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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

Subjects

  • unauthorised construction
  • Section 351
  • municipal corporation
  • hearing
  • reasoned order
  • demolition
  • procedural fairness
  • stamp duty

Judgment

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                                                      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



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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”);




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             (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: -




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             (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




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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




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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



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                   (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




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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



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             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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