Bombay High Court
Yogesh Megaji Gada vs Municipal Corporation Of Greater ... on 26 September, 2025
2025:BHC-AS:41006
rsk 44-AO.220.2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.220 OF 2019
WITH
CIVIL APPLICATION NO.261 OF 2019
Yogesh Megaji Gada
Indian Inhabitant having
address at Sawant Bungalow, Suhasini
Pawaskar Road, Gartanpada, Dahisar (E)
Mumbai 400 068 ...Appellant/Applicant
Versus
1. Municipal Corporation of
Greater Mumbai A body constituted
under the provisionof BMC Act, 1888 and
having its head office at Mahapalika Bhavan,
Mahapalika Marg,Mumbai-400 001
2. Joseph Pereira
Having address at Ritu Industrial
Estate Off. Western Express Highway,
Suhasini Pawaskar Road, Dahisar (E)
Mumbai- 400 068 ...Respondents
Mr. Aadhil Parsurampuria a/w Ms. Pragya & Ms. Archi Pokar i/by M/s.
Legal Vision for the Appellant/Applicant.
Ms. Neeta Jadhav i/by Ms. Komal Punjabi for Respondent No.1-MCGM.
Mr. Amog Singh i/by Mr. Ritesh Singh & Mr. Sanjeev Singh for
Respondent No.2.
CORAM : JITENDRA JAIN, J.
RESERVED ON : 24 SEPTEMBER 2025
PRONOUNCED ON : 26 SEPTEMBER 2025
JUDGMENT:
1. This appeal is filed by the original plaintiff challenging
the order dated 11 August 2017 passed by City Civil Court at
Dindoshi whereby the notice of motion seeking injunction against
the Corporation not to demolish the suit premises was dismissed.
The learned City Civil Court has dismissed the original notice of
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motion, briefly, on following grounds:
"1. Plaintiff has not produced any record to show that there are
two structures on City Survey number 2835 and further, the
plaintiff has failed to prove that these structures fall in City
Survey number 2835.
2. The documents which are produced are of the structure
where the maximum height is mentioned to be 10 ft. whereas
height of the suit structure is more than 12 ft.
3. Although the structure may be censused as a slum, but,
Corporation has the authority to demolish the structure, if the
structure is illegal.
4. Structure under consideration is a commercial structure and
not a residential structure. Documents produced for one
structure cannot be used for another structure."
2. I have heard Mr. Aadhil Parsurampuria, learned counsel for the
appellant, Ms. Neeta Jadhav, learned counsel for respondent No.1-
MCGM and Mr. Amog Singh, learned counsel for respondent No.2.
3. Learned Judge has given above findings after perusing the
photographs which showed that shutters fixed on the disputed
structure is of more than 12 feet in height, whereas the structure
mentioned in the plaint is different. Further, learned Judge has
also given a finding that the notice is issued by the Corporation for
commercial structure and not for residential structure and
therefore, the appellant/plaintiff has not come with clean hands
because documents produced are of residential structure.
4. Learned counsel for the appellant has not brought to my
notice any perversity or error in what is recorded in Paragraph 12
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of the impugned order. The same is not rebutted. Therefore, the
finding of learned Judge in paragraph 12 cannot be faulted. In
paragraph 13 of the impugned order, learned Judge has given a
finding that no document has been produced before him to show
that the structure for which permission is granted is the same
structure which is the subject matter of the suit and further it is a
residential one. Same has not been controverted before me.
5. Learned Judge has given a further finding that the
documents pertaining to residential structure cannot be used by
the appellant for a commercial purpose. Even this finding of
learned Judge has not been controverted by showing any
document to me. Insofar as findings in paragraph 11 is concerned,
the learned judge has observed that even if the structure is
declared as slum structure, the Corporation has the power to issue
impugned notice, if the structure is illegal. Learned counsel for the
appellant relied upon the decision of this Court in the case
Ramawatar Babulal Jajodia vs. Municipal Corporation of Greater
Mumbai1, in support of his submissions. However, in that decision,
the Court observed that the existence of unauthorised structure, if
any, is subject to evidence which has to be decided in the trial.
Further, the facts in Ramawatar Jajodia case (supra) are
distinguishable from the facts before me. In the present case, the
appellant has not controverted the findings of the learned Judge
in para 12 and 13. The appellants have failed to prove that the
documents which were submitted are with respect to the same
1 Manu/MH/2105/2013
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premises which is the subject matter of the Suit. Therefore, this
decision cannot be of any assistance to the appellant.
6. Learned counsel for respondent No.2 is justified in relying
upon the latest decision of this Court, in case of Mujibur Rehman
Chaudhary vs. Municipal Corporation of Greater Mumbai2, which
has considered this very issue and interplay between the Slum Act,
1971 and the powers of the Corporation. The said decision holds
that even in the case of slum properties if the construction is
illegal, then the corporation has the power to demolish.
7. Learned counsel for the appellant relied upon certain
documents at pages 49, 50, 51 and 55 in support of his
submissions that the property is in existence prior to 1st January
1995 and protected by the Slum Act. On a query being raised as to
whether these documents were shown to the learned judge, the
learned counsel relied upon paragraph 5 of the impugned order to
submit that these documents were shown. I have perused para 5.
The documents at pages 49, 50, 51 and 55 were not relied upon by
the appellant before the learned Judge, since there is no reference
of these documents in paragraph 5. Therefore, this Court cannot
entertain the submission. In any case, since the appellant has
failed to show the documentary evidence with respect to the suit
property and the property for which repair permissions were
obtained and furthermore, there is a finding that documents
relating to residential property cannot be relied upon for the suit
property which is a commercial property, I do not find any reason
2 2023 SCC Online Bom. 579
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for interfering in the impugned order.
8. The Hon'ble Supreme Court in the case of Ramakant Chokshi
vs. Harish Chokshi & Ors.3, has laid down the guidelines for
interference in such appeal from orders and present case does not
fall in the exception carved therein but on the contrary the
Supreme Court has cautioned Appellate Court in interfering with
such order.
9. Therefore, the appeal is dismissed. However, I make it clear
that any observations made in this appeal will not come in the way
of the Trial Court to examine the issue on its own merits and after
perusing the evidence.
10. The appeal is dismissed. Civil Application does not survive.
The request for continuation of ad-interim relief is rejected.
[ JITENDRA JAIN, J. ]
3 2024 SCC Online 3538
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