The High Court must operate based on established facts, and assumptions in issuing orders can lead to procedural injustices; parties must have the opportunity for a fair hearing.

ORDER :

1. In the present special leave petition, the petitioner who is respondent no. 3 before the High Court of Bombay in Writ Petition No. 6607 of 2024 challenges the judgment and order dated 30.04.2025 passed by the Bombay High Court, wherein the petition is disposed of by issuing certain directions. The writ petition was filed by the petitioner - New Shree Swami Samartha Borivade Housing Company Pvt. Ltd. and Others i.e. respondent no. 1 in present special leave petition. Though various grounds are raised in special leave petition in challenge to the judgment dated 30.04.2025, the thrust of submission by Ld. senior advocate Sh. Ahmadi is that the High Court failed to appreciate the important fact in the matter and the order of the High Court proceeded on an assumption.

2. The principal prayer in the writ petition was for issuance of a writ of mandamus and the prayer reads thus:

“(a) That this Hon’ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction requiring Respondent Nos. 1 and 2 to initiate proceedings under section 260 of the Maharashtra Municipal Corporation Act read with sections 52 to 5 of the M.R.T.P. Act, 1966 against Respondent No. 3 and its Trustees, being Respondent Nos. 4 to 9, for demolishing the said unauthorized and illegal encroachment on portion of the said lands i.e. the portion located near the western boundary of the lands bearing Survey No. 46 of village Borivade as indicated in pink, red and green outline on the plan being Exhibit-A.”

3. Ld. senior counsel Sh. Ahmadi, submits that firstly, when the petition was filed before the High Court of Bombay, the regular Civil Suit No. 318/2002 was pending adjudication before Jt. Civil Judge Sr. Division at Thane.

4. During the pendency of the writ petition, certain interim orders were passed and these orders were subjected to challenge before this court also. Those Special Leave Petitions were disposed of in due course. By one of the orders dated 10.03.2025 passed in the writ petition, a direction was issued to demolish the illegal structure being a ground + 1 storied construction admeasuring about 60 ft. x 60 ft. and 10 ft. x 20 ft. within stipulated period of two weeks. The said direction was not complied by the concerned authority, within the stipulated time. Subsequently and much later the structure was demolished and a statement was made on behalf of TMC by way of an affidavit that the demolition of the structure was completed and the order dated 10.03.2025 stood fully complied with. The reference to this fact was made in Para 4 of the impugned order of the High Court.

5. There is also reference to another additional structure which is treated as an illegal structure on the basis of report of PWD Department. The High Court has directed demolition of the said structure of which the petitioner is aggrieved. It is a submission of Ld. Sr. Adv. Sh. Ahmadi that neither an exercise was undertaken by a competent authority to specify the area whether illegal or otherwise nor there was any such declaration by any competent authority. The further submission of Mr. Ahmadi is that the High Court on an assumption that the civil suit is pending for adjudication, issued direction under clauses (c) and (d) of Para 12. The same reads as follows:

“(c) We direct the Joint Civil Judge (Senior Division), Thane to dispose the said Suit mentioned in the Affidavit, as expeditiously as possible and in any event within a period of 6 months from the date of this Order.

(d) We further direct the Municipal Commissioner of the TMC to monitor and ensure that no adjournments are taken by TMC on any ground whatsoever in the said Suit.”

6. Sh. Ahmadi then submits that the High