Bombay High Court
DINESH GOPINATH DUBEYversusMUNICIPAL CORPORATION OF GREATER MUMBAI, THR. ASSISTANT ENGINEER
- Decided
- Disposal
- Disposed Off
- Bench
- FARHAN PARVEZ DUBASH
Holding
The appellate court held that the trial court’s dismissal was erroneous, quashed the order, and granted the appellant interim protection while directing an expedited hearing.
Summary
The appellant, Dinesh Dubey, sought protection against demolition of his Pan Shop (Shop No. 5-A) operated in a building owned by the Municipal Corporation of Greater Mumbai. The trial court dismissed his notice of motion, reasoning that the documents he produced were either already considered by the corporation or did not specifically refer to Shop No. 5-A. The appellant argued that the documents, dating back to 1960, clearly established the existence of his Pan Shop and that he was entitled to interim relief while evidence was being recorded. The High Court observed that the trial court had ignored the substantive evidence and denied the appellant a fair opportunity to prove his case, thereby violating principles of natural justice. Consequently, the appellate court quashed the impugned order, set aside the dismissal, and directed the trial court to expedite the hearing. The court also vacated all pending interim applications and ordered no costs.
Issues considered
- Whether the trial court erred in dismissing the appellant's notice of motion despite documentary evidence establishing the existence of his Pan Shop.
- Whether the appellant was entitled to interim protection pending the recording of evidence.
- Whether the impugned order should be set aside and the matter remanded for expedited trial.
Legislation cited
Subjects
- interim relief
- municipal corporation
- shop demolition
- evidence
- procedural fairness
- Section 351 MMC Act
Judgment
9.AO/370/2021
Dinesh Dubey Vs. MCGM (Thr. Asst. Engineer)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 370 OF 2021
WITH
INTERIM APPLICATION NO. 3136 OF 2021
IN
APPEAL FROM ORDER NO. 370 OF 2021
Dinesh Gopinath Dubey … Appellant
V/s.
The Municipal Corporation of Gr. Mumbai
(Thr. Assistant Engineer) … Respondent
_______________________________________
Mr. Anil Mishra a/w. Mr. Rihen Mishra for the Appellant.
Mr. D.R. Kawale for Respondent – BMC.
_______________________________________
CORAM : FARHAN P. DUBASH, J.
DATE : 12th FEBRUARY 2026
P. C.:
1. The present Appeal impugns an order dated 18 th August 2021
passed by the Trial Court dismissing Notice of Motion No. 1318 of 2020
taken out by the original Plaintiff/Appellant herein seeking reliefs against the
Defendant Corporation and impugning an order dated 31 st July 2020
(impugned order) passed by the Corporation pursuant to a notice issued
Page 1 of 5
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Order dated 12th February 2026
This order is modified/corrected pursuant to the order dated 15th April 2026
9.AO/370/2021
Dinesh Dubey Vs. MCGM (Thr. Asst. Engineer)
under Section 351 of Mumbai Municipal Corporation Act, 1888 (MMC Act)
dated 2nd July 2020.
2. Though the Appellant was granted protection at the interim
stage, the impugned order has dismissed the Notice of Motion preferred by
the Appellant. A perusal of the impugned order, particularly paragraph 12
thereof, indicates that one of the principal grounds for dismissal was the Trial
Court’s observation that all documents produced and relied upon by the
Appellant in the Suit had already been considered by the Defendant
Corporation prior to passing the order dated 31st July 2020. However, a
perusal of this order ex facie reveals that it neither deals with nor considers
any of the documents relied upon by the Appellant. In fact, the earliest
document referred to in the order is of the year 1991, whereas the
documents sought to be relied upon by the Appellant pertains to the period
commencing from 1960 onwards.
3. Even otherwise, the Trial Court, in paragraph no. 13 of the
impugned order observes that the documents which are relied upon by the
Appellant shows the existence of a Pan Shop but the same is not considered
only on the ground that the Shop number reflected in the said documents
appears to be ‘Shop no. 5’ whereas, the Plaintiff’s case is that it he is
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Order dated 12th February 2026
This order is modified/corrected pursuant to the order dated 15th April 2026
9.AO/370/2021
Dinesh Dubey Vs. MCGM (Thr. Asst. Engineer)
operating from ‘Shop no. 5-A’. On this basis alone, the Trial Court has
concluded that no document had been produced to establish that Shop No.
5-A is an authorized structure erected with the prior permission of the
Defendant Corporation and further recorded a prima facie finding that the
Appellant is not entitled to any interim protection.
4. Upon perusal of the said documents and the records of the case,
it is evident that apart from the shop of the Appellant herein, which is a Pan
Shop, there is no other Pan Shop operating in the said building. Therefore,
once the Trial Court recorded a finding that the documents disclose the
existence of the Pan Shop, it ought to have granted protection to the
Appellant so as to enable him to lead evidence and avail a fair opportunity to
prove his case. Instead, the impugned order summarily disregards the said
documents without giving an opportunity to the Appellant to lead evidence
in support of the same so as to prove his case. That is more so since the Trial
Court has itself recorded a finding that the Pan Shop was in existence by
relying on the said documents which are of the year 1960.
5. Mr. Anil Mishra, learned Counsel who appears on behalf of the
Appellant states that the matter in the Trial Court is presently at the stage of
recording of evidence. He further states that his client has already filed his
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Order dated 12th February 2026
This order is modified/corrected pursuant to the order dated 15th April 2026
9.AO/370/2021
Dinesh Dubey Vs. MCGM (Thr. Asst. Engineer)
evidence and in the premises, the present Appeal should be allowed and the
impugned order ought to be set aside.
6. After filing the present Appeal, by an order dated 28 th October
2021, this Court had granted ad-interim relief in favour of the Appellant
which has continued till date.
7. Considering that the matter is now at the stage of evidence and
considering the findings recorded above, I am of the view that the impugned
order is required to be set aside and an opportunity should be given to the
Appellant to make out his case before the Trial Court. The Appellant has
produced and relied on several documents, the oldest being that of 1960 and
grave and irreparable harm and injury would be caused to the Appellant if, at
this stage, his Shop is permitted to be demolished. In the circumstances, the
following order is passed :
:: ORDER ::
(i) Appeal No. 370 of 2021 is hereby allowed.
(ii) The impugned order dated 18th August 2021
is hereby quashed and set aside.
(iii) There shall be no order as to costs.
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Order dated 12th February 2026
This order is modified/corrected pursuant to the order dated 15th April 2026
9.AO/370/2021
Dinesh Dubey Vs. MCGM (Thr. Asst. Engineer)
(iv) All pending Interim Applications taken in
the present Appeal from Order if any, also stand disposed
of in terms of this order, and all interim orders passed
therein, if any, shall stand vacated.
(v) The Trial Court is directed to expedite the
hearing of the Suit preferably on or before 28 th February
2027.
( FARHAN P. DUBASH, J. )
Ajay Jadhav
Digitally
signed by
AMOL
AMOL PREMNATH
PREMNATH JADHAV
JADHAV Date:
2026.04.16
11:35:43
+0530
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Order dated 12th February 2026
This order is modified/corrected pursuant to the order dated 15th April 2026
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