld the State’s action directing removal of gates erected by The Deccan Co-operative Housing Society Limited, while protecting the Society’s continued right to use the access along with others.

Justice Arun R. Pedneker partly allowed the Society’s writ petition challenging the order dated 17 March 2026 passed by the Resident Deputy Collector, Mumbai Suburban District.

Dispute Over Gate and Access Road

• The dispute concerned a strip of land being used as an access route by the petitioner-Society. The Society challenged the Collector’s direction to remove gates installed on Government land and the subsequent attempts by officials to remove the gate.
• According to the Society, the gate and pathway had remained in its exclusive and uninterrupted possession and use for more than 45 years. It contended that the authorities could not remove the gate without notice, hearing or following due process of law.
• The dispute also arose against the backdrop of Civil Suit No. 287 of 2025, instituted by the Society concerning its claimed rights over a garden/open space. The Bombay High Court had earlier granted interim protection against coercive action in relation to that suit property.

Access Was Originally Granted Only as a Temporary Arrangement

• Examining historical documents, the High Court found that the Society’s plot had earlier been landlocked because a proposed 44-feet-wide Development Plan road had not yet been constructed.
• The Municipal Corporation had therefore permitted a 30-feet-wide temporary access through Government land. Importantly, the permission was subject to a specific condition that the Society would discontinue the temporary access once the Development Plan road was constructed. The Society was also required to construct and maintain the temporary access at its own cost.
• The Court noted that the 44-feet D.P. road had subsequently been completed and was being used by the Society.

Access Strip Belongs to Government, Not Housing Society

• After considering the maps and communications placed on record, the High Court concluded that the disputed strip was Government-owned land and did not form part of the land allotted to the Society in 1959.
• The Court found that the land had been maintained as an open access connecting the D.P. road on one side with the public road on the other. By installing a gate, the Society had attempted to use the access exclusively and exclude other persons.
• The Court consequently rejected the Society’s claim to exclusive use of the access.

Constructing Road Does Not Create Exclusive Right Over Government Land

• The High Court made an important distinction between a right to use an access and a right to possess the land exclusively.
• The Society could not claim exclusive control merely because it had constructed a bitumen road over the strip. The Court held that Government land kept as an open access could not be appropriated for the Society’s exclusive use.
• Justice Pedneker observed that the Society had no right to erect a gate over the access road because the land belonged to the Government and the original permission merely enabled the Society to use it as an access.

Removal of Gate Does Not Amount to Dispossession

• The Society relied upon the requirement of notice and due process under Section 53 of the Maharashtra Land Revenue Code, arguing that even an unauthorised occupant of Government land could not be summarily dispossessed.
• The High Court distinguished the precedent relied upon by the Society. It observed that the present case did not involve taking possession of land that had been granted to the Society. Rather, the Society had only been permitted to use Government land for access.
• By removing the gate, the Collector had not terminated the Society’s access or dispossessed it from a granted property. The Society remained entitled to use the road; removal of the gate merely prevented it from excluding others.
• The Court therefore held that the direction to remove the gate and keep the access open to everyone did not warrant interference.

Collector’s Finding of “Unauthorised Use” Corrected

• The High Court, however, did not accept every observation made by the Collector.
• It specifically found incorrect the Collector’s observation that the Society was unauthorisedly using the road over Government land. The Court clarified that the road had, in fact, been used with the permission of the Municipal Corporation.
• Thus, while the Society had no right to install gates and claim exclusive access, its underlying use of the access itself was not unauthorised.

Public Access Must Remain Open

• The Court emphasised the importance of protecting public spaces and access routes, particularly in densely populated areas.
• It held that the Government land should remain accessible both to the petitioner-Society and to other persons. Since the Society had never been granted exclusive possession, installation of gates could not be used to transform a limited access right into exclusive control over Government property.
• At the same time, the High Court imposed an important safeguard: the State cannot grant exclusive use of the access road to any other party either.
• The access must remain open to the Society as well as others. Further, if the State proposes any action interfering with the Society’s existing access, appropriate notice would have to be issued.

Writ Petition Partly Allowed

• The Bombay High Court ultimately declined to interfere with the State’s direction for removal of the gates. However, it protected the Society’s continued non-exclusive access and clarified that the Government could not confer exclusive use of the road upon another party.
• Accordingly, Writ Petition No. 7981 of 2026 was partly allowed.

Key Legal Takeaway

The judgment draws a clear distinction between permission to use Government land as an access and possession or ownership of that land. Long-standing use, expenditure on constructing or maintaining a road, or physical installation of gates does not by itself convert a permissive access into an exclusive proprietary right.

At the same time, the ruling protects the legitimate access originally granted to the Society: the Government may keep the road open to the public, but it cannot arbitrarily stop the Society’s access or confer exclusive use upon another private party.

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Source: Bombay High Court

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