KUSHAL R AGARWALversusMUMBAI MUNICIPAL CORPORATION THR THE MUNICIPAL CORPORATION AND ORS

                                                                            17-WP-10303-2026.DOC




                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION
                                     WRIT PETITION NO. 10303 OF 2026


                   Kushal R Agarwal                                              ..Petitioner
                        Versus
                   Mumbai Municipal Corporation Through The                  …Respondents
                   Municipal Corporation and Ors

                                                    WITH
                             INTERIM APPLICATION (ST) NO. 24883 OF 2026
                                                      IN
                                    WRIT PETITION NO. 10303 OF 2026

                   Mr. M. M. Vashi, Senior Advocate, with Itisha Ranka, i/b M.P. Vashi
                         and Associates, for the Petitioner.
                   Adv. Pooja Khandeparkar, with D.R. Kawale, for Respondent Nos. 1
                         and 2 -BMC.
                   Mr. Ashish Kamat, Senior Advocate, with Karl Tamboly, Shlok Parekh,
                         Yash Dhruva, Ruchita Jain, Rajlaxmi Pwar and Shanmukh
                         Puranik, i/b MDP Legal, for Respondent Nos. 3, 4 and 5.
                   Mr. Pradeep Thorat, i/b Aditi Naikare, for Respondent No. 6.
                   Mr. Ashwajeet Adhav, JEBF, ‘D’ Ward, present.

ARUN
RAMCHANDRA
                                                CORAM:           N. J. JAMADAR, J.
SANKPAL
                                                DATE :           11th SEPTEMBER 2026
Digitally signed
by ARUN
RAMCHANDRA
SANKPAL
Date: 2026.09.15
16:47:18 +0530


                   ORDER:

                   1.    By this Petition under Article 227 of the Constitution of India, the

                   Petitioner assails the legality and validity of a communication dated 13 th

                   July 2026 issued by the Assistant Engineer (B & F) ‘D’ Ward, Brihan

                   Mumbai Municipal Corporation (“BMC”) (R2), thereby informing the
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Petitioner that the Plans; the copies of which were issued to the

Petitioner under Right to Information Act, 2005 (“the RTI Act”), are null

and void.

2.    The Petitioner was desirous of purchasing a flat, being Flat No. 9,

Malboro House (originally known as “Kamani House”), CS No. 4E/738,

Malabar Hill, Pedder Road, Mumbai. The Petitioner claimed to have

filed an Application with the Punblic Information Officer, BMC seeking

all documents in regard to the said property. Pursuant thereto, the

Petitioner was furnished a number of documents including a Repairs

NOC granted by the office of Respondent No.2 to M/s Kamani Brothers,

along with a signed Plan dated 3rd May 1972 and Repairs permission

dated 10th August 1995, with a copy of duly signed plan.

3.    Respondent Nos. 3 to 5, who are the members of the Respondent

No. 6-Housing Society which holds Malboro House, purportedly lodged

a complaint recording the authenticity and genuineness of the above

referred plants furnished to the Petitioner under RTI Act and alleged

that those plans were forged and fabricated.

4.    Thereupon, Respondent No.2 seems to have ascertained the facts

and entered into internal correspondence with the Executive Engineer

(Building Proposal) City- I of BMC. On the basis of the response to the

Office Note, Respondent No.2 informed the Petitioner that the above

referred plans furnished to the Petitioner under RTI Act were not


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available on the record of the Executive Engineer (Building Proposal)

City-I and there was a final approved building plan dated 13 th October

1967 in respect of Malboro House with the said office. Further noting

that there were discrepancies in the plans furnished to the Petitioner,

Respondent No.2 informed the Petitioner that, above-referred plans

issued to the Petitioner under the RTI Ac are null and void.

5.    Mr. Vashi, the learned Senior Advocate, for the Petitioner

submitted that the impugned order suffers from multiple legal

infirmities. First, Respondent No.2 is not empowered to declare the

plans furnished by the BMC under RTI Act as null and void. Second, the

impugned communication is in teeth of fundamental principles of

judicial process as no opportunity was given to the Petitioner before

arriving at the conclusion that the above-referred plans were not

genuine. Third, the aforesaid plans were issued by the Building and

Factory Department which was empowered to grant Repairs permission

and thus their non availability with the Building Proposal Department

was of non significance. Fourth, there is nothing to indicate that the

purported plan of the year 1967 is the sanctioned building plan.

6.    Mr. Thorat, the leaned Counsel for Respondent Nos. 6-society

supplemented the submission of Mr. Vashi. It was urged that without

providing an opportunity of hearing to Respondent No.6-Society,

Respondent No. 2 could not have issued the impugned communication


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which had the effect of rendering the structures in the Malboro House

unauthorised.

7.    Ms. Pooja Khandeparkar, the learned Counsel for Respondent

Nos. 1 and 2-BMC and Mr. Ashish Kamat, the learned Senior Advocate

for Respondent Nos. 3 to 5 questioned the very maintainability of the

Petition.

8.    Ms. Khandeparkar submitted that Respondent No.2 has simply

communicated the position as it obtains from the record of BMC.

Development/Building permission can be granted by the Building

Proposal Deparment.       Building and Factory Department has no

authority to sanction a building plan.

9.    I have perused the impugned order and the material on record. It

is a stated case of the Petitioner that he was supplied the copies of the

Repairs plans of the year 1972 and 1995. What the impugned

communication in essence informs the Petitioner is that, those Repairs

plans do not find place on record of the Executive Engineer (Building

Proposal) City-I and that the Building Proposal Department has

informed that there is a sanctioned plan of the year 1967. This becomes

evident from the copy of the communication dated 3 rd July 2026,

addressed by the Assistant Engineer (Building Proposal) Department

(which is the basis of impugned communication). It reads as under:




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      “      Ref: Note received from Designated Officer (B & F) ‘D’
             Ward u/no. OACD/542/214/B&F dated 19.06.2026.


             Reference is requested to note received from Designated
      Officer (B&F) ‘D’ Ward requesting to confirm authenticity of
      plans of approved building on plot bearing CS No. 4E/738 of
      Malbar Hill Division in the alleged complaint matter.


             The copies of the attached plans are checked for verifying
      authenticity. In this regard, it is to inform you that, the copies of
      plans attached alon giwth the note from D.O. (D Ward) are not
      available on record of this office. Therefore the authenticity of
      same cannot be verified. Further, as per this office available
      records, the plans bearing no. EB/9838/D dated 13.10.1967 are
      available. The copies of the plans on this office record are
      attached herewith for your ready reference. (pageC/25 to
      C/41).”



10.   The essential controvery thus boils down to the genuineness,

legality and validty of the plans. Whther the plans purportedly issued by

the Building and Factory Department authorising the repairs of the

Malboro Building are genuine or otherwise, or for that matter, the

sanctioned building plan of the year 1967 is genuine and holds the field

or whether any rights and obligations emanate from the repairs plans of

the year 1972 and 1995, authorising the repairs, are all matters which

are rooted in facts.



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11.     In the considered view of this Court, the impugned

communication is not amenable to interference in exercise of the

powers under Article 227 of the Constitution of India. Nor this Court

would not be justified in delving into the aforesaid disputed questions

of facts in the exercise of its extraordinary writ jurisdiction. The

Petitioner would be required to workout his remedies before an

appropriate forum seeking appropriate reliefs in regard to the plans in

question.

12.   The Petition stands dismissed with liberty to workout the

remedies as avilable in law.

13.   In view of the dismissal of the Petition, the Interim Application

stands disposed.

                                          [N. J. JAMADAR, J.]




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