9.AO/370/2021 Dinesh Dubey Vs. MCGM (Thr. Asst. Engineer) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 370 OF 2021 WITH INTERIM APPLICATION NO. 3136 OF 2021 IN APPEAL FROM ORDER NO. 370 OF 2021 Dinesh Gopinath Dubey … Appellant V/s. The Municipal Corporation of Gr. Mumbai (Thr. Assistant Engineer) … Respondent _______________________________________ Mr. Anil Mishra a/w. Mr. Rihen Mishra for the Appellant. Mr. D.R. Kawale for Respondent – BMC. _______________________________________ CORAM : FARHAN P. DUBASH, J. DATE : 12th FEBRUARY 2026 P. C.: 1. The present Appeal impugns an order dated 18th August 2021 passed by the Trial Court dismissing Notice of Motion No. 1318 of 2020 taken out by the original Plaintiff/Appellant herein seeking reliefs against the Defendant Corporation and impugning an order dated 31st July 2020 (impugned order) passed by the Corporation pursuant to a notice issued ------------------------------------- Order dated 12th February 2026 This order is modified/corrected pursuant to the order dated 15th April 2026 9.AO/370/2021 Dinesh Dubey Vs. MCGM (Thr. Asst. Engineer) under Section 351 of Mumbai Municipal Corporation Act, 1888 (MMC Act) dated 2nd July 2020. 2. Though the Appellant was granted protection at the interim stage, the impugned order has dismissed the Notice of Motion preferred by the Appellant. A perusal of the impugned order, particularly paragraph 12 thereof, indicates that one of the principal grounds for dismissal was the Trial Court’s observation that all documents produced and relied upon by the Appellant in the Suit had already been considered by the Defendant Corporation prior to passing the order dated 31st July 2020. However, a perusal of this order ex facie reveals that it neither deals with nor considers any of the documents relied upon by the Appellant. In fact, the earliest document referred to in the order is of the year 1991, whereas the documents sought to be relied upon by the Appellant pertains to the period commencing from 1960 onwards. 3. Even otherwise, the Trial Court, in paragraph no. 13 of the impugned order observes that the documents which are relied upon by the Appellant shows the existence of a Pan Shop but the same is not considered only on the ground that the Shop number reflected in the said documents appears to be ‘Shop no. 5’ whereas, the Plaintiff’s case is that it he is ------------------------------------- Order dated 12th February 2026 This order is modified/corrected pursuant to the order dated 15th April 2026 9.AO/370/2021 Dinesh Dubey Vs. MCGM (Thr. Asst. Engineer) operating from ‘Shop no. 5-A’. On this basis alone, the Trial Court has concluded that no document had been produced to establish that Shop No. 5-A is an authorized structure erected with the prior permission of the Defendant Corporation and further recorded a prima facie finding that the Appellant is not entitled to any interim protection. 4. Upon perusal of the said documents and the records of the case, it is evident that apart from the shop of the Appellant herein, which is a Pan Shop, there is no other Pan Shop operating in the said building. Therefore, once the Trial Court recorded a finding that the documents disclose the existence of the Pan Shop, it ought to have granted protection to the Appellant so as to enable him to lead evidence and avail a fair opportunity to prove his case. Instead, the impugned order summarily disregards the said documents without giving an opportunity to the Appellant to lead evidence in support of the same so as to prove his case. That is more so since the Trial Court has itself recorded a finding that the Pan Shop was in existence by relying on the said documents which are of the year 1960. 5. Mr. Anil Mishra, learned Counsel who appears on behalf of the Appellant states that the matter in the Trial Court is presently at the stage of recording of evidence. He further states that his client has already filed his ------------------------------------- Order dated 12th February 2026 This order is modified/corrected pursuant to the order dated 15th April 2026 9.AO/370/2021 Dinesh Dubey Vs. MCGM (Thr. Asst. Engineer) evidence and in the premises, the present Appeal should be allowed and the impugned order ought to be set aside. 6. After filing the present Appeal, by an order dated 28th October 2021, this Court had granted ad-interim relief in favour of the Appellant which has continued till date. 7. Considering that the matter is now at the stage of evidence and considering the findings recorded above, I am of the view that the impugned order is required to be set aside and an opportunity should be given to the Appellant to make out his case before the Trial Court. The Appellant has produced and relied on several documents, the oldest being that of 1960 and grave and irreparable harm and injury would be caused to the Appellant if, at this stage, his Shop is permitted to be demolished. In the circumstances, the following order is passed : :: ORDER :: (i) Appeal No. 370 of 2021 is hereby allowed. (ii) The impugned order dated 18th August 2021 is hereby quashed and set aside. (iii) There shall be no order as to costs. ------------------------------------- Order dated 12th February 2026 This order is modified/corrected pursuant to the order dated 15th April 2026 9.AO/370/2021 Dinesh Dubey Vs. MCGM (Thr. Asst. Engineer) (iv) All pending Interim Applications taken in the present Appeal from Order if any, also stand disposed of in terms of this order, and all interim orders passed therein, if any, shall stand vacated. (v) The Trial Court is directed to expedite the hearing of the Suit preferably on or before 28th February 2027. ( FARHAN P. DUBASH, J. ) Ajay Jadhav ------------------------------------- Order dated 12th February 2026 This order is modified/corrected pursuant to the order dated 15th April 2026 AMOL PREMNATH JADHAV Digitally signed by AMOL PREMNATH JADHAV Date: 2026.04.16 11:35:43 +0530