[Cites 5, Cited by 0]
Bombay High Court
Mr.Alok Mahavir Prasad Dalmia vs Municipal Corporation Of Greater ... on 2 December, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:52638
22. AOST-28489-25.docx
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO. 28489 OF 2025
WITH
INTERIM APPLICATION (ST) NO. 28490 OF 2025
IN
APPEAL FROM ORDER (ST) NO. 28489 OF 2025
Alok Mahavir Prasad Dalmia Appellant
.. (Org. Plaintiff)
Versus
Municipal Corporation of Greater Mumbai and Respondents
Anr. .. (Org. Defendants)
....................
Mr. Vaibhav Sugdare a/w Mr. Shubham Mishra i/by Mr. Ashok
Mishra, Advocates for Appellant.
Mr. S.U. Kamdar, Senior Advocate a/w. Ms. Neeta Jadhav i/by Ms.
Komal Punjabi for Respondent No.1 - BMC.
Mr. Chirag Mody a/w Mr. Munaf Virjee i/by AMK Law, Advocates
for Intervenor(s)
Mr. Girish Godbole, Senior Advocate a/w Mr. Yash Momaya i/by
Shailendra Mishra and Associates, Advocates for Respondent No.2.
....................
CORAM : MILIND N. JADHAV, J.
DATE : DECEMBER 2, 2025
P. C.:
1. Heard Mr. Sugdare, learned Advocate for Appellant; Mr.
Kamdar, learned Senior Advocate for Respondent No. 1 - BMC; Mr.
Godbole, learned Senior Advocate for Respondent No. 2 and Mr. Mody,
learned Advocate for Intervenors.
2. On 18.11.2025 after hearing learned Advocates appearing for
the parties the following order was passed:-
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"1. Heard Mr. Mishra, learned Advocate for Appellant; Mr.
Kamdar, learned Senior Advocate for Respondent No.1 - BMC; Mr.
Momaya, learned Advocate for Respondent No.2 and Mr. Virjee,
learned Advocate for Intervenor.
2. Appellant before me is the Plaintiff in the Trial Court. Suit
is filed in the year 2024 assailing notice under Section 353 of the
Mumbai Municipal Corporation Act, 1888 (for short 'MMC Act") in
respect of suit structure which is a ground + two storey building
on the premise that the said building is in a dilapidated stage in C-
1 category i.e. dangerous.
3. Mr. Mishra in his usual fairness informs the Court that
Plaintiff is not residing but he is entitled to atleast 1/3 rd share in
the building / property. Mr. Momaya espouses and cause of one of
the other co-owner. Mr. Mody appears for the other co-owner.
They both agree that Plaintiff has a share but refute the extent of
the share claimed by him. That is however not the issue before
me. Needless to state that right and entitlement of Plaintiff in the
suit property shall be decided by the Court in appropriate
proceedings.
4. Mr. Kamdar, learned Senior Advocate draws my attention to
the ex-parte order dated 14.08.2025 passed in the present Appeal
From Order which is the ad-interim order passed by this Court on
urgent circulation sought for on behalf of Appellant - Plaintiff. By
virtue of that order, ad-interim protection restraining the
Corporation from taking any further action is granted. Mr.
Momaya, Mr. Mody and Mr. Kamdar jointly informed the Court
that original ad-interim protection was granted by the learned
Trial Court sometime in the month of December 2024 and in that
view of the matter, if Appellant - Plaintiff was serious he would
have obtained a Structural Audit Report to determine the
structural stability of the building to challenge it been placed in C-
1 category. Mr. Momaya informs the Court that private
Respondents have conducted a structural audit of the building and
placed on record the Structural Audit Report which categorizes the
building as dangerous in C-1 category.
5. Mr. Kamdar in his usual fairness informs the Court that
Appellant could have obtained any report contrary thereto and if
that would have been the case the twin reports could have then be
sent to the TAC Committee in accordance with the procedure of
the Corporation so that a neutral structural audit could be then
carried out to determine the structural strength of the building.
6. What is intriguing is the silence on the part of Appellant -
Plaintiff for the past almost 1 year. Apart from mere pleadings, no
concrete steps have been taken by Appellant - Plaintiff for
obtaining any report whatsoever. Though Mr. Mishra would submit
that Appellant - Plaintiff had in the meanwhile appointed some
Agency / Auditor from the Sardar Vallabhbhai Patel Engineering
College but they have not taken any steps.
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7. The submissions made by Mr. Mishra prima facie do not
appeal to the Court at all. If Plaintiff is desirous and serious, it is
his duty to ensure that he obtains an appropriate Structural Audit
Report within a reasonable time and if he does not submit the
same, this Court cannot come to the aid of such a Plaintiff neither
the Court can allow such Plaintiff to enjoy the ad-interim relief
which he has been enjoyed for the past almost one year.
8. Today, Mr. Mishra informs the Court that Appellant -
Plaintiff is in a medical emergency and is in hospital. He fairly
informs the Court that Appellant - Plaintiff does not reside in the
Suit building. Infact the suit building is completely vacant as
informed by the learned Advocates at the bar. Mr. Mishra
persuades the Court to list the matter after two weeks and not pass
any coercive order today. I am not inclined to accept Mr. Mishra's
request but considering the fact that Appellant - Plaintiff is having
a medical emergency, I will grant Appellant - Plaintiff two weeks
time to obtain any Structural Audit Report and submit the same. If
the same is not obtained within a period of two weeks and
submitted in this Court, ad-interim order granted by this Court on
14.08.2025 shall stand automatically vacated without recourse to
the Court. All parties shall co-operate with Mr. Mishra's client and
the Auditor appointed by him to obtain the Audit Report.
9. In the present case, Mr. Kamdar, learned Senior Advocate
points out that on 07.06.2024 notice was issued by the
Corporation to the Plaintiff for the first time and Plaintiff was
aware about the exigency of the issue. He would submit that
Plaintiff has kept silent since then and hence he does not deserve
any empathy from this Court. He would submit that Plaintiff
cannot take his own time in giving contrary report once he has
been intimated, he being one of the co-owners. That apart, report
which has been filed by other co-owners represented by Mr.
Momaya have objected considering the above timeline and
submitted that, Appeal From Order should be dismissed.
10. The submissions made above shall be considered by the
Court on the next adjourned date.
11. It is clarified that present Appeal From Order and Interim
Application shall be heard finally on the next adjourned date
which shall be noted by the Appellant - Plaintiff.
12. Stand over to 2nd December 2025. To be placed under the
caption 'First on Board'."
2.1. Today in compliance to the directions contained in the said
above order, Mr. Sugdare has been briefed to appear on behalf of
Appellant - Plaintiff. At the outset, he would reiterate and and re-
agitate the same submissions which were advanced by Mr. Mishra
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which were considered by Court and in addition he would persuade
the Court to consider the fact that in absence of Appellant not filing
any structural audit report, the Corporation which is the Planning
Authority should consider taking all further steps strictly in accordance
with law and should follow the due process of law.
3. It is prima facie seen that certain ad-hoc Guidelines given by
the Division Bench of this Court which have subsequently fructified
into the Guidelines issued by the Municipal Corporation of Greater
Mumbai as informed by Mr. Godbole across the Bar are already in
place. Needless to state that Corporation being the Competent
Authority and in exercise of its statutory powers under Section 351 of
the MMA Act, 1888 has to follow and follow the due process of law.
Today merely on apprehension expressed by Mr. Sugdare that
Corporation is acting at the behest of the co-owners is not enough for
the Court to take countenance of his clients grievances.
4. Mr. Sugdare has placed reliance on the decision of this Court in
the cases of Municipal Corporation of Greater Mumbai v. State of
Maharashtra1 and Gajanan Ramraoji Ambagovind & Ors. v. The
Corporation of the City of Nagpur & Ors.2 to contend that Competent
Authority while classifying the building is bound to conduct its own
independent inspection to determine the structure as C-1 category. He
1 Order dated 23.06.2014 passed in OS WP(L) NO. 1135 OF 2014
2 Judgment dated 23.06.2026 in Letters Patent Appeal No. 24 of 2006 (Nagpur Bench)
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would go to the extent of submitting that in the present case the said
exercise has not been complied with and the Corporation is acting at
the behest of the structural audit report given by the private Architect
appointed by the co-owner. According to me this submission is not
open to the Appellant at this stage considering the fact that the notice
under Section 351 was issued by Corporation in July 2024 and since
then it was always open to the Appellant as co-owner to bring any
structural audit report to oppose the case of the Corporation. It is
pointed out by Mr. Godbole that Appellant's wife is the co-owner
having a share in the suit property. Right of Appellant and locus to
question and file the suit is therefore under a cloud. Despite this in
view of the nature of the lis, Appellant is heard. It is further seen that
despite the structural audit report filed by the co-owners of the suit
property and having been served upon the Appellant, the Appellant
has time and again sought time from this Court which was granted by
Court beginning from the order passed sometime in December 2024.
Order was also passed by the Court in June 2025. Thereafter even
before this Court when the matter was heard two weeks ago i.e. on
18.11.2025, the aforesaid order was passed. Right of the Appellant
before me is not hampered in view of the submissions of the private
Respondents i.e. other co-owners which are noted in the above order.
The narrow issue before Court, inter alia, pertains to the structural
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stability of the suit structure. If the Appellant has been completely
helpless in not taking any steps whatsoever after the issuance of notice
under Section 351 of MMC Act for the past almost 18 months, this
Court neither the other co-owners of the building or the Corporation
can wait any further. Mr. Sugdare in his usual fairness informs the
Court that it is not feasible for the Appellant to obtain the structural
audit report though he has tried and is unwell. This Court only wishes
that said statement ought to have been made much earlier rather then
seeking time from the Court on several occasions to file the structural
audit report. Be that as it may nothing can be held against the
Appellant in view of the submissions made by Mr. Sugdare.
5. Reliance placed by Mr. Sugdare in the case of Gajanan Ramraoji
Ambagovind (supra) would not apply to the facts of the present case
especially in view of the fact that the TAC Committee report was the
bone of contention in that case which was decided by Court. The facts
in the present case are completely to the contrary. In the present case
despite giving a fair and reasonable opportunity, the Appellant failed
to obtain and place on record a contrary structural Audit Report to
enable the issue to be decided by TAC. Mr. Sugdare has persuaded me
to look at the photographs of the suit structure taken from outside i.e.
externally and determines that the suit structure is sound and stable as
it appears in the photographs. This is a very naive agreement and
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deserves to be dismissed in limine. This Court cannot fathom standard
stability of a building by looking at photographs. Its the job of an
expert. One opinion is already on record which classifies the structure
in C-1 category.
6. In view of the above observations and findings, it is needless to
state that Corporation shall follow the due process of law. Though Mr.
Sugdare would persuade me to specify the steps to be taken, I refrain
from doing so since this Court cannot interfere with the functioning of
the Corporation's due process of law which are governed by the
statute, rules and guidelines. All contentions of Appellant are
otherwise kept open. This order is dictated in open Court. At this
juncture Mr. Sugdare informs the Court that if the aforesaid order is
passed, the present Appeal from Order may be disposed of. In view of
Mr. Sugdare's statement and the above reasons, present Appeal from
Order is dismissed. Interim Application is also dismissed.
7. All parties to act on a server copy of this order downloaded
from the Bombay High Court website.
8. After this order is dictated and pronounced in open Court, Mr.
Sugdare would persuade me to stay the operation of the order in order
to challenge its legality and validity in the Supreme Court. Mr.
Godbole, learned Senior Advocate and Mr. Mody, learned Advocate
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appearing for the private Respondents i.e. co-owners of the property
oppose continuation of any stay in view of the fact that substantial
opportunity was given to Appellant and he not having taken any steps
now cannot seek redemption and ask for stay. It is seen that in view of
non-compliance of the direction and statement made by Appellant that
he is unable to comply with the directions contained therein, the ad-
interim protection granted to Appellant stands automatically vacated.
In that view of the matter I am not inclined to accept the request of
stay made by Mr. Sugdare. His request stands declined.
Amberkar [ MILIND N. JADHAV, J. ]
RAVINDRA RAVINDRA
MOHAN AMBERKAR
AMBERKAR Date: 2025.12.03
12:36:35 +0530
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