Bombay High Court

M/S. Mehta And Co. Thr. Its Partner Mr. ... vs The Municipal Corporation Of Greater ... on 4 April, 2025

2025:BHC-AS:16300

901-AO-638-2024.docx

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
signed by
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI
Having its registered office at
PILLAI Date:
2025.04.08
08:23:14
+0200
Ground Floor, Plot No. 117/126,
... 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.

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901-AO-638-2024.docx

CORAM : GAURI GODSE, J.

DATE : 4th APRIL 2025

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 14 th 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

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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 25 th 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

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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 14 th 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.

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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 plaintiff was found to be in

possession of 122.63 square meters, i.e. 1319.97 square feet.

The said measurement is recorded in the corporation's letter

dated 16th October 2023.

(e) Pursuant to the plaintiff's complaint and the society's

complaint, the hearing was given on 3 rd October 2023 to the

plaintiff and other concerned parties by the Assistant

Commissioner (F-South Ward). Based on the hearing and the

submissions made by the plaintiff and other affected parties,

the decision was taken on 11th October 2023, which is

recorded in a letter/order dated 18 th October 2023.

(f) The letter/order dated 18th October 2023 indicates that

the plaintiff's claim for a higher area was not accepted, and it

was held that the plaintiff would be entitled to 538 sq.ft. in the

permanent rehabilitation structure. The order further recorded

that as per the terms and conditions of the letter of intent, the

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developer shall make temporary arrangements for alternate

accommodation and accordingly submit an indemnity bond. It

is further recorded that the plaintiff should vacate the premises

within seven days, failing which the corporation would take the

necessary action as permissible in law.

(g) It is also recorded that as per the tenancy verification list

prepared by the corporation on 16th October 2008, the plaintiff

would be entitled to an area of 538 sq.ft in the permanent

rehabilitation structure.

(h) Thus, it was decided by the concerned Assistant

Commissioner that the plaintiff was required to vacate the suit

structure within seven days, failing which the corporation

would take the necessary action as contemplated under the

Mumbai Municipal Corporation Act, 1988 ("MMC Act") and the

applicable circulars and guidelines.

(i) Being aggrieved by the said decision, the plaintiff filed

L.C. Suit No. 73 of 2024 in the City Civil Court at Mumbai on

2nd January 2024. On 3rd January 2024, the plaintiff served

notice to the municipal corporation intimating that the court

would be moved for urgent relief on 4 th January 2024 at 2.45

pm.

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(j) In the morning of 4th January 2024, the corporation's

officers demolished the plaintiff's structure. Hence, the suit is

amended, seeking reliefs for a declaration that the demolition

of the plaintiff's structure was illegal, bad in law, and without

following due procedure. The plaintiff further prayed for

directing the corporation to reconstruct the plaintiff's structure

and, in the alternative, permitting the plaintiff to reconstruct the

structure at the corporation's cost.

(k) In view of the illegal demolition, the plaintiff filed Notice

of Motion No. 272 of 2024 seeking various reliefs, mainly

permission to reconstruct.

5. The corporation opposed the application on the grounds that

are summarized as follows:

(a) The redevelopment project and the approval of Annexure

II on 14th November 2008 were not in dispute. The

corporation contended that Annexure II consisted of 205

tenants, out of which 194 tenants were residential and six

were commercial. It was contended that though not eligible

for redevelopment, the sub-tenants were included for

membership in the rehab component. The corporation

relied upon a letter dated 14 th May 2021 addressed by the

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Deputy Chief Engineer to the Chairman of the Municipal

Chawl regarding a revised letter of intent for the proposed

redevelopment and the appointment of a new developer,

which was approved for cluster redevelopment scheme by

the High Power Committee on 29th July 2022.

(b)The corporation further referred to the complaint dated 14 th

September 2023 received from the society alleging illegal

use by the plaintiff and the business illegally carried out by

the plaintiff, alleging that there was non-cooperation in the

development work and the possession was not handed

over.

(c) The corporation further contended that the officers visited

the plaintiff in the plaintiff's structure, and after issuing

notice and giving opportunity of hearing the order dated

18th October 2023 was passed directing the plaintiff to

vacate the structure within seven days.

(d) It was contended that since the plaintiff failed to vacate the

structure, the demolition action was taken on 4 th January

2024 with police protection. Thus, the demolition carried

out on 4th January 2024 was contended to be taken based

on the order dated 18th October 2023.

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6. After considering the rival submissions of both parties, the

learned Judge of the City Civil Court rejected the notice of motion.

The learned Judge held that the suit structure was demolished

pursuant to the corporation's order dated 18 th October 2023. By

referring to the letter issued by the society and the approval of the

cluster redevelopment scheme in 2022, the learned Judge observed

that the relief in the main suit could not be granted at an initial

interim stage. The learned Judge held that the demolition action

was a triable issue for which the parties would be required to lead

evidence. Hence, the learned Judge refused to grant relief of

reconstruction to the plaintiff. Regarding other prohibitory reliefs, the

learned Judge held that the maintaining of the status quo of the

debris could not have been granted, as it can be compensated in

terms of money. Hence, the plaintiff has filed this appeal.

7. The submissions made by the learned counsel for the

appellant are summarised as follows:

(a)Except for the order dated 18 th October 2023 impugned in the

suit, the corporation failed to produce any order directing

demolition. Though the corporation was intimated on 3 rd

January 2024 about the interim relief that would be pressed

before the City Civil Court on 4 th January 2024 at 2.45 pm, the

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demolition work was carried out in the morning on 4 th January

2024 in undue haste even before the plaintiff's application for

interim relief could have been heard by the court.

(b) The plaintiff is carrying out charitable work by providing food

and shelter to cancer patients undergoing treatment for

cancer in Tata Memorial Hospital, which is adjacent to the land

where the plaintiff's structure was situated. Though the

plaintiff's tenancy rights were disputed, the plaintiff is held

entitled to a permanent rehab component as per Annexure-II.

(c) The plaintiff was never intimated about any transit

accommodation or payment of any transit rent as held entitled

in terms of the order dated 18 th October 2023. In the absence

of any temporary transit accommodation or transit rent being

made available to the plaintiff, there was never any occasion

for the plaintiff to vacate the suit structure as it was never

contemplated under the order dated 18th October 2023.

(d) Admittedly, none of the conditions directed in the order dated

18th October 2023 were at any time complied with calling upon

the plaintiff to accept transit accommodation or transit rent.

Therefore, the allegation of non-cooperation on the part of the

plaintiff is frivolous and baseless. Only to defeat the plaintiff's

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rights as claimed in the suit, a high-handed, arbitrary and

illegal action of demolition was deliberately carried out by the

officers of the corporation. Thus, the plaintiff suffered grave

hardship as the structure where charitable work was being

carried out for treating cancer patients was high-handedly

demolished by the corporation.

(e)The plaintiff was never served with any notice alleging any

illegal business or occupation in the suit structure. The plaintiff

is held entitled to a permanent rehab component, and though

the concerned Assistant Commissioner had issued directions

vide order dated 18th October 2023 for following terms and

conditions of the letter of intent, admittedly, no such

compliance was made before carrying out the demolition.

Thus, the action of the corporation of demolishing the suit

structure is, on the face of it, high-handed, illegal and arbitrary.

Thus, this is a fit case for exercising the discretion to grant a

mandatory injunction, either directing the corporation's erring

officers to reconstruct the suit structure or permit the plaintiff

to reconstruct the suit structure at the cost of the corporation.

(f) The learned Judge of the City Civil Court failed to consider the

important aspects of demolition being carried out without any

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order directing the plaintiff to vacate the structure or any order

intimating the plaintiff that the demolition work would be

carried out. The plaintiff relied upon the measurement carried

out by the corporation as recorded in the Corporation's letter

dated 16th October 2023. The measurement carried out as per

the actual occupation of the plaintiff is supported by the

assessment extracts. Thus, even if the plaintiff's entitlement

for the area claimed by the plaintiff as 1319.97 sq.ft is not

accepted by the corporation, the plaintiff was admittedly

occupying an area of 1319.97 sq.ft, which is high-handedly

and illegally demolished by the corporation. Hence, the

plaintiff is entitled to reconstruct an area of 1319.97 sq.ft. as

reflected in the measurement letter dated 16 th October 2023,

which also records the exact identification of the plaintiff's

structure.

8. The submissions made on behalf of the corporation are

summarized as follows:

(a)The redevelopment scheme is floated under Regulation

33(9) of the DCPR 2034. In the scheme, the rights of 208

occupants are affected. The corporation is under obligation

to consider the entitlement of all the occupants as per

Annexure II. Only due to the plaintiff's non-cooperation

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there were hurdles in the implementation of the

redevelopment scheme. The developer had already

intimated by letter dated 11th October 2023 that he was

ready to pay Rs.35,000/- per month for alternate

accommodation to the plaintiff, provided the possession

was handed over. Thus, it was always open for the plaintiff

to accept the transit rent from the developer and vacate the

suit structure. The plaintiff failed to do so; hence, the

corporation's officers were constrained to forcibly

dispossess the plaintiff and demolish the suit structure. The

concerned officers were well within their jurisdiction and

powers to dispossess the plaintiff and demolish the suit

structure.

(b) The directions in the order dated 18 th October 2023 are

clear and unambiguous. The order clearly called upon the

plaintiff to vacate the suit structure within seven days,

failing which the corporation would take action. Thus, there

was no requirement to issue any fresh notice calling upon

the plaintiff to vacate the suit structure.

(c) To support his submissions, learned counsel for the

corporation relied upon an internal communication dated 3 rd

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January 2024. Though the said communication was not

produced in the trial court, the learned counsel was

permitted to place it on record before this court. By the

internal communication dated 3rd January 2024, the

proposal of the Estate Officer, F South Ward, was

approved by the Assistant Commissioner for carrying out

demolition with police protection and placing on record a

report.

(d) Learned counsel for the corporation relied upon the

guidelines issued vide Circulars dated 17 th November 2020

and 25th May 2018. Learned counsel for the corporation

relied upon clauses (c), (e), (f) and (g) of the circular dated

17th November 2020. He submitted that pursuant to clause

(g) of the circular on receipt of tenancy verification and

after the tenancy verification by the concerned verification

committee, Annexure II is prepared. Pursuant to the letter

of intent issued, the officers are permitted to take action of

vacating the structures for the purpose of redevelopment.

Clause (iv) of clause (g) of the circular permits the officers

to take action of forcible dispossession in case of non-

cooperating tenants. In view of clauses 1.02, 1.08 and 1.10

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of the circular dated 25th May 2018, immediately after

completing the notice period of seven days, the action of

eviction and dispossession is permissible. Thus, pursuant

to the necessary guidelines issued by the two circulars, the

concerned officers carried out work of demolition after

taking police protection. Thus, the action of the corporation

cannot be termed as unauthorised or illegal.

(e)Learned counsel for the corporation fairly accepted that the

notice, as contemplated under Section 488 of the MMC

Act, was not issued before evicting the plaintiff and carrying

out the work of demolition. He, however, submits that even

if the action of the corporation is held that it was without

issuing any notice for actual demolition, the action of

demolition cannot be termed as a nullity and that, at the

most, the action would be irregular. He thus submits that

irregularity, if any, would not entitle the plaintiff to a prayer

of reconstruction at the interim stage. He thus submits that

the corporation would be entitled to lead evidence to

support their contention that the action was permissible.

(f) To support his submissions regarding the action being not

nullity and, at the most, can be termed as an irregularity on

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the part of the officers, learned counsel for the corporation

relied upon the decision of the High Court of Calcutta in the

case of Ashutosh Sikdar vs. Behari Lal Kirtunia1 and the

decision of the Apex Court in the case of Al-can Export

Private Limited vs. Prestige H. M. Polycontainers Limited

and Others2. According to the learned counsel for the

corporation, the full bench of the High Court of Calcutta

held that if an action is held to be in contravention of

Section 99 of the Transfer of Property Act, 1882, at the

most, the action can be held as an irregular action and

cannot be termed nullity. He submits that the view taken by

the Calcutta High Court is referred to by the Hon'ble Apex

Court in the case of Al-can Export Pvt. Ltd. He submits that

the Hon'ble Apex Court has considered the distinction

between nullity and irregularity. He, in particular, relied

upon paragraph 89 of the decision of the Hon'ble Apex

Court to support his submissions that the action of

demolition in any case cannot be termed nullity.

(g)Learned counsel for the corporation submitted that if on the

ground of irregularity, if any, the plaintiff is granted the order

of reconstruction at this stage, it would amount to getting

(1907) I.L.R. 35 Cal.61

(2024) 9 SCC 94

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unjust gain by the court's order. To support this submission,

the learned counsel for the corporation relied upon the

decision of the Apex Court in the case of Goa State

Cooperative Bank Limited vs. Krishna Nath A (Dead)

Through Legal representatives and Others3.

(h) Learned counsel for the corporation submitted that a

drastic relief of reconstruction at this stage would amount

to the grant of final reliefs in the suit. At the interim stage,

the plaintiff would not be entitled to a relief of mandatory

injunction. Since demolition work was carried out due to the

non-cooperation on the part of the plaintiff, he would not be

entitled to any equitable relief. A mandatory injunction in

such a form can be granted only in exceptional and rare

cases. To support his submissions, learned counsel relied

upon the decision of this court in the case of Mumbai

Municipal Corporation of Greater Mumbai vs. Sushilaben I

Patel4. He submitted that this court has taken a view that

mere illegality would not warrant such a drastic order

unless it was established that the action was a malafide

action done with any ulterior purpose to defeat the claim.

(2019) 20 SCC 38

SCC OnLine Bom 954

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(i) Learned counsel for the corporation relied upon the well-

established legal principles on the grant of mandatory

injunction as settled by the Hon'ble Apex Court in the case

of Dorab Cawasji Warden vs. Coomi Sorab Warden and

Others5. He submitted that the plaintiff's grounds for a

mandatory injunction do not satisfy the guidelines issued

by the Hon'ble Apex Court. The present case cannot be

termed as an exceptional case warranting the grant of any

drastic relief of mandatory injunction.

(j) If granted, the mandatory relief sought by the plaintiff would

jeopardise the rights of 208 occupants who are to be

rehabilitated under the redevelopment scheme. Thus,

neither equity nor balance of convenience falls in the

favour of the plaintiff. Thus, according to the learned

counsel for the Corporation, this is not a case for granting

drastic relief of mandatory injunction.

9. To consider the submissions made by both parties, I have very

carefully gone through the entire record of the appeal. I have also

permitted the learned counsel for the corporation to place on record

the copies of internal communication dated 3 rd January 2024 and

(1990)2 SCC 117

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the letter dated 11th October 2023 issued by the developer, and

copies of the circulars, though the same, were never produced

before the trial court. The reply filed by the corporation is bereft of

any explanation that would support the corporation's action as

sought to be relied upon based on the internal communication dated

3rd January 2024 and the circulars.

10. A perusal of the order dated 18 th October 2023, clearly

indicates that the direction to the plaintiff to vacate the suit structure

within seven days was not a final notice to the plaintiff. The order of

the corporation clearly records that the terms and conditions of the

letter of intent, including the indemnity bond by the developer, were

to be submitted. The order records the plaintiff's entitlement to 538

sq.ft in the permanent rehab component. The Order further clearly

indicates that after seven days, if the suit structure is not vacated,

appropriate action under the MMC Act and the applicable circulars

would be adopted. Thus, on a plain reading of the directions of the

order dated 18th October 2023, there can be no doubt that the

plaintiff was never called upon to vacate the suit structure without

compliance with the other directions as issued in the order

regarding alternate arrangements.

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11. Admittedly, after the order dated 18 th October 2023, no

communication was served upon the plaintiff. The only letter relied

upon by the learned counsel for the corporation is the letter dated

11th October 2023, which, according to the learned counsel for the

corporation, is submitted by the developer with the corporation. I

have perused the letter. The letter is a conditional offer by the

developer to make a payment of Rs.35,000/- per month for alternate

accommodation to the plaintiff, provided the plaintiff submits legal

documents of the tenancy. The corporation has already approved

the plaintiff's entitlement to the permanent rehab component, and

accordingly, the plaintiff's name is included in Annexure II. Hence,

there is no question of the plaintiff submitting tenancy documents to

the developer. Thus, the said letter can, in no terms, be termed as

due compliance with the directions issued in the order of 18 th

October 2023. The letter relied upon by the learned counsel for the

corporation makes the corporation's intention clear that in the

absence of any arrangement for temporary alternate

accommodation, the corporation, in undue haste and with a

complete lack of sensitivity, has demolished the suit structure.

Reliance placed by the corporation on the developer's letter smacks

of malafide action. It is pertinent to note that after this letter the

order dated 18th October 2023 is passed for due compliance.

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12. I find it impossible to accept the submissions made on behalf

of the corporation that the action of demolition was pursuant to the

guidelines published by the circular dated 25 th May 2018, read with

the circular dated 17th November 2020. By the circular dated 25 th

May 2018, general guidelines are issued for declaring private and

municipal buildings as C-1 category (Dangerous, Unsafe), in line

with the guidelines issued by this court in Writ Petition (L) No. 1135

of 2014 and the guidelines circulated by the government regarding

the dangerous and dilapidated buildings. It is, therefore, difficult to

understand how the said guidelines would apply in the present

case. Even if, for the sake of arguments, it is accepted that the

guidelines were applicable, the guidelines provide for a complete

procedure of issuing notice under Section 354 of the MMC Act after

the initial procedure about structural audit report, etc., is completed.

Clause 1.08 provides that a notice under section 354 to pull down

the structure with a time period of seven days shall be issued by

following due process. As per clause 1.10, after seven days notice

period, the action of disconnection of the water supply, electricity,

gas supply, etc. shall be initiated to safeguard and evacuate the

building. Thereafter, the procedure to evict follows. The relevant

guidelines thus indicate that even in the case of vacating the C-1

category, building safeguards are provided under the circular. Thus,

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even in case of exigency, the relevant basic principles of natural

justice are required to be followed as per the guidelines of giving

notice of eviction and demolition.

13. By the circular dated 17th November 2020, revised procedural

guidelines are issued for the redevelopment of municipal tenanted

properties. Even this circular provides for appropriate provisions for

providing transit accommodation to the tenants till the completion of

the rehab building by the developer. Clause (g) of the circular dated

17th November 2020 reads as under:

" G) Vacating of dilapidated building:-

i. After receipt of IOD/CC, it shall be the responsibility of

the developer, to provide transit accommodation to the

tenants/occupants till completion of the rehab building;

either providing in-situ Transit Camp or providing rent of

the premises during the transit period.

Developer shall open "Escrow Account' & deposit one

year's rent in that 'Escrow Account' before vacating the

existing building. And further rent should also be

deposited in advance two months before the expiry of

the period, for further one year & so on till completion of

the project. In nutshell, Developer shall ensure

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depositing the rent in advance in the 'Escrow Account'

as above till completion of the project.

ii. Developer/Society shall submit the details of such

'Escrow Account' to AO (Society) who shall monitor the

issue of transit rent to avoid delay and bring the delay, if

any, to the notice of AC (Estate) so that preventive

action is taken.

iii. Developer and/Society has then to get vacated the

dilapidated buildings categorized C1 and C2A as per the

Structural Auditor's report immediately (but not later than

one month, in any case) on receipt of LOI.


      iv.      In case of non-co-operation of tenant to vacate the

               premises        even      after     providing            rent/transit

accommodation, same shall be brought to the notice of

Assistant Commissioner of ward with proofs of providing

alternate accommodation or transit rent. In such cases,

Assistant Commissioner of Ward shall initiate action on

non-co-operative tenants as per the guidelines dated

25.05.2018 for declaring private and municipal buildings

as C1 cateogry (Dangerous, unsafe). Also action under

section 105B of MMC Act, 1988, for cancellation of

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tenancy will be initiated by Assistant Commissioner of

Ward.

v. The Developer has to repair the buildings as per the

report of Structural Auditor till the time it gets vacated in

case of C2A buildings. Developer shall also provide

propping and to take all safety measures, the

Developer/Society will be solely responsible to take all

safety measures, vacate and repair of the dilapidated

buildings once the LOI is issued.

vi. In case of failure to take necessary action in respect of

dilapidated building even on intimation, within

reasonable time, LOI issued will be cancelled.

vii. If there are any complaints before any statutory forum or

any litigation before any Court of Law, relating to the

redevelopment project, structural audit, repairs, eviction,

demolition of structures, non-payment of rent/alternate

accommodation etc. entire direct and indirect cost

incurred by MCGM on this shall be borne by

Society/developer and shall be paid to MCGM on raising

demand to that effect.

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14. The circular thus provides for the arrangement of transit

accommodation before taking action, even in the case of non-

cooperating tenants. The circular refers to the guidelines dated 25 th

May 2018 for the purpose of evicting non-cooperating tenants.

Thus, both the circulars relied upon by the learned counsel for the

corporation refer to following basic principles of natural justice of

intimating occupants to vacate the structure and an obligation on

the part of the developer to provide alternate transit accommodation

and payment of transit rent. Thus, even as per the guidelines relied

upon by the Corporation, before taking any action for demolition,

arrangement of transit accommodation and action of eviction must

be followed. In the present case, neither the steps were taken to

evict the plaintiff nor any intimation was given for demolition.

15. In the present case, except for a vague letter dated

11th October 2023 by which the developer has given a conditional

offer to make payment, admittedly, no provision is made for the

plaintiff for transit rent or transit accommodation. Thus, the

guidelines relied upon by the learned counsel for the corporation

itself is sufficient ground to hold that without following due process

and without any intimation to the plaintiff, the officers of the

corporation, in unholy haste, demolished the plaintiff's structure on

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the same day in the morning when the officers were already put to

notice that the plaintiff would make an application for relief from the

court.

16. The legal principles for granting a mandatory injunction are

well settled in the decision of the Hon'ble Apex Court in the case of

Dorab Cawasji Warden. The relevant guidelines for granting a

mandatory injunction are summarised in paragraphs 16 and 17,

which read as follows:

"16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

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(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief.

17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."

emphasis applied

17. The aforesaid peculiar facts of the case clearly show that the

corporation's officers have shown a complete lack of sensitivity

while proceeding with the demolition of the structure which the

plaintiff used for providing food and shelter to the cancer patients

undergoing treatment in Tata Memorial Hospital. In a city like

Mumbai, it is very difficult to get temporary shelter. Thus, I have no

doubt in holding that the action of demolition has not only deprived

the plaintiff of his rights but also deprived the cancer patients of their

right to temporary shelter at the time of taking treatment.

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18. Though the learned counsel for the corporation disputes that

the plaintiff is carrying out the activity of providing food and shelter

to the cancer patients, I see no reason to disbelieve the plaintiff's

contention. Till date, there is never any notice issued to the plaintiff

regarding the activities carried out by the plaintiff. A plain denial in

the reply would not be sufficient to disbelieve the plaintiff's

contention in the absence of any material on record that the plaintiff

is not carrying out such noble charitable activity. Even otherwise,

the plaintiff is highhandedly deprived of using his structure, which is

held eligible for permanent rehab in the redevelopment project.

19. Under Article 51-A of the Constitution of India, it is a

fundamental duty of every citizen to follow and abide by the laws.

The corporation's officers are bound by the provisions of the MMC

Act. They are under obligation to follow the process of law in its true

spirit. The propriety of the law and the peculiar facts of this case

demand justice by granting relief as prayed by the plaintiff.

20. This is indeed a rare and exceptional case where the grant of

mandatory injunction must be issued in favour of the plaintiff. Not

granting an injunction would amount to putting a premium on the

high-handedness and arbitrary action of the corporation's officers. In

the present case, the trial court has ignored the well-settled

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principles of law for granting mandatory injunction. Not exercising

the discretion to grant relief of injunction in such gross facts would

amount to refusing the relief on unreasonable grounds. Thus, the

view taken by the learned Judge of the City Civil Court is palpably

incorrect and untenable.

21. Learned counsel for the corporation fairly admitted that the

notice contemplated under Section 488 of the MMC Act was not

issued. Hence, according to the learned counsel for the corporation,

the action of demolition would, at the most, amount to irregularity. In

the absence of compliance with the directions issued by the order

dated 18th October 2023, I have no manner of doubt that the

corporation's officers have acted high-handedly and arbitrarily for

the reasons best known to them. Unholy haste shown on behalf of

the corporation officers to demolish the structure without any

intimation, and on the day when the plaintiff was to pray for interim

relief before the court after notice to the corporation, smacks of

malafides and arbitrariness. Internal communication dated 3 rd

January 2024 relied upon to show the directions for demolition, has

a peculiar wording. The communication dated 3 rd January 2024

signed by the Estate Officer and approved by the Assistant

Commissioner on 3rd January 2024, records that "आज दि .

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04.01.2024 रोजी पोलीस बं ोबस्त उपलब् झालेला आहे." Thus, it appears

that a hasty note dated 3 rd January 2024 was prepared on 4 th

January 2024 to carry out demolition even before the plaintiff could

move the court for urgent relief.

22. Thus, the well-settled triple test for the grant of discretionary

relief is satisfied in favour of the plaintiff. The plaintiff has proved a

prima facie case of his entitlement to a permanent rehab component

in terms of Annexure II. The only dispute is regarding the actual

area. The actual area for permanent rehab is not an issue under

consideration in this appeal. However, the documents and, more

particularly, the measurement recorded as per the letter dated 16 th

October 2023 is clear that the plaintiff was occupying an area of

1319.97 sq.ft. I have also recorded that the plaintiff and the cancer

patients who were provided shelter in the suit structure have been

deprived of their right to shelter. Hence, there is no doubt that there

is an irreparable loss to the plaintiff if the injunction is not granted. In

view of the reasons recorded, it is also clear that the balance of

convenience is in favour of the plaintiff. Thus, the impugned order

requires interference by this court.

23. The legal principles relied upon by the learned counsel for the

corporation in the decision of this court in the case of Sushilaben

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Patel would not be of any assistance to the arguments raised on

behalf of the appellant. The observation by this court regarding the

grant of mandatory relief in the case of the action of demolition

being malafide supports the plaintiff's case. It is unfortunate that the

learned counsel for the Corporation has relied upon the legal

principles in the decision of Goa State Cooperative Bank Limited

and submitted that a person should not get unjust gain by the

court's order. The question involved in the decision of the Apex

Court was whether, under the provisions of Section 109 of the

Maharashtra Cooperative Societies Act 1960, on expiry of the

period fixed for liquidation, the proceedings for recovery of dues

instituted/pending as against the members shall stand closed. In

view of the facts of the case regarding the loan granted to the

members of the society, the Hon'ble Apex Court observed that a

person who has liability, cannot be permitted to reap the advantages

on the basis of interim orders of the court. Thus, it was observed

that no one should be allowed to use the judicial process for earning

undeserved gains or unjust profits. In the gross facts of the present

case, where the Corporation's officers have highhandedly and

arbitrarily demolished the plaintiff's structure, it is unfortunate that

instead of rectifying the action, such unfair and unreasonable

submissions are made by the Corporation.

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24. In the facts and circumstances of the case as discussed

above, and for the reasons recorded above, I do not find any

substance in the arguments made on behalf of the Corporation that

the action of the officers would, at the most, be an irregularity and

thus, the plaintiff would not be entitled to a mandatory injunction as

prayed. I have recorded reasons to hold that the Corporation's

officers failed to follow the basic principles of natural justice and

have shown complete disregard towards their fundamental duties by

not following the prescribed procedure under the MMC Act and the

guidelines issued by the Corporation. Therefore, the legal principles

settled in the decision of the Calcutta High Court and in the decision

of the Hon'ble Apex Court in the case of Al-Can Export Private

Limited, are of no assistance to the arguments made on behalf of

the Corporation. The decision of the Calcutta High Court was

concerning non-compliance with Section 99 of the Transfer of

Property Act. The decision of the Hon'ble Apex Court concerns the

recovery of debts and the auction sale conducted for recovering

dues. Hence, I do not find any substance in the arguments made by

the learned counsel for the Corporation, by relying upon the said

decisions.

25. For the reasons recorded above, I am convinced that the

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action of demolition in this case is highly arbitrary and malafide, as

no due process has been followed. Hence, the plaintiff is entitled to

restoration of the status quo ante. However, the fact that the grant

of mandatory injunction to reconstruct is likely to affect the

redevelopment process where the rights of 208 occupants are also

involved cannot be ignored. Hence, to balance the equities, the

reliefs prayed by the plaintiff can be modified by directing the

corporation to provide a temporary alternate accommodation

equivalent to the area that was occupied by the plaintiffs, i.e.

1319.97 sq.ft as recorded in the letter dated 16 th October 2023 in

the same vicinity. The noble activities carried out by the plaintiff to

provide food and shelter to cancer patients undergoing treatment at

Tata Memorial Hospital are important factors to be considered when

providing temporary alternate accommodation. Hence, the plaintiff is

entitled to temporary alternate accommodation in the equivalent

area in the same vicinity. However, I find it necessary to clarify that

the grant of any temporary alternate accommodation of the

equivalent area would have no effect on the entitlement of the

plaintiff for the permanent rehab component, which will be decided

in accordance with the law in the implementation of the

rehabilitation scheme under DCPR 2034 as applicable under the

redevelopment scheme. Hence, the appeal deserves to be allowed

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by issuing necessary directions to the corporation to provide

temporary accommodation.

26. The aforesaid facts of the case indicate that in the absence of

any due process, the corporation's officers high-handedly, arbitrarily

and insensitively demolished the plaintiff's structure. Hence, the

appeal deserves to be allowed with costs. Considering the gravity of

the illegal action taken by the corporation, the cost in favour of the

plaintiff can be quantified at Rs. 2,00,000/- which shall be paid by

the corporation. The corporation would be at liberty to recover the

amount of costs from the erring officers.

27. Hence, for the reasons recorded above, the appeal is allowed

by passing the following order :

(i) The order dated 26th June 2024 passed in L.C. Suit

No. 73 of 2024 is quashed and set aside.

(ii) The corporation shall provide temporary alternate

accommodation for an area equivalent to 1319.97

sq.ft in the same vicinity to the plaintiff within four

weeks from today.

(iii) It is clarified that temporary alternate accommodation

will be provided till the handing over of the permanent

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rehab component to the plaintiff as permissible under

the redevelopment scheme.

(iv) The plaintiff would be entitled to the temporary transit

accommodation only till the rehab component is

offered to the plaintiff by following the necessary

procedure under the rehabilitation scheme.

(v) The corporation shall pay the amount of

Rs.2,00,000/- towards the cost of litigation to the

plaintiff. Costs shall be paid directly to the official

representative of the plaintiff within four weeks from

today.