[Cites 1, Cited by 0]
Bombay High Court
Ms Kokilaben Khimji Shah And Ors. vs The Dy. Collector (Enc/Removal) And ... on 6 March, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
P23.AOST.6523.2026+.doc
HARSHADA H. SAWANT
(P.A.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST.) NO.6523 OF 2026
WITH
INTERIM APPLICATION (ST.) NO.6524 OF 2026
Kolilaben Khimji Shah and Ors. .. Appellants
Versus
The Dy. Collector (Enc/Removal) and Ors. .. Respondents
....................
Mr. Yash Tiwari, Advocate for Appellants.
...................
CORAM : MILIND N. JADHAV, J.
DATE : MARCH 06, 2026
P.C.:
1. Not on Board. Mentioned at 03:00 p.m. by way of filing
praecipe dated 06.03.2026. Perused the praecipe.
2. Heard Mr. Tiwari, learned Advocate for Appellants.
3. By virtue of the impugned action taken by the Corporation in
furtherance of the statutory notice issued under Section 351 (1A) of
the Mumbai Municipal Corporation Act, 1888 which is appended at
page No.140 as well as page No.152 to the Appeal from Order, the
Designated Officer has passed a speaking order dated 02.07.2024. This
order is appended at Exhibit-H, page No.216 to the Appeal from Order.
4. Mr. Tiwari has drawn my attention to the same and would
persuade me to consider the remarks of the Designated Officer in the
said order at serial No.2. He would submit that as per the Assessment
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Department's inspection extract of the suit property, assessment
document prima facie has been acknowledged to be in existence prior
to the datum line i.e. 1961 - 1962 in so far as ground floor of the
notice structure is concerned. He would submit that infact there is a
remark that notice structure is treated as 'Authorised'. However, the
extension on the first floor of the notice structure has been objected to
by Corporation.
5. In his usual fairness he would inform the Court that
Corporation has demolished the first floor structure / extension which
is the subject matter of the speaking order. He would submit that in
view of the conclusion which has been arrived at which is seen from
page No.217, the speaking order, inter alia, refers to unauthorised
construction of the ground floor plus first floor structure and there is
apprehension expressed by Appellants that Corporation will demolish
the ground floor structure also.
6. When the speaking order passed by the Designated Officer is
seen, there is clear incongruousness with respect to the remark given
by concerned Designated Officer with conclusion arrived at.
7. In that view of the matter and looking at documentary
evidence which is produced on record and appended at Appeal from
Order, suit structure as stated in the impugned notice dated
03.01.2024 and which is subject matter of speaking order dated
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02.07.2024 to the extent of the ground floor structure stands fully
protected in view of the specific remarks of the Designated Officer to
be authorised.
8. The exigency has arisen to move the present Appeal from
Order before this Court only in view of the impugned order dated
05.03.2026.
9. Mr. Tiwari is aggrieved with the Corporation's action for
invoking and giving fresh notice dated 27.02.2026 in respect of ground
floor structure and therefore he has persuaded the Court to intervene.
Considering the specific remark of Designated Officer in the speaking
order, there can be no reason to disbelieve the case of Appellants in so
far status of ground floor structure is concerned.
10. In that view of the matter, the imminent threat to Appellants'
ground floor structure which is seen from fresh notice issued on
27.02.2026 stands immediately stayed.
11. Since Mr. Tiwari informs the Court that order dated
05.03.2026 prima facie that order dated 05.03.2026 refuses
continuation of previous order which was interim order of protection
dated 22.08.2025 in the meanwhile. He would submit that reasoned
order dated reasoned order dated 05.03.2026 will be uploaded
subsequently. In that view of the matter, leave and liberty is granted
to Appellants to append a copy of reasoned order and amend the
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Appeal from Order and Interim Application for taking additional
grounds as per reasons which are given in the order passed by the
learned Trial Court rejecting interim relief. Necessary amendment is
permitted to be carried out within a period of one week from the date
of availability of reasoned order in the hands of Appellants.
Reverification stands dispensed with.
12. No coercive steps for demolition of the ground floor which is
protected / tolereated structure which has been designated to be
authorised and which is the subject matter of the speaking order
alluded to hereinabove shall be taken by taken by the Corporation.
13. Hence, issue notice to Respondents.
14. Humdast permitted. In addition to Court's notice, Appellants
is directed to serve the Respondents a copy of this order, amended
Appeal from Order and Interim Application shall be served on
Corporation and inform about the next date of hearing by any
permissible mode of service and file appropriate affidavit of service
with tangible proof thereof.
15. Respondents shall file their Affidavit-in-Reply within a period
of four weeks from today. Affidavit-in-Rejoinder, if any to be filed
within a period of two weeks thereafter.
16. Stand over to 16th April 2026.
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17. Praecipe is disposed.
H. H. SAWANT [ MILIND N. JADHAV, J. ]
HARSHADA HANUMANT
HANUMANT Date:
SAWANT 2026.03.06
18:49:31
+0530
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