8 AO-475-2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 475 OF 2024 WITH INTERIM APPLICATION NO. 9728 OF 2024 IN APPEAL FROM ORDER NO. 475 OF 2024 Babanrao Sakharam Dherange ...Appellant Versus The Municipal Corporation of Greater Bombay & Another ...Respondents —————— Mr. Uday Warunjikar i/b Mr. Nitesh Bhutekar, Mr. Aaditya Mahamiya for Appellant. Mr. Drupad Patil, Ms. Neeta Jadhav i/b Ms. Komal Punjabi for Respondent-BMC. —————— CORAM : SHARMILA U. DESHMUKH, J. DATE : 6th August, 2026 P. C. : 1. The present Appeal is at the instance of original Plaintiff being aggrieved by the order of 6th May, 2024 passed by the Trial Court in Notice of Motion No. 1190 of 2023 along with Notice of Motion No. 2171 of 2023 dismissing the Notice of Motions, by which the Plaintiff sought temporary injunction restraining the Respondent-Corporation from demolishing the subject property. Sairaj 1 of 5 2026:BHC-AS:17613 8 AO-475-2024.doc 2. L. C. Suit No. 1338 of 2023 was filed seeking to challenge the notice dated 9/3/2023 issued by the Corporation under Section 55 of the Maharashtra Regional and Town Planning Act, 1966 [for short, “MRTP Act”] and subsequent speaking order dated 1st April, 2023. 3. The notice issued under Section 55 of Maharashtra Regional and Town Planning Act, 1966 was in respect of unauthorized erection of temporary structures admeasuring the specification mentioned therein at the junction of M. G. Road and L.B.S. Road Ghatkopar (West). The Plaintiff’s case was that the notice structure was in existence prior to datum line and was affected by road widening. Part of structure was acquired for road widening by the Corporation. In respect of remaining structure, repair permission was sought, which was granted on 22/10/2022. However, Corporation issued notice for erecting unauthorised temporary structure. The Trial Court by the impugned order noted the decision of the High Court in the case of Babar Sher Khan and Others vs. MCGM1 which had held that under Section 55 of MRTP Act, the Planning Authority may direct the removal of any structure or work erected and it must not be necessarily of wooden or tin sheets or tarpaulin. The Trial Court opined that it is necessary to see whether the development is of temporary structure and that the Plaintiff has not brought on record prima facie cogent evidence to 1 2008(2) BomCr 335. Sairaj 2 of 5 8 AO-475-2024.doc show that the development is of permanent nature. It further noted that the allegation of Corporation was that the Plaintiff had carried out unauthorized construction in violation of the terms and conditions of the repair permission and Plaintiff has not produced material on record to show that the dimensions of notice structure and the original structure are the same and he has not carried out excess unauthorized construction and dismissed the Notice of Motion. 4. Dr. Warunjikar, learned counsel appearing for Appellant would assail the very foundation of issuance of notice under Section 55 of MRTP Act, 1966 on the ground that the structure was not of temporary nature. He would further point out the order dated 24th April, 2023 passed by this Court in earlier stage of litigation where the submission was canvassed as regards the applicability of Section 55 of MRTP Act and this Court had protected the structure and directed the Trial Court to decide the motion. He points out that the impugned order is pursuant to the final decision taken by the Trial court in the Notice of Motion. He would further point out the provisions of Section 55 of MRTP Act, which deals with the removal or discontinuance of unauthorized temporary development summarily. He submits that considering the notice structure is set out in notice of unauthorized construction using MS angles, G.I. sheet roof, light weight partition walls, 7 rolling shutters, etc., the same would not constitute a Sairaj 3 of 5 8 AO-475-2024.doc temporary structure for the purpose of Section 55 of MRTP Act. 5. Per contra, Mr. Patil, learned counsel appearing for the Corporation would submit that the Trial Court has rightly considered the provisions of Section 55 of MRTP Act and that the decision of Planning Authority on the question of nature of structure shall be final. He would submit that the decision in the case of Babar Sher Khan and Others vs. MCGM (supra) was relied upon rightly by the Trial court in order to arrive at prima facie findings as regards the applicability of Section 55 of the MRTP Act. He would submit that the Trial Court has examined the material on record in order to come to a finding that the Plaintiff has not brought on record the cogent evidence to show the development is of permanent nature. 6. I have considered the submissions and perused the record. 7. It is an undisputed fact that part of the structure was acquired for road widening and for remaining structure, repair permission was granted. The issue was whether the Plaintiff had carried out construction in excess of development permission. The notice structure is described as an unauthorized erection of temporary structure, which is of the specification mentioned therein using MS angles, G.I. sheet roof, light weight partition walls and 7 rolling structures. At the earlier stage of litigation, this Court had noted the identical contention to hold that the question is as to whether the Sairaj 4 of 5 8 AO-475-2024.doc action under Section 55 can be lawfully resorted to and has protected the structure. Prima facie upon consideration of notice which makes a reference to GI sheet roof, MS angles, rolling shutters, the mere mention of the word “temporary” to describe the notice structure would prima facie not bring it within the ambit of Section 55 of MRTP Act. 8. The protection has been granted by the order of 2nd August, 2023, which has been continued till the hearing and final disposal of the suit. Prima facie, there is material on record to dispute the applicability of Section 55 of MRTP Act. The structure is therefore required to be protected. 9. The findings of the Trial Court on the aspect of applicability of Section 55 of the MRTP Act to deny the interim relief of injunction is unsustainable and is therefore, quashed and set aside. Needless to clarify that the Trial Court to decide the suit on its own merits and uninfluenced by observations of this order. 10. Resultantly, the Appeal is allowed. The Notice of Motion is allowed in terms of prayer clause (a). [SHARMILA U. DESHMUKH, J.] Sairaj 5 of 5