MR. BANS BAHADUR JAISWAL PROPRIETOR OF JAISWAL CONSTRUCTIONSversusMUMBAI HOUSING AND AREA DEVELOPMENT BOARD (MHADA THR ITS EXECUTIVE OFFICER

2026:BHC-AS:9542

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                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION

                                     APPEAL FROM ORDER NO. 581 OF 2026

                   Mr. Bans Bahadur Jaiswal                               ]
                   Proprietor of Jaiswal Constructions                    ]
                   Age – 57 years, Occu – Business                        ]
                   Having office address at G-15, Enclave,                ]
                   Sahyadri Nagar, Behind State Bank of India,            ]
                   Kandivali (West), Mumbai – 400 067.                    ]
                   Business address                                       ]
                   CTS No. 12, Survey No. 42, Charkop Village,            ]
                   Kandivali (West), Mumbai – 400 067.                    ] ...Appellant
                            Versus
                   Mumbai Housing and Area Development Board              ]
                   (MHADA)                                                ]
                   through its Executive Officer,                         ]
                   Having head office at Borivali Division,               ]
                   Chamber No. 475, 3rd Floor,                            ]
                   Gruhnirman Bhavan, Kalanagar,                          ]
                   Bandra (East), Mumbai – 400 051.                       ] ...Respondent

                                                ——————
                   Mr. Aniesh S. Jadhav, Ms. Amisha Lolusare, Mr. Rushikesh Kekane for
                   Respondent-MHADA.
                   Ms. Tanaya Patankar, Mr. Pranot Pawar for Appellant.
                                                ——————

                                              CORAM : SHARMILA U. DESHMUKH, J.
                                              DATE    : 17th June, 2026
                   Oral Judgment :
                   1.       The present Appeal filed at the instance of original Plaintiff

                   challenges the order dated 15th May, 2026 passed by the Trial Court

                   dismissing the Notice of Motion No. 1703 of 2026 in S.C Suit No. 166 of

                   2023.


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2.       Special Civil Suit No 166 of 2023 was filed by the Plaintiff seeking

inter alia a declaration that the impugned notice issued by Defendant-

MHADA under Section 52 and Section 53(1) of MRTP Act are illegal and

bad in law. The plaint describes the suit premises as CTS No 1-2, Survey

No 42, Charkop, Village Kandivali, Mumbai. It is pleaded that the suit

structure is not on the property shown on the layout plan issued by

MHADA. It is pleaded that the Plaintiff is in use, occupation and

possession of the suit premises since last 30 years. The plaint sets out

the various documents in respect of Survey No 42 and it is pleaded that

Survey No 41 is MHADA layout and not Survey No 42. Claiming that the

suit premises is not situated on MHADA layout, the suit came to be

filed.

3.       An interim application was moved by the Plaintiff for temporary

injunction restraining the Defendant-MHADA from implementing the

impugned notice dated 2nd December, 2022 and order dated 29th April,

2026. The application was resisted by Defendant stating that MHADA is

owner of entire Survey No 41 which is MHADA layout and out of

portion of the said property , a plot admeasuring 1881.49 square

meters and 2179.42 square metes aggregating 4060.91 square meters

reserved as amenity plot/open space and reserved as garden/park as

per DCPR, 2034 is encroached by the Plaintiff by putting unauthorised

compound of tin sheets and gate. It is contended that the address of


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suit premises is incorrectly stated in the plaint and the correct address

is Survey No 41(part), CTS NO 3/A/1, Village Charkop-Taluka Borivali

situated at RSC 3, Sector 8, Charkop, Kandivali (West), Mumbai. It was

contended that the structure is situated on Survey No 41 and not on

Survey No 42. The measurement map of the amenity plot and open

space area located at MHADA Layout was placed on record.

4.       The impugned order records that MHADA’s ownership of Survey

No 41 and the Plaintiff’s ownership of Survey No 42 is not disputed,

and the rival claims about the location of the notice structure. The trial

court noted that the impugned notice and speaking order specifically

states about the open plot being surrounded by patra compound and a

gate. It noted that the plaint does not describe either the notice

structure or suit premises properly. The trial court compared the rival

location plans produced on record and upon comparison came to a

prima facie finding that the notice structure is on Survey No. 41 and

the location map produced by the plaintiff shows the notice structure

on different property than the property owned by the plaintiff. The

trial court held that Plaintiff has not produced any permissions to erect

patra wall and gate on Survey No 41 and is trying to protect notice

structure of Survey No 41 by showing documents of structure standing

on Survey no 42. The application came to be dismissed.

5.       Learned counsel appearing for Plaintiff would submit that the


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burden is upon MHADA to show that the notice structure is situated on

Survey No. 41. She submits that the Plaintiff has various documents to

show the ownership of Survey No. 42 and MHADA has been unable to

prove that the notice structure is on Survey No. 41. She submits that

the Defendant-MHADA has not shown the spot inspection report based

on which the notice of demolition has been issued.

6.       Learned counsel appearing for MHADA would point out the

findings of the Trial Court that the notice structure is on Survey No. 41

based on the location map. He would further point out that the

Plaintiff has not produced any permission to erect the patra wall and

gate in MHADA layout at Survey No 41.

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

8.       There is no dispute about the factual position that Survey No. 41

is owned by MHADA and Defendant is the owner of Survey No. 42. The

suit came to be filed challenging the notice issued by MHADA under

Section 52/53(1) of MRTP Act to the Defendant, claiming erection of an

unauthorised tin shed with gate on Survey No 41, which is MHADA

layout. The response of the Defendant to the said notice is that though

the notice has been issued to the Defendant, the same has been issued

in respect of another plot of land.

9.       The relief sought in the plaint was to declare that the impugned

notice issued by MHADA was illegal and restraining MHADA from


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demolishing the suit premises viz CTS No 1-2, Survey No 42, Charkop,

Kandivali, Mumbai.      The impugned notice dated 2 nd December, 2022

mentions the unauthorised work as patra wall and gate erected on

amenity space admeasuring 4060.91 square meters adjacent to 18.30

meters RSC-3 in Sector 8, Charkop, Kandivali, Mumbai.

10.      The notice structure is therefore a tin shed with gate erected on

amenity space and the plaint describes the suit premises as CTS No 1-2,

Survey No 42, Charkop, Village Kandivali, Mumbai and seeks protection

of the suit premises. It is not the case that the Plaintiff has an

apprehension that under the guise of the impugned notice, MHADA

will demolish the structures, if any, erected on Survey No 42. The suit

being essentially a challenge to MHADA notice, the structure in respect

of which protection would be sought, would be the notice structure.

The plaint describes the suit premises as CTS No. 1-2, Survey No. 42

and not the notice structure. If there is no notice in respect of suit

premises, there is no question of challenging the notice or seeking

protection of the suit premises.

11.      Further in paragraph 18 of the plaint, the Plaintiff has pleaded

that Defendant-MHADA cannot demolish the suit premises viz

Shop/Gala at Shop No 06 (Old No 1128) Opp; Jawhar Talkies, Beside

MSEB Cabin, Near Unique Industrial Area, Dr. Rajendra Prasad Road,

Mulund West, Mumbai - 400 080 admeasuring 11x17 sq. feet. The


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premises mentioned in paragraph 18 is completely different premises

situated at a different location in Mulund, whereas the notice strucutre

is located at Kandivali.

12.      The Trial Court has come to a conclusion on the basis of the

material placed on record that the Plaintiff is trying to protect the

notice structure of Survey No. 41 by showing the documents of

structure standing on Survey No. 42. The findings would prima facie

indicate that the Plaintiff is trying to confuse the issue by showing

documents of structure standing on Survey No. 42 and at the same

time, encroaching upon the property of MHADA i.e. Survey No. 41 and

seeking protection of the unauthorised structure. Without proper

description of the structure in respect of which protection is sought,

the interim injunction was rightly rejected by the Trial Court.

13.      Despite repeated query by this Court, learned counsel appearing

for Plaintiff has not been able to point out any documents to show that

there is any such structure on Survey No. 42 in respect of which notice

has been issued.

14.      The Trial Court has compared the location plans produced by

both the parties and has come to a finding that the notice structure is

on Survey No. 41. The map along with MHADA notice dated 2 nd

December, 2022 shows the amenity space on which the notice

structure is located, which when compared with the plan produced by


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the Plaintiff shows that the amenity space is not situated on Plaintiff’s

property. As the Plaintiff’s claim is that the notice is issued in respect

of some other plot, there is no necessity of even seeking the spot

inspection report.

15.      The trial court has rightly noted that the plaintiff has not

described either the notice structure or suit premises properly in the

plaint. As it is the Plaintiff’s own case that the impugned notice has

been issued in respect of some other plot, this Court is unable to

comprehend the reason for seeking protection of the Plaintiff’s

ownership plot i.e. Survey No 42. The demolition, if any, pursuant to

the impugned notice would be of the unauthorised structure erected

on Survey No 41 and as it is not the Plaintiff’s case that there is any

such structure on Survey No 42, the impugned notice is not required to

be stayed. Strangely, the interim relief seeks restraint order against

MHADA from demolishing suit premises viz CTS No 1-2, Survey No 42,

Charkop Village, Kandivali (West), Mumbai, and not of a structure on

Survey No 42.

16.      The plaint is as vague as it can be and there is no connection

between the protection sought and the impugned notice and order. As

the notice of demolition is admittedly in respect of tin shed with gate

erected on amenity space in MHADA layout in Survey No 41, the

demolition, if any, will be carried out of the said structure located on


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Survey No. 41 and not of any structure located on Survey No 42.

17.      As no perversity is demonstrated in the order of the Trial Court,

there is no merit in the Appeal. The Appeal from Order stands disposed

of. Nothing survives for consideration in pending applications, if any,

and the same stand disposed of.

18.      Needless to clarify that as the structure which is on Survey No.

41 is claimed to be an unauthorized encroachment, any action taken by

MHADA will be restricted only to the structure described as Patra Wall

with gate located on Survey No. 41 and not in respect of structure, if

any, on Survey No. 42.



                                             [SHARMILA U. DESHMUKH, J.]

19.      At this stage, request is made for stay of this order for period of

four weeks from today. The trial court has rejected the interim relief,

which has been upheld by this Court. There is no question of stay,

however, at the insistence of learned counsel for Plaintiff, this order is

stayed for a period of four weeks from today.



                                        [SHARMILA U. DESHMUKH, J.]




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