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Bombay High Court

RAJAN NANAKCHAND SURIversusMUNICIPAL CORPORATION OF GREATER MUMBAI THR. ITS MUNICIPAL COMMISSIONER AND ORS

Decided
Disposal
Disposed Off

Holding

The appellate court held that the 1997 decree protects only the original 12'×18' structure and does not extend to the larger notice structure, and therefore the injunction was rightly denied.

Summary

The appellant, a 74‑year‑old senior citizen, has lived in Shed No.16, Dolarwadi, Mumbai for over six decades and claims the ground‑floor structure was an old residential building existing before the 17 April 1964 datum line. The Municipal Corporation of Greater Mumbai (MCGM) issued a notice under Section 351 of the Mumbai Municipal Corporation Act in May 2026 demanding demolition of a larger "notice structure" that includes extensions beyond the original 12'×18' area protected by a 1997 decree. The appellant argued that the earlier judgment restraining demolition should extend to the notice structure and that the redevelopment plan and MRTP Act provisions barred demolition. The trial court rejected the injunction, holding that the protection applied only to the original 12'×18' structure and not to the extensions, and the appellate court affirmed this view. The court emphasized that the notice structure was unauthorized, not covered by the earlier decree, and that regularisation could not be claimed, leading to dismissal of the appeal.

Issues considered

  • The extent of protection afforded by the 1997 decree to the present notice structure
  • Whether MCGM can demolish the notice structure under the MMC Act despite the earlier decree
  • Whether the MRTP Act and the approved redevelopment layout preclude demolition under the MMC Act
  • Whether an interlocutory injunction should be granted to restrain demolition
  • Whether the unauthorized extensions can be regularised or compounded

Legislation cited

Subjects

  • unauthorised construction
  • demolition
  • municipal corporation
  • protected structure
  • regularisation
  • injunction
  • MRTP Act
  • MMC Act
  • senior citizen
  • redevelopment
  • property tax

Judgment

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                                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                    CIVIL APPELLATE JURISDICTION

                                                   APPEAL FROM ORDER NO.896 OF 2026

                               Rajan Nanakchand Suri, Age 74 years,
                               R/o.Shed No.16, Dolarwadi, Final Plot No.1260 (P),
                               TPS IV, Mahim Division, Prabhadevi,
                               Mumbai-400025.                                                         Appellant
                                      versus
                               1. Municipal Corporation of Greater Mumbai
                               through Municipal Commissioner.
                               2. The Designated Officer and Executive Officer,
                               G/South Ward, MCGM, Mumbai.
                               3. The Assistant Commissioner, G/South Ward,
                               MCGM, Mumbai.
                               4. M/s.Lokhandwala Infrastructure Pvt.Ltd.                             Respondents

                                                               _______
                               Mr.Akash Rebello with Mr.Nadeem Shama, Mr.Paras Gosar, Ms.Bushra Sayed i/by
                               Pragya Mishra for Appellant.
                               Mr.Pradeep Thorat with Mr.Anil Rao for Respondent no.4 (landlord).
                               Ms.Smita Tondwalkar for Respondents 1 to 3 MCGM.
                                                                    _______

                                                           CORAM        :        AARTI SATHE, J.

                                                           DATE         :        8th September 2026

                               P.C.

                               1.           This Appeal from Order under Order XLIII Rule 1(r) read with Section

                               104 of the Code of Civil Procedure, 1908 (`CPC’) takes exception to the order

                               dated 28th August 2026 passed by the learned Civil Judge, City Civil Court,

                               Greater Bombay (Court No.6) (`Trial Court’) in Notice of Motion No.4489 of
            Digitally signed
MANISH
SURESHRAO
            by MANISH
            SURESHRAO
                               2026 in L.C.Suit No.1934 of 2026 (hereinafter referred to as ‘the impugned
            THATTE
THATTE      Date: 2026.09.10
            18:03:45 +0530

                               order’), inter alia, dismissing the Notice of Motion and refusing to grant temporary




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injunction under Order XXXIX, Rules 1 and 2 of the CPC against the

Respondents.

2.           Briefly the facts are as follows :

             (i)       The Appellant is a senior citizen aged about 74 years and has

been residing with his family in Shed No.16, Dolarwadi standing on Final Plot

No.1260 (part), Town Planning Scheme IV of Mahim Division, Old Prabhadevi

Road, Prabhadevi, Mumbai-400025 (` the suit structure’) for nearly six decades;

             (ii)      It is the contention of the Appellant that the suit structure is

his residence and the seat of his family’s livelihood. It is the Appellant’s contention

that the suit structure is an old ground floor structure existing since 1961 and was

erected by the Appellant’s predecessor Mr.Ram Harak prior to 17 th April 1964, the

cut off date recognized by the Municipal Corporation of Greater Mumbai

(`Respondent-MCGM’) as the datum line for old residential structures;

             (iii)     The Appellant acquired the rights in the said suit structure

from Mr.Ram Harak under a writing dated 24 th September 1967 and has been

residing there with his family continuously since 1971;

             (iv)      On 23rd November 1989, the Respondent-MCGM issued a

notice of even date under Section 351 of Mumbai Municipal Corporation Act,

1888 (`MMC Act’) followed by a letter dated 23rd November 1990 in respect of the

said suit structure. Apprehending demolition of the suit structure, the Appellant

instituted L.C.Suit No.271 of 1991 before the Trial Court wherein it was pleaded

that the suit structure admeasured 12’x18’ sq. ft. It is the Appellant’s contention

that this 12’x18’ sq. ft. suit structure was in respect of a property bearing CTS




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No.1206 whereas the suit structure in the present proceedings stands on Final Plot

(F.P.) No.1260 of T.P.S. IV of Mahim Division. It is further Appellant’s contention

that Respondent-MCGM in the proceedings in L.C.Suit No.271 of 1991 led no

oral evidence and admitted that its file concerning the alleged unauthorized

construction was “missing and not traceable”. In view of the aforesaid, the Trial

Court after conducting a full fledged trial, decreed the suit on 13 th October 1997 in

favour of the Appellant and restrained the Respondent-MCGM from acting on the

notice dated 23rd November 1989;

             (v)     The aforesaid judgment and decree dated 13th October 1997

was engrossed on 6th August 2004, and a certified copy of the same was issued on

6th July 2005. It is the Appellant’s contention that the Respondent-MCGM has

neither preferred any appeal nor sought any review or otherwise challenged the

said judgment and decree thereby making the decree final and binding upon

Respondent-MCGM and its officers, servants and agents;

             (vi)    On 27th May 2005, the Catherine Quinny Trust (earlier

landlord) conveyed Final Plot No.1206 to Respondent No.4 (current landlord and

developer) subject to the rights of the sitting tenants (deed registered at Sr.

No.BBE-2-4925-2005). The aforesaid conveyance was subject to all subsisting

rights including those of the Appellant in the suit structure and Appellant’s name

appeared at Sr. No. 1 in the final tenants’ list of Catherine Quinny Trust property.

It is the Appellant’s contention that area of shop structure of the same has been

shown admeasuring about 640 sq. ft. situated at F.P. No. 1206;




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             (vii)    On 19th November 2014, the Respondent-MCGM issued

inspection notice under Section 488 of MMC Act, and further a similar notice was

issued on 3rd September 2025. It is the Appellant’s contention that the said

inspection notice did not refer to any post-decree construction, addition or

alteration to the suit structure. On 31st December 2019, the Respondent No.4-

Landlord filed an application seeking development permission including the tenant

list admitting the Appellant at Sr. No. 1 as occupant of shop of 59.49

sq.meters(640.35 sq.fts);

             (viii)   On 21st July 2020, the Respondent-MCGM granted Layout

Approval No. P-3785/2019(1260)G/South/FP/302 to Respondent No.4-Landlord

under Regulation 17(1) and 13(2)(a) of The Development Control and Promotion

Regulation 2034 (DCPR 2034) including FSI of the suit structure. It is the

Appellant’s contention that the alleged unauthorized area of the structure, if any,

has already been merged and absorbed into the sanctioned redevelopment scheme

and has been duly compounded.

             (ix)     Sometime around March-2025, the Respondent No.4-

Landlord prepared a memorandum of Permanent Alternate Accommodation

Agreement (PAAA) in favour of the Appellant offering two residential premises of

375 sq.ft RERA carpet area each, aggregating to 750 sq.ft in the rehab portion of

the proposed building on ownership basis free of cost in lieu of the earlier premises.

It is Appellant’s contention that despite repeated requests, the Respondent No.4-

Landlord failed and refused to execute and register the agreement and instead

pressured the Appellant to vacate the suit structure for a lumpsum of




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Rs.25,00,000/- which is wholly inadequate for comparable accommodation in or

around Prabhadevi. The Appellant refused to surrender his lawful entitlement;

             (x)      It is the Appellant’s contention that having failed to pressure

the Appellant, the Respondent No.4-Landlord filed complaints with Respondent-

MCGM firstly on 30th June 2025 and thereafter through its authorized

representative on 4th March 2026 alleging that the Appellant’s decades-old

residence was an “unauthorized structure”. It is further the Appellant’s contention

that these complaints were never forwarded to the Appellant, and copies were

subsequently obtained by the Appellant’s daughter under Right to Information

Act, 2005;

             (xi)     On 3rd September 2025, the Respondent-MCGM issued

notice under Section 488 of MMC Act to once again inspect the suit structure.

However, in the inspection which was held on 8 th September 2025 no post-decree

construction was found.

             (xii)    On 26th September 2025 and 5th December 2025, the

Respondent No.4-Landlord undertook redevelopment of the plot with

Respondent-MCGM              approval       under        file      No.P-3785/2019

(1260)/G/SOUTH/FP/302, pursuant to Regulations 17(1) and 13(2)(a) of DCPR

2034 with a permissible FSI of 3.00 as recorded in the layout reports dated 26 th

September 2025 and 5th December 2025;

             (xiii)   On 8th May 2026, the Respondent-MCGM acting on the

complaints of Respondent No.4-Landlord, inspected the suit premises and issued a

notice on the same day under Section 351(1A) of the MMC Act. On 9 th May




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2026, the said notice was served on the Appellant asking him to show cause within

seven days from the date of receipt of the aforesaid notice. It is Appellant’s

contention that the notice dated 8th May 2026 describes the suit structure

(hereinafter referred to as ‘notice structure’ as given in the notice dated 8 th May

2026) of the same dimensions as pleaded by the Appellant before the Trial Court

on 14th January 1991 in L.C.Suit No.271 of 1991. It is, therefore, Appellant’s

contention that the Respondent-MCGM itself has identified the structure which

was proposed to be demolished as the very structure that was the subject matter of

earlier suit and is protected by the judgment and decree dated 13 th October 1997.

It is also the Appellant’s contention that the notice dated 8 th May 2026 contains no

allegations whatsoever of any construction, addition or alteration having been

carried out after the said judgment and decree;

             (xiv)   Thereafter between 14th May 2026 to 30th June 2026, replies

were filed by the Appellant through his advocate and also by Respondent No.4-

Landlord, which culminated in personal hearing on 30 th June 2026 before the

Respondent-MCGM;

             (xv)    On 9th July 2026, the minutes of personal hearing were issued

vide letter of even date directing the Appellants to submit additional documents

within five days. It is the Appellant’s contention that, however, the said minutes

failed to record material submissions made on behalf of the Appellant including the

effect of the development permissions granted by Respondent-MCGM and the

statutory protection under Section 53(3) of the Maharashtra Regional & Town

Planning Act, 1966 (`MRTP Act’);




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             (xvi)    On 17th July 2026, the Assistant Assessor and Collector,

G/South Ward, furnished the assessment remarks and assessed the notice structure

for property tax purposes with effect from 1 st April 1989, as an A.C. Shed

admeasuring 25.50 sq. metres, and recorded the same as being occupied by the

Appellant.

             (xvii)   On 10th August 2026, a speaking order has been passed by the

Respondent-MCGM rejecting 33 documents submitted by the Appellant and

directing removal of the notice structure beyond 12’x18’ sq. ft. within fifteen days.

By speaking order, the Respondent-MCGM held that the Appellant had failed to

establish that the notice structure was authorized and declared as removable within

fifteen days of receipt of the order, failing which the Respondent-MCGM would

demolish the same at Appellant’s risk and cost.

3.           Being aggrieved by the aforesaid speaking order, the Appellant filed

L.C.Suit No.1934 of 2026 and filed Notice of Motion No.4489 of 2026, which

has been dismissed, giving rise to the present Appeal from Order.

4.           Heard Mr.Akash Rebello with Mr.Nadeem Shama, Mr.Paras Gosar,

Ms.Bushra Sayed i/by Pragya Mishra for Appellant, Mr.Pradeep Thorat with

Mr.Anil Rao for Respondent No.4-Landlord and Ms.Smita Tondwalkar for

Respondents 1 to 3 MCGM.

5.           Learned counsel on behalf of the Appellant submitted that the Trial

Court has erred in passing the impugned order and particularly not considered the

compounding of the notice structure as a consequence of an application filed by

Respondent No.4-Landlord under Section 44 of MRTP Act covering the said




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notice structure thereby rendering the impugned order liable to be set aside. He

also submitted that the said non consideration is contrary to the directions issued

by Supreme Court in Directions in the Matter of Demolition of Structures, In Re 1

issued to all Municipal Corporations. He further submitted that the Trial Court has

failed to appreciate that the Respondent-MCGM has approved the development

plan of Respondent No.4-Landlord, and hence the notice structure stands

protected under Section 53(3) of MRTP Act and the same cannot be demolished

by recourse to general law under Section 51 of MMC Act. He further submitted

that Appellant has been a tenant of the notice structure of the earlier landlord and

Respondent No.4 who is the present landlord, cannot oust the Appellant from the

notice structure under the guise of redevelopment. He further submitted that the

Respondent-MCGM issued notice under Section 351 of MMC Act only on the

complaints made by Respondent No.4-Landlord. He further submitted that by the

judgment and decree dated 13th October 1997 in L.C.Suit No.271 of 1991, the

Trial Court declared the present suit structure in its present form within the legal

parameters of tolerance and restrained its demolition and the said order has

attained finality, as the same has not been challenged by the Respondent-MCGM.

He also submitted that the notice structure is a protected structure and the

Appellant is a recognized and protected tenant of the notice structure as evidenced

by the Charity Commissioner in its tenants’ list and the documents which were

placed on record, which showed that the erstwhile landlord constructed the notice

structure and inducted the Appellant as a tenant having area equivalent to the


1(2025) 5 SCC 1



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current area. He also submitted that even at the inspection carried out by the

Respondent-MCGM, there was no post-decree unauthorized construction, as

alleged by the Respondent-MCGM and hence non consideration of the aforesaid

vital facts by the Trial Court rendered the impugned order liable to be quashed.

He further submitted that the MRTP Act is a complete code and the same provides

for redevelopment, development, which includes demolition and hence action of

demolition cannot be initiated under Section 351 of MMC Act.               He lastly

submitted that the Trial Court failed to consider that in redevelopment, the

landlord is bound to provide to the tenant being a protected tenant, a rehab shop of

equal area with rehab fungible area, if any. He, therefore, submitted that the Trial

Court had not exercised its jurisdiction correctly while refusing to grant an

injunction under Order XXXIX, Rules 1 and 2 of CPC and had not formed a

prima facie opinion on the basis of the facts and documents on record. He

submitted that balance of convenience squarely lies in favour of the Appellant in

the present case.

6.           Per contra, learned counsel on behalf of Respondent No.4-Landlord

submitted that the impugned order of the Trial Court is a well reasoned order and

ought not to be interfered with. He submitted that in the present case the

Appellant has not produced any document on record to show the authorization for

construction of the notice structure which is the vertical and horizontal extension

to the original structure admeasuring 12’x18’ sq. ft. He further submitted that

there was no document produced on record to show existence of the notice

structure prior to the datum line of 17 th April 1964. He also submitted that the




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assessment bill produced by the Appellant shows first date of assessment as 1 st April

1989, which clearly shows that the assessment of the structure was for 25.50

sq.mtrs area in the year 1989. He also submitted that the notice dated 8 th May

2026 was issued under Section 351 of MMC Act, which is subject matter of

challenge in the present proceedings, consists of three portions :

             a. Portion adm.4.10 mtr x 10.20 mtr (13’5”x33’6”)=452.25 sq.ft;

             b. Portion adm.4.3 mtr x 5.4 mtr (14’1”x17’9”)=252 sq.ft.

             c. Mezzanine floor adm.6.8 mtr x 4.5 mtr (22’4”x14’9”)=329 sq.ft.

7.           He, therefore, submitted that the above mentioned horizontal and

vertical extensions are beyond the original structure admeasuring 12’x18’ sq. ft.

equivalent to 216 sq.ft and the total extension on the ground floor is 704.25 sq.ft

beyond the original area of 216 sq.ft. He also submitted that the assessment record

shows that the structure of area admeasuring 25.50 sq.mtrs and the mezzanine

floor has been recently constructed by the Appellant. He, therefore, submitted that

the Appellant’s contention that since the Trial Court by its order dated 13 th

October 1997 had already granted protection to the suit structure, the same cannot

be demolished is an erroneous submission, inasmuch as, admittedly the subject

matter of L.C.Suit No.271 of 1991 was a structure admeasuring 12’x18’ sq. ft.

which is equivalent to 216 sq.ft. He therefore submitted that the present notice

dated 8th May 2026 issued under Section 351 of MMC Act was in respect of

completely new structure and the Appellant cannot take protection of the order

dated 13th October 1997 to contend that the notice structure was a protected

structure.      He   also   submitted,   insofar     as,   the   submission    regarding




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compounding/regularization of the notice structure is concerned, the same cannot

be permitted for the reason that the Appellant is not the owner of the structure and

he further sought to place reliance on the decision in Feroz Talukdar Khan Vs.

Municipal Commissioner, Thane Municipal Corporation and another 2 to contend

that regularization cannot be a matter of right and unauthorized structures cannot

be permitted to be regularized in a routine manner. He, therefore, submitted that

the Appeal from Order deserves to be dismissed.

                            ANALYSIS AND FINDINGS

8.           I have heard learned counsel on behalf of the parties and perused the

impugned order along with the relevant documents. The primary dispute in the

facts of the present case is with regard to the demolition of the notice structure

which the Appellant contends cannot be done by Respondent-MCGM, inasmuch

as, in respect of the said notice structure an earlier order dated 13 th October 1997

passed by the Trial Court restraining the Respondent-MCGM from carrying out

demolition has attained finality. Much emphasis has been laid on the judgement

and decree dated 13th October 1997 passed by the Trial Court in L.C. Suit No. 271

of 1991 restraining the Respondent-MCGM from carrying out demolition to

contend that the present notice structure is a protected structure. I do not find

substance in the aforesaid contention as the Trial Court has very meticulously gone

through the documents placed on record and come to a reasoned finding that the

judgment and decree dated 13th October 1997 does not cover the present notice

structure and the protection given to that suit structure cannot be extended to the


22025-SCC-OnLine-Bom-2423



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present notice structure. I am of the view that this finding rendered by the Trial

Court is a correct finding, inasmuch as, the description of the notice structure in

the present case has been given as follows by the Trial Court: -

             16. Before analyzing and scrutinizing the material on record, it would be
             worthwhile to mention the description of the suit premises as stated in plaint
             i.e.
                   "Structure known as Shed No.16, Dolarwadi, an old ground floor
                   structure standing since at least the year 1961 on Final Plot No.1260
                   (part) of Town Planning Scheme IV of Mahim Division, Next to
                   Riddhi Siddhi Apartment, Old Prabhadevi Road, Prabhadevi,
                   Mumbai-400 025, assessed to property tax by the Assessment
                   Department of the G/South Ward as an A.C. Shed of area 25.50 sq.
                   mtrs. under Property Sac No.G/10-0366-01-3-0000".


9.                 However, the description as given in the L.C. Suit No. 271 of 1991 in

respect of which the judgment and decree dated 13 th October 1997 has been passed

is admittedly in respect of suit structure admeasuring (12’ x 18’). Further, in the

notice dated 8th May 2026 issued by Respondent-MCGM which is relevant for the

present proceedings, the schedule of the notice structure is described as below:

                                             “SCHEDULE

             Unauthorized horizontal & vertical extension to the existing ground structure
             adm.3.65m X 5.40m (12'X18') as per plaintiff i.e. Rajan Hanakchand Suri
             claimed on 14/01/1991 before Hon'ble Bombay City Civil Court in L.C. Suit
             No.271 of 1991 by (1/2 X4.10m X10.20m)+(4.30m X5.40m) having height
             2.60m horizontally at Ground Floor & Mezzanine Noor structure adm. 6.80m
             X 4.50m having height 1.70m vertically as shown in sketch below made by
             using Brick Masonry Walls, Ladi Coba Slab, M.S. Angles, A.C. Sheet Roofing
             at above mentioned address.”

10.           Considering the aforesaid different descriptions of the suit structure in the

plaint, notice structure and the structure described in L.C. Suit No. 271 of 1991 in

which judgment and decree dated 13th October 1997 has been passed , I am in

complete agreement with findings of the Trial Court which holds that only because

protection was granted by judgment and decree dated 13 th October 1997 to the




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(12’ x 18’ sq. ft.) structure, the same should not be extended to the notice structure

as there was no protection granted to any structure found post the judgment and

decree dated 13th October 1997 over and above the area measuring (12’ x 18’ sq.

ft.). I therefore find much substance in the argument made by Respondent No.4-

Landlord that the present notice dated 8th May 2026 has been issued in respect of

the portions as reproduced in paragraph (6) above.

11.          The said portions are definitely an extension which are much more than the

original structure admeasuring (12’ x 18’ sq. ft.) equal to 260 sq. ft. and therefore

the Trial Court has rightly come to the conclusion that the injunction against

Respondent-MCGM cannot be granted.

12.          Further, the Trial Court has rightly taken into consideration the remarks

which are elaborated in point no. 5 of the speaking order dated 10 th August 2026

wherein once again after giving due consideration to the judgment and decree

dated 13th October 1997, a speaking order has been passed whereby only the

protection has been restricted to structure admeasuring 12’ x 18’ sq. ft. and not the

area which is the part of the notice structure. It is therefore my view that the Trial

Court has rightly taken into consideration all the documents on record and has

come to a prima facie view that injunction cannot be granted against Respondent-

MCGM.

13.          Further on perusal of the assessment records, it cannot be established that

the Appellant had obtained any permission with regard to the notice structure or

that the said notice structure existed prior to the datum line of 17 th April 1964. In

fact, the assessment bill produced by the Appellant shows the assessment as on 1 st




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April 1989 and specifies that the assessment of structure admeasured only 25.50

sqm mtrs. in the year 1989. This to my mind does not show that the notice

structure was an authorized structure and requisite permission had been

granted/taken in respect of the same. The reliance by learned counsel on behalf of

the Respondent No.4-Landlord on Shah constructions Co. Ltd. Vs. Municipal

Corporation of Greater Mumbai and Ors. 3 is apposite to the facts of the present

case wherein it has been held that mere entry on assessment bill in the later years

stating that the structure pre-dates the datum line, does not by itself lend credibility

to either nature or size of the structure. The relevant paras of the aforesaid

judgment are reproduced below: -

             “11) The Petitioner, who claims to be a landowner and a law-abiding citizen,
             has not conducted himself as one. It is a blatantly false assertion. He has failed
             to produce any sanctioned plan for the constructions held to be unauthorised.
             A closer examination of the documents on record reveal that the issuance of
             licence by the B.M.C. in 1961 in favour of the Petitioner, permitting stone
             cutting, does not prove the existence of any structure, nor does it specify the
             nature and size of the structure. Consequently, the reliance on such licence to
             support the contention of existence of any structure(s), or as to its nature and
             size, is wholly unsubstantiated. At most, it would reveal authorization of stone-
             cutting activity on the subject property. Moreover, the permit dated 21st
             September 1961 was valid only up to 31st March 1963. The unauthorised
             structure/s certainly cannot be deemed to be authorised by virtue of issue of
             licence.
             12) The letter dated 19th January, 1978, purportedly granting repair
             permission, does not establish that the original structure was authorised, nor its
             nature or size. Importantly, though the notice annexed separately in both
             Petitions – suggesting that separate Notices were issued for the structures in
             each Petition – it is, in fact, the same Notice. It appears that, the Petitioner by
             annexing it in both Petitions attempted to mislead the Court into believing that
             two separate Notices were issued for the Petitioned structures. A closer
             examination of the Notice reveals that, it attempts to create evidence of
             structure/s which probably never existed. The permission reads as under:
                     “(I) To subdivides the existing structure No. IV into three (3)
                     separate portions by erecting portions comprising partly B.M. Walls
                     and partly G1 sheets as shown in the annexed sketch.
                     (II) To repair & re-plaster the existing B.M. Walls internally and
                     externally in all four (4) structures.
                     (III) To replace the damaged flooring in all four (4) structures.
                     (IV) To repair and replace the rusted and damages GI Sheets roof of

3 Writ Petition (L) No. 22853 of 2026 with Writ Petition (L) No. 22860 of 2026 decided on 25th August 2026



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                    all four (4) structures. Note: All four (4) structures are constructed
                    partly B.M. Walls and partly GI Sheets.”
             13) Similarly, the Notice dated 26th July, 1983 issued by the B.M.C. under
             Section 351 of the B.M.C. Act is a single Notice for four unauthorised
             structures, though annexed in both Petitions. No averments are made in either
             Petition to suggest that it was only for the four structures in one Petition. Thus,
             this is clearly an attempt to mislead the Court into believing that they were
             issued for the unauthorised structures mentioned in each of the two Petitions.
             14) The reliance placed on the letter dated 18th November, 1983 prima facie
             reveals that it is a procured document. The contents of the relevant paragraph
             are reproduced hereinbelow for ready reference:
                    “….As per the documents you provided specifically, Repair
                    Permission No. WOK/W/900/Bldg. & Fact dated 19/01/1978 and
                    further Repair permission No. KW/347/AEB/JR dated 12/05/82
                    with reference to structures under reference and other relevant
                    documents – it is evident that the notice structures are old and as per
                    the permissions granted through the above mentioned Repair
                    Permissions. Hence, the structures are protected as per the policy of
                    the B.M.C., therefore by direction, I have to inform you that the
                    notice issued to you is considered favourably and the notice is hereby
                    dropped”.
             15) In our view, this letter could not have been granted, as the datum line has
             always been 1st April, 1962. It does not refer to any document to suggest that
             the structure/s existed prior to the datum line.
             16) The letter dated 12th May, 1982 reveals that five porta cabins having
             dimensions 8ft x 40ft x 16.40ft were sought to be repaired. It obviously does
             not substantiate the existence of structures prior to 1st April, 1962.
             17) Apart from a bare claim that the structures existed prior to 1 st April, 1962,
             the Petitioner has failed to produce any document demonstrating the nature
             and size of the structure as originally constructed. The Petitioner has failed to
             show that any steps were taken to regularise the structure over the decade and
             more that has since elapsed.
             18) A mere entry in the assessment bills of later years, stating that the structure
             predates 1st April, 1962 (the datum line), does not by itself lend credibility to
             either the nature or the size of the structure built. A closer examination of the
             same reveals that, it concerns only three units and not to all the nine
             unauthorised structures for which notices have been issued. In the absence of
             any plans, sanctioned or otherwise, or any document proving the nature and
             area of the structure, no protection can be claimed as of right, or granted by this
             Court. To claim a lawful right, a citizen must first have discharged his own
             duty; otherwise a Court is not bound to protect or grant any relief. In the
             present case, the Petitioner, who claims to be a law-abiding citizen, has
             conducted himself entirely to the contrary. Apart from the extensive illegal
             construction, he has admittedly put up a portable cabins without any
             permissions from the B.M.C.
             19) The legal position is no longer res integra. In Ashok Tukaram Ramugade
             vs. M.C.G.M. reported in 2026 SCC OnLine Bom 5080, this Court held that
             an unauthorised structure being subsequently assessed to property tax by the
             B.M.C. would not change the unauthorised character of the structure nor
             would it make the structure authorised from the date of assessment. In
             Sidharam M. Yanagandul vs. State of Maharashtra reported in 2026 SCC
             OnLine Bom 971, affirmed by the Division Bench in Laxmi Gopinath Shetye
             vs. MHADA in Civil Writ Petition No.1546 of 1996 dated 13th March, 2024,
             it has been authoritatively held that assessment of an unauthorised structure to




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             property tax neither alters its unauthorised character nor amounts to
             regularisation. In the present case the Petitioners have relied precisely upon
             such documents which reliance cannot be countenanced.
             20) Besides the Assessment bills, electricity bills, shop and establishment
             licence or any other licence issued by the B.M.C. or any authority, cannot have
             the effect of rendering an unauthorised structure legal or authorised. The
             reliance placed on assessment bills, repair permissions, property tax receipts,
             electricity bills and licence issued by B.M.C. is wholly misplaced and cannot be
             used to prove the structure to be authorised.
             21) We find that, in several Petitions, Petitioners have claimed protection on
             the strength of repair permissions. Such pleas are baseless and cannot be
             countenanced. The B.M.C. has, over the years, failed the lawabiding citizens by
             granting such repair permissions without verifying whether the structures were
             lawfully constructed, for reasons not too far to seek. In the absence of
             verification by the B.M.C. as to whether the structures were authorized, it is
             impossible for the Courts to accept that the structure/s existed prior to the
             datum line.
             22) Unfortunately, having dealt with several cases, it is evident that the public
             mindset is to carry out construction first and seek regularisation only if, and
             when, the concerned authority ever acts. There are only negligible instances
             where the authority has taken prompt action. Most constructions are being
             carried out overnight and later expanded as required over a period of time.
             Later, under the garb of repair permissions, such constructions are expanded
             further. As a matter of record, the B.M.C. has, over the years, miserably failed
             to take any action against numerous such unauthorised constructions, whether
             residential or commercial, despite being duty-bound to do so. The reasons are
             obvious though best left unsaid. The elected representatives are equally liable, if
             not more so; having been elected by the people, they were duty bound to
             control it.
             23) From time to time, the concerned Officers have taken advantage of their
             positions and issued such letters granting permissions, under the garb of which
             structures have been unscrupulously and illegally constructed across the city. It
             is rather disturbing that, citing decisions of the Supreme Court, water and
             electricity connections are granted to these illegal structures. The whole
             purpose of setting up the B.M.C. was to oversee planned growth in the city.
             However, by misusing, misreading and misapplying the law, the B.M.C. has
             permitted illegal structures to be inhabited.
             24) Be that as it may, we are bound by the mandate and directions issued by the
             Supreme Court in their Judgment of Rajendra Kumar Barjatya & Anr. vs. U.P.
             Avas Evam Vikas Parishad & Ors. reported in 2024 SCC OnLine SC 3767,
             and followed by Kaniz Ahmed vs. Sabuddin & Ors. reported in 2025 SCC
             OnLine SC 995. We accordingly dismiss the two Petitions.
             25) Before parting, we note that the learned senior counsel had filed an
             Undertaking from the Petitioner to remove such unauthorized constructions as
             were, according to them, unauthorized for want of permissions. Although we
             appreciate the offer to voluntarily remove those illegalities, in our view, this is
             nothing but an attempt to retain what is entirely unauthorized. The
             constructed areas admeasure approximately thirty-four thousand (34,000)
             square feet and the Petitioner has volunteered to remove almost eighteen
             thousand (18,000) square feet. There is not even an iota of evidence about the
             original area of the structure assuming there was one constructed prior to the
             datum line. Presently old structures cannot be identified from the new ones.
             Permitting its continuance would send out a wrong message that illegalities are
             pardoned if backed by money. This would send a wrong signal to all the law-




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             abiding citizens, who strive hard to follow the law of the land. Thriving
             lawlessness not only discourages the law-abiding citizen but also encourages
             him to turn into a law-breaker. The Court is duty bound to uphold the truth
             and values. The wrongdoers must be brought to justice, thereby upholding the
             values and the principles enshrined in the Constitution of India.”
                                                                 (emphasis supplied)

14.           Further, the reliance placed on Feroz Talukdar Khan Vs. Municipal

Commissioner, Thane Municipal Corporation & Anr.4 by Respondent No.4-

Landlord also is apposite to the facts of the present case, wherein this Court heavily

came down on illegal constructions and has held that regularizing illegal

constructions is a plea which outright needs to be rejected with a clear finding that

it was no Rule of Law that a person with impunity would breach law by

undertaking defiant illegal construction and thereafter take recourse to

regularization. This Court has held that regularization can never be of an illegal

and/or of rank unauthorized constructions. The relevant paragraphs of the

aforesaid decisions are reproduced below: -

                  “15. Insofar as the contentions as urged on behalf of Respondent No. 3 are
             concerned, that Respondent No. 3 intends to regularize the construction is a
             plea which outrightly needs to be rejected. Such a plea as urged is on a
             complete misunderstanding and misreading of the provisions of law and the
             settled principles which are laid down in a catena of decision on the principles
             of regularization.
                  16. It is no rule of law that a person with impunity would breach law by
             undertaking such defiant illegal construction and thereafter take recourse to
             regularization. Regularization can never be of an illegal and/or of rank
             unauthorized construction. It can be considered by the planning authority of
             some minor deviation in the construction which would not disturb the sanctity
             of the permitted legal construction made as per the sanctioned plans and can be
             effected only on genuine and bonafide reasons. If we accept a proposition that a
             planning authority having not taken an action and/or permitted such
             unauthorized construction to take place, and thereafter it considers an
             application to regularize the same, this would amount to recognizing a regime
             unknown to the provisions of law opposed to the settled constitutional
             principles, as also to the settled principles and norms on municipal planning.
             According any legitimacy to such actions would create a situation of absolute
             lawlessness of unauthorized and illegal constructions, being permitted to come
             up, with the municipal/planning authorities doing nothing to arrest

4 2025 SCC OnLine Bom 2423



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             unauthorized construction and subsequently considering regularizing such
             constructions. This would also evolve a regime of total lawlessness and
             recognize illegality of the persons who have resources to undertake such
             construction without obtaining any permission from the planning authorities,
             as per the requirements of law. This is a case where no construction permission
             was applied for.
                 17. We may refer to the decision of the Supreme Court in Mahendra
             Baburao Mahadik v. Subhash Krishna Kanitkar rendered on the context of the
             powers of regularization as conferred under the Maharashtra Regional Town
             Planning Act, 1966 (for short “MRTP Act”). The Supreme Court has held that
             the municipal authority did not have any jurisdiction to direct regularization of
             unauthorized constructions and that such power was confined to the provisions
             of the Act and no action could be taken for regularization of unauthorized
             constructions.
                       “37. The Municipal Council is a ‘local authority’ as well as
                   Planning Authority within the meaning of the provisions of Sections
                   2(15) and 2(19) of the MRTP Act.
                        38. The Municipal Council being a creature of statute was bound
                   to carry out its functions within the four-corners thereof. Being a
                   statutory authority, it was required to follow the rules scrupulously.
                   Concededly, the Municipal Council is not possessed of any statutory
                   power to regularize unauthorized constructions. Its power is confined
                   to compounding the offences in certain cases. Moreover, even
                   development charges could not be recovered from the appellant in
                   respect of unauthorized constructions in terms of Section 124E(2) of
                   the MRTP Act.”
                                                                       (emphasis supplied)
                  18. In Kaalkaa Real Estates Pvt. Ltd. v. Municipal Corporation of Greater
             Mumbai, in the context of regularization of unauthorized constructions, this
             Court reiterated the principles that it cannot be said as a matter of general rule
             an unauthorized construction could be regularized. It was also observed that
             the legislature has not intended that the provisions in the planning laws
             including building by-laws and regulations relating to health, safety, fire safety,
             safety of the inhabitants of the buildings and the neighborhood have to be
             ignored or brushed aside in undertaking legitimate constructions. It was
             observed that the Supreme Court has cautioned against liberal use of the power
             of regularization and retention of unauthorized works and buildings and that
             the Supreme Court has warned that the authorities must take into
             consideration public safety, health, protection of environment and ill-effects of
             unregulated and uncontrolled construction in cities and towns. It was also held
             that retention of unauthorized works and constructions cannot result in
             wholesale condonation and relaxation or exemption from the building
             regulations and by-laws or else there will be a chaos and break down of the rule
             of law. It was further held that by imposition of fine and charging
             compounding fees, large scale unauthorized constructions if are regularized,
             would encourage builders and developers, as also others having interest in the
             development activities, to openly violate laws, as such persons would always
             proceed on the basis that the building regulations can be breached with
             impunity, and all that they would be visited with, is high compounding fees. It
             was observed that this is not the intention of the legislature that in making the
             regularization provisions under the MRTP Act, including the penal provisions




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             (referring to Sections 52 and 53 thereof) which were enacted with a defined
             object and purpose to discourage unauthorized and illegal development and
             also punish the wrong doers. The Court further observed that the exercise of
             the discretionary powers of regularization must not result in a licence to break
             the planning laws. It was held that an individual's interest in a property and his
             right to enjoy the same, is subject to larger public good and purpose and that
             such rights are required to be balanced with the requirements of the society and
             such rights can never be absolute. For such reasons, the Planning Authority
             cannot, as a matter of rule, regularize unauthorized constructions by allowing
             the wrong doer to achieve condonation of the illegality.
                 19. In a recent decision of the Supreme Court in Rajendra Kumar
             Barjatya v. U.P. Avas Evam Vikas Parishad9, the Supreme Court has reiterated
             the following principles in the context of illegal and unauthorized
             constructions.
                        “20. In the ultimate analysis, we are of the opinion that
                   construction(s) put up in violation of or deviation from the building
                   plan approved by the local authority and the constructions which are
                   audaciously put up without any building planning approval, cannot
                   be encouraged. Each and every construction must be made
                   scrupulously following and strictly adhering to the Rules. In the
                   event of any violation being brought to the notice of the Courts, it
                   has to be curtailed with iron hands and any lenience afforded to them
                   would amount to showing misplaced sympathy. Delay in directing
                   rectification of illegalities, administrative failure, regulatory
                   inefficiency, cost of construction and investment, negligence and
                   laxity on the part of the authorities concerned in performing their
                   obligation(s) under the Act, cannot be used as a shield to defend
                   action taken against the illegal/unauthorized constructions. That
                   apart, the State Governments often seek to enrich themselves through
                   the process of regularisation by condoning/ratifying the violations
                   and illegalities. The State is unmindful that this gain is insignificant
                   compared to the long-term damage it causes to the orderly urban
                   development and irreversible adverse impact on the environment.
                   Hence, regularization schemes must be brought out only in
                   exceptional circumstances and as a onetime measure for residential
                   houses after a detailed survey and considering the nature of land,
                   fertility, usage, impact on the environment, availability and
                   distribution of resources, proximity to water bodies/rivers and larger
                   public interest. Unauthorised constructions, apart from posing a
                   threat to the life of the occupants and the citizens living nearby, also
                   have an effect on resources like electricity, ground water and access to
                   roads, which are primarily designed to be made available in orderly
                   development and authorized activities. Master plan or the zonal
                   development cannot be just individual centric but also must be
                   devised keeping in mind the larger interest of the public and the
                   environment. Unless the administration is streamlined and the
                   persons entrusted with the implementation of the act are held
                   accountable for their failure in performing statutory obligations,
                   violations of this nature would go unchecked and become more
                   rampant. If the officials are let scot-free, they will be emboldened and
                   would continue to turn a nelson's eye to all the illegalities resulting in
                   derailment of all planned projects and pollution, disorderly traffic,
                   security risks, etc.”



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                20. In a recent decision of the Supreme Court in Kaniz
             Ahmed v. Sabuddin deprecating regularization of illegal construction, the
             Supreme Court made the following observations:
                       “6. The learned counsel appearing for the petitioner would
                   submit that her client be given one chance to pray for regularisation
                   of the unauthorised construction. We do not find any merit in such
                   submission. A person who has no regards for the law cannot be
                   permitted to pray for regularisation after putting up unauthorised
                   construction of two floors. This has something to do with the rule of
                   law. Unauthorised construction has to be demolished. There is no
                   way out. Judicial discretion would be guided by expediency. Courts
                   are not free from statutory fetters. Justice is to be rendered in
                   accordance with law. We are at pains to observe that the aforesaid
                   aspect has not been kept in mind by many State Governments while
                   enacting Regularisation of Unauthorized Development Act based on
                   payment of impact fees.
                       7. Thus, the Courts must adopt a strict approach while dealing
                   with cases of illegal construction and should not readily engage
                   themselves in judicial regularisation of buildings erected without
                   requisite permissions of the competent authority. The need for
                   maintaining such a firm stance emanates not only from inviolable
                   duty cast upon the Courts to uphold the rule of law, rather such
                   judicial restraint gains more force in order to facilitate the well-being
                   of all concerned. The law ought not to come to rescue of those who
                   flout its rigours as allowing the same might result in flourishing the
                   culture of impunity. Put otherwise, if the law were to protect the ones
                   who endeavour to disregard it, the same would lead to undermine the
                   deterrent effect of laws, which is the cornerstone of a just and orderly
                   society. [See : Ashok Malhotra v. Municipal Corporation of Delhi,
                   W.P. (c) No. 10233 of 2024 (Delhi High Court)]”
                 21. Adverting to the aforesaid settled principles of law, the proposition on
             regularization as urged on behalf of Respondent No. 3, if accepted, would also
             bring about the situation of creating two categories of citizens as observed by
             the Division Bench of this Court in the proceedings of High Court on its own
             motion (In the matter of Jilani Building at Bhiwandi) (Supra) i.e. firstly, a
             category of citizens who would intend to adhere to the rule of law; who would
             approach the planning authority by applying for a planning/development
             permission by putting up plans through their architects and to undertake legal
             and authorized constructions; and on the other hand a category of citizens who
             have no regard for law and merely because they have large resources (possibly
             not legitimate) at their disposal to undertake unauthorized construction. What
             would be these resources is only to be imagined, being utilized in connivance
             with the official machinery in putting up illegal constructions.
                                                                  (emphasis supplied)



15.           I am therefore of the view that the submission made on behalf of the

Appellant that the said structure was a protected structure and hence relying on the




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decisions of Vadilal Maganlal Trevadia Vs. Bombay Municipal Corporation 5 the

onus was on the authority to show that the structure was illegal has not been

discharged in the present case is incorrect, inasmuch as, in the present case the said

onus has been discharged by the Respondent-MCGM by issuing notice under

Section 351 of the MMC Act wherein the notice structure clearly specifies the

dimensions of the unauthorised structure which were over and above the protected

structure of 12’x18’ sq. ft. . Further, said decision has been considered by this Court

in the case of Maqsood Ahmed Jamaluddin Khan & Ors. Vs. Municipal

Corporation of Greater Mumbai & Anr. 6. The relevant paragraphs of the aforesaid

decision are reproduced below:-

             15. The judgment relied upon by the learned counsel for the appellants in the
             case of Vadilal Maganlal Trevadia (supra) in support of his contention that
             burden of proving the assertion about unauthorized structure would lie on the
             authority alleging that structure is unauthorized, the same has been already
             considered by this Court in para 16 of the case Sandesh Sonu Gawalkar (supra)
             which reads as under:
                        “16. Mr Saraogi has also placed reliance on judgment of this
                   Court in Vadilal Maganlal Trevadia (supra) in support of his
                   contention that the burden of proving the assertion about
                   unauthorized nature of the structure would lie on authority
                   alleging that the structure is unauthorized. However the facts
                   in Vadilal Masanlal Trevadia were entirely different. In that case,
                   the structure was illegally demolished and the Court had directed
                   restoration of status-quo ante. In pursuance of the directions issue
                   by the Court, the petitioner therein had reconstructed structure.
                   The Municipal Corporation alleged that the reconstructed
                   structure was bigger in size than the demolished structure. It is in
                   the light of these facts of the case, burden was shifted on
                   Municipal Corporation to prove that the size of reconstructed
                   structure was more than the demolished structure. Therefore, the
                   judgment in Vadilal Maganlal Trevadia cannot be cited in support
                   of a proposition that in every case Municipal Corporation must
                   prove that the structure is unauthorized. On the contrary,
                   provisions of Section 354-A of the Act would require the person
                   indulging unauthorized work to produce development permission
                   issued for execution of such work. Therefore, the judgment
                   in Vadilal Maganlal Trevadia would have no application to the

5 (2021) 1 Mah. L.J. 157
6 2025 (2) Mh.L.J. 613



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                   present case.”
                                                                  (emphasis supplied)
                 The facts of the present case are also completely different as compared to
             the case in Vadilal Maganlal Trevadia (supra). Therefore, the said judgment
             cannot be cited in support of the proposition that in every case, the
             respondent/Municipal Corporation must prove that the structure is
             unauthorized.
                                                                    (emphasis supplied)


16.            Further the contention of learned counsel on behalf of the Appellant that

the notice dated 8th May 2026 under Section 351 and the speaking order dated 10 th

August 2026 have been passed in breach of the directions of paragraph 94 as laid

by the Supreme Court in Directions in the Matter of Demolition of Structures, In

Re (supra) ought to be rejected, inasmuch as, only after following due process of

law the Respondent-MCGM has issued notice and passed the speaking order. The

relevant extracts of the aforesaid decision are reproduced below: -

             “94. At the outset, we clarify that these directions will not be applicable if there is an
             unauthorised structure in any public place such as road, street, footpath, abutting
             railway line or any river body or water bodies and also to cases where there is an
             order for demolition made by a court of law.

             A. Notice

             94.1. No demolition should be carried out without a prior show-cause notice
             returnable either in accordance with the time provided by the local municipal laws
             or within 15 days' time from the date of service of such notice, whichever is later.

             94.2. The notice shall be served upon the owner/occupier by a registered post A.D.
             Additionally, the notice shall also be affixed conspicuously on the outer portion of
             the structure in question.

             94.3. The time of 15 days, stated herein above, shall start from the date of receipt of
             the said notice.

             94.4. To prevent any allegation of backdating, we direct that as soon as the show-
             cause notice is duly served, intimation thereof shall be sent to the office of
             Collector/District Magistrate of the district digitally by email and an auto generated
             reply acknowledging receipt of the mail should also be issued from the office of the
             Collector/District Magistrate. The Collector/DM shall designate a Nodal Officer
             and also assign an email address and communicate the same to all the municipal and
             other authorities in charge of building regulations and demolition within one month
             from today.



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             94.5. The notice shall contain the details regarding:

             (a)       The nature of the unauthorised construction.
             (b)       The details of the specific violation and the grounds of demolition.
             (c)       A list of documents that the noticee is required to furnish along with his
                       reply.
             (d)       The notice should also specify the date on which the personal hearing is
                       fixed and the designated authority before whom the hearing will take
                       place.

             94.6.     Every municipal/local authority shall assign a designated digital portal,
                       within 3 months from today wherein details regarding service/pasting of
                       the notice, the reply, the show-cause notice and the order passed thereon
                       would be available.

             B. Personal hearing

             94.7. The designated authority shall give an opportunity of personal hearing to the
                      person concerned.
             94.8. The minutes of such a hearing shall also be recorded.

             C. Final order

             94.9. Upon hearing, the designated authority shall pass a final order.

             94.10. The final order shall contain:

             (a)       The contentions of the noticee, and if the designated authority disagrees
                       with the same, the reasons thereof.
             (b)       As to whether the unauthorised construction is compoundable, if it is not
                       so, the reasons therefor.
             (c)       If the designated authority finds that only part of the construction is
                       unauthorised/non-compoundable, then the details thereof.
             (d)       As to why the extreme step of demolition is the only option available and
                       other options like compounding and demolishing only part of the property
                       are not available.

             D. An opportunity of appellate and judicial scrutiny of the final order

             94.11. We further direct that if the statute provides for an appellate opportunity and
             time for filing the same, or even if it does not so, the order will not be implemented
             for a period of 15 days from the date of receipt thereof. The order shall also be
             displayed on the digital portal as stated above.

             94.12. An opportunity should be given to the owner/occupier to remove the
             unauthorised construction or demolish the same within a period of 15 days. Only
             after the period of 15 days from the date of receipt of the notice has expired and the
             owner/occupier has not removed/demolished the
             unauthorised construction, and if the same is not stayed by any appellate authority
             or a court, the authority concerned shall take steps to demolish the same. It is only
             such construction which is found to be unauthorised and not compoundable shall be
             demolished.




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             94.13. Before demolition, a detailed inspection report shall be prepared by the
             authority concerned signed by two panchas.

             E. Proceedings of demolition

             94.14. The proceedings of demolition shall be videographed, and the authority
             concerned shall prepare a demolition report giving the list of police officials and civil
             personnel that participated in the demolition process. Video recording to be duly
             preserved.

             94.15. The said demolition report should be forwarded to the Municipal
             Commissioner by email and shall also be displayed on the digital portal.”



17.             There is no irregularity insofar as, the issuance of notice and passing of

speaking order by MCGM is concerned. I am further of the view that once the

Appellant themselves have not been able to give any cogent reasons as to why the

description of the notice structure has varied from time to time, it would be

incorrect for the Appellant to contend that, upon grant of permission under the

MRTP Act to the layout submitted by Respondent No. 4–Landlord, the notice

structure stood merged with the sanctioned layout and, consequently, continued to

enjoy protection. Such a contention is wholly misconceived and deserves to be

rejected at the threshold. This in view of the fact that the notice structure and the

suit structure which was protected by the judgment and decree dated 13 th October

1997, and the description as given by the Appellants themselves in the pleadings

and the description in the assessment records of 1989 all differ and hence, the

notice structure cannot be deemed to be protected or merged on account of the

layout approval under the MRTP Act to Respondent No.4-Landlord. I am further

of the view that even the speaking order dated 10 th August 2026 has taken into

consideration that the notice structure is substantially larger than the structure,

which is protected by judgment and decree dated 13 th October 1997. This speaking



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order in my view has also been considered by the Trial Court before passing the

impugned order and hence no fault can be found with the order of the Trial Court.

Once that being the case, the contention of learned counsel on behalf of the

Appellant that the MRTP Act would govern the demolition of the present suit

structure as opposed to the MMC Act is a proposition/argument which requires to

be rejected.

18.          I am further of the view that applying the principles of Wander Ltd. v.

Antox India (P) Ltd.7, while considering an application under Order XXXIX Rules

1 and 2 of the CPC, the Appellate Court would not ordinarily interfere with the

exercise of discretion by the court of first instance or substitute its own discretion,

except where such discretion has been exercised or has been shown to have been

exercised arbitrarily, or capriciously, or perversely, or where the Court has ignored

the settled principles of law regulating grant or refusal of interlocutory injunctions,

and the facts of the present case do not warrant any interference with the impugned

order of the Trial Court as the impugned order is a well-reasoned and well-

considered order. It has been passed after due consideration of all the documents

and after forming a prima facie view on the same.

19.          Considering the aforesaid facts and the settled position of law, I am of the

view that the impugned order has been passed after duly appreciating the facts and

the applicable law. The view taken by the Trial Court is a plausible view and does

not warrant interference by this Court in its appellate jurisdiction.

20.          In view thereof, the Appeal from Order fails and is accordingly dismissed.


7 1990 Supp SCC 727



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The Trial Court is directed to dispose of suit expeditiously. There shall be no order

as to costs.

21.          In view of the dismissal of the Appeal from Order, pending Interim

Application(s), if any do not survive and are accordingly disposed of.




                                                 (AARTI SATHE, J.)




M.S.Thatte


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