Bombay High Court
KSHAMA PADMAKAR SHEDGEversusTHE MUNICIPAL CORPORATION OF GREATER MUMBAI
- Decided
- Disposal
- Allowed
Holding
The appeal is allowed, directing the appellant to file an additional reply and the corporation to conduct a hearing and pass a reasoned order before any demolition can proceed.
Summary
The appellant, Kshama Padmakar Shedge, has occupied a small room constructed by her husband since before 1976 and claims residence based on various documents. The Municipal Corporation of Greater Mumbai issued notices under Section 354-A and later Section 351 of the Mumbai Municipal Corporation Act, 1888, alleging the structure was unauthorized and ordering its demolition. The appellant challenged these notices in two Long Cause suits; the earlier suit was decided in her favour, but the later suit (No. 836 of 2021) was dismissed because she could not produce any permission for construction. The appellant appealed, arguing that the corporation failed to follow the procedural requirements of Section 351, particularly the duty to grant a hearing and issue a reasoned order, as mandated in the precedent Sopan Maruti Thopte v. Pune Municipal Corporation. The respondent conceded that a hearing would be given and agreed to consider any further reply. The High Court allowed the appeal, directing the appellant to file an additional reply within seven days and ordering the corporation to conduct a hearing and pass a reasoned order within fifteen days, with a two‑week stay on any adverse order.
Issues considered
- Whether the Municipal Corporation complied with the procedural requirements of Section 351 of the MMC Act, including the duty to grant a hearing and issue a reasoned order, before proceeding with demolition.
- Whether the notices issued under Section 351 were ultra vires in the absence of such compliance.
- Whether the appellant is entitled to protection of the suit premises pending proper procedure.
Legislation cited
- Mumbai Municipal Corporation Act, 1888 — s. 342, 347, 351, 354-A, 488, 527
Subjects
- unauthorised construction
- Section 351
- municipal corporation
- hearing
- reasoned order
- demolition
- procedural fairness
- stamp duty
Judgment
1 of 10 2.FA.(ST).21973.2026.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL (STAMP) NO.21973 OF 2026
WITH
INTERIM APPLICATION NO.6173 OF 2026
Smt.Kshama Padmakar Shedge, Age 78 years,
R/o.Room no.2, Near Mahadev Sawant Chawl,
Agarwadi, Sion Trombay Road,
Near Municipal School, Mankhurd, Mumbai. Appellant
versus
The Municipal Corporation of Greater Mumbai Respondent
_______
Mr.J.S.Jadhav i/by Mr.Bhlaprasad S.Shukla for Appellant.
Mr.Pradeep M.Patil for Respondent-BMC.
_______
CORAM : AARTI SATHE, J.
DATE : 21st August 2026
ORAL JUDGMENT :-
1. Admit. The matter is taken up for hearing with the consent of parties.
2. The present First Appeal is filed by the Appellant (Original Plaintiff),
who is in use, occupation, and possession of the suit premises since much prior to
1976. The First Appeal is filed against the judgment and decree dated 29 th June
2026 (hereinafter referred to as “the impugned judgment and decree”) dismissing
Long Cause (L.C.) Suit No.836 of 2021 passed by the Bombay City Civil Court
(“Trial Court”), whereby the following order was passed: -
“ ORDER
Suit stands dismissed with costs.”
Digitally signed by
MANISH MANISH
SURESHRAO
SURESHRAO
THATTE 3. Briefly, the facts are as follows: -
THATTE Date: 2026.08.24
17:36:35 +0530
(i) The suit premises i.e., Room No. 2 admeasuring 10x19 sq. ft. made
M.S.Thatte
2 of 10 2.FA.(ST).21973.2026.DOC
of B.M. wall and A.C. sheet roof, situated at CTS No. 121, Mahadev Sawant
Chawl, Sion, Trombay Road, Near Municipal School, Mankhurd, Mumbai
(hereinafter referred to as the “suit premises”) was constructed by the Appellant’s
(Original Plaintiff’s) Husband;
(ii) It is the Appellant’s (Original Plaintiff’s) contention that she is
residing in the said suit premises with her family members, and that the Rationing
Authority had issued Ration card, and the Election Commission of India had
issued the Election ID Card to the Appellant (Original Plaintiff) at the address of
the suit premises;
(iii) It is further the Appellant’s (Original Plaintiff’s) contention that the
water connection was taken by all the neighbours jointly as a group connection in
the name of Secretary Shri. Ravindra Ganpat Sawant, and that the Appellant
(Original Plaintiff) is paying the necessary charges for the consumption of water;
(iv) In the year 2000, specifically on 22 nd July 2000, census was carried
out by the competent authority, and the application of Appellant (Original
Plaintiff) was accepted for the issuance of photo pass and census receipt no.
0607222, pursuant to which census receipt was issued in favour of the Appellant
(Original Plaintiff). The census receipt was issued in respect of the suit premises
which qualified the datum line of 1st January 1995;
(v) On 19th April 2012, Junior Engineer, M/East Ward Office of the
Respondent-Corporation issued a notice to the Appellant (Original Plaintiff) under
Section 354-A of the Mumbai Municipal Corporation Act, 1888 (hereinafter
referred to as the “MMC Act”);
M.S.Thatte
3 of 10 2.FA.(ST).21973.2026.DOC
(vi) In 2012, the Appellant (Original Plaintiff) filed L.C. Suit No. 1083
of 2012 challenging the notice dated 19th April 2012. The said LC Suit No. 1083 of
2012 was decreed in favour of the Appellant (Original Plaintiff) by judgment and
order dated 20th November 2014 passed by the Trial Court, with liberty being
given to the Respondent-Corporation to initiate proceedings against the Appellant
(Original Plaintiff) under Section 351 of the MMC Act;
(vii) On 3rd February 2015, a Designated Officer from M/East Ward
Office of the Respondent-Corporation issued a notice bearing No. ACME/B-
139/351/5483/AEBF under Section 351 of the MMC Act to the Appellant
(Original Plaintiff), alleging that the suit premises was constructed unauthorizedly
and contrary to the provisions of Sections 342 and 347 of the MMC Act, and
directing the Appellant (Original Plaintiff) to produce documentary evidence
pertaining to the suit premises within seven days of receipt of the said notice, failing
which the suit premises would be demolished. The said notice specifically was issued
in respect of the unauthorized construction which was described as follows: -
M.S.Thatte
4 of 10 2.FA.(ST).21973.2026.DOC
(viii) On 4th February 2015, the Appellant (Original Plaintiff) filed a reply
to the notice dated 3rd February 2015 through her advocate, denying all the
allegations made in the notice and submitted documentary evidence in support of
her contentions that the suit premises was not unauthorized;
(ix) On 4th March 2021, despite no response from the Respondent-
Corporation to the reply dated 4 th February 2015, a Designated Officer from
M/East Ward Office of the Respondent-Corporation came to the suit premises and
served a notice under Section 488 of the MMC Act dated 3 rd March 2021 to the
Appellant (Original Plaintiff), seeking removal of the suit premises on 23 rd March
2021 or any time thereafter;
(x) Post the aforesaid notices dated 3rd February 2015 and 3rd March
2021, the Appellant (Original Plaintiff) filed L.C. Suit No. 836 of 2021 praying for
a declaration that the aforesaid notices be declared illegal and ultra vires to the
MMC Act. The Appellant (Original Plaintiff) also prayed for a permanent order
and injunction against the Respondent-Corporation from demolition of the suit
premises;
(xi) On 29th June 2026, the L.C. Suit No. 836 of 2021 was dismissed by
the Trial Court by passing the impugned judgment and decree of even date, on the
ground that no single document on record proved that the Appellant (Original
Plaintiff) had obtained permission to construct the suit premises from the
competent authority under the MMC Act;
(xii) The Trial court in the impugned judgement and decree has placed
reliance on the statement made by the Appellant (Original Plaintiff) in her cross
M.S.Thatte
5 of 10 2.FA.(ST).21973.2026.DOC
examination that while constructing the suit premises her father had not obtained
sanction or approval from the Competent authority for construction. The
Appellant (Original Plaintiff) also admitted that neither a notice was given under
Section 527 of the MMC Act prior to the construction of the suit premises. The
Trial Court further held that even though the Appellant (Original Plaintiff) was
residing at the suit premises, there was not a single document on record to show
that while constructing the same the Appellant (Original Plaintiff) or her father
had obtained the sanction or approval from the Competent Authority of the
Respondent-Corporation. The Trial Court further held that the documents on
which the Appellant (Original Plaintiff) has sought to place reliance on i.e. Ration
Card, electricity connection, election identity card etc., only go to indicate that the
Appellant (Original Plaintiff) was residing in the suit premises and nowhere
establish or prove that she had constructed the suit premises with the prior
permission of the Competent Authority of the Respondent-Corporation. The Trial
Court did not frame any issues as the Respondent-Corporation did not file a
written statement. The Trial Court therefore held that the Respondent-
Corporation had rightly issued notice under section 351 of the Act and hence
refused to protect the suit premises from demolition.
4. Mr J.S. Yadav instructed by Mr. Bholaprasad S.Shukla appeared on behalf of
the Appellant (Original Plaintiff). Mr. Pradeep M. Patil appeared on behalf of
Respondent Corporation.
5. The primary contention of the learned counsel for the Appellant (Original
Plaintiff) is that prior to taking action under Section 351 of MMC Act, the proper
M.S.Thatte
6 of 10 2.FA.(ST).21973.2026.DOC
procedure as envisaged in the said section has not been complied with by the
Respondent-Corporation and therefore, the action of the Respondent-Corporation
and the impugned judgment and decree upholding Section 351 proceedings, is bad
in law and arbitrary. He submitted that the provisions of Section 351 of MMC Act
stipulate that post issuance of notice, the Respondent-Corporation is under an
obligation to afford a hearing to the Appellant (Original Plaintiff) and pass a
reasoned order on the basis of reply/objections that the Appellant (Original
Plaintiff) filed in response to the notice dated 3 rd February 2015 issued under
Section 351 of the MMC Act. In support of his aforesaid contention he sought to
place reliance on the decision of the Division Bench of this Court in Sopan Maruti
Thopte & another Vs. Pune Municipal Corporation and another 1, to contend that
the said decision clearly mandates the procedure that needs to be followed by the
Respondent-Corporation post issuance of Section 351 notice. He submitted that
the directions as issued in Sopan Maruti Thopte (supra) have not been followed in
the facts of the present case and hence the entire action of the Respondent-
Corporation is rendered illegal. The directions in Sopan Maruti Thopte (supra) are
reproduced below:-
19. Hence, on the basis of the law as discussed above, it is directed that after 1st May,
1996 the Bombay Municipal Corpo ration or the Municipal Corporations con
situated under the B. P.M.C. Act would follow the following procedure before taking
action u/s 351 of the B.M.C. Act or under S.260 of the B.P.M.C. Act.
(i) In every case where a notice u/s 351 of the B.M.C. Act/ under Sec.
260 of B.P.M.C. Act is issued to a party 15 days' time shall be given for
submitting the reply. In case the party to whom notice is issued sends
the reply with the documents, and shows cause, the Municipal
Commissioner or Deputy Municipal Commissioner shall consider the
reply and if no sufficient cause is shown, give short reasons for not
accepting the contention of the affected party.
1(1996)-AIR (Bombay)-304
M.S.Thatte
7 of 10 2.FA.(ST).21973.2026.DOC
(ii) It would be open to the Commissioner to demolish the offending
structure 15 days after the order of the Commissioner/Deputy
Municipal Commissioner is communicated to the affected person.
(iii) In case the staff of the Corporation detects the building which is in
the process of being constructed and/or reconstructed and/ or
extended without valid permission from the Corporation, it would be
open to the Commissioner to demolish the same by giving a short
notice of 24 hours after drawing a panchanama at the site and also by
taking photographs of such structure and/or extension. The
photographs should indicate the date when the same were taken.
(iv) In case where the Municipal Corporation has followed due process
of law and demolished the unauthorised structure and or extension, if
the same is reconstructed without valid permission within a period of
one year, it would also be open to the Corporation to demolish the
same by giving a short notice of 24 hours.
(v) If the offending structure and/or extension which is assessed by the
Corporation for two years, notice shall provide for 15 days' time to
show cause. If the Deputy Municipal Commissioner comes to the
conclusion that he requires assistance of the party, he may give an oral
hearing if he deems fit and proper before passing the order. It is made
clear that oral hearing is not at all compulsory but it is at the discretion
of the authority.
(vi) In any other case the Corporation is directed to issue a show cause
notice in case of any structure and/or extension other than those
mentioned in clauses (i) to (iv) above. The Corporation shall provide
for 7 days' time to show cause in such a case.
(Emphasis supplied)
6. Learned counsel for Respondent-Corporation has fairly submitted that the
Respondent-Corporation was indeed required to give a hearing and also a reasoned
order in respect of the reply dated 4 th February 2015 which was filed by the
Appellant (Original Plaintiff) in response to the notice dated 3 rd February 2015
under Section 351 of MMC Act. Today on instructions, learned counsel for the
Respondent-Corporation submits that the Respondent-Corporation will give a
hearing to the Appellant (Original Plaintiff) in respect of reply dated 4 th February
2015 and any additional reply which the Appellant (Original Plaintiff) wishes to
file along with documentary evidence in response to the aforesaid notice and pass a
M.S.Thatte
8 of 10 2.FA.(ST).21973.2026.DOC
reasoned order, and thereafter take appropriate action under Section 351 of MMC
Act. He also submitted that the directions as given in Sopan Maruti Thopte (supra)
in respect of proceedings under Section 351 of the MMC Act would be taken into
consideration prior to passing the order.
7. For the purpose of ready reference, Section 351 of MMC Act is reproduced
herebelow :
“351. Proceedings to be taken in respect of buildings or work commenced contrary
to section 347.
1) The Commissioner shall, by notification in the Official Gazette, designate
an officer of the Corporation to be the Designated Officer for the purposes of this
section and of sections 352, 352A and 354A. The Designated Officer shall have
jurisdiction over such local area as may be specified in the notification and
different officers may be designated for different local areas.
(1A) If the erection of any building or the execution of any such work as is
described in section 342, is commenced contrary to the provisions of section 342
or 347 the Designated Officer, unless he deems it necessary to take proceedings in
respect of such building or work under section 354, shall-
(a) by written notice, require the person who is erecting such building
or executing such work, or has erected such building or executed such work, or
who is the owner for the time being of such building or work , within seven days
from the date of service of such notice, by a statement in writing subscribed by him
or by an agent duly authorized by him in that behalf and addressed to the
Designated Officer, to show sufficient cause why such building or work shall not
be removed, altered or pulled down; or
(b) shall require the said person on such day and at such time and
place as shall be specified in such notice to attend personally, or by an agent duly
authorized by him in that behalf, and show sufficient cause why such building or
work shall not be removed, altered or pulled down.
Explanation. - "To show sufficient cause" in this sub-section shall mean to prove
that the work mentioned in the said notice is carried out in accordance with the
provisions of section 337 or 342 and section 347 of the Act.
(2) If such person shall fail to show sufficient cause, to the satisfaction of the
Designated Officer, why such building or work shall not be removed, altered or
pulled down, the Designated Officer may remove, alter or pull down the building
or work and the expenses thereof shall be paid by the said person. In case of
removal or pulling down of the building or the work by the Designated Officer,
the debris of such building or work together with other building material, if any, at
the sight of the construction, belonging to such person, shall be seized and
disposed of in the prescribed manner and after deducting from the receipts of such
M.S.Thatte
9 of 10 2.FA.(ST).21973.2026.DOC
sale or disposal, the expenditure incurred for removal and sale of such debris and
material, the surplus of the receipts shall be returned by the Designated Office
(3) No court shall stay the proceeding of any public notice including notice
for eviction, demolition or removal from any land or property belonging to the
State Government or the Corporation or any other local authority or any land
which is required for any public project or civil amenities, without first giving the
Commissioner a reasonable opportunity of representing in the matter.”
(Emphasis supplied)
8. Learned counsel for the Appellant (Original Plaintiff) does not have an
objection to the suggestion of learned counsel for Respondent-Corporation and
submitted that he will file additional reply over and above the reply dated 4 th
February 2015 before the Designated Officer of the Respondent-Corporation in
reply to the notice dated 3rd February 2015 issued under Section 351 of the MMC
Act.
9. In view of the aforesaid submissions, the First Appeal can be disposed of by
passing the following order :
ORDER
(i) The Appellant (Original Plaintiff) to file additional reply with documents, if
any, within seven days from today before the Designated Officer of the
Respondent-Corporation ;
(ii) The Designated Officer of the Respondent-Corporation shall give a hearing
to the Appellant (Original Plaintiff) and pass a reasoned order thereon within
fifteen days from the receipt of additional reply of the Appellant (Original Plaintiff)
considering the earlier reply dated 4th February 2015 and additional reply filed by
the Appellant (Original Plaintiff);
(iii) In the event the reasoned order which would be passed by the Designated
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Officer of the Respondent-Corporation is against the Appellant (Original
Plaintiff), the same not to be acted upon by Designated Officer of the Respondent-
Corporation for a period of two weeks from the date of passing such order;
(iv) The First Appeal is allowed in the aforesaid terms. Interim Application
does not survive and stands disposed of. No order as to costs.
(AARTI SATHE, J.)
M.S.Thatte
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