1) By the present Appeal, the Appellant seeks to set aside the impugned Order dated 7th May 2024 passed by City Civil Court, Dindoshi, in Notice of Motion No.2767 of 2019 in L.C. Suit No.1879 of 2019, whereby the Trial Court dismissed the said Notice of Motion.

2) The Notice of Motion taken out by the Appellant-Plaintiff sought an interim order to restrain the Defendant – Brihanmumbai Municipal Corporation (‘BMC’) from demolishing the Suit structure or any part thereof situated on M.G. road, Near Tilak Nagar Road, Santacruz (W), Mumbai – 400 054.

FACTS & RIVAL SUBMISSIONS

3) Mr. Abhishek Tripathi, Advocate for the Appellant, submitted that the Appellant’s father had acquired the premises from one Shri Pandurang Gawade under an agreement dated 12th September 1986 for a sum of Rs.95,000/-. He submitted that in 1987, an application was made for transfer of electricity meter in Appellant’s name. He further submitted that the Additional Tahsildar had issued a Notice dated 3rd February 2012 under Section 45 of the Maharashtra Regional and Town Planning Act, 1966 (‘MRTP Act’), which according to him establishes that the Suit premises was in existence prior to the datum line. He contended that the Notice under Section 314 of the Brihanmumbai Municipal Corporation Act, 1888 (‘BMC Act’) could not have been issued to the Appellant, as the Appellant has been in uninterrupted use and occupation of the Suit premises several decades.

4) He submitted that the Notice dated 30th July 2019 is ordinarily issued in respect of hawkers’ stalls and is therefore unsustainable in law. He further submitted that the Appellant has been paying applicable taxes. He contended that the Trial Court erred in holding that the Appellant failed to establish that the land on which the structure stands is non-agricultural land. He submitted that the Trial Court ignored the order dated 5th March 2002, which according to him substantiates that the Suit structure is permanent structure. He further submitted that the electricity bills on record demonstrate the existence of the Suit premises for over 40 years. He contended that the the Trial Court has erroneously treated the suit premises as unauthorized and has mixed up the reference to open space in the agreement with the structure of the shop admeasuring 40 x 10 feet. He further submitted that the BMC has also issued a shop and establishment certificate for running the business of video games. According to him, in view of the documentary evidence including electricity bills, payment of the non-agricultural tax, and the agreement of dated 1986, the Appellant was entitled to an order of injunction.

5) He further submitted that the impugned notice has been issued under the guise of road widening, whereas in fact the Suit premises is neither situated on the road nor abutting any nala. He submitted that there are two other structures abutting the road, behind which the Appellant premises is situated. He contended that the land in dispute does not form part of a public street and that the disputed structure is not situated on, nor touching, any street— a fact which is evident from the impugned notice itself. He, therefore, submitted that considering the long-standing existence of the Suit premises, a notice under Section 314 of the BMC Act could not have been issued. He submits that the Notice under Section 314 is vague, sham, and does not disclose any reasons.

6) He further submitted that a notice under Section 314 of the BMC Act is ordinarily issued in cases relating to hawkers and, therefore, could not have been invoked in the present case, particularly having regard to the long-standing existence of the suit premises. It was contended that the impugned notice is vague and non-speaking, as it does not disclose any reasons or furnish particulars such as the description of the land, the area of the structure, or other material details. He submitted that, if at all any action was warranted, the BMC ought to have proceeded under Section 351 by affording him an opportunity of hearing and by following due process of law.

7) He further submitted that the Contempt Petition ought to be taken up first, alleging breach of the Court’s order dated 27th November 2024. It was contended that notwithstanding a subsisting stay granted in favour of the Appellant, the BMC had demolished a portion of the premises. He submitted that although the said portion was subsequently reconstructed, it was of a smaller extent than the original, and that in the meantime the BMC had permitted two additional structures adjacent to the Appellant’s premises. He therefore sought restoration of the premises to its original size and, on that basis, urged initiation of appropriate action against the concerned BMC officers for alleged disobedience of the Court’s orders.

8) On the aforesaid submissions, the learned Advocate submitted that the impugned Order dated 7th May 2024 deserves to be set aside.

9) Per Contra Mr. Godbole for the Respondent submitted that the Suit is not maintainable and is liable to be dismissed. The structure is constructed in gross breach and violations of the provisions of the BMC Act. The unauthorised construction is admeasuring 10.40 mtrs x 1.6 mtrs is on the Municipal footpath as per the BMC plan. The sanctioned plan also establishes that the structure was not constructed prior to the datum line. The Appellant has obtained no approval or obtained any permission from the BMC. The Appellant has failed to produce any document establishing it to be an authorised structure and consequently the Appellant is not entitled to any relief. There are neither pleadings nor documents to support the contention of the Appellant and does not deserve any protection from demolition.

10) The notice was issued to all illegal structures on the street as these structures were causing obstruction in the implementation of a Public Project and for improvement of traffic flow in the area.

11) The learned Senior Counsel relied on the definition of “street” under section 3 (w) of the BMC Act to submit that the Appellant’s structure is on the street and consequently the BMC is entitled to demolish it. He submitted that an encroachment on a public place could be dealt with under section 314 of the BMC Act.

12) Relying upon the affidavits of the Assistant Engineer, he submitted that the subject structure was situated on a public road abutting the Santacruz (West) Railway Station. He submitted that during a demolition drive undertaken by the BMC on 15th May 2025 to remove unauthorised structures, vendors and roof projections from the station road—almost six months after the order dated 27th November 2024—the Appellant’s stall, which was one amongst thirty-eight such stalls, came to be partially demolished inadvertently. He explained that no one from the Appellant’s side was present when the demolition staff arrived at site, and consequently a portion of the structure was damaged and demolished. However, immediately upon the Court’s order being brought to the notice of the staff, the demolition of the suit structure was stopped. It was therefore submitted that the partial demolition was neither intentional nor mala fide, as alleged. He further submitted that the structures were reconstructed on 16th August 2025, and that the Appellants had acknowledged due reconstruction. He submitted that the present Contempt Petition has been filed only to delay the adjudication of the Appeal and thereby continue the protection of an illegal structure. He further submitted that the Appellant’s contention that the reconstruction was accepted “without prejudice” is itself mala fide and aimed at deriving benefits to which the Appellant is not entitled.

13) In view of the foregoing submissions, it is submitted that the Appeal is liable to be dismissed and that the Contempt Petition also deserves to be disposed of, the alleged contempt having already been purged by the Respondents.

ANALYSIS AND CONCLUSION

14) Upon anxious consideration of the rival submissions and upon a careful perusal of the record, the following conclusions emerge.

15) Having considered the entire matter, it is evident that the Appellant has succeeded in retaining possession of an admittedly unauthorised structure for more than six years since issuance of the notice dated 30th July 2019. Such prolonged retention, facilitated by procedural delays, sends an adverse signal and has the effect of encouraging similar illegal constructions, as wrongdoers are able to continue deriving benefit from unauthorised structures for years while proceedings remain pending. In the present case, the material on record indicates that the structure has been in use for a considerable period, spanning well beyond two decades.

NO TITLE, NO RIGHT, NO EQUITY

16) The Agreement dated 12th September 1986 relied upon by the Appellant is an unregistered document and is therefore inadmissible in evidence for the purpose of establishing any right, title or interest. The document does not relate to private property but purports to deal with public land. It does not transfer, nor does it even purport to transfer, any structure standing thereon. On the contrary, the agreement expressly contemplates transfer of “open space”.

17) It is well settled that payment of user charges to the Municipal Corporation, electricity bills, shop and establishment registration, or licences for commercial activity do not create or evidence title. None of the documents relied upon by the Appellant establishes that the structure existed prior to the datum line of 1st January 1961 or that it was erected with lawful authority.

18) The Trial Court has correctly appreciated the documentary material and the legal position. The findings recorded therein are neither perverse nor contrary to law and warrant no interference. ABUSE OF PROCESS AND LACK OF CLEAN HANDS

19) The conduct of the Appellant disentitles him to any equitable relief. A litigant who seeks protection of an unauthorised structure erected on public land cannot invoke the jurisdiction of this Court by presenting himself as a lawful occupier.

20) In Dalip Singh v. State of Uttar Pradesh & Ors.((2010) 2 SCC 114), the Supreme Court has categorically held that courts must deny relief to litigants who approach with falsehood, suppression or misrepresentation. The present case is a textbook illustration of the mischief sought to be curbed by the said principle. The extracts reproduced hereinbelow are relevant even in the present day:

                   “1. ….. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the Court proceedings.

                   2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”

                   (Emphasis supplied)

21) The Appellant has attempted to confer legitimacy upon an otherwise unlawful occupation by relying upon a purported unregistered sale agreement relating to public land. The document itself, on its face, belies any such claim. The attempt is not merely misconceived, but borders on a deliberate effort to mislead the Court.

PROCEEDINGS UNDER S.314

22) Section 314 that is under consideration is reproduced herein below for ready reference:

                   “314. [Power to remove without notice anything erected, deposited or hawked in contravention of section 312 or 313A].— The Commissioner may, without notice, cause to be removed—

                   (a) any wall, fence, rail, post, step, booth or other structure or fixture which shall be erected or set up in or upon any street, or upon or over any open channel drain, well or tank contrary to the provisions of sub-section (1) of section 312, after the same comes into force 5[in the city or in the suburbs, after the date of the coming into force of the Bombay Municipal (Extension of Limits) Act, 1950 (Bom. VII of 1950) [or in the extended suburbs after the date of the coming into force of the Bombay Municipal (Further Extension of Limits and Schedule BBA (Amendment)] Act, 1956];]

                   (b) any stall, chair, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, attached, or suspended in, upon, from or to any place in contravention of sub-section (1) of section 313;

                   [(c) any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of section 313A and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale.]

                   [(d) any person, unauthorisedly occupying or wrongfully in possession of any public land, from such land together with all the things and material unauthorisedly placed, projected or deposited on such land by such person: Provided that, the Commissioner shall, while executing such removal, allow such person to take away his personal belongings and household articles, such as cooking vessels, bed and beddings of the family, etc.]”

23) The contention that the proceedings are wrongfully initiated under Section 314 of the BMC Act is erroneous in law. In Municipal Corporation of Gr. Bombay v. Premnagar Zopadpatti Committee Society(1991 Suppl. (2) SCC 712), 1991 Supp. (2) SCC 712 similar contentions were raised before the High Court and the High Court had granted interim injunction restraining the corporation from evicting the respondents from the land in dispute in the proceedings under sections 313 and 314 of the Act. While dealing with the appeal against the order of the High Court, the Supreme Court in paragraph 5 made the following observations:

                   “5. After hearing learned counsel for the parties, we are of the opinion that the view taken by the High Court that the land was not a public place although it had been acquired for purpose, therefore no proceedings under sections 313 and 314 of the Act could be taken against the respondents is erroneous in law. The land which had been acquired for the public purpose by the Corporation is a public place and any encroachment made on that land by any person could be dealt with under sections 313 and 314 of the Act. In this view, we allow the appeals and set aside the order of the High Court.”

24) It is thus evident that a “street”, by virtue of its definition under Section 3(w), constitutes a public place. The definition of “Street” as well as “Public Street” is extracted for ready reference:

                   “3(w). “street” includes any highway and any causeway, bridge, via duct, arch road, lane, footway, square, court, alley or passage, whether a thoroughfare or not, over which the public have a right of passage or access or have passed and has access uninterruptedly for a period of twenty years: and, when there is a footway as well as carriageway in any street, the said term includes, both:

                   Section 3(x) :- “public street” means any street heretofore levelled, paved, metalled, channelled, sewered or repaired by the corporation and any street which becomes a public street under any of the provisions of this Act: [ or which vests, in the corporation as a public street]:

25) Consequently, any encroachment made thereon by the appellants could validly be proceeded against under Section 314 of the Act.

ASSESSMENT, TAX AND THE MYTH OF REGULARISATION

26) The reliance placed on assessment to property tax is wholly misplaced. The legal position is no longer res integra. In Sidharam M. Yanagandul & Anr. v. State of Maharashtra & Anr.(2006 SCC OnLine Bom 971), affirmed by the Division Bench in Laxmi Gopinath Shetye v. MHADA & Anr.(2024:BHC-OS: 4270), it has been authoritatively held that assessment of an unauthorised structure to property tax neither alters its unauthorised character nor amounts to regularisation. The extracts reproduced hereinbelow squarely apply to the present case.

                   “7. The letter of the municipal corporation dated 2nd June, es the description of the structures assessed for property tax for the year 1978-1979. Structure No. 4 is the shop No. 3 wherein appellant is running the Santosh Bar. Rateable value of the shop is shown of Rs. 40/-. Rateable value of the suit shed (structure No. 4-A) is shown as Rs. 33.30/-. Relying upon this letter counsel for the appellant submitted that the fact that the suit shed was assessed to property tax would show that the suit shed was an authorised structure constructed after obtaining appropriate permission and in event the assessment of it for property tax would amount to regularisation of an unauthorised construction. I am unable to agree. In my view, any structure, whether authorised or unauthorised, constructed on a property within the limits of a municipal corporation can be assessed to municipal taxes. Mere fact that a structure which is erected without the permission of the Planning Authority and unauthorisedly is subsequently assessed to the property tax by the municipal corporation would not change the unauthorised character of the structure nor would make the structure authorised from the date of assessment. Of course, the fact that the structure is assessed to property tax for a long time may be a relevant circumstance while considering the evidence on whether the structure is authorised or unauthorised especially when sanctioned plans are not available because of long passage of time. The weight to be attached, to such evidence would depend upon the facts and circumstances of each case. However once it is proved that the structure is unauthorised, the mere fact that the structure is assessed to property tax would not have the effect of deemed regularisation or structure being treated as authorised.

                   8. Reference may be made to the decision of this Court in (Tata Hydro Electric Power Supply Co. Ltd. v. The Municipal Commissioner of Greater Bombay, reported in A.I.R. 1979 BOMBAY 10. In that case the question involved was whether the municipal corporation was entitled to assess for property tax the structures which were unauthorisedly erected on the land. Relying upon the earlier decision of the Supreme Court in (National Grindlays Bank Ltd. v. Municipal Corporation for Greater Bombay)3, reported in (1969) 1 SCC 541 : A.I.R. 1969 S.C. 1048 and of this Court in (Ramji Keshavji v. The Municipal Commissioner of Greater Bombay)4, reported in (1954) 56 Bom. L.R. 1132 and after considering the definition of the word “premises” contained in section 3(gg) of the Bombay Municipal Corporation Act this Court held that the municipal corporation was entitled to levy property tax not only in respect of the land but also on structures, whether authorised or unauthorised. It was specifically held that even when a trespasser on the land errects a structure, the municipal corporation would be entitled to take that into consideration in fixing rateable value of the property. In other words, municipal corporation is entitled to fix rateable value and impose the property tax even in respect of an unauthorised structure. If so, mere fact that rateable value in respect of a structure has been fixed would not, by itself, prove that the structure was authorised nor would it amount to regularisation of the structure. This is because municipal corporation is authorised to fix rateable value of not only for the authorised structures but also in respect of unauthorised structures erected on the land. In my view, therefore the letter dated 2nd June, 1979 showing that the suit shed was assessed to property tax, would not, by itself prove that the suit shed was an authorised structure.

                    24. In our view, the Petitioner has attempted to mislead the Court and gain unlawful advantage by stating that the shop was attached to the building, whilst not particularising which of the buildings 18A or 18B, and that based on the shop and establishment certificate, assessment paid and electricity bills attempted to make us believe that the shop was authorised. Thus, entitled to an authorised premises. This in our view would be encouraging wrongdoers and illegal occupants to benefit from their wrongdoings. Neither do these documents prove any title or entitlement of the Petitioner in law. On this ground alone the Petition deserves to be dismissed. The Supreme Court in SP Chengalvaraya Naidu v Jagannath & Ors has held that a litigant who approaches the Court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document or suppresses material information in order to gain advantage over the other side then he would be guilty of playing a fraud on the Court as well as the opposite party. Such a party is not entitled to any relief. Above all, a Court must have a complete and candid disclosure of all material particulars. A failure to disclose material particulars is indistinguishable from an attempt to mislead the Court. This is now well settled in our jurisprudence.”

                   [Emphasis supplied]

27) The reliance placed on the circular dated 20th March 2017 prescribing policy guidelines for removal of bottlenecks or missing links in Development Plan Roads, Town Planning Roads and Road Lines (“bottleneck policy circular”) is wholly misconceived. It is undisputed that the Appellant’s structure is situated on a public street, which includes the footpath. The impugned notice has been issued in furtherance of easing traffic congestion and ensuring free and unobstructed use of the public street. In any event, the bottleneck policy circular does not confer any right of protection, regularisation or compensation in respect of such an unauthorised structure, and the Appellant cannot claim any benefit thereunder.

28) The challenge to the validity of the notice issued under Section 314 of the BMC Act proceeds on the same erroneous premise. The contention that the notice was issued for the purpose of road widening is equally untenable and belied by the record. The record clearly establishes that the Appellant’s structure is situated on a public street and not abutting the carriageway, and that the notice was issued to remove obstruction and ease traffic congestion on the public street, and not for road widening. The attempt to invoke State policies governing road widening, in the teeth of these undisputed facts, is a clear effort to derive unwarranted benefit from an unauthorised structure and cannot be countenanced.

STATUTORY NON-COMPLIANCE AND FORUM SHOPPING

29) The notice dated 30th July 2019 was issued under Section 314 of the BMC Act. Instead of availing of the statutory remedy before the competent authority, the Appellant rushed to file a civil Suit on 2nd August 2019 without complying with the mandatory requirement under Section 527 of the said Act. The suit itself was thus vulnerable at inception.

30) The judgment in Sopan Maruti Thopte & Anr. v. Pune Municipal Corporation & Anr.(AIR 1996 Bom 304) is clearly distinguishable, having arisen from notices under Sections 351 and 260. The reliance is therefore entirely misconceived.

TACTICAL USE OF CONTEMPT PROCEEDINGS

31) The Appellant thereafter sought to invoke contempt proceedings and insisted that the same be heard prior to the Appeal. This sequencing was clearly intended to divert attention from the core issue of illegality and to prolong enjoyment of the unauthorised structure. Courts cannot permit contempt jurisdiction to be employed as a strategic tool to perpetuate illegality.

CONTEMPT BY THE CORPORATION - ADDRESSED BUT CONTAINED

32) It is true that the Municipal Corporation failed to adhere to the interim status quo order and proceeded with partial demolition. The explanation of inter-departmental miscommunication is unsatisfactory and cannot be accepted as a justification for disobedience of court orders.

33) However, it is equally material that the demolition formed part of a larger drive undertaken along the entire street and that the demolished portion was subsequently reconstructed. In these circumstances, the unconditional apology tendered by the concerned officers, coupled with restorative action, is sufficient to close the contempt proceedings with a warning.

SYSTEMATIC FAILURE AND MUNICIPAL ACCOUNTABILITY

34) The location of the unauthorised structure—immediately behind a Municipal chowki and abutting a railway line—raises serious and troubling questions. Such a structure could not have existed for years without willful blindness or dereliction of duty on the part of municipal officers.

35) The Municipal Commissioner shall treat this case as a test case and initiate an inquiry to identify responsibility for prolonged inaction. Failure to act against illegal constructions emboldens wrongdoers and corrodes the confidence of law-abiding citizens in municipal governance and the rule of law.

36) In view of the above, the following order is passed:

                   ORDER

                   i. The Appeal is dismissed is with costs Rs.5,00,000/- (Rupees Five Lakhs only), payable by the Petitioner to the Armed Forces Battle Casualties Welfare Fund, within a period of four weeks from today. In the event of default, the said amount shall be recoverable as arrears of land revenue. Details of the bank account for payment of cost are as under :-

                   Account Name : Armed Forces Battle Casualties Welfare Fund

                   Account Number : 90552010165915.

                   Bank Name : Canara Bank

                   Branch : South Block, Defence Headquarters, New Delhi – 110 011.

                   IFSC Code : CNRB0019055.

                   ii. The AGP shall intimate this order to the Armed Forces. In the event the Petitioner fails to deposit the said cost within stipulated period as noted herein above, the Authorized Officer of the Armed Forces Battle Causalities Welfare Fund will be entitled to file an application for execution of the present Order and for recovery of the said amount before this Court through the learned A.G.P.

                   iii. The impugned Order dated 7th May 2024 passed by the City Civil Court, Dindoshi, in Notice of Motion No. 2767 of 2019 in L.C. Suit No. 1879 of 2019 is upheld.

                   iv. The Contempt Petition is dismissed with a stern warning that any future violation of court orders by the Corporation or its employees shall invite strict consequences, including departmental inquiry and suspension, and shall be placed on the service records of the concerned officers.

                   v. A copy of this order shall be forthwith communicated to the Municipal Commissioner, Brihanmumbai Municipal Corporation, for necessary steps against the concerned officers who permitted the structure for more than two decades and shall be placed on the service records of the concerned officers.

                   vi. Interim relief, if any, stands vacated.

                   vii. Interim Application, if any, stands disposed of.

                   viii. List the matter for compliance on 24th March 2026.

37) At this stage, learned Advocate for the Petitioner requested for stay. In view of the aforesaid reasons, the request for stay is rejected.