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
- Bombay Tenancy and Agricultural Lands Act, 1948 — s. 32-G
- Constitution of India — s. Article 227
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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