[Cites 3, Cited by 0]
Bombay High Court
Mr. Gaurav Shantaram Desai And Others vs Municipal Corporation Of Greater ... on 20 February, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-AS:8745
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Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO. 38757 OF 2025
WITH
INTERIM APPLICATION (ST) NO. 38758 OF 2025
Gaurav Shantaram Desai & Ors. .. Appellants
Versus
Municipal Corporation of Greater Mumbai &
Ors. .. Respondents
....................
Mr. Pradip Thorat a/w Mr. Aniesh Jadhav & Mr. Shubham B.
Choudhari i/by Mr. Nikhil Adkine, Advocates for Appellants
Mr. Dharmesh Vyas a/w Mr. Sachin Vajale, Advocates for
Respondent Nos. 1 & 2 - Corporation
Dr. Sanjay Jain i/by Mr. Ashwin Bhalekar i/by Ms. Simran Wagle,
Advocate for Respondent No. 3
...................
CORAM : MILIND N. JADHAV, J.
DATE : 20th February, 2026.
P. C.:
1. Heard Mr. Thorat, learned Advocate for Appellants; Mr. Vyas
along with Mr. Vajale, learned Advocate for Respondent Nos. 1 & 2
and Dr. Jain, learned Advocate for Respondent No. 3.
2. By consent of parties, present Appeal from Order (for short
"AO") and Interim Application is heard finally and are disposed of by
the present order.
3. Appellants i.e. Original Plaintiffs are 30 members out of total
128 members of the Defendant No. 3 - Society residing in six
buildings. They have filed L.C. Suit No. 2929 of 2025 on 01.12.2025
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to challenge and declare the impugned notice dated 25.11.2025 issued
under Section 354 of the Mumbai Municipal Corporation Act, 1888
(for short "MMC Act") by Defendant No. 2 - Corporation as illegal and
not binding on them. In that view of the matter Plaintiffs have sought
permanent injunction. In paragraph No. 16 of the Suit plaint there
is reference to a Long Cause Suit No. 101508 of 2025 filed by Maitrey
V. Salvi and 37 other members as Plaintiffs in the Bombay City Civil
Court, copy of which is appended at page No. 108 of the AO which
include the Plaintiffs herein seeking declaration that the Development
Agreement dated 02.06.2025 executed and registered by the Society
with the Developer - M/s. Puri Creators LLP be declared as null and
void being contrary to law and not binding on the Plaintiffs therein.
4. Members of Plaintiffs' group in both the Suit proceedings are
common. In the first Suit proceeding there are 38 Plaintiffs and in the
second Suit there are 30 Plaintiffs. Primarily the Plaintiffs are in
minority on the face of record.
5. Grounds on which the present Suit is filed challenging the
impugned statutory notice issued by the Corporation under Section
354 of MMC Act is that the 6 buildings comprised in the Society have
been constructed between 1965 and 2012 and thus even though
Building Nos. A and B which were constructed in 1965-66 may have
become dilapidated or for that matter Building Nos. C and D
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constructed in 1985 may have become old, Building Nos. E and F
which were constructed in 2006 and 2012 housing 32 and 17
members respectively are not that old and on the basis of the
Structural Audit Report obtained by the Plaintiffs for all six buildings
as they are categorized in C2-B category in terms of their stability they
may require structural and tenable repairs. The Plaintiffs appointed
M/s. K.J. Karekar & Associates - Auditor to carry out structural audit of
the buildings and he submitted the Report classifying the grade of
stability of Building Nos. A, B, C, D and E as C2-B category. This
report obtained by Plaintiffs was contrary to the Structural Audit
Report obtained by the Society from M/s. Space Design &
Development which categorically classified the grade of stability of
Building Nos. A, B, C, D and E as C-1 category and recommenced that
all 5 buildings be evacuated and pulled down forthwith. In the report
obtained by the Society, Building No. F was categorized as C2-B
category. Society's report and the report obtained by Plaintiffs
regarding structural stability of the buildings being contrary to each
other because of two different opinions in regard to grade of stability
and structure of the buildings, the Suit came to be filed. Subsequently
it appears that both reports were received by the Corporation which
were conflicting and the matter was then referred to the Technical
Advisory Committee (for short "TAC") for further decision on
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16.09.2025. TAC instructed for joint site visit and meeting on
30.09.2025 and accordingly informed both the Structural Auditors of
parties by its notice dated 26.09.2025. During this joint site visit by
TAC, the Structural Auditor - M/s. K.J. Karekar & Associates appointed
by Plaintiffs remained absent without any information. Corporation
thereafter issued a show-cause-notice to M/s. K.J. Karekar &
Associates dated 03.10.2025. Joint site visit was deferred and refixed
on 09.10.2025 calling upon both the Structural Auditors to remain
present by a further fresh notice dated 04.10.2025. Despite this M/s.
K.J. Karekar & Associates, Structural Auditor appointed by Plaintiffs
remained absent on 09.10.2025. Site inspection was duly carried out
by TAC and hearing was held on the same day and details of those
who attended the meeting and hearing on 09.10.2025 is placed on
record. After undertaking the site inspection and going through both
the Structural Audit Reports received by TAC, members of TAC
concluded that the buildings clearly came under the purview of C-1
category and were required to be demolished immediately to avoid
any further untoward accident in future and the TAC recommenced
immediate measures such as propping, barricading and to vacate the
structure immediately. TAC report was accordingly submitted which is
placed on record as Exh. "K" appended to the affidavit-in-reply of the
Corporation.
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6. It is seen that it is in this regard and in compliance of the
directions given by this Court in Writ Petition (L) No. 1135 of 2014 on
23.06.2024 and subsequent Circular issued by Corporation dated
25.05.2018, Corporation issued notice under Section 354 of the MMC
Act to the occupants of the flats in the buildings belonging to the
Society (including the Plaintiffs). Hence the present Suit came to be
filed challenging the notices. Interim relief has been rejected by order
dated 04.12.2025, hence the present AO.
7. Mr. Thorat, learned Advocate for Appellants would submit that
some members of Society approached the Trial Court to challenge the
notice issued under Section 354 of the MMC Act seeking injunction
which ought to have been considered by the Trial Court. He would
submit that principles of natural justice were not followed while
conducting the TAC proceedings. He would submit that Trial Court
ought to have considered the fact that 38 members of the Society have
already challenged the legality and validity of the acts of the
Managing Committee of executing the Development Agreement with
the Developer by filing a Long Cause Suit which was pending in the
Trial Court. He would submit that once there was dichotomy with
respect to the stability of the building structure as opined by the
Structural Auditor appointed by Plaintiffs as against the Structural
Audit Report of the Society, Trial Court ought to have referred the
6. AOST-38757-2025.odt
matter to a third neutral Auditor rather than TAC. He would submit
that as stated in the affidavit-in-reply of the Corporation that Plaintiffs'
Auditor was duly informed about the joint inspection by the TAC,
according to his instructions, it was not so and no such communication
was issued to Plaintiffs' Structural Auditor to remain present for joint
site visit and inspection by the TAC members. He would submit that
the entire action on the part of the Society is a colourable exercise of
power for redevelopment of the Society buildings especially when it is
an admitted position that only Building Nos. A and B housing 16
members each was constructed in 1965-66 and have become
dilapidated whereas rest of the buildings have been constructed much
later and are not that old and which require tenable repairs despite
which on the basis of grading all buildings as dilapidated the Society is
proceeding with redevelopment to the detriment of the Plaintiffs who
are also members of the Society. He would draw my attention to the
reasoned impugned order dated 04.12.2025 appended at Ex. P, page
No. 865 onwards to the AO. He would submit that in the given facts
and circumstances of the present case it is a fit case for appointment of
a third party neutral Auditor to undertake the structural audit of all six
buildings of the Society. In that view of the matter he would submit
that the impugned notices deserve to be stayed by this Court forthwith
and therefore the conclusion arrived by Trial Court while rejecting
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Notice of Motion No. 6521 of 2025 deserves to be interfered with and
the impugned order dated 04.12.2025 be quashed and set aside.
8. PER CONTRA, present AO and Interim Application are both
vehemently opposed to and objected by Defendants. Defendant Nos. 1
and 2 - Corporation have filed affidavit-in-reply of its Assistant
Engineer, (Building & Factory Department), FN Ward dated
22.12.2025 which is appended at page No. 582 onwards of the AO.
Defendant No. 3 is the Developer.
9. Mr. Vyas, learned Advocate appearing for Corporation while
drawing my attention to the said reply and various annexures
appended thereto would contend that admittedly the buildings of the
Society Nos. A and B are more than 60 years old and are in a
completely dilapidated state of affairs and unstable for human
habitation. He would submit that after the statutory notice under
Section 353(B) of the MMC Act was issued by the Corporation,
Structural Audit Report by M/s. Space Design & Development
appointed by the Developer and the Society dated 14.07.2025
categorizing Building Nos. A to D in C-1 category, Building No. E in
C2-A category and Building No. F in C2-B category was received by the
Corporation. He would submit that due process of law is followed by
the Corporation by issuing notice dated 18.07.2025 followed by
revised notice dated 31.07.2025 to all owners / occupants and tenants
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of the aforesaid buildings calling upon them to submit their
suggestions and objections, if any. He would submit that it is only
thereafter on 04.08.2025 that Structural Audit Report from M/s. K.J.
Karekar & Associates at the behest of the Plaintiffs categorizing
Building Nos. A to F as C2-B category was received. He would submit
that Corporation perused the said report and pointed out that when
Structural Audit Stability Report is given, certain tests were mandatory
and the same not having been carried out by M/s. K.J. Karekar &
Associates, it issued letter dated 14.08.2025 directing carrying out of
necessary tests along with Proforma-B which was duly served. He
would submit that after this letter was issued a revised report was
received form M/s. K.J. Karekar & Associates on 26.09.2025. He
would fairly submit that since the Structural Audit Report submitted
by M/s. Space Design & Development on behalf of the Society and
M/s. K.J. Karekar & Associates on behalf of Plaintiffs differed and
were conflicting, the matter was referred to TAC.
9.1. He would submit that due process of law was followed by TAC
in notifying time and date for joint inspection and site visit to both the
Structural Auditors but the Structural Auditor of Plaintiffs did not
remain present on both the occasions. He would submit that TAC has
given its detailed report dated 11.11.2025 which is appended at page
No. 855 onwards, Exh. "N" to the AO categorizing all buildings of the
6. AOST-38757-2025.odt
Society in C-1 category. He would submit that the buildings of the
Society are in very dangerous state of affairs which may cause
imminent danger to life and property of not only the occupants but
also nearby structures and passersby and therefore it is in the interest
of public that all buildings be vacated and demolished in order to
avoid any accident in future.
9.2. In support of the present condition of the buildings he has
persuaded me to peruse the three reports which are appended to the
reply of the Corporation from page No. 590 onwards and after going
through the same and drawing my attention to the extensive details in
the report prepared by M/s. Space Design & Development, the
Structural Auditor appointed by the Society would contend that there
can be no doubt in mind that condition of the buildings is indeed
deplorable and dilapidated which is acknowledged from the material
placed on record. As against the report submitted by the Structural
Auditor of the Society the report given by M/s. K.J. Karekar and
Associates on behalf of Plaintiffs is appended at page No. 757
onwards. It is opined by Plaintiffs that indeed Building Nos. A and
constructed in 1965-66 require repairs but it is their opinion that
Building Nos. C and D which were constructed in 1985 and Building
Nos. E and F which were constructed in 2006 and 2012 do not fall
under C-1 category based on their age and condition and therefore
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they have persuaded the Corporation to consider the Structural Audit
Report submitted by them. This letter dated 04.08.2025 was signed by
5 members of the Society. I have perused both the Structural Audit
Reports.
9.3. He has further drawn my attention to the TAC report appended
at page No. 856 onwards. He would submit that perusal of the said
report would prima facie show that despite notice and intimation in
writing to M/s. K.J. Karekar & Associates, they remained absent
despite which the TAC members have gone through the facts put up by
both the Structural Auditors and their opinion has been fully
considered in the report. He would submit that TAC members have
opined that the buildings may collapse without giving any warning
thereby endangering life and property of occupants of the buildings
and also of the occupants in the structures adjoining the said buildings
and passersby as well. They have also suggested preventive measures
such as propping, barricading and vacating the buildings immediately
and in view thereof, Corporation has taken further steps by issuing the
statutory notice in accordance with law. He would submit that all the
aforesaid aspects have been considered by the Trial Court while
considering the Plaintiffs' case at the interim stage and accordingly
Notice of Motion has been dismissed. He would therefore submit that
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no interference whatsoever is called for by this Court in the reasoned
impugned order passed by the Trial Court.
10. Dr. Jain, learned Advocate appearing for Defendant No. 3 has
adopted the submissions made Mr. Vyas. In addition he would submit
that Society has executed and registered Development Agreement and
most importantly Plaintiffs before the Court are in minority and such
minority members cannot dictate the fate of redevelopment which the
majority of the members of the Society have approved as per the
General Body Resolution. He would submit that admittedly Building
Nos. A to D are more than 60 and 40 years old and looking at the
condition stated in the report of the Structural Auditors as also of TAC
members after completing inspection, there is no doubt whatsoever
that these buildings are dilapidated and therefore require
redevelopment. Insofar as Building Nos. E and F are concerned, he
would submit that the Structural Audit Report qua these two
buildings if prima facie seen shows that said buildings are also not in
good condition. He would submit that their physical condition does
not appear to be sound at all. He would submit that opposition of
Plaintiffs who are in minority be rejected. He would submit that if the
array of parties is seen, Plaintiffs are all occupants of the building Nos.
A to D only. Admittedly these very buildings are more than 60 and 40
years old and are in a dilapidated state of affairs. He would submit
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that in that view of the matter, no case whatsoever is made by
Plaintiffs and this Court be pleased to reject the AO and Interim
Application.
11. I have heard the learned Advocates appearing for the parties
and perused the record of the case with their able assistance.
Submissions made by learned Advocates at the bar have received due
consideration of the Court.
12. In the present case, it is primarily seen that there is a Suit filed
challenging appointment of Developer and the registered Development
Agreement which is pending in the Trial Court by some members.
Present Suit pertains to challenge to the statutory notices issued under
Section 353(B) of the MMC Act by the Corporation in furtherance of
the report of TAC having received. Record clearly shows that there
was dispute between two groups of members in the Society. However
there is no denial of the fact that Building Nos. A and B are more than
60 years old whereas Building Nos. C and D are more than 40 years
old having been constructed in 1965 and 1985 respectively.
Occupants of these buildings are in fact Plaintiffs in the present Suit
proceedings. They have raised grievance with respect to the status of
the structural stability of their buildings. It is also true that
appointment of Developer has also been opposed by Plaintiffs in a
separate Suit which has been filed and pending. It appears that there
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is disagreement between members on appointment of Developer as
previously prior to appointment of present Developer, the earlier
Developer was appointed. Hence there is every possibility that there
may be a proxy war in the offing being carried out since challenge is
made even to Development Agreement and appointment of new
Developer. It is also equally true that majority of the members in the
General Body Meeting have already given their consent for
redevelopment of the Society.
13. Society comprises of 128 members. Building No. A comprises of
16 members, Building No. B comprises of 16 members, Building No.
comprises of 21 members, Building No. D comprises of 21 members,
Building No. E comprises of 32 members and Building No. F comprises
of 17 members. Admittedly Building Nos. A & B are 60 years old,
Building Nos. C & D are 40 years old and Building No. E is 30 years
old. Due process of law prima facie has been followed by the Society
in passing the resolution and appointment of the Developer which is
borne out from the record. Condition of the six Buildings prima facie
is not good as it appears to the naked eye which is clearly seen from
the Structural Audit Report prepared by M/s. Space Design &
Development. It is a detailed building wise Report covering each and
every aspect with appropriate remarks and photographs appended
thereto giving reasons for the recommendations. It is seen that the
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reasons and conclusions given by the Consultant qua each building
and other aspects of each building prima facie show that the buildings
are in a completely inhabitable state. This is also gathered after
reading the reports of the Structural Auditor of the Society as also the
one given by the Plaintiffs. Even though the Plaintiffs' Structural Audit
Report may infer that the buildings are in a repairable state of affairs,
the reasons and observations made by the said Structural Auditor itself
suggest that the said buildings are in a dilapidated state of affairs.
M/s. K.J. Karekar & Associates have themselves opined that the
external facade of the buildings requires repairs and plaster where the
dead wall requires repair work as also beams and columns need to be
attended.
14. It is seen that after physical verification of the buildings and
carrying out the test by TAC in the presence of Structural Auditor
appointed by Society, TAC has clearly opined that the buildings are in
a dilapidated condition and dangerous to human lives. There is
nothing on record which compels me to accept the case of Plaintiffs to
stop the redevelopment of the Society especially in the wake of the
TAC Report corroborating the Structural Audit Report filed by the
Society. The impugned order is a detailed reasoned order primarily
because it has gone into the merits of the TAC report which has been
submitted after duly considering the Structural Audit Report of both
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the sides including that of Plaintiffs. This is the distinguishing aspect.
Even though the Auditor of the Plaintiffs remained absent on both
occasions when joint inspection was fixed by TAC, in the TAC report it
is stated that the Report and observations of the Auditor appointed by
the Plaintiffs have been duly considered. That apart the order also
observes that TAC members have also physically verified the buildings
and only thereafter come to the final conclusion.
15. It is seen that Plaintiff No. 1 - Mr. Gaurav Shantaram Desai, one
Mr. Umesh Jairam Desai and Mr. Ninad Shivkar as Applicants have
filed Revision Application No. 247/2025 before the Divisional Joint
Registrar, Co-operative Societies, Mumbai Division, Mumbai
challenging the order dated 23.01.2025 issued by Assistant Registrar,
Co-operative Societies granting permission to Respondent No. 2
Society to take further action for redevelopment of the buildings of the
Society as decided in General Body Meeting held on 19.01.2025.
Perusal of the said order prima facie shows that out of total 128
members of the Society, by virtue of the General Body Resolution and
meeting held on 19.01.2025, 110 members were eligible to vote and
required quorum was 74 members. It is seen that 80 members were
present on the said date of General Body Meeting fulfilling the
mandatory quorum. Out of that 64 members voted in favour of the
Developer which prima facie constitutes majority of 80% thereby
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fulfilling 51% requirement mandated for appointment of Developer. It
is seen from the order placed on record that Revisional Authority has
dismissed the said Revision Application on 01.08.2025. As alluded to
herein above, this is a clear case of dispute between members of the
Society regarding redevelopment and appointment of Developer.
Prima facie Plaintiffs have not been able to show any perversity in the
findings and observations made by the Trial Court while rejecting the
interim relief.
16. Insofar as the issue of injunction is concerned, Plaintiffs are in
minority. Allowing the case of Plaintiffs would amount to this Court
halting redevelopment of the Society building which admittedly and
prima facie are in a dilapidated condition to the detriment and rights
of the remaining 98 members. The case made out by Plaintiffs is not
such that it requires interference of this Court especially when the
physical condition of the buildings and the detailed report thereof has
been placed on record for consideration of the Court. When prima
facie Trial Court has taken judicial note of the age of the buildings
and considered the TAC report, I find no reason whatsoever to
interfere with the impugned findings and reasons which have been
reported in paragraph Nos. 7 to 17 on all three parameters requiring
consideration of the Plaintiffs' case for injunction. No prima facie case
whatsoever is made out by Plaintiffs warranting interference of this
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Court neither the balance of convenience is in favour of Plaintiffs. It
is seen that irreparable harm will be caused to the Society and other
98 members of the Society if Plaintiffs' case is accepted. Admittedly
Plaintiffs are in a minority as acknowledged by the Court on the basis
of the averments made in the Suit plaint. In that view of the matter
order dated 04.12.2025 is upheld and confirmed. Resultantly, Appeal
from Order fails and is therefore dismissed. Interim Application is
accordingly dismissed.
[ MILIND N. JADHAV, J. ]
17. After the order is pronounced in Court, Mr. Thorat, learned
Advocate for Appellants - Plaintiffs persuades the Court to continue
with the ad-interim order which was granted on 08.11.2025 and stay
the effect of this order to enable them to test the legality and validity
of this order in the Superior Court.
17.1. Since the Appeal from Order was moved before this Court on
the basis of the order passed by the Trial Court which was not a
reasoned order, ad-interim relief was granted by this Court. However
in view of the observations and findings returned in the aforesaid
order, the request made by Mr. Thorat is rejected.
Amberkar
[ MILIND N. JADHAV, J. ]
RAVINDRA MOHAN
MOHAN AMBERKAR
AMBERKAR Date:
2026.02.20
17:35:19 +0530
