LAXMAN NAGARBHAI PATELversusTHE BOMBAY MUNICIPAL CORPN. OF GR.BOMBAY

                                                                        202-FA-921-1999.docx
              rrpillai            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       ORDINARY ORIGINAL CIVIL JURISDICTION
                                             FIRST APPEAL NO. 921 OF 1999


                              Shri Laxman Nagarbhai Patel
                              Indian Inhabitant, of Bombay
                              residing at J. B. Fonseca Chawl
                              (also known as Brass Patel Chawl
                              and/or Police Patil Chawl
                              and/or A. D. Jani & Son Chawl)
                              situated at Akurli Road, Near Old
                              Post Office, Kandivali (East),
                              Mumbai-400 067                                ... Appellant

                                        Versus

                              The Bombay Municipal Corporation
                              of Greater Bombay (a Corporation
                              constituted under the Bombay
                              Muncipal Corproation Act) having
                              their office at Municipal Offices,
                              Mahapalika Marg, Fort,
                              Mumbai-400 001                                ... Respondent

                              Mr. Amit H. Yadav for the Appellant.
                              Mr. Pradeep Patil a/w. Ms. Pallavi Khale i/b. Ms. Komal
                              Panjabi for Respondent-BMC.

                                                             CORAM: GAURI GODSE, J.
                                                             DATE : 25th AUGUST 2026

           Digitally signed
           by
RAJESHWARI RAJESHWARI
           RAMESH
RAMESH     PILLAI
PILLAI     Date:
           2026.09.01
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JUDGMENT:


BASIC FACTS:


1.   This first appeal is preferred by the original plaintiff to

challenge the judgment and decree passed by the trial court

dismissing the appellant’s suit. The suit was filed to challenge

the notice dated 11th October 1982 issued under Section 351

of the Mumbai Municipal Corporation Act, 1988 (“MMC Act”),

and the order dated 10th November 1982 passed by the

Assistant Engineer (Buildings and Factories, R/South Ward)

(“Assistant Engineer of the Corporation”). The plaintiff also

prayed for an injunction restraining the Corporation from

demolishing the suit premises.


2.   The suit premises are described as a structure consisting

of GI Sheet walls and roof admeasuring 11.90 x 4.30 mtrs. The

impugned notice describes the offending structure as an

unauthorised structure admeasuring 11.90 x 4.30 mtrs having

Brick Masonry Walls (B.M.Walls) and A.C.Sheet roof. By order

dated 10th November 1982, the Assistant Engineer of the

Corporation, in reference to the plaintiff’s letter dated 15 th

October 1982 recorded that the plaintiff’s reply was not


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satisfactory as it did not prove that the notice structure is an

authorised structure and thus requested the plaintiff to remove

the same within four days from the date of the order failing

which it would be removed by the corporation.


CASE OF THE PLAINTIFF:


3.   The plaintiff contended that the suit premises are a

residential structure with GI Sheet walls and roof. The plaintiff

has further referred to the application for repair permission and

the corporation's response. According to the plaintiff, by letter

dated 1st June 1982, addressed to the plaintiff, permission to

carry out repairs was granted. In the application dated 10 th

March 1982, the plan for the proposed repairs was annexed,

and the application for repairs as per the said plan was

approved by the corporation. Hence, according to the plaintiff,

the repair work was carried out strictly in pursuance of the plan

submitted by the plaintiff through his architect vide application

dated 10th March 1982. The plaintiff has further explained that

his application was inadvertently mentioned as application

dated 1st March 1982 in the corporation’s letters. The plaintiff

has thus contended that the construction that was carried out



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after removing the earlier construction was in accordance with

the repair permission.


CASE OF THE DEFENDANT:


4.    In the written statement, the corporation contended that

repair permission was never granted, and that the plaintiff was

informed that the owner’s application to repair the damage to

the existing structure was approved upon payment of Rs.

10,000/-.   Thus, it was contended that permission to the

plaintiff was never granted, and that what was permitted was

repairs to the damage caused during the demolition of the

building that was to be redeveloped. Thus, it was contended by

the corporation that the original structure, containing GI sheet

Walls and roof, was demolished, and new construction was

carried out with B.M. Walls and A.C. Sheet roof. Hence, the

offending structure was not the original structure of GI sheet

walls and roof but an unauthorised structure of B.M.Walls and

A.C. sheet roof carried out by the plaintiff.


5.    The corporation further contended that a final order was

passed by the Deputy Commissioner on 27 th November 1982

directing demolition of the suit structure. It is further contended


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that before the corporation officer could demolish the suit

structure as per the final orders, the plaintiff had secured an

ad-interim injunction; therefore, the final order and the

impugned notice were not implemented.


FINDINGS BY THE TRIAL COURT:


6.    Both the parties led evidence in support of their rival

contentions. The trial court held that the plaintiff could not

prove that any repair permission was granted to the plaintiff

pursuant to the application dated 10th March 1982. After

examining the entire evidence on record, it is held that no

objection mentioned in the letters relied upon by the plaintiff

was with reference to the repair permission to the builder and

the plaintiff’s application for repairs as per the plan annexed for

replacing GI Sheet was never granted. The plaintiff’s

contention, therefore, that the construction carried out was as

per the repair permission is disbelieved by the trial court.


7.    The letters pertaining to repair permission submitted by

the plaintiff through his architect, the plan annexed to the

repair permission, and the no objection of the corporation’s

officers referred to and relied upon by the plaintiff are


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exhaustively considered by the trial court. It is held that the

builder was under an obligation to repair the structure, and the

no-objection to carry out the repair was in reference to the

permission granted to the builder/owner. The letter issued by

the corporation indicated that the plaintiff had been informed

that the repair permission had already been granted to the

owner, and thus a separate application for repair submitted by

the plaintiff through his architect could not be permitted. Thus,

the contention raised on behalf of the corporation, interpreting

the letters as a no objection, was held by the trial court to be a

no objection granted to the builder-owner, and not to the repair

permission, as contended by the plaintiff.


8.    The trial court further referred to the corporation’s

contentions that the complaint was filed by the society, alleging

that the plaintiff made allegations regarding the B.M. Walls and

A.C. Sheet roof. Pursuant to the society's complaint, an

inspection was carried out, and it was found that the plaintiff

had constructed a new structure. Hence, it is held that the

corporation issued notice under Section 351 of the MMC Act,

for the offending structure described as the construction of

B.M.Walls and A.C.Sheet roof carried out by the plaintiff. In the


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absence of any repair permission or any proof of the existence

of the offending structure prior to the datum line, the trial court

disbelieved the plaintiff’s contention for protection of the suit

premises.


9.    With regard to the contention raised on behalf of the

plaintiffs that the Assistant Engineer of the Corporation could

not have passed an order and was not authorised to order

demolition, the trial court held that the plaintiff had never

challenged the impugned notice and order dated 10 th

November 1982 on the ground of the authority of the Assistant

Engineer. Thus, in the absence of any satisfactory evidence

that the offending structure described in the impugned notice

was in existence before the datum line or that it was

constructed with any valid permission, the trial court has

refused to grant any relief to the plaintiff.


POINTS FOR CONSIDERATION:


10.   Hence, the point to be decided in this First Appeal is (i)

whether the plaintiff was granted any repair permission to

replace GI sheet walls and roof with BM walls and AC Sheet,

(ii) whether the offending structure was authorised and the


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impugned notice was illegal, (iii) whether the suit premises was

protected on the ground that it existed prior to the datum line

and (iv) whether plaintiff was entitled to any relief as prayed.


SUBMISSIONS        ON     BEHALF      OF     THE     APPELLANT

(“PLAINTIFF”):


11.   Learned counsel for the plaintiff submits that the plaintiff

through his architect had submitted an application dated 10 th

March 1982 along with the enclosed plan for carrying out

repairs. In reference to the plaintiff's application for repairs,

made through his architect, the Assistant Engineer of the

Corporation granted permission for repairs on 1st June 1982.


12.   Learned counsel for the plaintiff relied upon an

application along with the attached plan and the letter dated 1 st

June 1982 issued by the Assistant Engineer of the

Corporation. He also relied upon the noting produced at Exhibit

‘’U ‘’ stating that no objection was granted for the repair

permission to the tenement. He further relied upon the letter

dated 23rd October 1982, issued by the Assistant Engineer,

stating that the plaintiff's reply was not accepted because there




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was no evidence that the suit structure existed prior to the

datum line.


13.   Learned counsel for the plaintiff submitted that by reply

dated 15th October 1982 the plaintiff had contended that there

was no unauthorised construction carried out, and the shed

under reference in the notice was the same structure which

was referred to in the assessment extract relied upon by the

plaintiff. Learned counsel for the plaintiff relied upon the

assessment extract produced at Exhibit-F, which referred to

the reference number of the structure as A.C. Shed, which

existed prior to 1961-62. With reference to his structure

number in the assessment extract, he relied on the repair

permission and application submitted to carry out repairs. He

thus submits that the plaintiff’s structure is in existence prior to

1961-62 and pursuant to the repair permission granted by the

corporation, repairs were carried out to the original existing

structure. Once permission to carry out repairs to the structure

existing prior to the datum line was granted, the corporation

has illegally issued a notice alleging unauthorised construction.

He thus submits that the suit premises are an old structure

protected as existed prior to the datum line. The repairs are


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carried out pursuant to the repair permission granted by the

corporation. Hence, the impugned notice and the order passed

by the Assistant Engineer are illegal.


14.   He further submits that the corporation has pleaded that

after the order passed by the Assistant Engineer, the Deputy

Commissioner has also passed final orders. He submits that

there is no reason for the corporation to suppress the copy of

the order. Not producing the copy of the final order passed by

the Deputy Commissioner would warrant an adverse inference

against the corporation. According to the learned counsel for

the plaintiff, in view of the adverse inference, the plaintiff’s

contention needs to be accepted that the construction was

carried out as per the repair permission and it was not

considered by the Assistant Engineer or the Deputy Municipal

Commissioner who had passed the final order.


15.   Learned counsel for the plaintiff, therefore, submits that

the trial court has failed to correctly appreciate the evidence

led on behalf of the plaintiff regarding the construction carried

out as per the repair permission. He further submits that the

trial court failed to consider the corporation's conduct in failing



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to produce the final order allegedly passed by the Deputy

Municipal Commissioner. He thus submits that the impugned

judgment would warrant interference on the ground of incorrect

appreciation of the evidence on record and ignoring the

material evidence produced to prove that the repair permission

was granted and the structure in existence was an old

structure with the repairs carried out pursuant to the repair

permission. Hence, according to the learned counsel for the

plaintiff, the plaintiff would be entitled to a decree as prayed for

setting aside the notice under Section 351 of the MMC Act

and the order passed by the Assistant Engineer of the

Corporation. The plaintiff would also be entitled to protect the

suit structure from high-handed demolition by the Corporation.


SUBMISSIONS        ON BEHALF           OF   THE RESPONDENT

(CORPORATION):


16.   Learned counsel for the corporation relied upon the

description of the suit premises mentioned as GI Sheet Walls

and roof. He submitted that the offending structure is not in

respect of the GI Sheet walls, and the specific allegation in the

suit notice concerns the unauthorised construction of B.M.



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Walls and A.C. Sheet roof. Learned counsel for the corporation

relied upon the application filed by the plaintiff through his

architect attaching the plan for the proposed repairs. The

application for repairs filed through the plaintiff's architect

describes the proposed repairs as replacing the GI Sheet and

roof and constructing a wall. The letter dated 1 st June 1982,

relied upon by the plaintiff as repair permission, refers to the

plaintiff’s architect’s letter and letters dated 12 th May 1981 and

26th April 1982.


17.   He submitted that by letter dated 12 th May 1981, the

plaintiff was informed that, with reference to his complaint for

repairs to the existing structure, necessary action would be

taken, and that, for compliance with the condition for repairs, a

deposit of Rs.10,000/- had been collected from the owner. So

far as the letter dated 26th April 1982 is concerned, learned

counsel for the corporation submitted that by the said letter,

the plaintiff was informed that the office of the Assistant

Engineer (Building Proposal) of the Corporation had no

objection to the Ward office granting repair permission for the

premises referred to in the letter. He submits that the noting

dated 26th April 1982 was again a no-objection to the grant of


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permission for repairs to the tenement, as per the MMC Act

and the policy. He submits that none of the notings relied upon

by the plaintiff refers to any grant of permission for carrying out

repairs as per the plan annexed to the application filed through

the plaintiff’s architect.


18.   Learned counsel for the corporation also referred to the

letter dated 3rd April 1981 issued by the plaintiff and addressed

to the City Engineer of the Corporation. He submits that the

plaintiff filed a complaint seeking to direct the builder to repair

the plaintiff's damaged structure before granting an occupation

certificate for the building. He therefore submits that the no

objection for the repair permission referred to and relied upon

by the learned counsel for the plaintiff does not pertain to any

repair permission for replacing the GI Sheet Walls and roof

with B.M.Walls and A.C.Sheet roof. He submits that the no

objection for repair permission was pursuant to the complaint

letter submitted on behalf of the plaintiff, alleging damage to

his structure. He therefore submits that the no objection

referred to by the learned counsel for the plaintiff is

misinterpreted to mean that the repair permission was granted

for replacing the GI Sheet Walls and roof with B.M. Walls and


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A.C.Sheet roof. He submits that the offending structure is the

one with B.M. Walls and A.C. Sheet roofs, and not the original

structure consisting of GI Sheet Walls and roof. He therefore

submits that the unauthorised construction of B.M. Walls is an

offending structure. Hence, there is no question of any

protection on the ground that the old structure existed prior to

the datum line.


19.     To support his submissions that such an unauthorised

construction cannot be protected and that procedural lapses, if

any, pointed out by the applicant cannot be a ground to

tolerate an unauthorised structure, he relied upon the decision

of the Apex Court in Municipal Corporation of Greater Mumbai

and Others vs. M/s. Sunbeam High Tech Developers Private

Limited1.     He relied upon the observations of this court in

Tushar Guru Salien vs. State of Maharashtra and Others 2. He

further relied upon the decision of the Apex Court in Seema

Arshad Zaheer and Ors vs. Municipal Corporation of Greater

Mumbai and others3. He submits that a consistent view has

been taken by this court as well as the Apex Court that in the

absence of any documents regarding the existence of the
1
    Civil Appeal No. 7627 of 2019
2
    PIL No. 67 of 2017
3
    (2006) 5 SCC 282


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structure prior to the datum line in respect of the notice for

demolition or any satisfactory evidence that the structure is

authorised, the corporation's action of demolition cannot be

questioned.


20.     He further submits that the objection raised on behalf of

the plaintiff that the impugned order passed by the Assistant

Engineer was without any authority is not pleaded by the

plaintiff. He submits that the plaintiff has never amended the

plaint challenging the final order passed by the Deputy

Municipal Commissioner and that the corporation was never

called upon to produce a copy of the final order. Even

otherwise, he submits that in the absence of any satisfactory

evidence that the offending structure was authorised, the

plaintiff would not be entitled to any relief as claimed in the

suit.

21.     Learned counsel for the corporation also relied upon

Section 342 of the MMC Act to support his submissions that

the repair permission is required to be issued in terms of the

said provision. In the absence of any repair permission for

replacing the GI Sheet Walls and roof with B.M. Walls and

A.C.Sheet roof, the offending structure cannot be protected.


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He therefore submits that the impugned judgment and decree

would not warrant any interference.

22.     Learned counsel for the corporation also relied upon the

decision of this court in Siesta Industrial and Trading

Corporation and Others vs. The Municipal Corporation of

Greater Mumbai and Others4. He submits that the division

bench of this court has taken a view that the repair permission

granted by the corporation itself would not be conclusive proof

that the structure existed prior to the datum line and the

alteration or modification to the structure cannot be presumed

as existence of the structure prior to the datum line. Learned

counsel for the corporation therefore submits that the plaintiff

has admittedly replaced the GI Sheet walls and roof with

B.M.Walls and A.C.Sheet roof which supports the allegations

in the notice under Section 351 of the MMC Act describing the

offending structure. Hence, the plaintiff is not entitled to any

protection.


CONSIDERATION OF PLEADINGS AND EVIDENCE:


23.     I have carefully perused the pleadings, evidence and

documentary evidence on record. I have verified the contents
4
    Writ Petition No. 3448 of 2023


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of the letters relied upon by the plaintiff to contend that a repair

permission was granted and that the structure is as per the

permission, and therefore would require protection. Learned

counsel for the corporation is right in correctly interpreting the

application for repairs filed by the plaintiff on 10 th March 1982

along with the plan. I have perused the plan. The plan clearly

refers to replacing GI Sheet walls by construction of B.M.Walls.

The plaintiff’s complaint letter clearly indicates the grievance

raised regarding the damage caused by the builder and further

states that an occupation certificate must not be granted to the

builder until the damage caused to the plaintiff’s structure is

repaired.     In reference to the plaintiff’s complaint, the

Corporation had intimated the plaintiff regarding the repairs

and the faithful compliance deposit taken from the owner. The

endorsement of the Assistant Engineer for the Corporation, of

the no objection for repairs, does not pertain to the repair

permission dated 10th March 1982 along with the plan annexed

by the plaintiff’s architect.

24.   By letter dated 18th March 1982, the plaintiff’s architect

was informed, with reference to the application dated 10 th

March 1982, that the owner, i.e., the plaintiff, had already been


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informed by the office of the Assistant Engineer, vide letter

dated 10th July 1981, regarding the repair permission. The

letter dated 10th July 1981 is also part of the record, which

intimates the plaintiff, with reference to his complaint letter and

the instructions to the architect to carry out repairs to the

structure under reference, by the Assistant Engineer (Building

Proposal), to cooperate in carrying out the repairs. It is further

intimated that the grant of separate repair permission therefore

would not arise.

25.   The letter dated 1st June 1982, relied upon by the plaintiff

as a repair permission, has been carefully perused by me. The

said letter refers to the architect's letter dated 10 th March 1982

for carrying out repairs, and to the letters dated 12 th May 1981

and 26th April 1982. As discussed in detail in the above

paragraphs recording the submissions on behalf of the

corporation, neither of these letters referred to the grant of any

permission to the plaintiff as per the attached plan for replacing

the GI Sheet walls and roof with the construction of B.M. Walls

and A.C.Sheet.


26.   The assessment extract relied upon by the plaintiff refers

to the AC shed. The description of the structure in the

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assessment extract and the application for permission also

refer to the existing structure as assessed. However, it cannot

be ignored that the offending structure, as per the impugned

notice, is not the structure in existence prior to 1961-62, but

rather the construction of BM Walls and A.C. Sheet roof

carried out by the plaintiff. The plaintiff’s pleadings and the

documents relied upon by the plaintiff also refer to the

construction carried out by the plaintiff, which is as described

in the impugned notice. Thus, admittedly, the plaintiff has

replaced the GI Sheet Walls and roof by carrying out new

construction of B.M.Walls and A.C.Sheet roof by referring to

the repair permission. Thus, the protection of the structure on

the ground that it is in existence prior to the datum line would

not arise.


ANALYSIS AND CONCLUSIONS:


27.   The question therefore to be considered is whether the

admitted construction of B.M. Walls and A.C.Sheet roof carried

out by the plaintiff is authorised or is carried out without any

valid permission. The letter dated 1 st June 1982, relied upon by

the plaintiff as repair permission, is rightly not accepted by the



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trial court as repair permission to carry out the construction of

B.M Walls and A.C.Sheet. Hence, in the absence of any

evidence to show that the construction is in accordance with

any valid permission, the findings recorded by the trial court

that the construction of the offending structure is unauthorised

would warrant no interference.


28.   Even otherwise, Section 342 of the MMC Act refers only

to tenantable repairs and not to carrying out new construction

of B.M. Walls. None of the letters issued by the corporation

and the no objections referred to therein pertains to any

permission permissible under Section 342 of the MMC Act or

construction of the B.M. Walls.


29.   The contention regarding the authority of the Assistant

Engineer to issue the impugned order dated 10 th November

1982 would not have any bearing on the validity of the

impugned notice. The plaintiff has not pleaded any objection to

the authority of the Assistant Engineer to issue the letter dated

10th November 1982. In response to the plaintiff’s reply to the

impugned notice, learned counsel for the corporation was right

in submitting that the designated officer is permitted to



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exercise the powers under Section 351 of the MMC Act;

however, in the absence of any specific allegations, the same

would not warrant any consideration in the suit. Even

otherwise, the letter dated 10th November 1982 issued by the

Assistant Commissioner refers to the reply submitted by the

plaintiff in response to the impugned notice. Nothing is argued

to show that the reasons recorded in the letter dated 10 th

November 1982 are incorrect, or that the offending structure is

authorised or warrants protection. The prayers in the suit

pertain to the challenge to the impugned notice under Section

351 of the MMC Act and the letter dated 10 th November 1982,

on the ground that the structure existed prior to the datum line

and was repaired only as per the repair permission.

30.   I have recorded the reasons to confirm the findings of the

trial court that no valid permission to carry out repairs has been

proved by the plaintiff. The Apex Court in the decision of M/s.

Sunbeam High Tech Developers Pvt. Ltd. has referred to the

observation regarding the ad-interim protection granted in

respect of the corporation's notice alleging unauthorised

construction. The Apex Court has observed that any ad-interim

orders that would protect the illegalities committed by the


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plaintiff would not be sustainable. It is further observed that

allowing the plaintiff to continue to enjoy the illegal action,

including the unauthorised construction, would lower the

courts’ prestige and lower the law.

31.   In the decision of this court in Tushar Guru Salien, the

learned Division Bench of this Court has observed that in the

he suit challenging the allegation of unauthorised construction,

there must be an averment of the sanction obtained from the

corporation, and merely pointing out any deficiency in the

notice would not have any bearing. It is further observed that

such suits must contain a positive assertion made with

reference to the sanction plan.

32.   The Apex Court in Seema Arshad Zaheer has observed

that merely showing the existence of certain structures would

not be sufficient unless it is shown that a demolition order has

been passed with regard to structures protected prior to the

datum line. It is thus held that if the existence of the structure

before the datum line is not established in respect of which the

notice is issued, the challenge to the notice would have no

effect on the unauthorised construction carried out by the

occupant.


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33.   This court, in the decision of Siesta Industrial and

Trading Corporation and Others, observed that the ground of

repair permission would by itself not be conclusive proof that

the structure existed prior to the datum line. It is further

observed that any permission granted by the corporation for

alteration or modification of the structure, though it may carry a

presumption regarding the existence of such structure, does

not conclusively establish that the structure in question existed

prior to the datum line unless substantiated by supporting

documents. In the present case, even as per the plaintiff, the

old structure has been repaired, and during the repairs, the GI

sheet walls were removed, and B.M. Walls were constructed.

Thus, the question of protection on the ground that the

structure existed prior to the datum line would not arise in the

present case. In view of the findings that there is no valid

repair permission for replacing the GI sheet walls with B.M.

Walls,   the   offending   structure   is   rightly   accepted      as

unauthorised by the trial court. Therefore, the findings

recorded by the trial court would not warrant any interference.



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34.   Hence for the reasons recorded above, the first appeal is

dismissed. Pending civil applications are disposed of as

infructuous.

35.   Hence, for the reasons recorded above, the first appeal

is dismissed. Pending civil applications are disposed of as

infructuous.

36.   At this stage, learned counsel for the appellant seeks

extension of the interim protection. However, he is unable to

point out whether any protection has been granted. Hence, no

orders.



                                          [GAURI GODSE, J.]




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