Amberkar IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 351 OF 2026 WITH INTERIM APPLICATION NO. 2798 OF 2026 Ashok Mahadev Kule Appellant ..

(Org. Plaintiff)

Versus Municipal Corporation of Greater Mumbai Respondent ..

(Org. Defendant) ....................

 Mr. Janay Jain a/w Mr. Shailesh Pal i/by Mr. Vijay Shukla, Advocates for Appellant  Mr. Sachin Vajale, Advocate for Respondent ...................

CORAM : MILIND N. JADHAV, J.

DATE : MAY 7, 2026 P. C . :

1. Not on board. Mentioned by way of filing a praecipe dated

07.05.2026.

2. Heard Mr. Jain, learned Advocate for Appellant i.e. Org. Plaintiff and Mr. Vajale, learned Advocate for Respondent i.e. Org. Defendant. For the sake of convenience, the parties shall be referred to in terms of their status before the Trial Court.

3. Present Appeal from Order (AO) is filed to assail the order dated 10.03.2026 passed by learned Trial Court dismissing Notice of Motion No. 629 of 2026 in B.C.C.C. L.C. Suit No. 321 of 2026.

4. At the outset, Mr. Jain candidly informs the Court that suit premises has been demolished on 06.02.2026 by the Corporation in furtherance of the impugned statutory notice issued under Section 351 of the Mumbai Municipal Corporation Act, 1888 (for short "the Act") dated 23.01.2026 and exparte speaking order passed by the Designated Officer of Corporation dated 31.01.2026. Copies of the aforesaid statutory notice dated 23.01.2026, speaking order dated 31.01.2026 and impugned order dated 10.03.2026 are appended to the AO. He would submit that the alarming alacrity with which Corporation has acted in the present case deserves to be noticed by this Court for the purpose of passing of appropriate directions. He would submit that the statutory notice under Section 351 of the Act was issued on 23.01.2026, inter alia, alleging unauthorized construction of the suit premises comprising of 15 rooms situated at CTS NO. 1, Survey No. 39, Village Valnai, Near Mitchchowki Metro Station, Malad (W), Mumbai. He would next submit that on 27.01.2026, a detailed reply to the impugned statutory notice was filed by Plaintiff. He would submit that without even waiting for prescribed period and following the due process of law on 31.01.2026 i.e. within four days of filing the reply without the knowledge of Plaintiff and without putting the Plaintiff to notice the Designated Officer passed the speaking order holding that the entire notice structure was unauthorized on the premise that no plan sanctioned by the competent authority i.e. Corporation was produced and therefore the notice structure could not be treated as a tolerated structure. By virtue of the said speaking order, Plaintiff was directed to remove the unauthorized structure immediately but within six days thereafter, Corporation arrived at the site of the notice structure and forcibly demolished the entire notice structure.

5. On the issue of merits, Mr. Jain would draw my attention to the fact that similar action was invoked by Corporation by issuing identical statutory notice under Section 351 of the Act on 17.07.1984 against the father of the Plaintiff for the same cause of action in respect of the same suit structure. He would draw my attention to the copy of the said notice appended at page No. 75 of AO. On perusal of the same, it appears that prima facie what Mr. Jain has submitted is correct. Next he would submit that the suit premises are admittedly a censused structure standing on the said land for the post more than five decades. He would submit that documentary evidence in that regard, inter alia, of the subsistence and existence of the notice structure has been placed on record in the form of reply filed to the statutory notice. He would vehemently argue that without considering the material documentary evidence, speaking order dated 31.01.2026 was passed and executed immediately thereafter to the prejudice of Plaintiff.

6. He would submit that subsistence and existence of the sui