Bombay High Court
Mohd. Siddik Shaikh vs Muncipal Corporation Of Greater Mumbai on 9 June, 2025
2025:BHC-AS:22621
1-AOST-924-2025(j).doc
varsha IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO. 924 OF 2025
1. Mohd. Siddik Shaikh
Having his residence at Room No. 702,
7th Floor, Uttam Terrace Building, 132,
Zakaria Masjid Street, Chinchbunder,
Pydhonie, Mumbai - 400 009.
2. Hussain Ahmed Khan
Having his residence at Room No. 601-602
& 707 at 6th and 7th Floor, Uttam Terrace
Bldg, 132, Zakaria Masjid Street,
Chinchbunder, Pydhonie, Mumbai -400 009. ... Appellants
Vs.
1. Municipal Corporation of Greater
Mumbai, a body corporate constituted
under the Mumbai Municipal Act, 1888
having its office at Mahapallika Marg,
Opp. CSMT station, Fort, Mumbai- 400 001
2. The Executive Engineer
... Respondents
(Designated Officer), B & F Department,
B-ward, BMC office Building, 121,
Ramchandra Bhatt Marg, Opp. J.J.
Hospital, Mumbai 400 009.
Page no. 1 of 71
::: Uploaded on - 09/06/2025 ::: Downloaded on - 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
Mr. V.A. Sugdare i/b. Mr. Sandeep Sharma for the Appellants
Ms. Purnima Kantharia, GP a/w. Mr. Om Suryawanshi for
respondent - BMC
Mr. Y.M. Marathi, A.E(B&F) 'B' Ward present.
CORAM : GAURI GODSE, J.
RESERVED ON : 6th MARCH 2025
FURTHER HEARING ON : 27th MARCH 2025
PRONOUNCED ON: 9th JUNE 2025
JUDGMENT:
BASIC FACTS:
1. This appeal was heard on 6 th March 2025, and the
judgment was reserved. Later on, this court noticed that the
appeal was argued based on an unamended Section 354A of
the Mumbai Municipal Corporation Act, 1888 (‘said Act’). The
said section was amended in the year 2012. Hence, the appeal
was listed for directions on 20th March 2025, and at the request
of the respective learned counsels for both parties, the appeal
was listed for further hearing on 27th March 2025. Learned
counsels for the parties submitted that the amendment to the
Page no. 2 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).docSection is only to replace the word ‘Commissioner’ with the
word ‘Designated Officer’. Hence, it was submitted that the
arguments already made by them would not change due to the
amended Section.
2. This appeal is preferred by the plaintiffs to challenge the
judgment and order dated 23rd August 2024 dismissing their
application seeking an order of temporary injunction restraining
the corporation from taking any action pursuant to the notice
impugned in the suit. The suit is filed to challenge the notice
dated 21st October 2020 (‘suit notice’) issued by the corporation
under Section 354A of the said Act.
3. The plaintiffs have challenged the suit notice on the
ground that they are lawfully occupying their respective
structures on the 6th and 7th floors in the building in respect of
which the corporation has issued the suit notice. Plaintiffs claim
that the suit structures have existed since before 1958, and no
unauthorised construction was carried out in respect of the
building, and only tenable repairs were carried out. By the
impugned order, the interim relief of injunction is refused on the
Page no. 3 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).docground that demolition work was already carried out by the
corporation above the 5th floor.
SUBMISSIONS ON BEHALF OF APPELLANTS:
4. The submissions made by the learned counsel for the
appellants (‘plaintiffs’) are summarised as follows:
a) The suit notice was never served upon the plaintiffs. The
plaintiffs’ structures have existed since 1958 and, except
for tenable repairs, no unauthorised construction has
been carried out as alleged in the suit notice. The
description of the offending structure in the suit notice
indicates that the corporation has alleged unauthorised
reconstruction of the building without permission, and
thus, the suit notice directs the
owner/occupier/landlord/tenant to stop the erection of the
building forthwith. The description of the alleged unlawful
work described in the schedule of the suit notice and the
sketch indicates that the corporation’s allegation is
regarding the reconstruction of the building without
Page no. 4 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).docpermission. The speaking order dated 15th March 2022
refers to the work order issued by the Mumbai Building
Repair and Reconstruction Board, which is a unit of
MHADA (Maharashtra Housing and Area Development
Authority) for repairs of the building. The speaking order
records that the suit notice was issued alleging
reconstruction of the building; however, after going
through the work order and repair plan of MHADA, the
corporation concluded in the speaking order that the
building upto the 5th floor was authorised. The repair plan
of MHADA referred to in the speaking order itself
indicates that there is no new construction in the building,
and only repairs were carried out. The appellants would
therefore be entitled to lead evidence to support their
contentions that the suit notice is illegally issued, and the
appellants’ structures have existed since prior to 1958,
and there is no new construction carried out.
b) Section 354A is a drastic provision that enables the
corporation to demolish the offending
structure/construction if, within 24 hours of the notice,
Page no. 5 of 71::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).docpermission is not produced. Therefore, the concerned
person who would be affected must be served with the
notice. Nothing has been produced on record by the
corporation that the owner of the building or the person
affected has been served. To support his contention
regarding service of notice, learned counsel for the
appellants relied upon clauses (m) and (n) of Section 3 of
the said Act, which defines ‘owner’ and the ‘person’
deemed to have been residing in the dwelling.
c) Learned counsel for the appellants relied upon various
provisions in the said Act, which refer to the words
‘owner’ and ‘person’. Section 315 of the said Act refers to
the words ‘owner’ and ‘occupier’, whereas Section 314(d)
refers to the word ‘person’. Section 314 permits the
corporation to take action against the structure erected in
contravention of Sections 312, 313, and 313A of the said
Act. In view of action under Section 314, the person in
occupation or possession of the offending structure is
likely to be evicted. Section 372 refers to the word
‘person’. Section 405 of the said Act provides for issuing
Page no. 6 of 71::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doca written notice to the owner, farmer or occupier of any
private market or slaughter house for taking action under
the said provision. Section 484 provides for the manner
of service to be affected on the owners of the premises
and other persons, and Section 485 provides a procedure
for service on the owner or occupier of the premises.
Thus, a harmonious reading of the word ‘person’ is
required to be made for the purpose of service of notice
under Section 354A.
d) Sub-section (1) of Section 354A can be invoked only
when the designated officer is satisfied that the erection
of any building or execution of such work as described in
Section 342 has been unlawfully commenced or is
unlawfully carried out. However, if immediate action is not
taken pursuant to the notice under sub-section (1), the
notice cannot be further pursued after a gap of a
substantially long period for taking action under sub-
section (2). If immediate action as contemplated under
sub-section (2) is not taken and the construction is
complete or the alleged construction or work is not found
Page no. 7 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
to have been continued, the provision of Section 351 of
the said Act will come into play, and the notice under
Section 354A cannot be pursued further.
e) The wording of sub-section (1) indicates that the notice
under sub-section (1) should contain an exact description
of the alleged unauthorised work. In the present case, the
notice under Section 354A of the said Act does not
describe any specific work alleged to have been
unlawfully carried out. The notice vaguely states that the
building is being reconstructed unlawfully. The speaking
order, however, records that as per the plan prepared by
MHADA, the building is authorised upto the 5 th floor. The
speaking order itself falsifies the allegation made in the
notice. The object of the provision of Section 354A is to
take action for the ongoing work and not the work that is
completed. The contents of the notice and the reasons in
the speaking order, coupled with the inspection report
placed on record by the corporation, indicate that there is
no reason or occasion to invoke the provision of Section
Page no. 8 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
354A, as there was no unauthorised work carried out as
stated in the notice.
f) To support the submissions regarding service of notice,
learned counsel for the appellants relies upon the
decision of the Hon’ble Apex Court in the case of
Municipal Corporation of Greater Mumbai and Ors Vs.
Sunbeam High Tech Developers Private Limited 1.
Learned counsel for the appellants in particular relies
upon paragraph no. 24.5.1 of the judgment, which
provides for personal service of notice to the person who
is raising or who has raised the illegal structure, including
owner/occupier/builder/contractor/architect, etc.
g) Learned counsel for the appellants relied upon the
decision of this court in case of J. R. Patel Vs The
Municipal Corporation of Greater Bombay 2, in the context
of service of notice and hearing to the affected person for
taking action under Section 314 of the said Act. The
learned counsel for the appellants also relied upon the
1 (2019) 20 SCC 781
2 AO No. 681 of 2001, dated 13.10.2001, A.M. Khanwilkar, J
Page no. 9 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
decision of the Hon’ble Division Bench of this Court in the
case of Mohd. Sayed Mohd. Salim Nagori Rizvi Vs The
Municipal Commissioner and others3 to support his
submissions that prior notice and opportunity to show
cause must be given to the affected party. Learned
counsel for the appellants further relied upon the recent
decision of the Hon’ble Apex Court in the case of State
Bank of India and Others Vs Rajesh Agrawal and
Others4. Learned counsel for the appellants submits that
the Hon’ble Apex Court, after referring to various well-
settled legal principles that service of notice should be in
accordance with the principles of natural justice, held that
even for administrative action, notice to the affected
person is mandatory as it involves civil consequences
which adversely affects the concerned person.
h) Learned counsel for the appellants relied upon various
decisions to support his contentions on the definition of
the word ‘person’. According to him, the word ‘person’
3 2018 SCC Online Bom 2695
4 (2023) 6 SCC 1
Page no. 10 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
has to be read in a larger context with reference to the
words ‘occupier’ and ‘owner’. To support his submissions
on the interpretation of the word ‘person’, learned counsel
for the appellants relied upon the decision of the Hon’ble
Apex Court in the case of Industrial Supplies Private
Limited and Anr Vs Union of India and Others 5, Ramanlal
Bhailal Patel and Others Vs State of Gujarat 6. Learned
counsel for the appellants thus submits that the well-
settled legal principles interpreting the word ‘person’ will
have to be taken into consideration for the interpretation
of the word ‘person’ referred to in Section 354A of the
said Act. He thus, submits that for taking drastic action
under Section 354A the relevant provisions of the said
Act which refers to the word ‘person’, ‘owner’ and
‘occupier’ read with the provisions for affecting service is
required to be read harmoniously to mean that any
person likely to be affected in view of the action
contemplated under Section 354A is necessarily to be
served with the notice enabling him to put forth his case
5 (1980) 4 SCCC 341
6 (2008) 5 SCC 449
Page no. 11 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
before the action is taken by the corporation as
contemplated under sub- section (2) of Section 354A of
the said Act.
i) Thus, prima facie the suit notice is illegally issued by the
corporation without following the relevant provisions
under the said Act for service of notice and without
recording satisfaction as contemplated under sub-section
(1) of Section 354A which results into drastic action of
demolition within 24 hours as contemplated under sub-
section (2) of Section 354A. There is ample evidence
available to support the appellants’ contentions that the
suit structures have existed since before 1958, and the
work carried out in the building in which the suit
structures are situated is only the repair work as per the
repair plan prepared by MHADA. The suit notice is issued
without verifying the basic information about the building
and the repair work initiated as per the repair plan
prepared by MHADA. The impugned judgment does not
deal with the illegality of the manner in which the notice is
issued and the repair plan prepared by MHADA, which
Page no. 12 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
indicates that only the repair work was carried out. The
reasons recorded by the learned judge of the City Civil
Court refusing to grant an interim injunction are based on
perverse reasoning and completely ignore the original
existence of the building as per the MHADA record and
repair plan prepared by MHADA. Hence, the issue of the
legality of the suit notice is required to be examined after
substantial evidence is examined by the court. The
impugned order would require interference by this court
as the appellants would be entitled to interim protection in
as much as, prima facie, the impugned notice and the
speaking order are illegal.
j) Learned counsel for the appellants relied upon the legal
principles settled by this court in the case of Sopan
Maruti Thopte and Another Vs. Pune Municipal
Corporation and Another7. This court held that for
sufficient compliance with the principles of natural justice,
the commissioner can either call for the statement in
writing or give a personal hearing to show cause why the
7 1996 (1) Mh.L.J. 963
Page no. 13 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
alleged unauthorised construction should not be
demolished. Learned counsel for the appellants also
relied upon the decision of this court in the case of Sub
Vijay International Pvt. Ltd. Vs Commissioner, Municipal
Corporation of Gr. Mumbai and Another 8 , to support his
submissions that the guidelines issued in the decision of
Sopan Maruti Thopte are based on fair play by the local
authorities and are binding upon the municipal
corporation.
k) Learned counsel for the appellants relied upon the
observations of this court in the decision of Kangana
Ranaut Vs. Municipal Corporation of Greater Mumbai and
Others9 regarding the guidelines issued by the
corporation for following the procedure to take action
under section 354A. He submits that the prescribed
procedure for preparing panchanama and inspection
report for taking action of demolition is not followed by the
corporation. Thus, there is no material produced to
8 2007 Mh. L.J 74
9 2020 SCC OnLine Bom 3132
Page no. 14 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
support the corporation’s contention that the suit
structures are demolished. Hence, the plaintiffs would be
entitled to interim protection as prayed.
SUBMISSIONS ON BEHALF OF THE CORPORATION:
5. The submissions made by the learned counsel for the
corporation are summarised as follows;
a) The action initiated by the corporation by issuing the
impugned notice is legal and valid. Sub-section (2) of
Section 354A empowers the corporation to demolish the
offending structure within 24 hours. Hence, there is no
question of issuing any speaking order immediately. In
response to the notice issued under Section 354A, none
of the occupants or the owner had submitted any
documents indicating any permission for carrying out the
ongoing work. Hence, the corporation had initiated
demolition work, which is recorded in the demolition
report produced on record. The very purpose of Section
354A is to take immediate action in view of the exigency
Page no. 15 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
of the situation regarding the unlawful construction
commenced. The purpose of Section 354A is to take
immediate action to stop unlawful construction
commenced without taking permission.
b) In the suit filed by another occupant of the building, an
interim order was passed by the City Civil Court on 29 th
July 2021, which records that demolition work was
already initiated by the corporation. As per the pleadings
in the present case, the plaintiffs were not even residing
in the suit structures. The building is a cessed building
and thus, protection is available only for the structure in
existence before the datum line of 1st April 1962. As per
the repair plan and the record maintained by MHADA, the
building is authorised only up to the 5th floor, and hence,
the structure in the building is protected till the 5 th floor.
The plaintiffs’ structures are admittedly above the 5 th
floor.
c) There is no particular description of the appellants’
structures in the plaint. However, according to the
Page no. 16 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
corporation, above the 5th floor, there is a mezzanine floor
illegally constructed; hence, there is no floor above the 5 th
floor. As per the speaking order and the reply filed by the
corporation to the notice of motion, all the structures
above the 5th floor are unauthorised, and the building is
authorised only up to the 5th floor. The corporation
initiated demolition work, and as per the report, the
demolition of the unauthorised construction above the 5 th
floor was completed by 30th June 2021. However, the
structures were again reconstructed illegally, and thus,
occupants above the 5th floor who illegally carried out the
construction would not be entitled to any protection from
the court. If, after issuance of notice under Section 354A,
the construction illegally commenced is completed, the
corporation is entitled to demolish it without any further
notice. Hence, demolition work was initiated as
contemplated under sub-section (2) of Section 354A and
the same was completed. Therefore, any construction
carried out by the appellants after demolition work is
completed would not be entitled to any protection.
Page no. 17 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
d) To support the action taken by the corporation, learned
counsel for the appellants relied upon the decision of this
court in the case of Abdul Razzaq Sunesra Vs Municipal
Corporation of Greater Mumbai and Others10. Learned
counsel for the appellants relied upon paragraph nos. 9
and 10 to contend that Section 354A confers the power to
the Commissioner and discretion whether or not to
demolish the unauthorized construction, if satisfied that
the erection of the building or execution of the work has
been unlawfully commenced or is being unlawfully carried
out. If the concerned person fails to produce before the
Designated Officer the relevant permission, the
corporation is entitled to remove or pull down the
offending structure without further notice.
e) Learned counsel for the corporation further submits that
this court, as per the legal principles settled in the
decision of Kangana Ranaut, Section 354A deals with the
stop work notice which applies to the ongoing work and
to the emergent situations where the Designated Officer
10 2014(1) Mh.L.J 275
Page no. 18 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
considers it necessary to stop the ongoing work which
has been unlawfully commenced. Learned counsel for
the corporation further relied upon the decision of the
Hon’ble Apex Court in the case of Sunbeam High Tech
Developers Private Limited. She submits that in
paragraphs nos. 18 and 19, the Hon’ble Apex Court held
that even if the rights of the private individual have been
violated on the ground that sufficient notice for demolition
was not given, in such cases, structures erected in
violation of the law cannot be permitted to be re-erected.
She submits that the Hon’ble Apex Court held that even
when unauthorized structures are demolished without
due notice compensation for the demolished structure or
even the cost of the new structure to be raised, if any,
can be imposed upon the municipal corporation which
should be recovered from the erring officials, but the
Hon’ble Apex Court held that in no eventuality should an
unplanned structure can be permitted to be raised. Thus,
the action taken by the corporation under Section 354A
cannot be held to be illegal only on the ground that the
Page no. 19 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:21 :::
1-AOST-924-2025(j).doc
notice to the affected person is not served. The purpose
of Section 354A is to stop the construction commenced
unlawfully. Therefore, on the ground of service of notice,
the action under Section 354A cannot be held to be
illegal.
f) Learned counsel for the corporation also relied upon the
decision of the Hon’ble Apex Court in the case of Muni
Suvrat-Swami Jain S.M.P. Sangh Vs. Arun Nathuram
Gaikwad and Others11. She submits that the Hon’ble
Apex Court held that Section 354A deals with the stop
work notice, whereas the provisions of Section 351
provide a show cause notice for demolition of
unauthorised construction. As held by the Hon’ble Apex
Court, Section 354A empowers the corporation to stop
the work unlawfully commenced and thus, if no
permission is shown by the person carrying out
construction, the corporation can invoke powers under
sub-section (2) of Section 354A and demolish the
11 (2006) 8 SCC 590
Page no. 20 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
unauthorized construction as alleged in the notice under
sub-section (1) of Section 354A.
g) With reference to the legal principles settled in the
decision of Sopan Maruti Thopte, learned counsel for the
corporation submits that as held by this court in
paragraph nos. 27 and 28 of the judgment, the procedure
established by law has to be followed by the public
authorities and thus the procedural lapses if any,
unintentional or intentional which do not seriously affect
the substantive rights of a person shall not result in ad-
interim orders which would protect the illegality having
been already committed by a person. She thus submits
that, as held by this court in the case of Sopan Thopte,
violators of law cannot be liberally allowed to take the
protection of the court by obtaining interim injunctions
which would have the effect of continuing such violation.
h) Learned counsel for the corporation relied upon the
decision of this court in the case of Tushar Guru Salien
Page no. 21 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
Vs State of Maharashtra12 and submitted that this court
held that merely pointing out the deficiencies in the notice
or raising objections to the authority of the person issuing
notice cannot be a ground to grant protection with respect
to the structure against which the action is taken by the
corporation on the ground that it is unauthorized. Learned
counsel for the corporation relied upon the decision of
this court in the case of Akramal Najibul Sarkar Vs The
Minucipal Corporation of Greater Mumbai 13, to support
her contention that carrying out repairs and completing
the construction without lawful procedural compliance,
the parties would not be entitled to interim protection.
i) Learned counsel for the corporation, by referring to the
facts in the present case, submitted that the construction
above the 5th floor in the building is unauthorized as seen
from the record of MHADA and the repair plan prepared
by MHADA. She therefore submitted that the plaintiffs’
contention regarding construction on the 7th floor clearly
12 PIL No. 67 of 2017 dated 28/8/2019 Pradeep Nandrajog CJ & Bharati Dangre J.
13 AO No. 446 of 2018 dated 18th September 2018 Shalini Phansalkar-Joshi J.
Page no. 22 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
indicates that there is unauthorised construction carried
out after the corporation completed the demolition work,
which is evident from the demolition report produced on
record. The corporation has already taken action against
illegal reconstruction carried out after the demolition work
was completed. Therefore, the corporation has lodged an
FIR on 7th October 2021, which refers to the illegal
construction carried out on the building after the
demolition work was completed by the corporation
pursuant to the suit notice. If the unauthorized
construction is re-erected after the demolition work is
completed pursuant to the notice under Section 354A, the
corporation is empowered to demolish the same without
any further notice. In such a situation, the corporation is
required to maintain only the report of the demolition work
carried out. Learned counsel for the appellants relied
upon the decisions of this court in the case of N.H.
Harsora Private Limited and Another Vs Designated
Officer, Assistant Engineer(B &F) and Another 14, Shriram
14 2020 SCC OnLine Bom 2780
Page no. 23 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
Ramphal Patel Vs Municipal Corporation for Greater
Bombay and Others15. By relying upon the said
decisions, learned counsel for the corporation supported
her submissions that the corporation is entitled to
demolish the unauthorized construction in the event that
the construction is re-erected after the notice under
Section 354A is completed.
j) With reference to the submissions made on behalf of the
learned counsel for the appellants on the illegality of the
suit notice issued without satisfaction recorded as
contemplated under sub-section (1) of Section 354A of
the said Act, learned counsel for the corporation
submitted that the satisfaction is not necessarily to be
recorded in writing in view of the provisions of Section
342 of the said Act. The issuance of notice under sub-
section (1) is based on the inspection report of the
Designated Officer. Thus, the very fact of issuance of
notice under Section 354A indicates the satisfaction of
15 2006(1) Mh.L.J 33
Page no. 24 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
the Designated Officer in initiating action under Section
354A.
k) In the absence of any permission, the construction above
the 5th floor is unauthorized as recorded in the speaking
order dated 15th March 2022. As per the record of the
demolition program, the demolition was completed on
30th June 2021. She thus submits that the action initiated
under sub-section (1) of Section 354A has already been
given effect by completing the demolition as
contemplated under sub-section (2) of Section 354A of
the said Act. Therefore, at this stage, there is no question
of granting any protection to the appellants’ structures,
which the corporation has already demolished. Any
reconstruction carried out by the appellants would not
entitle the appellants to any protection in the absence of
any documents indicating the lawful existence of any
construction over and above the 5th floor. Therefore, the
learned judge of the City Civil Court has rightly refused to
grant any discretionary relief by clearly recording that the
occupant of the building has carried out unauthorised
Page no. 25 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
construction over and above the 5 th floor. Thus,
considering the well-established principles, the appellants
would not be entitled to any discretionary relief to protect
the unlawful construction carried out above the 5 th floor.
Hence, no interference is warranted in the impugned
order, and the appeal is therefore liable to be dismissed.
LEGAL POSITION:
6. Before considering the rival submissions, it is first
necessary to examine the legal position on the powers under
Section 354A of the said Act. Section 354A of the said Act
reads as under:
“354A. Power of Designated Officer to stop erection of
building or work commenced or carried on unlawfully.(1) If the Designated Officer is satisfied that the erection
of any building or the execution of any such work as is
described in section 342 has been unlawfully
commenced or is being unlawfully carried on upon any
premises, the Designated Officer may, by written notice,
require the person erecting such building or executing
such work to stop such erection or work forthwith.
Page no. 26 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
(2) If the erection of the building or execution of the work
is not stopped as required by the Designated Officer, or
permission approved by the competent authority in favour
of the erection of the building or execution of the work is
not produced within twenty-four hours from the service of
notice referred to in sub-section (1), the Designated
Officer may, without further notice, remove or pull down
the building or work and the expenses thereof shall be
paid by the said person or owner of the building or work.
The Designated Officer may also direct that any person
directing or carrying out such erection or work shall be
removed by any police officer from the place where the
building, is being erected or the work is being executed.
(3) In addition to the action that the Designated Officer
may take under sub-section (2), he may, without further
notice, cause to be removed any materials, machinery,
equipment, devices or articles used in the process of
erection of the building or execution of such work.
(4) If the expenses incurred by the Designated Officer
under sub-section (2) and (3) are not paid within one
month from the date of demand, such sum as remains
unpaid shall be treated, as arrears of property tax and the
procedure prescribed under this Act for recovery of
arrears of property tax shall, mutatis mutandis, apply to
the recovery of such unpaid sum.”
Page no. 27 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
7. The object of Section 354A is revealed from its heading,
which refers to the powers conferred upon the Designated
Officer to stop the erection of a building or work commenced or
carried on unlawfully. The plain reading of sub-section (1) of
Section 354A indicates that, first and foremost, the Designated
Officer has to be satisfied that the erection of a building or the
execution of work as described in Section 342 has unlawfully
commenced. Sub-section (1) of Section 354A starts with the
word ‘if’. Thus, it is clear that a direction to stop work can be
issued only if there is satisfaction that the work is unlawfully
commenced. Such satisfaction can be arrived at after making
an inquiry, which would necessarily mean that the Designated
Officer is required to enquire whether any permission is
granted by the competent authority, conduct a site visit and
prepare a report containing the particulars of the alleged
unlawful work. Thus, after necessary enquiry, if the Designated
Officer is satisfied that the erection or work is unlawful, he has
the power to forthwith stop the erection or the work as the case
may be by issuing a written notice.
Page no. 28 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
8. The purpose of such notice as contemplated under sub-
section (1) of Section 354A is to prevent and prohibit unlawful
erection or work. The satisfaction of the Designated Officer and
the stop-work notice as contemplated under sub-section (1) is
likely to result in a drastic consequence as contemplated under
sub-section (2) of pulling down the building or the work. The
satisfaction of the Designated Officer should therefore reflect in
the contents of the written notice.
9. It is necessary to consider the language of Section 354A.
The action of issuing a stop work notice as contemplated under
sub-section (1), the action of removing or pulling down the
building or the work as contemplated under sub-section (2),
and the action to remove any materials, machinery, equipment,
devices or articles as contemplated under sub-section (3) uses
the word “may”. The word “shall” is used only for recovering the
expenses if the erection of the building or the work is removed
or pulled down as contemplated under sub-section (2). Thus,
the power of the Designated Officer under Section 354A is
discretionary; therefore, sub-section (1) contemplates
satisfaction of the Designated Officer before issuing the stop-
Page no. 29 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
work notice. Thus, the contents of the notice must indicate the
satisfaction of the Designated Officer that the erection or the
work is unlawful. Hence, the notice must also contain a proper
description of the alleged unlawful erection or work. The
absence of a proper description of the alleged unlawful erection
or work would reflect non-application of mind, raising doubts
about the satisfaction of the Designated Officer before issuing
the stop-work notice.
10. The Designated Officer is empowered under sub-section
(2) of Section 354A of the said Act to remove or pull down the
alleged unlawful erection or work without giving further notice.
The only requirement is to serve a stop-work notice as
contemplated under sub-section (1) of Section 354A. As
discussed in the above paragraphs the purpose of Section
354A is to prevent unlawful erection of building and unlawful
execution of work as described in Section 342; hence the
power to serve a notice to stop the erection or the work
forthwith, is subject to satisfaction of the Designated Officer
that the erection or the work is unlawful. However, the exercise
of power to remove or pull down the erection or the work
Page no. 30 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
without any further notice is a drastic action. There can be
various circumstances or justifiable reasons for being unable to
produce the requisite permission within twenty-four hours from
the service of the stop-work notice. For instance, a person is
not served with the notice, or due to unavoidable
circumstances is unable to produce the permission within
twenty-four hours, or claims benefit under a deeming provision
for the grant of permission, or any other justifiable reason.
Therefore, the principles of natural justice must be followed to
exercise the drastic power under sub-section (2) of Section
354A of the Act.
11. The immediate action contemplated under sub-section
(1) is to stop the work forthwith. The language of sub-section
(2) empowers the Designated Officer to take drastic action of
demolition if the stop-work notice is not complied with or the
permission is not produced within twenty-four hours of the
service of notice. Now, the next question, therefore, would be
the effective service of the notice as contemplated under sub-
section (1) of Section 354A. The purpose of the written notice
as contemplated under sub-section (1) of Section 354A is to
Page no. 31 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
direct the person erecting a building or executing work
unlawfully to forthwith stop doing it and further remove the work
as contemplated under sub-section (2), if found to be unlawful.
The language of Section 354A says that the Designated
Officer, by written notice, require the ‘person’ erecting a
building or executing the work to stop the erection or the work
forthwith. The words ‘person’ and ‘owner’ are defined in
Section 3 (m) and (n) of the said Act as under;
“(m) “owner” when used in reference to any premises,
means the person who receives the rent of the said
premises, or who would be entitled to receive the rent
thereof if the premises were let, and includes–
(i) an agent or trustee who receives such rent on account
of the owner, and
(ii) an agent or trustee who receives the rent of, or is
entrusted with, or concerned for, any premises devoted to
religious or charitable purposes ; and
(iii) a receiver, sequestrator, or manager appointed by
any court of competent jurisdiction to have the charge of,
or to exercise the rights of an owner of the said premises;
” (n) a person is deemed ” to reside ” in any dwelling
which he sometimes uses, or some portion of which he
sometimes uses, though, perhaps, not uninterruptedly, as
a sleeping apartment;
and a person is deemed to cease ” to reside ” in any such
dwelling merely because he is absent from it, or has
elsewhere another dwelling in which he resides, if there is
Page no. 32 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
the liberty of returning to it at any time and no
abandonment of the intention of returning thereto; ”
12. In the said Act, the words ‘person’, ‘owner’ and ‘occupier’
are used depending upon the relevant action contemplated
under the various sections under the said Act. Considering the
object of Section 354A as discussed in the above paragraphs,
the purpose of the written notice is to stop forthwith the erection
of a building or the execution of the work, subject to the
satisfaction of the Designated Officer that the erection or work
is unlawful. Section 354A is invoked when an immediate action
is required. Therefore, intimation in writing to stop the work is
what is contemplated under sub-section (1). Thus, notice must
be served on the person carrying out the work at the behest of
the owner, i.e. the person whose name is recorded as owner in
the official record, at whose behest the work is being done, or
the recorded owner or the occupier of the offending
structure/property, as he would be the person adversely
affected if the Designated Officer takes the action under sub-
section (2). The purpose of the service of notice under sub-
section (1) of Section 354A is to immediately stop the work
followed by the action contemplated under sub-section (2).
Page no. 33 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
13. The manner of service of notice is provided in Chapter
XIX of the said Act. The purpose of written notice is discussed
in the above paragraphs, which requires intimation to the
person as contemplated under sub-section (1) of Section 354A
to stop the work forthwith. Thus, it is not mandatory to name
the owner or occupier in the notice; however, proper service of
the stop-work notice has to be served on the person erecting
the building or executing the work or on the recorded owner or
the occupier. Therefore, the procedure prescribed under
Section 485 of the said Act would be applicable, which deals
with how service will be effected on the owner or occupier of
premises. Section 485 reads as under;
” 485. Service on “owner or occupier” of premises how to be
effectedWhen any notice, bill, schedule, summons or other such
document is required by this Act, or by any regulation or by-law
made under this Act, to be served upon or issued or presented
to the owner or occupier of any building or land, shall not be
necessary to name the owner or occupier therein, and the
service, issue or presentation thereof shall be effected, not in
accordance with the provisions of the last preceding section but
as follows, namely :
(a) by giving or tendering the said notice, bill, schedule,
summons or other document to the owner or occupier, or ifPage no. 34 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).docthere be more than one owner or occupier, to any one of the
owners or occupiers of such building or land; or
(b) if the owner or occupier or no one of the owners or
occupiers is found, by giving or tendering the said notice, bill,
schedule, summons or other document to some adult member
or servant of the family of the owner or occupier or of any one
of the owners or occupiers; or
(c) if none of the means aforesaid be available by causing the
said notice, bill, schedule, summons or other document to be
affixed in some conspicuous part of the building or land to
which the same relates. ”
14. In the decision in J.R. Patel, this Court dealt with the
challenge to the notice under Section 314 of the said Act on the
ground that the proposed action of the corporation was in
breach of the principles of natural justice and more particularly
in the teeth of the dictum of the Constitution Bench of the
Supreme Court in the case of Olga Tellis and others Vs
Bombay Municipal Corporation and others. 16 . This court relied
upon the legal principles settled by the Hon’ble Apex Court in
the decision of Olga Tellis, and held that it is obligatory on the
authorities to give an opportunity to the appellants to produce
material in support of their case as to why action under Section
314 of the said Act is not warranted. Section 314 of the said
16 (1985) 3 SCC 545
Page no. 35 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
Act provides for the power to remove without notice anything
erected, deposited or hawked in contravention of section 312,
313 or 313A. The Commissioner is empowered to take action,
without issuing notice, for the removal of any structure or fixture
which shall be erected or set up in or upon any street, or upon
or over any open channel drain, well or tank contrary to the
provisions of sub-section (1) of section 312.
15. In the case of Olga Tellis, the decision of the municipal
corporation to demolish the huts was challenged by the
petitioners on the ground that it is violative of Articles 19 and 21
of the Constitution of India. The petitioners had also asked for a
declaration that the provisions of Sections 312, 313 and 314 of
the said Act are invalid as violative of Articles 14, 19 and 21 of
the Constitution of India. This court, in the decision J.R. Patel,
held that the Hon’ble Apex Court interpreted Section 314 of the
said Act and has read it down to save its validity. While dealing
with the arguments on behalf of the corporation that it is the
discretion of the commissioner to give or not to give a prior
hearing to the occupants who are essentially encroachers and
Page no. 36 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
have no right to squat, this court in the decision of J.R. Patel,
held in paragraph 8 as under:
“8. To my mind, this decision has not and could not be
read to have diluted the legal mandate as enunciated by
the Constitution Bench of the Apex Court in Olga Tellis
case. In Olga Tellis case the Constitution Bench of the
Apex Court has clearly observed that the ordinary rule is
to observe audi alteram partem rule and it is only in
exceptional cases when the Commissioner may find it
appropriate that such procedure ought to be dispensed
with- that he may do so by virtue of this provisions (S.
314). but, then such extra ordinary circumstances must
be shown to exist at the relevant time and the burden is
on the Commissioner to show that it did exist. In other
words, only in exceptional cases the Commissioner may
dispense with the requirement of audi altaram partem
rule; and, therefore, in such cases the law would further
require that the Commissioner shall contemperageously
hold reasons therefore unless reasons are recorded by
the Commissioner, it will have to be presumed that the
case was not an exceptional case so as to dispense with
the procedure of audi alteram partem, as enunciated by
the Supreme Court in the above said Judgment.
Whereas, when the Commissioner records reasons then,
surely, judicial review of those reasons which persuaded
the Commissioner to dispense with the procedure of fair
Page no. 37 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
play would be available. However, when no such reasons
are recorded by the Commissioner before resorting to
action under Section 314 of the Act, it would be
preposterous to contend that the case nevertheless falls
under exceptional category so as to dispense with the
requirement of fair play. ”
16. The Hon’ble Division Bench of this Court in the case of
Mohd. Sayed Mohd. Salim Nagori Rizvi, followed the legal
principles settled by the Hon’ble Apex Court in the decision of
Olga Tellis, and held that the action under Section 314 of the
said Act, must be flawed as there is no justification of urgency
and/or requirement of expeditious removal of the subject
premises without prior notice, on the ground that it was
affecting streets, pavements or other similar conveniences.
17. By the decision relied upon by the learned counsel for the
appellants in the case of Sopan Maruti Thopte, a reference
made to the Division Bench is decided, on the question
whether it is obligatory to give a personal hearing or early
hearing to the parties after notice under clause (a) of sub-
section (1) of Section 351 of the said Act is issued. The Hon’ble
Division Bench held that when notice under Section 351 is
Page no. 38 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
given, fifteen days time shall be given to submit a reply, and if
no sufficient cause is shown, the municipal authority shall give
short reasons for not accepting the contention of the affected
party. The Hon’ble Division Bench issued guidelines for taking
further action for demolition. In the decision of Sub Vijay
International Pvt. Ltd ., this court held that the guidelines issued
in the decision of Sopan Maruti Thopte are based on fair play
by the local authorities and are binding upon the municipal
corporation. This Court further held that the purpose of issuing
notice under Section 354A to stop work and produce valid
permission is to enable the person to satisfy the commissioner
that the work is pre-existing work carried out after obtaining the
necessary permission. Thus, this court held that even dehors
the decision in the case of Sopan Maruti Thopte, the principle
of fairness requires the municipalities and the corporation to
give a reasonable notice to the person concerned before taking
the action of demolition.
18. In the decision relied upon by the learned counsel for the
appellants in the case of Ramanlal Bhailal Patel, the Hon’ble
Apex Court was dealing with the word ‘person’ in the context of
Page no. 39 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
Gujarat Agricultural Lands Ceiling Act 1960. The Hon’ble Apex
Court after discussing the general and ordinary meaning of the
word ‘person’ and the General Clauses Act, held that the
general legal definition of the word ‘person’ is either modified or
restricted or expanded in different statutes with reference to the
object of the enactment or the context in which it is used. In the
decision of Industrial Supplies Pvt. Ltd., the Hon’ble Apex Court
was dealing with the interpretation of the words ‘owner’ and
‘occupier’ with reference to the Coking Coal Mines
(Nationalisation) Act 1972 and The Mines Act 1952. The
Hon’ble Apex Court held that when legal fiction is incorporated
in a statute, the court, after ascertaining the purpose, must give
full effect to the statutory fiction and carry it to its logical
conclusion.
19. In the decision of State Bank of India Vs Rajesh Agarwal,
the Hon’ble Apex Court has laid down legal principles
regarding the nature, scope and applicability of the principles of
natural justice in general, and the rule of audi alteram partem in
administrative action having civil consequences. The appeals
before the Hon’ble Apex Court were filed to challenge The
Page no. 40 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
Reserve Bank of India (Frauds Classification and Reporting by
Commercial Banks and Select FIs) Directions 2016 (“Master
Directions”), issued by the Reserve Bank of India. The Hon’ble
Apex Court, while considering whether the principles of natural
justice should be read into the provisions of the Master
Directions on Frauds, held that audi alteram partem has
several facets, including the service of a notice to any person
against whom a prejudicial order may be passed and providing
an opportunity to explain the evidence collected. It is also held
that administrative proceedings which entail significant civil
consequences must be read consistently with the principles of
natural justice to meet the requirement of Article 14. It is further
held that where possible, the rule of audi alteram partem ought
to be read into a statutory rule to render it compliant with the
principles of equality and non-arbitrariness envisaged under
Article 14 of the Constitution of India.
20. In the Hon’ble Apex Court’s decision of Sunbeam High
Tech Developers (P) Ltd, the issue involved was that if a
Municipal Corporation demolishes a structure in exercise of
powers vested in it but in violation of the procedure prescribed,
Page no. 41 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
whether the High Court can direct the owner/occupier of the
building to reconstruct the demolished structure. The Hon’ble
Apex Court referred to the judgment of this court in the case of
Sopan Thopte, and held that timelines were fixed of fifteen
days each for issuing a show-cause notice and, thereafter, to
take action of demolition. It is further observed that the
legislature thereafter intervened and the first period is curtailed
to seven days, but the second direction has not been interfered
with by the legislature. Thus, the Apex Court held that the
Judgment of Sopan Thopte continues to hold the field in that
regard. The second direction that holds the field is that it would
be open to the Commissioner to demolish the offending
structure fifteen days after the order is communicated to the
affected person. The Hon’ble Apex Court issued directions in
paragraph 24 regarding the manner in which the evidence of
illegal construction/ reconstruction etc, is collected and notices
are issued and served. The directions issued by the Apex
Court provide for service of notice upon the
owner/occupier/builder/ contractor/architect, etc, about the
alleged unauthorised work. The directions also provide for 7
Page no. 42 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
days notice before demolition of the property, if the reply to the
notice is not satisfactory. The Hon’ble Apex Court also issued
directions regarding the manner in which the evidence of illegal
construction/reconstruction, etc., is collected and notices are
issued and served. The relevant directions are in paragraph 24,
which reads as under;
“24. We also would like to give further directions
regarding the manner in which the evidence of
illegal construction/reconstruction etc., is collected
and notices are issued and served. We, therefore,
issue the following directions:
24.1 It will be obligatory for all Municipal
Corporations in the State of Maharashtra where the
population is 50 lakhs or more to get geomapping
and geo-photography of the areas under their
jurisdiction done within a period of one year.
Geomapping will also be done of an area of 10 Kms.
from the boundary of such areas. The records
should be maintained and updated by the Municipal
Corporations within such time period as the
Municipal Corporation deems fit, keeping in mind
the specific circumstances of the area under its
jurisdiction.
Page no. 43 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
24.2Whenever any new area, which is not already
geomapped, is brought under the jurisdiction of a
particular municipality, it will be the duty of the
concerned Municipal Corporation to ensure that
geomapping of the area is conducted and the
geomapping records of such area are created at the
earliest.
24.3In cases where buildings are already existing
and it is alleged by the Municipal Corporation that
the building has been constructed in violation of
applicable laws:
24.3.1 The Commissioner/Competent Authority on
coming to know that an illegal building has been
constructed, shall issue a show cause notice giving
7 days in terms of Section 351 to the
owner/occupier/builder/contractor etc. Along with
this notice the Commissioner/Competent Authority
shall also send photographs and visual images
taken on the site clearly depicting the illegal
structure. Photographs and images should digitally
display the time and date of taking the photographs;
24.3.2 In case the notice is not replied to within the
time prescribed, i.e., 7 days, then the building shall
Page no. 44 of 71::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).docbe immediately demolished by the Municipal
Corporation;
24.3.3 In case the owner files a reply to the notice,
the Commissioner/Competent Authority of the
Municipal Corporation shall consider the reply and
pass a reasoned order thereon. In case the reply is
not found satisfactory then the order shall be
communicated in the manner laid down hereinafter
to the owner/occupier/builder/contractor etc. giving
him further 15 days’ notice before demolition of the
property. During this period the
owner/occupier/builder/contractor etc. can approach
the appellate/revisional authority or the High Court.
24.4In those cases where according to the
municipal corporation there is ongoing construction
which is being carried on in violation of the
applicable laws:
24.4.1 The Commissioner/Competent Authority on
coming to know that there is ongoing construction in
violation of the applicable laws shall issue a show
cause notice giving 24 hours in terms of Section 351
to the owner/occupier/builder/contractor/architect
etc. Along with this notice the
Commissioner/Competent Authority shall also sendPage no. 45 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).docphotographs and visual images taken on the site
clearly depicting the illegal structure. Photographs
and images should digitally display the time and
date of taking the photographs;
24.4.2. The Commissioner/Competent Authority can
also issue an interim ‘stop-construction’ order along
with the notice or any time after issuing the notice.
Such order shall also include the relevant pictures of
the alleged violation(s). Photographs and images
should digitally display the time and date of taking
the photographs;
24.4.3. In case the notice is not replied to within the
time prescribed, i.e., 24 hours, then the building
shall be immediately demolished by the Municipal
Corporation;
24.4.4. In case the owner/occupier/builder/
contractor/architect etc. files a reply to the notice,
the Commissioner/Competent Authority of the
Municipal Corporation shall consider the reply and
pass a reasoned order thereon. In case the reply is
not found satisfactory then the order shall be
communicated in the manner laid down hereinafter
to the owner/occupier/builder/contractor/architect
etc. giving him further 7 days’ notice before
Page no. 46 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
demolition of the property. During this period the
owner/occupier/builder/contractor/architect etc. can
approach the appellate/revisional authority or the
High Court.
24.5. In regard to service of notice we direct as
follows:
24.5.1. Wherever possible notice shall be served
personally on the person who is raising or has
raised the illegal structure including the
owner/occupier/builder/contractor/architect, etc.
24.5.2. Notice, in addition to the traditional mode,
can also be sent through electronic means, both by
email and by sending a message on the mobile
phones. Even a message to a foreman or person in
charge of the construction at the site will be deemed
to be sufficient notice.
24.5.3. In the notice, the municipal authorities shall
also give an email ID and phone number where the
noticee can send his reply through email or
messaging services. This will hopefully do away with
all disputes with regard to alleged non-service of
notice.”
emphasis applied by me
Page no. 47 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
21. In a recent judgment in the case of Zulfiquar Haider and
Another Vs State of Uttar Pradesh and others 17, the Hon’ble
Apex court was dealing with the high-handed and illegal
demolition of residential structures purportedly taken under
Section 27 of the Uttar Pradesh Urban Planning and
Development Act, 1973. The Hon’ble Apex Court observed that
the demolition order was not served upon the appellants and
was allegedly served by affixing only. It was further observed
that within 24 hours of the service of the communication, an
action of demolition was taken on a Sunday, depriving the
appellants of their opportunity to avail of the remedy of appeal
under sub-Section (2) of Section 27 of the 1973 Act. The
Hon’ble Apex Court relied upon the law laid down by the Apex
Court in the case of In Re : Directions in the matter of
demolition of structures18 in paragraph 91A of the said
judgment, which reads thus:
“91. At the outset, we clarify that these directions will not be
applicable if there is an unauthorized structure in any public
place such as road, street, footpath, abutting railway line or any17 2025 SCC Online SC 766
18 2024 SCC Online SC 3291
Page no. 48 of 71::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).docriver body or water bodies and also to cases where there is an
order for demolition made by a Court of law.
A. NOTICE
i. No demolition should be carried out without a prior show
cause notice returnable either in accordance with the time
provided by the local municipal laws or within 15 days’ time
from the date of service of such notice, whichever is later.
ii. The notice shall be served upon the owner/occupier by a
registered post A.D. Additionally, the notice shall also be
affixed conspicuously on the outer portion of the structure in
question.
iii. The time of 15 days, stated herein above, shall start from
the date of receipt of the said notice.
iv. To prevent any allegation of backdating, we direct that as
soon as the show cause notice is duly served, intimation
thereof shall be sent to the office of Collector/District Magistrate
of the district digitally by email and an auto generated reply
acknowledging receipt of the mail should also be issued from
the office of the Collector/District Magistrate. The Collector/DM
shall designate a nodal officer and also assign an email
address and communicate the same to all the municipal and
other authorities in charge of building regulations and
demolition within one month from today.
v. The notice shall contain the details regarding:
a. the nature of the unauthorized construction.
b. the details of the specific violation and the grounds of
demolition.
c. a list of documents that the notice is required to furnish
along with his reply.
Page no. 49 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).docd. The notice should also specify the date on which the
personal hearing is fixed and the designated authority
before whom the hearing will take place;vi. Every municipal/local authority shall assign a
designated digital portal, within 3 months from today
wherein details regarding service/pasting of the notice,
the reply, the show cause notice and the order passed
thereon would be available.
(emphasis added)”
22. The Hon’ble Apex Court in the decision of Zulfiquar
Haider, thus held in paragraph 12 as under;
“12. The authorities, especially the development authority, must
remember that the right to shelter is also an integral part of
Article 21 of the Constitution of India. This right can be taken
away only by following due process of law. Moreover, our
country is governed by the rule of law, which is an integral part
of the basic structure of the Constitution. The residential
structures of citizens cannot be demolished in such a summary
manner without following the principles of natural justice. As
stated earlier, no efforts were made to make the personal
service of the show cause notice. Although the option of
sending it by registered post was available, it was not
Page no. 50 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).docexercised. The same is the case with the order dated
8th January, 2021, directing the demolition. On the very day, it
was stated to be served by affixing. A copy thereof was not
sent by the registered post. Only the communication dated
1st March, 2021, was sent by the registered post, which was
served upon the appellants on Saturday, 6 th March, 2021.
Within twenty-four hours of the service of the said
communication, the structures were brazenly demolished.”
emphasis applied by me
23. In Kangana Ranaut’s decision, this court dealt with the
challenge to the notice issued under Section 354A of the said
Act and the speaking order. This court analysed the distinction
between the applicability of Sections 351 and 354A and
referred to the Circular dated 15 th March 2012 issued by the
corporation laying down the guidelines for the procedure to be
followed for action to be taken under the said two provisions.
By referring to the relevant procedure prescribed for taking
action under Section 354A, this court held that when the
concerned officer detects the unlawful work, he has to take
Page no. 51 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
photographs showing the date and status of the work and
prepare a Panchanama/Inspection Report of the work in
progress, then make an entry to that effect in detection register
and then prepare a notice under Section 354A of the said Act.
Thus, from the observations of this court, by referring to the
guidelines issued by the corporation, it is clear that satisfaction
of the Designated Officer about the unlawful work is necessary
before issuing notice under Section 354A, and the satisfaction
should reflect from the contents of the notice giving particulars
of the alleged unlawful work.
24. Therefore, considering the well-settled legal principles as
discussed above, the service of notice contemplated under
sub-section (1) of Section 354A must be served by tendering it
to the person/builder/contractor erecting the building or carrying
out the work or to the recorded owner at whose behest the
erection or work is carried out or to the occupier of the
offending structure/property. Considering the serious
consequences contemplated under sub-section (2) of Section
354A, the obligation of proper service of notice is upon the
Designated Officer by following the procedure prescribed under
Page no. 52 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
Section 485. Thus, all efforts must be made to first effect
service by a regular mode of personal service upon the person
carrying out the work, or the recorded owner or the occupier of
the offending structure/property. Only if the person carrying out
the work, or the recorded owner or the occupier of the
offending structure/property is not found, the personal service
can be effected on some adult member of their family or
servant of their family. Despite diligent efforts, if personal
service is not possible, only then can the alternate mode of
service, by pasting, be adopted. While adopting the alternate
mode of service by pasting, a panchanama/memorandum shall
be recorded in writing in the presence of witnesses. In case, a
reply is submitted in response to such notice served, the
Designated Officer shall consider the reply and documents, if
any and pass a reasoned order. If the reply is not satisfactory,
then the order shall be communicated to the
person/builder/contractor erecting the building or carrying out
the work or to the recorded owner at whose behest the erection
or work is carried out or to the occupier of the offending
Page no. 53 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
structure/property, giving seven days time, to enable him to
adopt appropriate remedy as permissible in law.
25. The decisions relied upon by the learned counsel for the
corporation in the cases of N.H. Harsora Pvt. Ltd., Shriram
Ramphal Patel and Akramal Najibul Sarkar are based on
different facts of the said cases and thus are not relevant to the
rival contentions in this case and the legal principles examined
in the present case.
26. In the decision of Abdul Razzaq Sunesra, this court
upheld the constitutional validity of Section 515A of the said
Act. This court, while dealing with the constitutional validity of
Section 515A regarding bar of civil court’s jurisdiction,
discussed the provisions of Section 351 and Section 354A and
referred to the decision of the Hon’ble Apex court in the case of
Muni Suvrat – Swami Jain S.M.P. Sangh. The Hon’ble Apex
Court in paragraph 57 of the judgment held that Section 351 of
the said Act obliges the Municipal Commissioner, if the
construction of any building or the execution of any work is
commenced contrary to the provisions of the Act, to give show
Page no. 54 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
cause as to why the construction should not be pulled down. It
is further held that if sufficient cause is not shown, the
Commissioner exercises the discretion to decide whether or
not to demolish the unauthorized construction, if satisfied that
the erection of the building or execution of the work has been
unlawfully commenced or is being unlawfully carried out.
Therefore, it was held that the High Court cannot impede the
exercise of that discretion by the issuance of a mandatory
order to demolish the construction.
CONSIDERATION OF SUBMISSIONS AND ANALYSIS:
27. In the present case, the suit notice dated 21 st October
2020 is addressed to “Owner/Occupier/Landlord/Tenant”
without naming any person; however, the address of the
building is mentioned. The contents of the notice appear to be
a standard format alleging that “you have unlawfully
commenced/been unlawfully carrying on, erection of
building/erection of work described in the schedule below
located at the above mentioned address”. The description of
the work in clause (1) of the schedule of the notice says that ;
Page no. 55 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc“Unauthorised reconstruction of Building by using RSJ section,
Ladi Coba slab and brick masonry wall’ without permission
from the competent authority”.
28. A plain reading of clause (1) in the schedule indicates
that the allegation is of unauthorised reconstruction of the
building. The sketch in the schedule depicts the entire building.
The other clauses in the schedule are an intimation of the
proposed action as contemplated under sub-section (2) of
Section 354A. The speaking order is passed on 15 th March
2022, after seventeen months from the date of the stop-work
notice. The speaking order addressed to “Owner/Occupier”
refers to letters dated 23rd July 2021, 4th August 2021, 13th
October 2021 and 14th December 2021 in reply to the suit
notice. After recording particulars of documents in a tabular
format, the conclusions in the last two paragraphs record that
though the notice was alleging reconstruction of the building,
after going through the work order and repair plan of MHADA, it
can be concluded that the construction above 5th floor is
unauthorised.
Page no. 56 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
29. A plain reading of the conclusions recorded in the
speaking order indicates that the Designated Officer was
satisfied that there was no reconstruction of the building as
alleged in the notice. The Designated Officer, on verifying the
work order and repair plan of the Executive Engineer of the
MHADA board, concluded that the construction above the 5 th
floor was unauthorised. However, in the last paragraph, it was
observed that the notice work was unauthorised. Thus, the
contents of the notice and the speaking order neither reflect
application of mind nor satisfaction based on any reasons that
any unlawful work was carried out.
30. The plaintiffs’ contentions are basically twofold: first, that
the building has been in existence since before 1958 and that
only repair work was carried out, and second, that the notice
was not served upon the plaintiffs. The plaint contains detailed
pleadings regarding the use of the suit structure since before
1958 as a tenant. The plaintiffs relied upon various documents,
including rent receipts, to support their contention that their
structures, which have existed since before 1958, are situated
on the 6th floor and the 7th floor, which is an attic floor. The
Page no. 57 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
plaintiffs have produced on record copies of a notice dated 9 th
May 1994 issued by the corporation under Section 351 of the
said Act alleging that the 6 th floor of the building is
unauthorised, a reply to the said notice and a letter dated 12 th
July 1994 issued by the corporation intimating that the notice is
dropped. The plaintiffs have pleaded regarding the various
permissions of competent authorities regarding the building to
support their contentions that the building always existed and
only repair work was carried out. The plaintiffs also pleaded
that due to major repair work carried out and due to the Covid-
19 pandemic, they could not live in their respective suit
structures due to their old age and thus were required to shift to
their relative’s place temporarily upto March 2022. They further
pleaded that only on 29 th April 2022, they learnt about the
notice and the speaking order, when the demolition was
scheduled with police protection. Hence, it appears that
sometime in April 2022, the suit was filed to challenge the
notice and the speaking order. The plaintiffs also prayed for a
temporary injunction to protect the suit structures from
demolition.
Page no. 58 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
31. In response to the plaintiffs’ pleadings, the corporation
contended that due procedure was followed before issuing the
notice and the speaking order and that the plaintiffs failed to
produce any evidence regarding any permissions. It was
pleaded that the notice was served upon the addressee on 23 rd
October 2020, and the receipt was acknowledged. The
corporation referred to a joint inspection with MHADA officials,
work order and repair permissions and the record regarding
assessment to contend that the building was only of ground
plus four floors. It is further pleaded that the inspection
conducted on 11th May 2021 and 5th August 2021 revealed that
construction above the 5th floor was in progress; hence,
demolition was carried out on various dates from 24 th May 2021
to 11th January 2022 by making the 6th floor unserviceable.
32. It is necessary to examine the pleadings in detail, which
refer to a suit filed by another occupant and an interim relief
passed in that suit on 29 th July 2021, directing the corporation
to pass a speaking order. It is thus contended that thereafter,
the speaking order was passed on 15 th March 2022. The
corporation has also relied upon an Order dated 6 th April 2022
Page no. 59 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
passed by this Court in Appeal From Order No. 305 of 2022
arising from an interim order passed in another suit by an
occupant of the 2nd floor. This court disposed of the appeal by
recording the statement on behalf of the corporation that the
structure on the 2nd floor was not covered under the notice and
the speaking order.
33. Section 354A deals with a notice to stop the ongoing
work, whereas Section 351 deals with a show cause notice for
demolition of unauthorised constructions. Thus, there is a
distinction between the applicability of these sections. Hence, I
do not find any substance in the arguments of the learned
counsel for appellants that if immediate action is not taken
pursuant to the notice under sub-section (1), and the
construction is complete or the alleged construction or work is
not found to have been continued, the provision of Section 351
of the said Act will come into play, and the notice under Section
354A cannot be pursued further. The consequential action for
non-compliance with the notice under sub-section (1) is
provided under sub-section (2) of Section 354A.
Page no. 60 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
34. However, in the present case, the corporation contends
that demolition work was done well before the passing of the
speaking order. Therefore, it is clear that the powers under
sub-section (2) of Section 354A were exercised by the
Designated Officer without following the principles of natural
justice. The stop-work notice under sub-section (1) is dated 21 st
October 2020, alleging that there is unauthorised
reconstruction of the building. The corporation pleads about
site inspection on 11th May 2021 and then on 5th August 2021,
which, according to the corporation, showed construction in
progress above the 5th floor. According to the corporation, the
first demolition was carried out on 25 th May 2021, much before
the speaking order dated 15th March 2022. The speaking order
records that the building, upto the fifth floor, is authorised. No
material was produced to indicate that proper service of the
stop-work notice was done on the person carrying out the
alleged unlawful work, the owner, or the occupier. No material
was produced to indicate that the satisfaction contemplated
under sub-section (1) was recorded before the stop-work notice
was issued. The contention that demolition was carried out
Page no. 61 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
even before a speaking order indicates non-application of mind
in as much as the notice alleges reconstruction of the building
and the speaking order records a conclusion that the building
upto the fifth floor is authorised. Thus, prima facie, neither
satisfaction as contemplated under sub-section (1) is seen
before issuing the stop-work notice, nor are the principles of
natural justice followed by proper service of notice.
35. The impugned judgment and order does not deal with the
basic principles of prima facie case, irreparable loss and
balance of convenience. The learned trial judge has not even
referred to whether the basic requirements are satisfied,
justifying the action under Section 354A. The learned Judge
relied upon the observations of this Court while rejecting the
appeal filed by the plaintiffs to challenge the refusal to grant ad-
interim protection. The learned trial judge did not examine the
material on record on the ground that the trial court and this
court at the ad-interim stage have already dealt with the
documents relied upon by the plaintiffs. In my view, the learned
trial judge erred in completely ignoring that the scope at the
stage of considering ad-interim relief and the scope at the time
Page no. 62 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
of final hearing of the application for interim relief are different.
Thus, refusal to grant ad-interim relief is no ground to deny
interim relief, if the case is made out in law to grant interim
relief.
36. Learned counsel for the corporation relied upon an order
in the case of Tushar Guru Salien, which is an order in a Public
Interest Litigation concerning grievances about the gross
unauthorized constructions and ad-interim protection granted in
the pending suits. The Hon’ble Division Bench of this court in
the PIL, therefore, clarified the legal position in paragraph 5,
which reads as under:
“5] Concerning a property, a suit to enforce or protect an
interest in the property which is governed by a Municipal
Statute, the interest protected has to be with respect to a plea
that prim-facie, the structure which is being targeted is an
authorized structure. Meaning thereby, the plaint must make an
averment of the sanction obtained from the Corporation and
must make an averment that the structure targeted is prima-
facie governed by the sanction. Merely pointing out deficiencies
Page no. 63 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).docin the notice or the authority of the person issuing the notice is
neither here nor there. Thus, the sine qua non of such kinds of
suits is a positive assertion made with reference to the
sanctioned building plans.”
37. In the present case, there is strong, prima facie, material
on record to show that the suit structures existed since before
1958. The detailed pleadings by the plaintiffs and the material
on record further reveal various orders of competent authorities
regarding the building, including the repair permission by
MHADA and the work order for extensive repairs. In the
speaking order, the Designated Officer has not dealt with the
notice of 1994 under Section 351 of the said Act, the reply and
the corporation’s letter intimating that the notice is dropped,
only on the ground that the same is not available in the
corporation’s record. The learned trial judge also did not
consider the said documents on the ground that at the ad-
interim stage, the same was considered by the trial court and
this court while refusing to grant ad-interim relief. Thus,
considering the plaintiff’s pleadings and the strong prima facie
Page no. 64 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
material produced on record by the plaintiffs, they would be
entitled to interim protection.
38. Learned counsel for the corporation referred to the order
dated 29th July 2021, passed by the trial court in Suit St. No.
5604 of 2021, filed by another occupant of the same building,
challenging the suit notice. The trial court directed the
Designated Officer to follow the due process of law, consider
the reply and documents of the plaintiff in that suit and pass a
final speaking order on the notice dated 21 st October 2020,
which is the same notice impugned in the present case. The
trial court further directed the parties to maintain the status quo
in the meantime. It is pertinent to note that when the said order
was passed on 29th July 2021, the corporation did not contend
that any demolition work had already been carried out in May
2021, as sought to be contended in the present case.
39. Disputed facts are involved regarding the extent of
demolition work. However, by relying upon the demolition
reports and the attached photographs, it is contended by the
corporation that demolition work above the 5 th floor was carried
Page no. 65 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
out by making the 6th floor unserviceable. Thus, according to
the corporation, demolition was done by making the 6 th floor
unserviceable. No valid material is produced to indicate that
demolition was done after following the due procedure. The
material on record does not show that the principles of natural
justice were followed by service of necessary notice as
discussed in the above paragraphs. Thus, prima facie,
demolition work undertaken by the corporation is illegal.
40. The conclusions on the legal principles to be followed for
taking action under Section 354A of the said Act are
summarised as below;
a) When the concerned officer detects unlawful work, he
has to take photographs showing the date and status of
the work, prepare a Panchanama/Inspection Report of
the work in progress, make an entry to that effect in the
detection register, and prepare a notice under sub-
section (1) of Section 354A of the said Act.
Page no. 66 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
b) The contents of the notice under sub-section (1) must
indicate that the concerned officer is satisfied about the
alleged unlawful work, warranting a stop-work notice. The
stop-work notice under sub-section (1) of Section 354A
must contain particulars of the alleged unauthorised
work.
c) Before initiating the action as contemplated under sub-
section (2), the principles of natural justice must be
followed by giving an opportunity to show cause why the
action as contemplated under sub-section (2) should not
be taken. Therefore, the service of notice contemplated
under sub-section (1) of Section 354A must be served by
tendering it to the person/builder/contractor erecting the
building or carrying out the work or to the recorded owner
at whose behest the erection or work is carried out or to
the occupier of the offending structure/property.
d) Considering the serious consequences contemplated
under sub-section (2) of Section 354A, the obligation of
proper service of notice is upon the Designated Officer by
Page no. 67 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
following the procedure prescribed under Section 485.
Thus, all efforts must be made to first effect service by a
regular mode of personal service upon the person
carrying out the work, or the recorded owner or the
occupier of the offending structure/property. Only if the
person carrying out the work, or the recorded owner or
the occupier of the offending structure/property is not
found, the personal service can be effected on the some
adult member of their family or servant of their family.
Despite diligent efforts, if personal service is not possible,
only then can the alternate mode of service, by pasting,
be adopted. While adopting the alternate mode of service
by pasting, a panchanama/memorandum shall be
recorded in writing in the presence of witnesses.
e) In case, a reply is submitted in response to such notice
served, the Designated Officer shall consider the reply
and documents, if any and pass a reasoned order. If the
reply is not satisfactory, then the order shall be
communicated to the person/builder/contractor erecting
the building or carrying out the work or to the recorded
Page no. 68 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
owner at whose behest the erection or work is carried out
or to the occupier of the offending structure/property,
giving seven days time, to enable him to adopt
appropriate remedy as permissible in law.
f) Demolition work, if any, carried out, should be supported
by the necessary record showing that the panchamna
and the Inspection Report were prepared and the
procedure prescribed by the directions issued in the
Hon’ble Apex court’s decision in the case of Re:
Directions in the matter of demolition of structures is
followed.
41. One of the cardinal principles for the grant of a temporary
injunction is satisfaction of the court that non-interference
would result in “irreparable injury” to the party seeking relief
and that there is no other remedy available to the party except
one to grant injunction and he needs protection from the
consequences of apprehended injury or dispossession. In the
present case, if an interim injunction is not granted, the
plaintiffs would be deprived of their fundamental right of
Page no. 69 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
residence, which cannot be adequately compensated by way of
damages. The condition of the balance of convenience also
favours granting the injunction, in as much as refusal may
result in complete demolition of the plaintiffs’ residential
structures. There is ample prima facie material to support the
plaintiffs’ contentions, which they would be able to prove by
leading evidence. Thus, when competing possibilities and
probabilities of likelihood of injury are weighed, the suit
structures should be maintained in the status quo. Thus, this is
a fit case to exercise the discretion in granting the interim
injunction pending the suit.
42. However, considering the disputed questions on facts
regarding the extent of the demolition work carried out, at this
stage, an injunction cannot be granted as prayed. However, the
plaintiffs are entitled to interim protection by restraining the
corporation from carrying out any further demolition. At the
same time, the plaintiffs also cannot change the status of the
suit structures.
Page no. 70 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::
1-AOST-924-2025(j).doc
43. Hence, for the reasons recorded above, the Appeal is
allowed by passing the following order:
a) The impugned judgment and order dated 23 rd August
2024 passed by the learned Judge of the City Civil Court,
Greater Bombay in Notice of Motion No. 1822 of 2022 in
L.C.Suit No. 4165 of 2024 is quashed and set aside.
b) During the pendency of the suit, no further demolition of
the plaintiffs’ structures shall be carried out.
c) During the pendency of the suit, the plaintiffs shall not
make any changes or modifications to the suit structures
or carry out any construction without permission from the
trial court.
d) Notice of Motion No. 1822 of 2022 in L.C.Suit No. 4165 of
2024 is disposed of in the above terms.
(GAURI GODSE, J.)
Digitally
signed by
VARSHA VARSHA VIJAY
RAJGURU
VIJAY Date:
RAJGURU 2025.06.09
19:00:14
+0530Page no. 71 of 71
::: Uploaded on – 09/06/2025 ::: Downloaded on – 09/06/2025 22:44:22 :::