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Bombay High Court

SRICHAND KANOJIA SON OF RAMHARAK PRASAD KANOJIA AND ANOTHERversusMUNICIPAL CORPORATION OF GREATER MUMBAI THR. ITS MUNICIPAL COMMISSIONER AND ANOTHER

Decided
Disposal
Disposed Off

Holding

The appeal is disposed without adjudicating the merits as it is premature and no further adjudication is required.

Summary

The appellants, Srichand and Ramharak Kanojia, obtained permission from the Municipal Corporation of Greater Mumbai (MCGM) in May 2017 to repair their tenement (CTS No.4947‑A) and completed the work in May 2019. MCGM later cancelled the permission in September 2020 and issued a show‑cause notice in July 2021 alleging that the appellants had encroached 1.5 metres onto adjacent CTS No.4949 and ordered removal of the alleged encroachment. The appellants filed a suit and sought interim relief, which the City Civil Court rejected, prompting an appeal against the order dated 21 August 2021. MCGM submitted an affidavit stating that no further action would be taken without a fresh show‑cause notice under the Mumbai Municipal Corporation Act, 1988, and that the appeal was premature. The High Court held that the appeal was premature and that no further adjudication on the merits was required, disposing of the appeal and the interim applications. The court directed the trial court to decide the pending suit expeditiously within four months, keeping all contentions open.

Issues considered

  • Whether the appeal from the order dated 21 August 2021 is maintainable in view of MCGM's affidavit stating that no further steps will be taken without a fresh show‑cause notice under the Mumbai Municipal Corporation Act, 1988.

Legislation cited

Subjects

  • encroachment
  • repair permission
  • municipal corporation
  • show cause notice
  • appeal from order
  • interim relief
  • due process

Judgment

                                                                              1 of 4                      6.AO.221.2021.DOC



                                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                     CIVIL APPELLATE JURISDICTION

                                                    APPEAL FROM ORDER NO.221 OF 2021
                                                                  WITH
                                                   INTERIM APPLICATION NO.2911 OF 2021
                                                                  AND
                                                   INTERIM APPLICATION NO.2085 OF 2021

                                1. Srichand Kanojia,
                                2. Ramharak Prasad Kanojia,
                                R/o.Mumbai.                                                                Appellants
                                        versus
                                1. Municipal Corporation of Greater Mumbai
                                through Municipal Commissioner.
                                2. The Designated Officr, H/East Ward, MCGM.                               Respondents

                                                                  _______
                                Mr.Rajkumar Awasthi i/by Shukla & Associates for Appellants.
                                Mr.Jatin Sheth with Mr.Ankur Shah and Ms.Rhea Anthony for Intervenors.
                                Mr.Dharmesh Vyas with Ms.Smita Tondwalkar i/by Ms.Komal Punjabi for
                                Respondent-MCGM.
                                                                      _______

                                                             CORAM        :            AARTI SATHE, J.

                                                             DATE         :            6th October 2026

                                P.C.

                                1.           This Appeal from Order has been filed challenging the order dated 21 st

                                August 2021 passed by City Civil Court, Mumbai (`Trial Court’) in draft Notice of

                                Motion in L.C.Suit (St.) No.5406 of 2021wbereby the Trial Court has rejected

                                interim relief sought for by the Appellants.

                                2.           The facts are in a very narrow compass.            On 15 th May 2017 the

MANISH
             Digitally signed
          by MANISH
          SURESHRAO
                                Municipal Corporation of Greater Mumbai (`MCGM’) granted repair permission
SURESHRAO THATTE
THATTE    Date: 2026.10.07
             16:15:46 +0530
                                to the suit premises. The Appellants on 24 th May 2019 completed the repairs and



                                M.S.Thatte
                                            2 of 4                     6.AO.221.2021.DOC



the same was inspected by MCGM. On 10 th September 2020, MCGM cancelled

the repair permission and thereafter the Appellants filed L.C.Suit No.1439 of 2020

before the City Civil Court, Mumbai. It is the Appellants’ contention that the

MCGM officer has stated that the MCGM has not cancelled the repair permission.

3.           On 3rd July 2021, MCGM issued a show cause notice seeking an

explanation in respect of the repairs to the suit premises and categorically requiring

the Appellants to show cause as to why the Appellants had encroached upon by 1.5

meter in CTS No.4949 and repaired their tenement, when permission to repair

was granted to the tenement of Appellant on CTS No.4947-A. Thereafter the

Designated Officer of the MCGM passed an order holding that the Appellants’

contentions are contrary to the inspection report and held that 1.5 meter part of the

suit premises of CTSNo.4949 was unauthorized and abutting on the boundary

demarcation. The Designated Officer therefore directed the Appellants to remove

the encroachment construction. Being aggrieved by the aforesaid, the Appellants

filed L.C.Suit (St) No.5406 of 2021 and also filed Notice of Motion for urgent ad-

interim reliefs. The Appellants produced photocopy of CTS map and submitted

that as the permission for repair was granted, the impugned notice 3 rd July 2021

and order dated 17th August 2021 passed by MCGM was illegal. By the impugned

order dated 21st August 2021, the Trial Court rejected interim relief and aggrieved

by the said order the Appellants have filed the present Appeal from Order.

4.           It is the contention of learned counsel for the Appellants that insofar as

alleged encroachment is concerned, the same is in respect of road which was to be

completed by MCGM. He has submitted that as of today the said road has been




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completed by MCGM. Learned counsel for Appellants further has brought to the

notice of this Court an order passed by the Supreme Court in another proceeding

of another co-operative housing society in Contempt Petition (Civil) No.803 of

2023 in Civil Appeal No.1658 of 2020 wherein the MCGM had filed an affidavit

submitting that the road work has been completed. He, therefore, submitted that

considering the aforesaid position, there was no necessity for the MCGM to take

any steps and in view thereof, the impugned order passed by MCGM ought to be

set aside.

5.               Learned counsel for MCGM has sought to place reliance on the

affidavit filed by one Kishore Honaji Yerme, the Designated Officer of MCGM,

H/East Ward dated 27th October 2021 wherein in paragraph no.11 it has been

categorically submitted that the MCGM is not contemplating to take any further

steps in pursuance to the letter dated 3 rd July 2021 and 17th August 2021 without

following due process of law i.e. without issuing show cause notice under the

provisions laid down in Mumbai Municipal Corporation Act, 1988. Paragraph 11

of the said affidavit is reproduced below :

             “11. I further say and submit that present Appeal from Order is premature and has
             no cause of action accrued to the appellant for filing present Appeal from Order. I
             say and submit that Respondent MCGM is not contemplating to take any further
             steps in pursuance to letter dated 3rd July, 2021 and 17th August 2021 without
             following the due process of law i.e. without issuing show cause notice under the
             provisions laid down in Mumbai Municipal Corporation Act, 1888.”

6.               Considering that the present Appeal from Order challenges the

impugned order dated 21st August 2021 which has been passed in pursuance of the

letters dated 3rd July 2021 and 17th August 2021 and considering the aforesaid

categorical submission made by the Designated Officer of MCGM, this Court is of




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the view that no further adjudication is required in respect of the present Appeal

from Order.

7.           It is also made clear that this Court has not delved into the merits of the

matter or expressed any prima facie view in respect of the subject matter of dispute

in the present Appeal from Order. It is open for the MCGM in view of the

aforesaid submission made in the affidavit of the Designated Officer, to issue fresh

show cause notice in respect of the alleged encroachment made by the Appellants

on CTS No.4949.

8.           In view of the aforesaid, the Appeal from Order is disposed of in the

aforesaid terms. No costs. Interim Applications also do not survive and stand

disposed of.

9.           The Trial Court is directed to decide the L.C.Suit filed by the

Appellants as expeditiously as possible and preferably within a period of four

months from today. All contentions of the parties in respect thereto are expressly

kept open. No adjournments shall be sought by the parties at the hearing of the

suit.

10.          Needless to observe that this Court has not dealt with any issue raised

in the Appeal from Order nor has formed any opinion.




                                                      (AARTI SATHE, J.)




M.S.Thatte


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