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Bombay High Court

ANIL GANESH BHAGATversusAMIT RAMAKANT PATKAR AND ANR

Decided
Disposal
Disposed Off

Holding

The Court allowed the interim application, modifying the earlier interim order and permitting construction in accordance with the 4 May 2023 order.

Summary

The applicant, Anil Ganesh Bhagat (original Respondent No.13), sought modification of an interim order dated 12 April 2023 that barred him from further construction and prevented the issuance of an occupancy certificate. The original order was based on Section 32‑G of the Bombay Tenancy and Agricultural Lands Act, 1948 and an injunction granted in a 2020 civil suit. Subsequent developments included a Single Judge order on 4 May 2023 permitting construction of a 16‑storey building subject to conditions, and a 1 April 2026 order quashing the earlier MRT order for lack of notice. Considering these later orders, the Court held that the earlier interim restraint should be lifted. Consequently, the interim application was allowed, permitting the applicant to proceed with construction as per the 4 May 2023 order, and the application was disposed.

Issues considered

  • The earlier interim order restraining construction should be modified in view of subsequent orders.
  • Whether the applicant may proceed with construction and obtain an occupancy certificate.
  • Whether the procedural requirement of hearing the applicant before the earlier order was satisfied.

Legislation cited

Subjects

  • interim relief
  • construction
  • occupancy certificate
  • tenancy law
  • Section 32‑G
  • Article 227
  • quash order
  • modification of interim order
  • High Court of Bombay

Judgment

                                                        37. IA 14619-2023.doc

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                       INTERIM APPLICATION NO.14619 OF 2023
                                        IN
                          WRIT PETITION NO.13600 OF 2022

Anil Ganesh Bhagat                           …    Applicant

In the matter between :

Shri Amit Ramakant Patkar & Anr.        …     Petitioners
          Versus
Shri Sukarya Kalya Shelar & Ors.        …     Respondents
                                  …..
Mr. Atul Damle, Senior Advocate a/w Mr. Sagar Patil for the
Applicant.
Smt. P.J. Gavhane, A.G.P. for Respondent-State.
Ms. Chaitrali Deshmukh for Respondent No.14-T.M.C.
                                  …..

                                    CORAM: M.S. KARNIK &
                                           SANDESH D. PATIL, JJ.

                                    DATED : 6th OCTOBER 2026
P.C.

1.        Heard Mr. Atul Damle, the learned Senior Counsel appearing

for the Applicant. The Applicant is the original Respondent No.13 in

the Writ Petition. None for the Petitioner, despite service. We have

heard Ms. Chaitrali Deshmukh, appearing for the Respondent No.14-

Thane Municipal Corporation.

RaJesh Chittewan, PS                                                       1/6
                                                      37. IA 14619-2023.doc

2.        We have perused the Order dated 12 th April 2023, passed by

this Court, which is at Exhibit 16, of which the modification is sought

by this Application. In Para-2 of the Order, a reference is made to the

proceedings under Section 32-G of the Bombay Tenancy and

Agricultural Lands Act, 1948, initiated by the tenants. This Court

also took into consideration the Order dated 18th December, 2020,

passed by the learned Civil Judge Senior Division at Thane, in

Special Civil Suit No.98 of 2015, in a suit which was filed by the

same tenants, in which, an injunction was granted by the learned

Trial Judge, restraining the developers from proceeding with

construction.


3.        It is in such light of the matter that the interim order was

passed directing the Respondent No.13 not to undertake any further

constructions and the Corporation was directed not to issue

occupancy certificate to Respondent No.13-developer. Respondent

No.13-was not heard when the Order dated 12 th April 2023 was

passed.


4.        There are some subsequent developments, which have been

brought on record by the Applicant. After the Order 12 th April, 2023


RaJesh Chittewan, PS                                                     2/6
                                                                37. IA 14619-2023.doc

was passed by this Court, learned Single Judge of this Court, by

Order dated 4th May 2023 in Appeal From Order No.854 of 2022 and

other connected matter, has disposed of the Appeal From Order in

terms of the following Order.


      “ORDER

      (i)      The plaintiffs and the defendant nos. 2 to 4 are
               permitted to complete the construction of the building
               Ground plus 16 floors on property bearing Gat No. 65,
               situated within the limits of village Mathardi, Diva,
               District Thane.

      (ii) The defendant nos. 2 to 4 are permitted to create third
            party rights in the flats upto 9th floor of the said
            building.

      (iii) Defendant nos. 2 to 4 shall not create any third party
            right constructed above the 9th floor during the
            pendency of the suit.

      (iv) The plaintiffs and defendant nos. 2 to 4 shall file an
           affidavit within a period of four weeks disclosing the
           interest created by them, in respect of ten flats
           situated in the said building constructed on survey no.
           65 together with relevant documents.

      (v)       Defendants shall be at liberty to file appropriate
                proceedings in the trial Court for violation of the order
                of the interim injunction passed by the trial Court
                below exhibit-49 by constructing additional floors
                (10th to 14th floors) out of the 16 floors of the said
                building on survey no, 65.


RaJesh Chittewan, PS                                                               3/6
                                                                  37. IA 14619-2023.doc

      (vi) The appellants shall not claim any equities for anything
            done under this order.




      (vii) Except the building in survey no.65, the impugned
            order passed by the trial Court will operate as regards
            rest of the suit properties during the pendency of the
            suit unless otherwise modified by the trial Court.

      (viii) The prospective flat purchasers shall be informed
             about the pending suit as well as the injunction orders
             and shall incorporate such a clause in the agreement
             entered into between them that such third party
             interest is created subject to the orders in the suit.”


5.        Accordingly, the Applicant has been permitted to complete the

construction of the building, ground plus 16 floors on the property

bearing Gat No.65, situated within the limits of Village Mathardi,

Diva, District. Thane.



6.        It is pertinent to refer to the Order dated 1 st April, 2026 passed

by this Court in Writ Petition No.9063 of 2023, filed by Anil Ganesh

Bhagat (the Applicant in this Interim Application), challenging the

Order passed by MRT. In para-4, this Court recorded as under :-


                “4. In the present proceedings filed under Article 227 of
                the Constitution of India, this Court cannot consider the
                submissions raised for the first time by the Petitioner. By


RaJesh Chittewan, PS                                                                 4/6
                                                                     37. IA 14619-2023.doc

                the order of 26th August, 2024, this Court had directed the
                AGP to take instructions as to whether the Petitioner herein
                was represented before the MRT by the Advocate to which
                there are no instructions received and no submissions
                canvassed. Upon perusal of the impugned order dated 15th
                December, 2021, it is evident that the submissions
                canvassed on behalf of Respondents were in the context of
                tenancy proceedings and the submissions which are now
                being canvassed by the Petitioner are not recorded. It
                appears that the Petitioner herein was not issued any
                notice and was not heard before the MRT. There is a
                specific ground taken in the present Petition that no notice
                has been sent and that the Petitioner was not heard, which
                is not disputed by filing any Affidavit-in-reply or by placing
                on record any material to indicate that the Petitioner was
                duly served. The impugned order is therefore, required to
                be quashed and set aside and the matter is required to be
                remanded back to MRT to be considered afresh after
                considering the Petitioner herein as well as other parties.
                Accordingly, impugned order dated 15.12.2021 is hereby
                quashed and set aside.”



7.        Thus, by the aforesaid Order, the impugned Order of the MRT

has been set aside. In view of the subsequent events, the Order

dated 12th April, 2023, passed by this Court needs to be modified as

the entire complexion changes as a result of the aforesaid Orders

passed. The interim order of this Court as the interim order in this

Petition will have to be in tune with the aforesaid orders especially

that in the Appeal From Order.



8.        The Applicant is allowed to proceed with the constructions in

RaJesh Chittewan, PS                                                                    5/6
                                                  37. IA 14619-2023.doc

terms of the Order dated 4th May, 2023 passed in Appeal From Order

No.854 of 2022 with Appeal from Order No.2 of 2021.



9.        Interim Application No.14619 of 2023 is allowed in the

aforesaid terms and is disposed of.




(SANDESH D. PATIL, J.)                     (M.S. KARNIK, J.)




RaJesh Chittewan, PS                                                 6/6
                 Digitally signed
 RAJESH    by RAJESH
           VASANT
 VASANT    CHITTEWAN
 CHITTEWAN Date: 2026.10.09
                 17:51:54 +0530


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