[Cites 8, Cited by 0]
Bombay High Court
Shiv Siddhi Vinayak Chs Limited And ... vs Municipal Corporation Of Greater ... on 15 December, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:55053
3.AOST.30859.2025.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO. 30859 OF 2025
WITH
INTERIM APPLICATION (ST) NO. 30861 OF 2025
WITH
INTERIM APPLICATION (ST) NO. 30862 OF 2025
IN
APPEAL FROM ORDER (ST) NO. 30859 OF 2025
Municipal Corporation of Greater Mumbai Appellant
.. (Orig. Defendant)
Versus
Kalpita Enclave Co-operative Housing Society Respondents
and Ors. .. (Orig. Plaintiffs)
WITH
INTERIM APPLICATION NO. 13090 OF 2025
IN
APPEAL FROM ORDER (ST) NO. 30859 OF 2025
Panom Developers LLP .. Applicant
IN THE MATTER BETWEEN:
Municipal Corporation of Greater Mumbai Appellant
.. (Orig. Defendant)
Versus
Kalpita Enclave Co-operative Housing Society Respondents
and Ors. .. (Orig. Plaintiffs)
WITH
INTERIM APPLICATION (ST) NO. 36164 OF 2025
IN
APPEAL FROM ORDER (ST) NO. 30859 OF 2025
Shiv Siddhi Vinayak CHS Ltd. and Ors. Applicants /
.. Intervenors
IN THE MATTER BETWEEN:
Municipal Corporation of Greater Mumbai Appellant
.. (Orig. Defendant)
Versus
Kalpita Enclave Co-operative Housing Society Respondents
and Ors. .. (Orig. Plaintiffs)
1
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3.AOST.30859.2025.doc
....................
Mr. Drupad Patil a/w. Mr. Vagale and Ms. Neeta Jadhav, Advocate
i/by Ms. Komal Punjabi for Appellant - Municipal Corporation of
Greater Mumbai.
Mr. Rohan Savant a/w. Mr. Sushil Singh, Advocate i/by Mr.
Abhijeet Mahadeokar for Respondent Nos.1, 2 and 3 (Plaintiffs) in
Appeal From Order.
Mr. Vijay Sharma, Advocate for Applicants - Intervenors in Interim
Application (St.) No.36164 of 2025.
Mr. Vishal Kanade a/w. Mr. Maulik Vora, Advocates i/by
Pramodkumar & Co. for Applicant in Interim Application No.13090
of 2025.
....................
CORAM : MILIND N. JADHAV, J.
DATE : DECEMBER 15, 2025.
JUDGMENT:
1. Heard Mr. Patil, learned Advocate for Appellant - Municipal
Corporation of Greater Mumbai; Mr. Savant, learned Advocate for
Respondent Nos.1, 2 and 3 (Plaintiffs) in Appeal From Order; Mr.
Sharma, learned Advocate for Applicants - Intervenors in Interim
Application (St.) No.36164 of 2025 and Mr. Kanade, learned Advocate
for Applicant in Interim Application No.13090 of 2025.
2. Present Appeal From Order is filed by Appellant - Municipal
Corporation of Greater Mumbai (for short 'Corporation') i.e. Original
Defendant to challenge order dated 31.07.2025 passed by City Civil
Court, Borivali Division, Dindoshi, Goregaon, Mumbai in Notice of
Motion No.315 of 2025 in L.C. Suit No.2032 of 2023 partly allowing
the said Notice of Motion and injuncting the Corporation from taking
any action against the Suit structures i.e. security cabin, entrance gate
3.AOST.30859.2025.doc
and MS tin sheet Gate until completion of development and
construction of road measuring 13.40 meters as per Development Plan
and as per the directions of this Court by order dated 03.10.2023 in
Appeal From Order No.811 of 2023. Corporation's case is that without
considering material facts and documents on record, the impugned
order is passed restraining Corporation from complying with directions
contained in order dated 03.10.2023 passed by this Court in previous
proceedings. Order dated 03.10.2023 is the precursor order which is
the subject matter of interpretation and dispute.
3. Interim Application No.13090 of 2025 is filed by Panom
Developers LLP seeking intervention in the present Appeal From Order
being an interested party seeking to set aside the impugned order
dated 31.07.2025. Panom Developers LLP is the Developer of the
adjoining plot who has completed a SRA scheme successfully on the
said plot. Interim Application (St.) No.36164 of 2025 filed Shiv Siddhi
Vinayak Co-operative Housing Society Ltd. 7 Co-operative Housing
Societies and one (1) Tenant Association seeking to intervene and
challenge the impugned order being aggrieved with the inaction and
failure of the Corporation to open up the connector DP road between
Sahar Road and Sai Mandir Road at Andheri (East) which is already
acquired by the Corporation and now stands developed.
3.AOST.30859.2025.doc
4. Mr. Patil, learned Advocate for the Corporation being
aggrieved with the impugned order would submit that Plaintiffs were
directed to retain the impugned structures only till the time
Corporation completes development and construction of the DP Road
on the adjoining plot. He would draw my attention to the order dated
03.10.2023 to contend that this Court has not contemplated that
development and construction of the road line has to be completed
having width of 13.40 meters in the directions given by Court.
4.1. He would submit that Trial Court has incorrectly and
wrongly interpreted directions in the order dated 03.10.2023 while
passing the impugned order by observing that unless and until the
13.40 meters wide DP road is constructed, the impugned structures
would stand protected. He would submit that order dated 03.10.2023
is completely bereft of the width of the road and all that it directs is
construction and development of DP Road and handing over the same
by the Developer developing the adjacent SRA plot to the Corporation.
4.2. He would submit that once that is done, there is no reason
whatsoever for Plaintiffs to persist with impugned strictures and on
intimated by the Corporation Plaintiffs have to abide by the directions
contained in the order dated 03.10.2023 and remove the three (3)
obstructing structures within two weeks thereof.
3.AOST.30859.2025.doc
4.3. He would submit that the intent and purpose of the order
dated 03.10.2023 has not been considered at all by the Trial Court
while passing the impugned order and therefore the impugned order is
prima facie not justifiable on the face of record. He would submit that
Trial Court was provided with not only photographs but a video
recording of the construction and development of the fact that the said
public road was now fully developed and completed on the adjoining
plot right up to the entrance gate of the Plaintiffs' - Societies, despite
which it has been incorrectly observed that the said road is not
completed as per the DP Plan having width of 13.40 meters for the
entire stretch.
4.4. He would submit that Trial Court got swayed with the
observations made in the order dated 02.05.2024 which for the first
time referred to 13.40 meters wide road and has passed the impugned
order. He would submit that since the road is fully developed and
completed, it would serve as a great relief to all Societies adjacent and
adjoining to the said road as also it would serve as connector / feeder
road between Sahar Road and Sai Mandir Road to ease traffic and
pedestrian congestion for the benefit for the public at large. He would
submit that the stand of Plaintiffs is obstinate and against development
of the area and against public interest despite Plaintiffs having enjoyed
the fullest FSI potential of the subject road for development of its
buildings in its layout and having utilized the same fully, the conduct
3.AOST.30859.2025.doc
of Plaintiffs to refrain from removing the obstructions and hand over
the road area is not only contrary to law, but deserves to be strictly
censured by this Court. Hence she would urge the Court to quash and
set aside the impugned order.
5. Submission and grievance of Respondent Nos.1 to 3 i.e.
Original Plaintiffs which are three (3) Societies is that unless and until
the Corporation develops and constructs the entire stretch of DP Road
measuring 13.40 meters in width from Sahar Road to Sai Mandir Road
the impugned structures i.e. security cabin, entrance gate and MS tin
sheets put up by them right in the middle of the road cannot be
removed in view of the directions passed by this Court in the order
dated 03.10.2023.
5.1. Mr. Savant, learned Advocate appearing for Original
Plaintiffs (Respondent Nos.1 to 3) would vehemently submit that
Original Plaintiffs have suffered since inception and have been in
continuous litigation at the hands of the Corporation due to their
connivance and collusion with the erstwhile Developer M/s. Kiran
Builders Private Limited who developed and constructed their
properties and now present Developer namely Panom Developers LLP
(herein after referred to as 'Intervenor').
5.2. In reply to Corporation's case he would submit that the
Developer who has developed the adjacent plot has taken undue and
3.AOST.30859.2025.doc
extraordinary advantage of the lacunae and loopholes in Development
Control Regulations 1967 and 1991 and now the present DCPR 2034
to the detriment of Original Plaintiffs. He would submit that Plaintiffs
filed Suit No.2032 of 2023 in the City Civil Court to challenge notice
dated 14.08.2023 issued under Section 314 read with Section 394 of
the Mumbai Municipal Corporation Act, 1888 (for short 'MMC Act')
requiring removal of the entrance gate, security cabin (on north side)
and MS tin sheets fencing structure (on the south side) which
according to Plaintiffs are protected structures and according to the
Corporation were erected on a public street / premises which was DP
road shown / reserved in the Development Plan.
5.3. He would vehemently argue that Respondent No.1 Society
comprises of 10 buildings which were originally constructed by M/s.
Kiran Builders Private Limited on a leasehold plot ad-measuring
21,736 square meters as per sanctioned and approved layout plan from
time to time as one composite layout plot and Occupation Certificate
(for short 'OC') was granted to these buildings in the year 1977 and
1980. He would submit that entire FSI available was utilized by the
Developer for development and since then the entrance gate and
security cabin have been installed and are in existence.
5.4. He would submit that MS tin sheets fencing was erected by
Plaintiffs on the southern end compound wall which was deliberately
3.AOST.30859.2025.doc
demolished by Panom Developers LLP (Intervenor) who was
developing the adjoining plot some time in April 2023. He would
fairly submit that from record it is clear that Plaintiffs executed
Agreement dated 15.02.1984 in favour of Corporation for grant of land
ad-measuring 2200 square meters bearing CTS No.35 for 44' wide DP
road under the Development Plan in lieu of 100% FSI to be granted to
Plaintiffs as per Regulation 10(2) of DCR, 1967. He would submit that
in that view of the matter and Agreement having been executed
Corporation sanctioned and issued IOD and CC for construction of 'L'
and 'M' building of the Plaintiffs. He would fairly submit that the FSI
of the said DP Road has already been utilized by Plaintiffs, but the time
to hand over the DP Road has not yet arrived in view of the fact that
Corporation has not developed the entire stretch of DP road having
uniform 13.40 meters width and until the same is done, the Suit
structures cannot be removed or demolished. He would vaguely argue
that though initially Corporation claimed to be owner in respect of the
road land ad-measuring 1859 square meters out of CTS No.35C that
was conveyed by Plaintiffs to Corporation however Corporation did not
take steps to convert the said internal access road into a 44' wide DP
Road which was mandatorily required under Section 306 of the MMC
Act. He would submit that for converting it into a public road it
required mandatorily laying down sewers, drains, street lights, trees
etc.
3.AOST.30859.2025.doc
5.5. He would submit that for the past several years, Plaintiffs
have incurred costs for laying and maintaining the sewers, drains,
street lights for the said road. He would submit that though according
to Plaintiffs the said road area was deleted from the Development Plan
of 1991, however since Corporation has acquired it, it claims to be
owner of the road area ad-measuring 1859 square meters and it is
claimed as a public road / public street. He would fairly inform the
Court that in the year 2005, Corporation issued notices under Section
297 of the MMC Act to Plaintiff No.1 - Society, copies of which are
appended to the page Nos.634 to 637 of the Appeal From Order due to
which the main entrance gate and security cabin was shifted behind by
1.52 meters / 5 feet, to facilitate the widening of Sahar Road by 10
feet. He would submit that issuance of these notices and the action
taken thereafter clearly confirm the fact that Suit structures were in
existence at the then time and said road was not a public road.
5.6. He would submit that it is only in 2023 that notice dated
14.08.2023 was received by Plaintiffs for taking over possession of the
road area and the same was therefore challenged by Plaintiffs by filing
Suit No.2032 of 2023. He would fairly submit that Plaintiffs' Notice of
Motion was rejected by order dated 14.09.2023 which promoted the
Plaintiffs to file Appeal from Order No.811 of 2023 to challenge the
said order. He would submit that in the Appeal from Order which was
heard by this Court, order dated 03.10.2023 was passed by virtue of
3.AOST.30859.2025.doc
which the main entrance gate, security cabin and MS tin sheets fencing
were protected by this Court until such time that the Corporation
completed development and construction of the DP road on the
adjoining plot of land and Court directed that once such development
and construction was completed Corporation shall intimate Plaintiffs,
who shall remove all 3 structures within two weeks of such intimation.
5.7. He would argue that the aforesaid order is the order under
which the Plaintiffs are seeking protection. He would submit that the
time has not arrived for Plaintiffs to remove the 3 structures as
directed by this Court in the aforesaid order. He would submit that
despite this, Corporation issued second notice dated 02.02.2024, inter
alia, contending that Intervenor namely Panom Developers LLP has
handed over advance possession of setback land ad-measuring 13.40
meters road line passing through its SRA Scheme and Corporation has
undertaken work of construction of road from Sahar Road through
Jeevan Vikas Marg to Sai Mandir Road and the people residing in the
nearby areas are facing a lot of inconvenience for vehicular as well as
pedestrian traffic and therefore the said public road is required to be
opened up and called upon Plaintiffs to remove their obstructing
structures.
5.8. One of his submission is that in the second notice
Corporation has not intimated that construction and development of
3.AOST.30859.2025.doc
the road which they were required to complete in terms of directions
contained in the order dated 03.10.2023 has been completed. Hence
he would argue that since the order dated 03.10.2023 is not complied
and construction and development of the 13.40 meter DP road is not
completed, Trial Court has passed the impugned order correctly
directing Corporation to first comply with the specific directions of this
Court in order dated 03.10.2023 and complete construction and
development of 13.40 meter wide DP road on either side of the
impugned structures and once that is completed and functional,
Corporation can call upon Plaintiffs to remove the impugned
structures.
5.9. He would submit that the same position existed in April
2024 when Plaintiffs' Interim Application No.8225 of 2024 was heard
by this Court and by order dated 02.05.2024 (Coram: R.N. Laddha, J.)
Court observed that construction of road of 13.40 meters was not
complete and hence there would be stay to the notices dated
14.08.2023 and 02.02.2024.
5.10. He would submit that in the above background, Plaintiffs
filed Notice of Motion No.315 of 2025 seeking urgent relief in respect
of the impugned notices dated 14.08.2023 and 02.02.2024 issued by
Corporation and after hearing parties order dated 31.07.2025 is passed
restraining Corporation from demolishing the impugned structures
3.AOST.30859.2025.doc
until completion of development and construction of 13.40 meters
wide DP road in compliance with directions contained in order dated
03.10.2023.
5.11. He would submit that even Corporation's own Affidavit
dated 12.06.2024 and its written statement dated 28.01.2025, reflects
that Corporation has completed construction of the road on either side
of the impugned structures to the extent of having an average width of
10.84 square meters only. He would submit that there is no uniformity
in the development and construction of the DP road on either side of
the impugned structures which are situated in the middle of the road
line. He would submit that unless and until the said road is uniformly
developed and constructed having 13.40 meters width for the entire
stretch, the impugned structures cannot be removed since an
incomplete road is practically unusable and defeats the very purpose
and intent of the direction issued by this Court.
5.12. That apart he would submit that action of Corporation is
only at the behest of Intervenor Developer and in connivance and
collusion with various other Societies in the vicinity who are seeking to
force open the DP Road despite the same not having been fully
developed. He would submit that Corporation appears to be acting
with unusual haste and alacrity to demolish the protected structures
only for the benefit of Developer who has developed the adjacent SRA
3.AOST.30859.2025.doc
Scheme plot and by opening the said DP Road it would largely benefit
the said SRA Scheme. He would submit that Developer namely Panom
Developers LLP has directly approached this Court in the present
Appeal From Order and has no locus to intervene in the present
dispute between the Plaintiffs and Corporation.
5.13. That apart, he would submit that the other Intervenors who
are Co-operative Housing Societies in the vicinity of Plaintiffs also have
no locus in the prevailing dispute between the Plaintiffs and
Corporation since lis pertains to privity with the Corporation and
unless and until Corporation constructs and develops 13.40 meters
wide DP Road as per Development Plan, the impugned structures
deserve to be protected.
6. Mr. Kanade, learned Advocate appearing on behalf of the
Intervenor namely Panom Developers LLP would submit that Applicant
is implementing a SRA Scheme on the plot adjacent to the Plaintiffs for
which permissions, sanctions and approvals for construction of
buildings are granted by the Planning Authority on the basis that there
is an existing road line / land access starting from Sai Mandir road
passing through Applicant's property and thereafter from Plaintiffs'
property upto Sahar Road.
6.1. He would submit that Applicant's proposal of Slum Scheme
consists of 9 buildings including a building of ground + 8 upper floors
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reserved for the Corporation for a Municipal Primary School and
Municipal dispensary. He would submit that as per the requirement of
Corporation, Applicant has covered the nalla passing through its
property having length of 300 meters by having constructed culvert
boxes thereon and has constructed a proper road with vehicular access
which forms part of the DP road.
6.2. He would submit that Applicant has complied with all
formalities for construction of public road and already handed over the
same to the Corporation. He would submit that reference of the
adjoining plot of land in order dated 03.10.2023 passed in Appeal
From Order No.811 of 2023 is to the Applicant's property. He would
submit that at the time of passing of said order the portion of road area
on Applicant's property was not ready and completed and hence the
said directions were given. He would submit that however upon
construction and completion thereof and Applicant having handed over
possession thereof to Corporation, the Corporation by its letter / notice
of intimation dated 02.02.2024 called upon Plaintiffs to remove the
illegal structures in accordance with the direction in the order dated
03.10.2023 which the Plaintiffs have refused.
6.3. He would submit that the average width of public road
which is passing through Applicant's property is 10.84 meters sufficient
to have vehicular access and as such an unhindered and connectivity
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can be established from Sai Mandir Road to Sahar Road. He would
submit that upon the public road being put to use by public at large,
presently 1500 families in the vicinity of Sai Mandir Road will be
benefited and further nearby 600 families who have purchased / shall
purchase premises in Applicant's slum scheme will also be benefited.
Hence, he would urge the Court to step in and vacate the impugned
order and allow Corporation to remove the obstructions i.e. the suit
structures so that the public DP road is opened up in public interest.
7. Mr. Sharma, learned Advocate appearing for Intervenors -
Shiv Siddhi Vinayak CHS and 8 others in Interim Application (St.)
No.36164 of 2025 would submit that Applicants have filed Interim
Application for being added as Respondents to the Appeal From Order
and/or to be heard at the time of hearing of the Appeal From Order.
He would submit that Applicant Nos.1 to 8 are the Co-operative
Housing Societies and Applicant No.9 is a Tenants' Association, who
are situated near Sai Mandir Road off Jeevan Vikas Kendra Road. He
would submit that Applicants represent approximately 650 families /
resident families in the area.
7.1. He would submit that Applicants are affected parties on
account of the illegal suit structures erected by Plaintiffs - Societies on
the public road connecting Sai Mandir Road to Sahar Road. He would
submit that subject matter of the above Appeal from Order being a
3.AOST.30859.2025.doc
public road, is required to be opened up and put at use by the
Corporation for use of pedestrian and vehicular traffic in public
interest. He would submit that Corporation is under a statutory
obligation to ensure that public road is not obstructed by any person or
persons. He would submit that however in the case at hand
Corporation has failed to comply with its statutory obligations. He
would submit that Applicants have every reason to believe that
Corporation is acting in collusion with Plaintiffs and delaying opening
of the public road for use of general public by not removing the illegal
structures erected by Plaintiffs right in the middle of the road.
7.2. In view of the above, he would submit that right and
entitlement of general public residing in the locality to have smooth
and effectual use and access to the said public road, is seriously
affected, hampered and prejudiced. Hence he would urge this Court to
allow the present Interim Application and dismiss the Appeal from
Order with consequential directions.
8. I have heard Mr. Patil, learned Advocate for Appellant -
Municipal Corporation of Greater Mumbai; Mr. Savant, learned
Advocate for Respondent Nos.1, 2 and 3 (Plaintiffs) in Appeal From
Order; Mr. Sharma, learned Advocate for Applicants - Intervenors in
Interim Application (St.) No.36164 of 2025 and Mr. Kanade, learned
Advocate for Applicant in Interim Application No.13090 of 2025 and
3.AOST.30859.2025.doc
with their able assistance perused the entire record of the case.
Submissions made by learned Advocates for respective parties have
received due consideration of the Court.
9. In the present case it is seen that Respondents Nos.1, 2 and 3
namely Kalpita Enclave Co-operative Housing Society Ltd., Kalpita
Enclave 'L' Co-operative Housing Society Ltd. and Kalpita 'M' Enclave
Co-operative Housing Society Ltd. are the original Plaintiffs. Appeal
from Order is filed by Corporation being aggrieved with order dated
31.07.2025 passed in Notice of Motion No.315 of 2025 in L.C. Suit
No.2032 of 2023.
10. Precursor to the above order is that Plaintiff had filed Notice
of Motion No.2929 of 2023 in the same Suit proceedings at the time of
inception of Suit seeking permanent and temporary injunction against
Corporation. That Motion was dismissed by order dated 14.09.2023.
Original Plaintiffs filed Appeal From Order No.811 of 2023 in this
Court. By order dated 03.10.2023 (Coram: Sandeep V. Marne, J.)
Appeal From Order was disposed of with directions. However, there
was one more order dated 02.05.2024 (Coram: R.N. Laddha, J.)
passed in Interim Application 8225 of 2024 thereafter.
11. Directions contained in order dated 03.10.2023 having being
complied with enabled the Corporation to call upon Plaintiffs to abide
by its obligation as directed by this Court in the order dated
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03.10.2023. However, Plaintiffs amended the Suit Plaint and filed
fresh Notice of Motion No.315 of 2025 for the twin reliefs of seeking
appointment of Commissioner and for temporary injunction in terms of
directions contained in order dated 03.10.2023.
12. At the outset, prima facie, once the this Court was seized of
the matter and passed directions in the order dated 03.10.2023 filing
of Notice of Motion No. 315 of 2025 once again seeking relief of
temporary injunction from the Trial Court was on the face of record
not maintainable. Plaintiffs camouflaged the said Notice of Motion by
including a prayer for appointment of Commissioner after carrying out
amendment to the Suit plaint to oversee whether directions given by
this Court were complied with or otherwise and called upon the Trial
Court to interpret the said directions contained in the order passed by
this Court.
13. The Trial Court without understanding the ethos of the fresh
Notice of Motion No.315 of 2025 filed by Plaintiffs passed the
impugned order dated 31.07.2025 by interpreting the twin orders
dated 03.10.2023 and 02.05.2024 passed by this Court and partly
allowed the Notice of Motion against which present Appeal From
Order is filed by Corporation. In my opinion, filing of Notice of Motion
No.315 of 2025 by Plaintiffs in the facts and circumstances of the
present case before Trial Court is nothing but a sheer abuse of the due
3.AOST.30859.2025.doc
process of law and an act of defiance of the directions passed by this
Court.
14. If Plaintiffs were aggrieved by they could have sought
clarification for interpretation of the twin orders passed by this Court,
but it did not choose to do so. In the impugned order, the twin orders
passed by this Court, have been interpreted and clarified by the Trial
Court, which is impressible in law and on this ground alone the Notice
of Motion No.315 of 2025 is not maintainable.
15. Corporation has challenged the impugned order dated
31.07.2025 in the present Appeal from Order in public interest.
Intervenor in Intervention Application (St.) No.36164 of 2025 namely
Shiv Siddhi Vinayak CHS. Ltd. And 8 other Co-operative Housing
Societies and Tenants' Association seek intervention to challenge the
impugned order in public interest at large. Intervention Application
No.13090 of 2025 is filed by Panom Developers LLP who is Developer
of the adjacent SRA plot having completed its development and having
handed over the road area to the Corporation. Plea of Panom
Developers LLP is once again in public interest and akin to
intervention by the neighboring Co-operative Housing Societies in the
vicinity of Plaintiffs.
16. Common ground is pleaded by the Corporation, Panom
Developers LLP and Shiv Siddhi Vinayak CHS. Ltd. and 8 other Co-
3.AOST.30859.2025.doc
operative Housing Societies / Tenants' Association. Challenge is to the
impugned order which resultantly leads to failure of Corporation to
open up a fully developed DP road which is a public road belonging to
the Corporation and which has been acquired by the Corporation
joining Sahar Road on the west to said Sai Mandir Road on the east in
Andheri (East) area of Mumbai
17. Resistance to the above is by original Plaintiffs - Societies on
the ground of interpretation of the twin orders dated 03.10.2023 and
02.05.2024. Before I advert to the twin orders, I feel it necessary to lay
certain foundation to understand the lis leading to passing of the twin
orders of which interpretation is the issue before the Court. Though
learned Advocates appearing for respective parties have addressed the
Court and made submissions on the basis of the twin orders and its
interpretation in the public interest, I still feel it necessary to refer to
certain facts in order to show the complete dishonesty with which
Plaintiffs have conducted themselves and approached the Trial Court
and in the present proceedings as well.
18. Plaintiffs - Societies filed L.C. Suit No.2032 of 2023 to
challenge Notice dated 01.08.2023 issued by Corporation under
Section 314 read with Section 394 of MMC Act on the premise that the
entrance gate and security cabin on the north side erected in the
middle of the DP road and MS tin sheet fencing on the south side of
3.AOST.30859.2025.doc
the road referred to as "suit premises" have been constructed on
private land owned by Plaintiffs as per approved plan. Case of
Plaintiffs is that the purported Municipal Road is a private internal
layout road belonging to Plaintiffs in the Suit proceedings this case of
Plaintiff is noted by the Trial Court in the order 14.09.2023 whereby
the first Notice of Motion for interim relief was rejected by the Trial
Court.
19. Plaintiffs - Societies were developed by M/s. Kiran Builders
Private Limited prior to the year 1983. Plaintiff No.1 is a group of 10
buildings nomenclatured as "A" to "K" whereas Plaintiff Nos. 2 and 3
are building "L" and "M" in the layout. Admittedly Plaintiffs
development on their layout has exploited and consumed the full FSI
potential of their plots including that of the DP road which is acquired
by the Corporation and stands in the name of Corporation in the
property card.
20. Plaintiffs filed Suit previously for seeking conveyance from
the Developer which was comprehensively dismissed. First Appeal
against the said judgment and order was also dismissed. After
development of Plaintiffs' Societies' buildings. Since the DP road was
not fully developed from east to west Plaintiffs put up the suit
structures namely entrance gate and security cabin on the north side
and blocked the south side by MS tin fencing structure and continued
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using that part of DP road as its internal road. Plaintiffs continued to
do so until its entire development was completed and its adjacent plot
was developed and the road area was handed over to the Corporation.
The DP road runs from east to west joining Sahar Road and Sai Mandir
Road but because of the blockade by Plaintiffs it is not open to public
at large despite it is now ready for pedestrians and vehicular traffic.
The dishonesty of Plaintiffs' stems from the fact that they claim that
the road is their personal property but admittedly it is not so.
21. After having failed on all counts Plaintiffs have abused the
due process of law by filing multiple proceedings and are now
contending that even if the said road is a DP road, Plaintiffs will
remove the obstruction / blockade which they have put only if the
entire stretch of DP road from east to west is fully developed as per DP
plan having uniform width of 13.40 meters throughout the length of
the said road and only in that case will remove the obstructions. The
Plaintiffs cannot put the Planning Authority to such terms and
conditions in the above facts.
22. Section 314 of MMC Act confers powers on the
Commissioner to remove such structures / fixtures erected and set up
contrary to provisions of Sub section 1 of Section 312. Once, it is an
admitted position that if any structure or fixture set up on any public
street or open channel, drain, well or tank the provisions of Section
3.AOST.30859.2025.doc
314 (1) of the MMC Act shall apply.
23. What is shocking in the present case is the fact that
documents submitted by the Corporation before the Trial Court at the
time when order dated 14.09.2023 was passed and as noted in
paragraph No.12 thereof clearly and unequivocally showed that
Corporation had acquired possession of the said road in question used
by Plaintiffs on 12.05.1983 and by virtue of Conveyance dated
15.02.1984 the Developer had surrendered the said road to the
Corporation and the road had vested in the Corporation since then.
The Property Card in respect of the said road reflects the name of
Corporation as the owner of the said road area admittedly.
24. What is shocking is that Plaintiffs filed the suit in the City
Civil Court against the original owner of land and Corporation
challenging the conveyance dated 15.02.1984 which was dismissed by
order dated 07.11.1997. In that suit, Plaintiffs prayed for relief against
the owner for executing conveyance in its favour and nothing more.
Plaintiffs challenged the judgment dated 07.11.1997 in Appeal which
came to be dismissed on 16.09.2016. Hence by virtue of these
judgments the status of the public road remained public road and has
attained finality. Further to sustain the case of Plaintiffs that the
subject structures were constructed by Plaintiffs authorisedly on the
public road to claim them as "protected structures" there is no material
3.AOST.30859.2025.doc
whatsoever produced by Plaintiffs. In the above background the
dishonesty of the Plaintiff can be seen when the Plaintiffs once again
filed Notice of Motion No.315 of 20205 before the Trial Court.
25. In this above background, the twin orders of which
interpretation is the principal issue and on which Plaintiffs are relying
upon to not give possession of the road area will have to be seen.
26. In the interregnum, Corporation called upon Plaintiffs to
remove the obstructing suit structures so that the DP road from Sahar
Road and Sai Mandir Road can be opened up. Plaintiffs filed fresh
Notice of Motion No.315 of 2025 and pleaded that unless and until the
entire stretch of DP road on either side of the road line held by
Plaintiffs is fully developed and constructed. Plaintiffs shall not
handover the road area held by them and shall not remove their
obstructions. The matter travelled to this Court. In the order dated
03.10.2023 in paragraph No.4 a categorical finding is returned by this
Court (Coram: Sandeep V. Marne, J.) confirming that Corporation is
the owner of the the said piece of land (road area) in pursuance of
conveyance executed in its favour and therefore Plaintiffs have no
right, title and interest in the said land in question.
27. In paragraph Nos. 6, 7, 8 and 9, this Court has made the
following observations and given directions which are relevant. They
are reproduced below:-
3.AOST.30859.2025.doc
"6. I have already seen the photographs as well as the video
produced for my perusal by Mr. Sawant. It appears that the road
on the adjoining plot of land has not yet been completed by the
Municipal Corporation, though possession of the land covered
by the said road may have been offered by the Developer to the
Municipal Corporation.
7. Mr. Sawant, the learned counsel appearing for the
Appellant, on taking instructions from his clients would submit
that the Appellant-Society be permitted to retain all the three
structures of security cabin, entrance gate and tin sheets till the
Municipal Corporation develops and completes the construction
of the road on the adjoining plot of land. Such retention is
sought for security measures.
8. Considering the above position, till the Municipal
Corporation completes the development and construction of the
road on the adjoining plot of land, the Appellant-Society can be
permitted to retain all the three structures comprising of
security cabin, entrance gate and the tin sheets.
9. Accordingly, the present Appeal is disposed of by
modifying the order dated 14 September 2023 passed by the
City Civil Court and by directing that the effect of the notice
dated 14 August 2023 shall remain stayed only till the
Municipal Corporation completes the development and
construction of the road on the adjoining plot of land. The
moment the development and construction of the road on the
adjoining plot of land is complete, the Municipal Corporation
shall give an intimation to that effect to the Appellant-Society,
who shall remove all the three structures comprising of security
cabin, entrance gate and tin sheets within two weeks from date
of receipt of such intimation and make available the road for
use by members of the public. In the event, the Society fails to
remove the security cabin, entrance gate or tin sheets after
receipt of communication from the Municipal Corporation as
aforestated, it will be open for the Municipal Corporation to act
on the notice dated 14 August 2023 and remove the said
structures without issuing any further notice."
28. This Court has stated that till the Municipal completes
development and construction of DP road on the adjoining plot of land
(under SRA scheme) Plaintiffs can be permitted to retain the three (3)
obstructing structures (the road area). In paragraph No.9, this Court
has categorically directed that the moment development and
construction of the road on the adjoining plot of land is completed the
3.AOST.30859.2025.doc
Corporation shall give intimation to that effect to Plaintiffs who shall
remove all three (3) structures and make available the road area held
by them for opening up the DP road for the use of the members of the
public. This Court has further categorically directed that in the event if
Plaintiffs fail to remove the obstructions after receipt of
communication from Corporation it will be open for the Corporation to
take steps and remove the obstructing structures without issuing any
further notice. It is seen that under the above directions Corporation
has given intimation to Plaintiffs since development and construction
of road on adjacent plot is completed and the same is confirmed by Mr.
Kanade by informing the Court that Developer has handed over the
road area fully completed on the adjoining plot to the Corporation.
Once this is the position as on toady Plaintiffs will therefore have to
remove their suit structures as directed to open up the DP road as
desired by the Corporation.
29. Plaintiffs have however referred to and relied upon order
dated 02.05.2024 (Coram: R.N.Laddha, J.) passed in Interim
Application filed by Corporation pursuant to issuance of intimation
notice dated 02.02.2024 to Plaintiffs. This Interim Application was
filed by Corporation to bring to the notice of the Court that road width
of 7 to 8 meters was completed and available but this Court at that
time opined that the fact remained that construction of 13.40 meters
was not completed and in that view Court granted stay on the notices
3.AOST.30859.2025.doc
dated 14.08.2024 and 02.02.2024 till the next date. However the
dishonest conduct of Plaintiffs can be clearly seen from the averments
made in paragraph No.1 in its Affidavit-in-Rejoinder to the Affidavit-in-
Reply of the Corporation and more specifically sub-paragraph No. "h"
which is reproduced below for reference:-
"(h) Under the above circumstances, the reliefs allegedly
sought by the Plaintiffs for continuing the retention of the 3
(three) structures until construction of the road of 13.4 mts on
the adjoining land is not at all in aid of the main relief as sought
for by the Plaintiffs in the above suit viz. setting aside o the
Notice dated 2nd February 2024 read with Notice dated 14 th
August, 2023."
30. It is seen that there was no specific direction in the order
dated 03.10.2023 regarding construction of 13.40 meters wide DP
road but in the aforementioned paragraph the Plaintiffs have falsely
stated that this Court (Coram: Sandeep V. Marne, J.) have specifically
directed Corporation to complete construction of 13.40 meters wide
DP road on the adjoining plot beyond the road area held by Plaintiffs.
Thereafter in paragraph No. "j" of the same Affidavit Plaintiffs are
taking advantage by the sentence stated by this Court in its order dated
02.05.2024 wherein for the first time the words "13.4" meters road
width has appeared to their advantage.
31. This Affidavit is filed by Rajiv S. Damle authorized signatory
of Plaintiffs. Plaintiffs in the present case have admittedly surrendered
the road area to Corporation in the year 1984 but have illegally
3.AOST.30859.2025.doc
enclosed the said area for their personal use. The said road area
admittedly vests and belongs to the Corporation. Plaintiffs have not
taken any steps for claiming entitlement to the said road area, rather
they cannot do so in law. However they have pleaded in the suit that
the road line was deleted in the year 1991 Development Plan and
hence the road stood deleted. However even otherwise Plaintiffs
cannot have any right in the said road which is not available to them.
From the pleadings it is seen that Plaintiffs are compulsive litigants and
all their efforts are only to ensure that the DP road area illegally held
by them is retained for their use on some ground of the other.
32. Today when matter is argued before me it is informed to me
that the average width of the developed DP road is 10.84 meters which
is a fully constructed and developed road. The Intervenor 7 co-
operative societies and one Tenants' Association are having thousands
of families / members are residing in the vicinity of Sai Mandir road
and Sahar road for whose benefit the said DP road needs to be opened
up. Plaintiffs cannot claim monopoly and injunction on the ground that
unless and until the DP road having uniform width of 13.40 meters is
not constructed along the entire stretch. Plaintiffs are entitled to block
the road line by the impugned structures. Plaintiffs have vaguely
argued and pleaded that acquisition of said road land in 1983 from
Developer purportedly for 13.40 meters DP road was defective and
faulty and it was fraudulently done in connivance with the earlier
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Developer. Such pleadings are made in the present proceedings at page
No.306 in the Affidavit-in-Rejoinder filed by Plaintiffs but such
submissions do not prove the case of Plaintiffs neither they assist or aid
the Plaintiffs.
33. In the above background, in view of the direction contained
in the order dated 07.01.2025 permitting parties to approach the Trial
Court Plaintiffs filed fresh Notice of Motion No.315 of 2025. The Trial
Court dealt with Plaintiffs' case once again on the three principles for
determination of injunction and in paragraph Nos.14 and 15 returned
the following findings:-
"15. After going through above orders of the Hon'ble High
Court, it is clear that in order dtd. 03.10.2023, the width of road
as 13.4 meters is not mentioned. However, in order dtd.
02.05.2025, there is reference of the construction of 13.40
meters wide road. Admittedly, the Hon'ble High Court of
Bombay has directed by order dtd. 03.10.2023 that the effect of
notice dtd. 14.08.2023 shall remain stayed only till the
Municipal Corporation completes the development and
completion of road. After completing the development and
construction of road, the defendant has to give intimation to
plaintiffs who have to remove all three structures within two
weeks from the date of receipt of intimation of the defendant
and to make available the road for use by members of public. In
the event the plaintiffs fail to remove it, then the defendant is
given liberty to act as per the notice dtd. 14.08.2023 and to
remove the structures without giving VALIDwa Ngop, go further
notice.
15. It is not disputed that as per DP plan, the width of the said
road from Sahar Road, Sudhir Tamse Marg and Sai Mandir
Marg at Andheri East, Mumbai 57, is 13.4 meters. As per reply
of the defendant, the road on adjoining plot of land is developed
and completed with present average width of 10.84 sq. meters.
Therefore, the Id. advocate for the plaintiffs rightly submitted
that the defendant has not completed development and
construction of the road of the adjoining plot of the land as per
DP plan as the width of the said road is 13.4 meters. Thus, the
defendant has not completed the development and construction
3.AOST.30859.2025.doc
of road on adjoining plot of land as per DP plan. But it appears
that the defendant has issued notice dtd. 02.02.2024 before
completion of the construction of the road. Thus, it prima facie
appears that the defendant has hastily issued the impugned
notice dtd. 02.02.2024 without following the directions of the
Hon'ble High Court in A.O. NO. 811 of 2023 dtd. 03.10.2023."
34. Trial Court has noticed the fact that in the order dated
03.10.2023 the width of the road as 13.40 meters is not mentioned
and it only finds reference in the subsequent order dated 02.05.2024.
It is on this basis the finding in paragraph No.15 has been returned
and on this ground alone the Trial Court has concluded that since
construction of the DP road is not completed the direction of this Court
in the order dated 03.10.2023 has not been followed.
35. The aforesaid finding in para 15 has led to passing of the
injunction order in Notice Of Motion No. 315 of 2025 directing that till
completion of development and construction of road of 13.40 meter as
per DP plan and as per the direction of this court dated 03.10.2023 the
Corporation shall be restrained. The fallacy in the above order is
apparent on the face of record. Admittedly in order dated 03.10.2024
the width of 13.40 meters is not mentioned. 13.40 meters wide DP
road was the proposed DP road which was planned as connected road
to join the east and west corridor from Sahar road to Sai Mandir road.
If the trajectory of the said DP road is seen from the DP plan placed
before Court it is a S shaped road connecting the aforesaid two roads
which was planned as a connector / feeder road to address the
3.AOST.30859.2025.doc
proximity of distance for the residents in the entire locality. This
connector / feeder road planned as DP road is not merely to benefit
Plaintiffs or for that matter the adjacent society but the entire public at
large residing in the area. It will be put to use for pedestrians as well as
vehicular traffic. Merely by showing photographs the case of plaintiffs
cannot be believed. The Officers and Engineers of the Corporation on
oath have stated that the entire construction of DP road to the extent
of having 10.84 meters is fully developed on the adjacent plot which
has been handed over by the Developer to Corporation. Admittedly,
the said DP road area which is enclosed and used by Plaintiffs does not
belong to them and its ownership vests with the Corporation since
1984. Plaintiffs cannot resist handing over of the said DP road area to
open up the connector / feeder DP road for the benefit of public at
large on the sole ground that it has to have a uniform 13.40 meters
width at all places. This amounts to Plaintiffs taking undue advantage
of the due process of law because this situation clearly reflects a
conflict between a private party (Plaintiffs) having no right whatsoever
in the land on the one side and the public at large (all those persons
who will use the DP road). The congestion in the city of Mumbai is
well known and well documented. Under the MRTP Act development
plan has a tenure of 20 years before the next draft development
process begins. All developments which are planned at the inception
in the DP are proposed and cannot be fructified immediately on the DP
3.AOST.30859.2025.doc
being notified and it is an ongoing process hampered by various
factors like reservations, acquisitions, developments etc. The Plaintiffs
derived benefit from one such factor over the years since its adjacent
plot was a slum plot having slums. SRA scheme was implemented
much late which took up a substantial amount of time and now when
the entire development on the adjacent plot is completed and the road
line area has been handed over by their developer to the Corporation,
the DP road needs to be opened up for the benefit of the public at large
for these reasons, I am not inclined to accept the submissions made by
Plaintiffs that unless and until the DP road has a width of 13.40 meter's
uniformly the Plaintiffs cannot be forced to handover possession of the
road area to the Corporation and that they should be permitted to
subsist with the Suit Structures which are clearly an obstruction.
36. In my opinion Plaintiffs have no right whatsoever to make
such a demand which is contrary to the public interest at large. Giving
into the demand of the Plaintiffs and agreeing with the reason given in
para No.15 by the Trial Court would amount to taking a stand contrary
to pubic interest. The connector / feeder DP road joining Sahar road
with said Sai Mandir Road is bound to ameliorate and redress the
congestion and the legitimate grievances of the residents of the nearby
areas who will himself benefit from the use of the said DP road not
only in terms of proximity of distance but also proximity of time to
reach their destinations and more specifically the civic amenities,
3.AOST.30859.2025.doc
railway station and the bus stops. Plaintiffs insistence that the road
width has to be 13.40 meters only and only then they shall remove the
obstruction i.e. Suit Structures is not well founded and cannot be
countenanced. This Court is aware that the width of the Road is 10.4
meters as informed by the Opposite Parties and once it is seen that the
said width is good enough for throwing open the road for pedestrian
and vehicular traffic then it needs to be opened up. For all the above
reasons I find that the conduct of Plaintiffs without it having any right
whatsoever in the road area held, that the said road area standing and
resting in the name of the Corporation since 1984, that the Plaintiffs
having benefited with full FSI potential in its construction and the
order dated 03.10.2023 passed by this Court, the insistence of
Plaintiffs for having for a 13.40 meter wide DP road cannot be
countenanced. Neither the finding returned by the Trial Court in para
15 on the basis of which the operative order has been passed
restraining the Corporation from taking any action until an uniform
13.40 wide DP road is constructed deserves to be countenanced in the
above facts in the interest of the public at large who will hugely benefit
from the use of the said DP road which will connect the east west
corridor once it is thrown open.
37. Needless to state that Corporation shall make all endeavour
to ensure the width of 13.40 meters is developed and fully constructed.
Today there is a fully developed 10.84 (35.56 feet) meters wide DP
3.AOST.30859.2025.doc
Road which is my opinion can be thrown open to the public for their
use to reduce the congestion and as per the development plan. What is
seen is that Plaintiffs are taking undue advantage of the due process of
law. The order dated 03.10.2023 does not delve upon 13.40 meters
width but Plaintiffs have imported the same in that order in its
pleadings. The aforesaid narration, observations and findings clearly
point out in that direction and Plaintiffs' stand in its pleadings. Hence I
am inclined to levy costs rather exemplary costs on Plaintiffs rather all
3 Plaintiffs because their actions are clearly detrimental to public
interest and the benefit of public at large and such actions can never be
permitted by this Court. The dishonesty of Plaintiffs in their pleading
while interpreting the order dated 03.10.2023 by mentioning the name
of learned Judge on page No. 296 of the AO is not appreciated by this
Court. In fact the said order does not reflect 13.40 meters vide DP
Road. All is reflects is the construction of the DP Road.
38. Party and litigants have to approach Court with clean hands
and they cannot interpret the order wrongfully to their advantage.
39. In view of the above observations and findings the impugned
order dated 31.07.2025 is quashed and set aside. The Appeal from
Order stands allowed. Resultantly Notion Motion No.315 of 2025 filed
by Plaintiffs is dismissed.
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40. Plaintiffs are directed to remove the 3 Suit structures
forthwith. In the alternate, Corporation is directed to remove the three
obstructing Suit Structures namely the Gate and Security Cabin on the
north of the DP Road and the MS Tin sheets grills on the South side of
the DP road if the same are not removed by Plaintiffs within 1 week
from today without recourse to court and with police assistance if
necessary and take immediate steps to throw open the connector /
feeder DP road connecting Sahar Road and Sai Mandir Road for the
benefit of the public at large
41. In view of the above, Plaintiffs i.e. Respondent Nos.1, 2 and
3 all directed to pay costs of Rs. 1,00,000/- totalling to Rs. 3,00,000/-
out of which Rs. 1,50,000/- shall be paid to Kirtikar Law Library, High
Court, Mumbai and Bombay High Court Original Side Library failing
with the Collector MSD is directed by this Court to recover the said
costs as arrears of Land Revenue from Plaintiffs and pay over the same
to the beneficiaries.
42. Appeal from Order is allowed and disposed. Interim
Application (St.) Nos.30861 of 2025 and 30862 of 2025 and 36164 of
2025 are accordingly allowed with the above directions.
[ MILIND N. JADHAV, J. ]
3.AOST.30859.2025.doc
43. After the Judgment is pronounced in open Court, Mr. Savant,
learned Advocate for Plaintiffs i.e. Respondent Nos.1, 2 and 3 -
Societies persuades the Court to stay the effect of this Judgment to
permit Plaintiffs to approach the Superior Court to test its validity and
legality on the premise that all along the Court had protected the
impugned suit structures. The request for stay is vehemently opposed
by both the Intervenors as also by the Corporation on the ground that
there was no stay given by the Court and the Court had infact given
relaxation to the Plaintiffs' suit structures for security measures and
now since the public road is ready it needs to be opened to the public
at large.
44. I have considered the request made by Mr. Savant and would
like to state that in the cross fire of the lis between the parties hereto
it is seen that the public at large is the loser. Throwing open the
connector feeder road which is a planned DP Road connecting Sahar
Road on the East and Sai Mandir Road on the West through
Jeevanvikas Marg is the need and necessity of the hour for the benefit
of the pedestrians as well as vehicular traffic to ease congestion in the
area. In that view of the matter, I decline the request made by Mr.
Savant to stay the effect of this Judgment. The request is therefore
declined.
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45. Mr. Savant next persuades the Court to consider reducing
the costs considering the fact that Plaintiffs - Respondent Nos.1, 2 and
3 in the proceedings are Co-operative Housing Societies comprising of
Members who are residents of residential units. In this regard, certainly
I am inclined to accept the request made by Mr. Savant and reduce the
costs from Rs.1,00,000/- to Rs.25,000/- each to be paid by the
Plaintiffs i.e. Respondent Nos.1, 2 and 3 to the Kirtikar Law Library,
High Court, Mumbai and Bombay High Court Original Side Library as
directed herein above equally.
[ MILIND N. JADHAV, J. ]
Ajay
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2025.12.15
19:09:38 +0530
