Illegal Construction Removal from a Common Passage

One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.

Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.

TL;DR: Illegal construction removal from a shared passage usually moves faster when the municipal corporation is brought in first and the civil suit follows or runs alongside it. A corporation can act against unauthorised construction under its building bye-laws, but only a civil court can finally declare your right of way and order the obstruction demolished. Ten years of silence does not legalise an encroachment over a documented common passage, though it does change how the suit gets framed.

The structure went up sometime in 2015. A tiled washroom, built and plastered, sitting dead centre in an eight-foot passage that runs behind four houses in Khamla, Nagpur. It belongs to one of the brothers. The other three were working outside Maharashtra that year, and nobody objected. Their registered sale deeds and the sanctioned layout maps all show the same thing: an eight-foot common passage. Ten years on, that passage has effectively disappeared. A two-wheeler cannot get through. A person shuffles past sideways.

The client, Arjun Mehta, whose father is one of the three, tried the obvious route first. A local advocate in Nagpur told him plainly that a civil suit would crawl, that the court might order only partial demolition, and that the decade of silence would be held against the family. So nothing happened for a while. This is one side of a family dispute, and the other brother's explanation is not before us. Then the three co-owners signed a joint consent, and Arjun approached the Chamber of Advocate Sudhir Rao.

Sequencing changed the matter. Advocate Sudhir Rao and his office filed a written complaint before the Nagpur Municipal Corporation's building department, annexing the deeds, the sanctioned layout maps, measured photographs and the signed consent of the three co-owners. NMC inspected the structure and treated it as unauthorised construction on a common passage. That gave the family a document to build on, and the suit for declaration of the right of way and mandatory injunction followed. Advocate Sudhir Rao's handling of property disputes that sit alongside municipal enforcement helped secure relief the family had been told to forget.

Key Facts of the Case

• An eight-foot-wide passage behind four adjoining houses in Khamla, Nagpur, shown as a common passage in the registered sale deeds and sanctioned layout maps of three co-owners.
• Around 2015, one of the brothers built a washroom attached to his own house, squarely in the middle of that passage.
• The other three co-owners were living outside Maharashtra at the time and did not object; the passage is now unusable even on foot.
• All three affected brothers later signed a joint consent agreeing to the removal of the structure.
• The Nagpur Municipal Corporation's building department, on a written complaint, treated the washroom as unauthorised construction and initiated action.
• A civil suit for declaration of the right of way and mandatory injunction was filed, with interim protection sought under Order 39 CPC.
• Outcome: municipal action against the unauthorised structure, supported by a civil declaration and mandatory injunction in the co-owners' favour.

The Direct Legal Answer: Illegal Construction Removal and Demolition

Yes, you have a remedy, and no, it does not have to be a ten-year wait. But there are two separate questions hiding inside one problem, and mixing them up is where most families lose time.

Can the municipal corporation order the removal?

Partly, and it is worth starting there. If the washroom is unauthorised under the municipal building bye-laws, the commissioner can inspect, issue a notice and take demolition action. What the corporation will not do is decide who owns the right of way. That is a private civil right, and a municipal body has no jurisdiction over it. File the complaint, attach the deeds and maps, wait for inspection, and follow up in writing.

Do we still need to go to civil court?

For a binding declaration that the

Do we still need to go to civil court?

For a binding declaration that the strip is a common passage, that your right of way over it survives, and for an order that the structure come down — yes. A municipal order can stop work or pull down an unauthorised structure. It cannot decide who holds a private right of way. That question belongs to a civil court, and only a decree from it will bind the brother and any future buyer of his house.

So run both. The corporation's file gives you dated, official evidence that the structure was unauthorised and that it sat where it should not. That file becomes an exhibit in the suit. The suit gives you the relief the corporation cannot grant.

How Does Illegal Construction Removal Work in a Shared Passage?

There are two tracks, and the mistake most families make is picking one and waiting for it to finish before starting the other.

Track one — the municipal corporation

This is the faster track, and it costs you nothing but follow-up.

• Write a complaint to the building department of the municipal corporation, addressed to the commissioner or the concerned ward officer.
• Attach the registered sale deeds, the sanctioned layout plans, property tax receipts, and dated photographs with a measurement noted on them.
• Ask specifically for an inspection and for action against unauthorised construction under the municipal building bye-laws and the Maharashtra Municipal Corporations Act, 1949.
• For construction that amounts to unauthorised development, the Maharashtra Regional and Town Planning Act, 1966 also gives the planning authority power to require removal.
• After inspection, the corporation will usually issue a notice to the person who put up the structure, give him a hearing, and then pass an order. Keep every receipt and acknowledgement.
• If nothing moves in a reasonable time, a written reminder, and then a representation to the municipal commissioner, is the next step.

What the corporation will not do: decide ownership, decide whether a passage is common, or settle a family dispute. Expect the order to speak only about the structure being unauthorised.

Track two — the civil court

The suit asks for three things, and they should be pleaded separately.

• Declaration of your right of way over the common passage, under Section 34 of the Specific Relief Act, 1963.
• Mandatory injunction directing removal of the obstruction and restoration of the passage, under Section 39 of the Specific Relief Act, 1963.
• Permanent injunction restraining any fresh construction over the passage, under Section 38 of the Specific Relief Act, 1963.

Along with the suit, apply for an interim injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908, to freeze the position until the case is decided. You can also ask the court to appoint a commissioner under Order 26 CPC to measure the passage on the ground and record how much of it the structure occupies. That report is often the single most useful document in the case, because it converts an argument into measurements.

Does Ten Years of Silence Make the Encroachment Legal?

No. Two clocks matter here, and neither of them has run out at ten years.

The twelve-year rule for adverse possession

A person claiming title by adverse possession has to show open, hostile, continuous and peaceful possession, to the knowledge of the real owner, for the statutory period — twelve years for a suit for possession of immovable property based on title, under Article 65 of the Limitation Act, 1963. Ten years is short of that.

And where the person in possession is himself a co-owner, the law starts from a different place. A co-owner's possession is presumed to be on behalf of all co-owners. To turn it adverse, he has to prove a clear ouster — that he openly, and to their knowledge, excluded the others. Building a washroom in a passage the others were not using at the time is not, by itself, ouster.

The twenty-year rule for a right of way by long use

If your claim rests on acquiring a right of way by long enjoyment rather than on the deed, the period is twenty years of peaceable, open and continuous use, under Section 15 of the Indian Easements Act, 1882. Ten years falls short there too. The better position, wherever the deed and the sanctioned plan show the passage, is that your right of way is written into your title. You are not trying to acquire it. You are trying to stop it being blocked.

Acquiescence is not abandonment

The brother may argue that the family stood by and watched. Silence can matter in some equity cases, but mere non-use of a passage does not destroy a right of way that appears in a registered sale deed. What silence does change is the tone of the suit. The court will ask why nobody objected for a decade, and you should have the honest answer ready — the co-owners were working outside the state.

What Should You Do First?

• Collect the paper before you talk to anyone. The registered sale deed, the sanctioned layout or building plan, and the property tax receipts for each co-owner. If the passage is not on the deed or the sanctioned plan, the whole case changes, and you need to know that on day one.
• Get a measured photograph or a sketch. Note the width of the passage and the structure's position in it. Photographs with a measuring tape in the frame are worth more than a paragraph of description, because a court commissioner can match them to the ground later. Take the shots from the same spot and the same angle each time, so a series shows the passage closing up.
• Send a legal notice before you file. It is not compulsory for a suit for declaration or mandatory injunction, but it fixes a date, states your demand in writing, and often brings the brother to the table. Keep the postal receipt and the acknowledgement.
• Get the consent of the other co-owners in writing. One co-owner can maintain a suit to protect joint property, but when all the co-owners sign, the brother cannot argue that the family is divided against itself.
• Do not touch the structure yourself. Pulling it down with your own hands converts a clean civil case into a criminal complaint against you, and hands him a counter-claim. Whatever the provocation, the demolition should come from a municipal order or a decree.
• Keep a running file. Copies of the complaint, the inspection memo, every notice, every acknowledgement slip. Municipal files are moved along by whoever keeps asking, and the paper trail is also your evidence of when you first objected.

What Happens If the Passage Is Not in Your Sale Deed?

Then stop and look harder before spending money. If the registered sale deed describes your plot's boundaries and the sanctioned layout plan shows the strip as a common passage or an internal access way, you are on solid ground — the right is part of what you bought.

If neither document mentions it, your claim rests on long, open and peaceable use, and that means twenty years under the Indian Easements Act, 1882, not ten. In that situation the municipal track may still work, because the corporation acts on the sanctioned plan and the bye-laws rather than on your title. But the declaration of a right of way becomes a much harder argument, and it may not be worth mounting on the available material.

There is a third possibility: the layout shows the strip as an amenity or access way open to the public. That mostly helps the corporation's case, not your private one. Say so plainly to your advocate on day one, so nobody builds a strategy on a document that does not say what the family assumes it says.

How Long Does This Take, and What Should You Realistically Expect?

Be sceptical of anyone who gives you a firm date.

• Municipal complaint to inspection: weeks to a few months at a functioning ward office, longer if the file moves between departments.
• Inspection to notice and order: the corporation has to hear the person who put up the structure before passing an order, so expect a further gap. Written reminders shorten it. They do not eliminate it.
• Interim relief in the civil suit: an application under Order 39 CPC is usually taken up early, and a commissioner's report under Order 26 CPC can be obtained within weeks to months of filing, depending on the court's board.
• Final decree: a contested civil suit is a matter of years, not months. Most families get practical relief — an order stopping further construction, or a direction to remove — long before the suit ends.

The honest caveat: if the structure is old, if the municipal file has already been closed once, or if the passage is not in your documents, there may be little worth arguing. Saying that early saves more money than it costs to hear.

Frequently Asked Questions