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2025 Supreme(Online)(Bom) 1601
IN THE HIGH COURT OF JUDICATURE AT BOMBAY rrpillai CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 638 OF 2024 WITH INTERIM APPLICATION NO. 12380 OF 2024 M/s. Mehta & Co.
through its Partner and authorized representative Mr. Adarsh Varma Digitally s Ri Agn JEe Sd H b Wy ARI Having its registered office at RAJESHWARI RAMESH RAMESH PILLAI PILLAI Date:
2025.04.08
08:23:14 Ground Floor, Plot No. 117/126, +0200 … Appellant St. Xaviers Street, Near Tata Hospital (Original Plaintiff)
Parel, Mumbai – 400 012 Vs.
1. The Municipal Corporation of Greater Mumbai through the Municipal Commissioner, Having its Office at Mahapalika Marg, Fort Mumbai-400 001
2. The Assistant Commissioner (Estate)
… Respondents F-South Ward, MCGM (Original Defendants)
Parel, Mumbai-400012 Mr. Kunal Bhanage and Ms. Priyanka Acharya i/b. Mr. Akshay Pawar for the Appellant/Applicant.
Mr. Chaitnya Chavan a/w. Mr. Amol Diwte and Mr. Om Suryavanshi i/b. Ms. Komal Punjabi for BMC for the Respondent-BMC.
Mr. Mahesh Patil, Assistant Commissioner Shri Subhash Sambre, Senior Estate Inspector.
Mr. Tukaram Ide, Estate Inspector.
CORAM : GAURI GODSE, J.
DATE : 4 th APRIL 2025
The demolition of the plaintiff's charitable structure by the Municipal Corporation was unlawful due to lack of due process and violated the plaintiff's entitlement under the redevelopment scheme, warranting mandatory relief.
Headnote:(A) Development Control and Promotion Regulation 2034 - Regulation 33(9) - Mumbai Municipal Corporation Act, 1988 - Section 488 - The plaintiff's charitable structure was demolished by the Municipal Corporation without due process, under the redevelopment scheme. The plaintiff was entitled to permanent rehabilitation under the scheme. The court held that the corporation acted illegally and urgently needs to rectify their actions. (Paras 1, 10, 24, 28)
(B) Mandatory Injunction - Grounds for issuance - A mandatory injunction is granted to restore the status quo ante and compel compliance with unlawfully done acts. The plaintiff had a strong prima facie case, facing irreparable loss, and the balance of convenience favored granting relief. (Paras 16, 17, 25)
Facts of the case:
The plaintiff occupied a structure for charitable purposes, demolished by the corporation without notice, despite the plaintiff's entitlement to rehabilitation. The demolition occurred after the plaintiff notified the corporation of imminent court action for interim relief.
Findings of Court:
The court found the demolition arbitrary and illegal, compelled the corporation to provide temporary alternate accommodation, and upheld the plaintiff’s rights.
Issues: Was the demolition of the plaintiff's structure lawful, and did the corporation follow due process?
Ratio Decidendi: The Court emphasized that the corporation's actions disregarded natural justice, violated statutory rights, and necessitated restoration of the plaintiff's structure.
Result: Appeal allowed; corporation ordered to provide alternate accommodation and pay costs.
ORAL JUDGMENT :
1. This is an absolutely unfortunate case where the plaintiff’s structure is high-handedly and illegally demolished by the officers of the Municipal Corporation of Greater Mumbai (“corporation”) under the garb of implementation of the redevelopment scheme under Regulation 33(9) of Development Control and Promotion Regulation 2034 (“DCPR 2034”). The plaintiff was occupying the demolished structure for the purpose of providing charitable services of food and shelter to the poor and needy cancer patients receiving treatment for cancer from the Tata Memorial Hospital. The plaintiff’s structure, which is demolished, was situated on a municipal plot that is the subject matter of the redevelopment scheme, which is situated adjacent to the Tata Memorial Hospital.
2. Pursuant to the order dated 14th February 2025, the appeal is taken up for final disposal at the admission stage. Since the structure occupied by the plaintiff is held eligible for permanent rehabilitation under the scheme as reflected in Annexure II, a submission was made on behalf of the appellant on the very first day of the hearing that the corporation may consider the plaintiff’s entitlement under the redevelopment scheme for rehabilitation. The appeal has been heard on various occasions, however, till date, the learned counsel for the corporation has not received any positive instructions on the suggestion made on behalf of the appellant. The only reason for the lack of instructions for considering the rehabilitation of the plaintiff is that the scheme for redevelopment has already been floated; hence, the corporation would not be able to rehabilitate the plaintiff.
3. Considering the manner in which the hearing of the appeal has proceeded, I find it necessary to record that time was granted to the learned counsel for the corporation to take appropriate instructions from the concerned officers who are authorised to decide on the plaintiff’s entitlement. On 25th March 2025, the learned counsel for the corporation requested time to take instructions from Mr. Mahesh Patil, Assistant Commissioner and Mr. Prithviraj Chavan, Assistant Commissioner (Estate), with a submission that the officers shall remain present on the next date to enable the learned counsel for the corporation to respond to the suggestion made on behalf of the appellant as recorded in the earlier order dated 14th February 2025. Unfortunately, the officers have never remained present before the court. Learned counsel for the corporation submits that today Mr. Mahesh Patil, Assistant Commissioner, is present and is authorized to take decision regarding the rehabilitation of the plaintiff. However, he submits that the plaintiff cannot be rehabilitated at this stage. It is important to record that admittedly, the demolition work has been carried out on the instructions of Mr. Mahesh Patil, Assistant Commissioner. Since there is no positive response from the corporation regarding the rehabilitation of the plaintiff, the arguments on the merits of the appeal are concluded today.
4. The appeal is preferred to challenge the refusal of the plaintiff’s various prayers in the notice of motion, mainly the prayer for the reconstruction of the plaintiff’s structure, which the corporation’s officers demolished without any notice of demolition. The relevant facts leading to the reason for filing the suit and the notice of motion are as follows :
(a) The plaintiff is held entitled to a permanent rehab component as per Annexure-II dated 14th November 2008 for a commercial area of 538 sq.ft.
(b) The plaintiff’s entitlement to a permanent rehabilitation structure for the area, as reflected in Annexure II, is undisputed.
(c) The plaintiff had raised a dispute regarding the plaintiff’s entitlement to an area and claimed that the plaintiff would be entitled to a larger area.
(d) In view of the application filed by the plaintiff, measurement was carried out on the site with reference to the assessment extract, and the
