FERNHILL GARDEN CHS LTD. THR. ITS CHAIRMAN LUKE FONSECA AND GEO ELUVATHINGALversusMUNICIPAL CORPORATION OF GREATER MUMBAI

                                                                           P17.AO.279.2026.doc

HARSHADA H. SAWANT
      (P.A.)
                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION


                             APPEAL FROM ORDER NO.279 OF 2026

              Fernhill Garden CHS Limited                              Appellant/
                                                                     .. Original Plaintiff
                         Versus
              Municipal Corporation of Greater Mumbai                  Respondent/
                                                                     .. Original Defendant
                                          ....................
               Dr. Jyoti Panickar, Advocate for Appellant / Original Plaintiff.
               Mr. Sachin Vajale, Advocate for Respondent.
                                            ...................

                                           CORAM : MILIND N. JADHAV, J.
                                           DATE          : MARCH 24, 2026
              P.C.:

              1.        Not on Board. Mentioned by way of filing praecipe dated

              24.03.2026. Perused the praecipe.


              2.        Heard Dr. Panickar, learned Advocate for Appellant /

              Original Plaintiff and Mr. Vajale, learned Advocate for Respondent.


              3.        Appeal from Order is filed by Plaintiff – Society assailing the

              ad-interim order dated 22.12.2025 which is appended at Exhibit-A,

              page No.21 of the Appeal from Order. It is ad-interim order. In order

              to remove bottleneck and construct 9.5 meter road project which is

              under progress and widen the said road, the building projection line of

              the Plaintiff – Society comes in the way as an obstruction. Reason

              mentioned in the ad-interim order is that when the Society building

              was constructed and the width of road in front of suit plot was


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determined, at that time Defendant – Corporation had granted TDR

during that development and Plaintiff – Society had stated that it will

hand over the setback at the time of redevelopment. The impugned

action has been invoked however not in view of redevelopment of

Plaintiff – Society’s building but in view of the road widening project

undertaken by the Municipal Corporation. What has been stated above

has been noted on the basis of submissions made across the bar while

passing the ad-interim order after hearing the parties.      Court has

however directed the Corporation to file appropriate Reply to the

Notice of Motion.


4.        Dr. Panickar informs the Court that the Affidavit-in-Reply

has been filed by Corporation as directed in the order dated

22.12.2025. Immediate apprehension is expressed by Dr. Panickar on

basis of fresh notice dated 16.03.2026 issued by Corporation copy of

which is appended to the praecipe. This notice is issued under Section

299 of the Mumbai Municipal Corporation Act, 1888, inter alia, stating

that in view of refusal of ad-interim relief by virtue of the impugned

order, the Corporation will take coercive steps in taking over the land

belonging to the Society which comprises of land in front of the Society

building alongwith its compound wall constructed by the Plaintiff –

Society for its safety. The notice dated 16.03.2026 is placed before me

perusal of which prima facie shows that merely based upon the ad-

interim order, Corporation has issued the fresh notice and desires to

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take coercive action within 72 hours thereof.


5.         Dr. Panickar persuades the Court to consider the fact that if

the fresh notice dated 16.03.2026 is implemented, the entire cause of

action in the Suit proceedings will become infructuous. She would also

submit that the Notice of Motion is pending hearing and next date for

hearing the Notice of Motion is fixed on 25.04.2026. I agree with the

submissions made by Dr. Panickar.


6.        Mr. Vanjale, learned Advocate enters appearance on behalf

of Corporation. He would inform the Court that fresh notice has been

issued in view of reasons stated therein, inter alia, due to flood line

and connectivity of storm water drain to be connected and availability

of less torque on the turn and curvature and therefore the road

requires to be extended.


7.        Learned Trial Court is therefore directed to ensure that the

Notice of Motion is heard on 25.04.2026. Copy of this order shall be

placed before learned Trial Court day after tomorrow i.e. on

26.04.2026 at 11:00 a.m. for its perusal and convenience so that

learned Trial Court shall note the fact that this Notice of Motion will

have to be heard and decided on the next adjourned date finally and

the Court shall accordingly adjust its board.      The lis between the

parties shall be decided strictly in accordance with law.


8.        Liberty to the Corporation to apply, if they require any pre-

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               ponement of pending Notice of Motion before the Trial Court but only

               with due notice to the Plaintiff – Society. Needless to state that the ad-

               interim order shall be subject to the trial order passed in the Notice of

               Motion.


               9.                   In the meanwhile, no coercive steps shall be taken in

               furtherance of the fresh notice dated 16.03.2026 issued by the

               Corporation against the Society’s land and its compound wall.


               10.                  Without expressing any opinion on merits of the matter,

               Appeal from Order is disposed. In view of disposal of Appeal from

               Order, pending Interim Application is also disposed.




H. H. SAWANT                                                   [ MILIND N. JADHAV, J. ]

                         Digitally signed
                         by HARSHADA
               HARSHADA HANUMANT
                        SAWANT
               HANUMANT Date:
               SAWANT   2026.03.24
                         19:42:57
                         +0530




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