BABANRAO SAKHARAM DHERANGEversusTHE MUNICIPAL CORPORATION OF GREATER BOMBAY AND ANR

2026:BHC-AS:17613

                                                                           8 AO-475-2024.doc


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION

                                    APPEAL FROM ORDER NO. 475 OF 2024
                                                  WITH
                                   INTERIM APPLICATION NO. 9728 OF 2024
                                                   IN
                                    APPEAL FROM ORDER NO. 475 OF 2024

                    Babanrao Sakharam Dherange                            ...Appellant
                          Versus
                    The Municipal Corporation of Greater Bombay &
                    Another                                               ...Respondents

                                             ——————
                Mr. Uday Warunjikar i/b Mr. Nitesh Bhutekar, Mr. Aaditya Mahamiya for
                Appellant.
                Mr. Drupad Patil, Ms. Neeta Jadhav i/b Ms. Komal Punjabi for
                Respondent-BMC.
                                             ——————

                                             CORAM : SHARMILA U. DESHMUKH, J.
                                             DATE    : 6th August, 2026


                P. C. :

                1.        The present Appeal is at the instance of original Plaintiff being

                aggrieved by the order of 6th May, 2024 passed by the Trial Court in

                Notice of Motion No. 1190 of 2023 along with Notice of Motion No.

                2171 of 2023 dismissing the Notice of Motions, by which the Plaintiff

                sought temporary injunction restraining the Respondent-Corporation

                from demolishing the subject property.



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2.       L. C. Suit No. 1338 of 2023 was filed seeking to challenge the

notice dated 9/3/2023 issued by the Corporation under Section 55 of

the Maharashtra Regional and Town Planning Act, 1966 [for short,

“MRTP Act”] and subsequent speaking order dated 1st April, 2023.

3.       The notice issued under Section 55 of Maharashtra Regional and

Town Planning Act, 1966 was in respect of unauthorized erection of

temporary structures admeasuring the specification mentioned therein

at the junction of M. G. Road and L.B.S. Road Ghatkopar (West). The

Plaintiff’s case was that the notice structure was in existence prior to

datum line and was affected by road widening. Part of structure was

acquired for road widening by the Corporation. In respect of remaining

structure, repair permission was sought, which was granted on

22/10/2022.        However,   Corporation    issued   notice     for   erecting

unauthorised temporary structure. The Trial Court by the impugned

order noted the decision of the High Court in the case of Babar Sher

Khan and Others vs. MCGM1 which had held that under Section 55 of

MRTP Act, the Planning Authority may direct the removal of any

structure or work erected and it must not be necessarily of wooden or

tin sheets or tarpaulin. The Trial Court opined that it is necessary to see

whether the development is of temporary structure and that the

Plaintiff has not brought on record prima facie cogent evidence to

1    2008(2) BomCr 335.



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show that the development is of permanent nature. It further noted

that the allegation of Corporation was that the Plaintiff had carried out

unauthorized construction in violation of the terms and conditions of

the repair permission and Plaintiff has not produced material on record

to show that the dimensions of notice structure and the original

structure are the same and he has not carried out excess unauthorized

construction and dismissed the Notice of Motion.

4.       Dr. Warunjikar, learned counsel appearing for Appellant would

assail the very foundation of issuance of notice under Section 55 of

MRTP Act, 1966 on the ground that the structure was not of temporary

nature. He would further point out the order dated 24 th April, 2023

passed by this Court in earlier stage of litigation where the submission

was canvassed as regards the applicability of Section 55 of MRTP Act

and this Court had protected the structure and directed the Trial Court

to decide the motion. He points out that the impugned order is

pursuant to the final decision taken by the Trial court in the Notice of

Motion. He would further point out the provisions of Section 55 of

MRTP Act, which deals with the removal or discontinuance of

unauthorized temporary development summarily. He submits that

considering the notice structure is set out in notice of unauthorized

construction using MS angles, G.I. sheet roof, light weight partition

walls, 7 rolling shutters, etc., the same would not constitute a


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temporary structure for the purpose of Section 55 of MRTP Act.

5.       Per contra, Mr. Patil, learned counsel appearing for the

Corporation would submit that the Trial Court has rightly considered

the provisions of Section 55 of MRTP Act and that the decision of

Planning Authority on the question of nature of structure shall be final.

He would submit that the decision in the case of Babar Sher Khan and

Others vs. MCGM (supra) was relied upon rightly by the Trial court in

order to arrive at prima facie findings as regards the applicability of

Section 55 of the MRTP Act. He would submit that the Trial Court has

examined the material on record in order to come to a finding that the

Plaintiff has not brought on record the cogent evidence to show the

development is of permanent nature.

6.       I have considered the submissions and perused the record.

7.       It is an undisputed fact that part of the structure was acquired

for road widening and for remaining structure, repair permission was

granted. The issue was whether the Plaintiff had carried out

construction in excess of development permission. The notice

structure is described as an unauthorized erection of temporary

structure, which is of the specification mentioned therein using MS

angles, G.I. sheet roof, light weight partition walls and 7 rolling

structures. At the earlier stage of litigation, this Court had noted the

identical contention to hold that the question is as to whether the


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action under Section 55 can be lawfully resorted to and has protected

the structure. Prima facie upon consideration of notice which makes a

reference to GI sheet roof, MS angles, rolling shutters, the mere

mention of the word “temporary” to describe the notice structure

would prima facie not bring it within the ambit of Section 55 of MRTP

Act.

8.       The protection has been granted by the order of 2 nd August,

2023, which has been continued till the hearing and final disposal of

the suit. Prima facie, there is material on record to dispute the

applicability of Section 55 of MRTP Act. The structure is therefore

required to be protected.

9.       The findings of the Trial Court on the aspect of applicability of

Section 55 of the MRTP Act to deny the interim relief of injunction is

unsustainable and is therefore, quashed and set aside. Needless to

clarify that the Trial Court to decide the suit on its own merits and

uninfluenced by observations of this order.

10.      Resultantly, the Appeal is allowed. The Notice of Motion is

allowed in terms of prayer clause (a).




                                       [SHARMILA U. DESHMUKH, J.]




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