JUDGMENT : 1. The only issue which has arisen in the present proceedings concerns a garage, the existence of which is undisputed. It is also not in dispute that the garage had been duly assessed by the Municipal Corporation and was being used for commercial purposes. The building has since undergone redevelopment. However, the position that now arises is that the Municipal Corporation does not recognize the area pertaining to the said garage in the redevelopment. In such context, we had heard learned Counsel for the parties on 4 th July 2025 when a detailed order came to be passed, which reads thus:- “1. We have heard Dr. Tulzapurkar, Learned Senior Counsel for the Petitioners and Mr. Chavan, Learned Counsel for the Respondent- Corporation. 2. Respondent No.4, who was served, has filed Affidavit. However, Respondent No.4 is not represented today. Advocates for the Petitioners shall issue a notice intimating the adjourned date of hearing to the Advocates for Respondent No.4-Society. 3. The short issue, which has arisen for consideration of this Court, is whether the garage structure in question would be entitled and/or would be counted for insofar as the redevelopment in question resorted under Regulation 33(7) of the Development Control and Promotion Regulations for Greater Mumbai, 2034 are concerned. 4. The case of the Petitioners is that admittedly the structure, which was permitted to be used as an office, is certified/approved by MHADA and on the basis of such certification, the Respondent-Municipal Corporation was required to take the same into account in sanctioning the plan so as to provide for an alternate area to the garage in the redevelopment of the premises. However, the Respondent-Municipal Corporation by the impugned decision has not accepted such contention and the proposal as submitted by the Architect of the Developer. From the certification as undertaken by MHADA, we find that item 6 reads the description of the Petitioners’ structure, in which the following entry has been made: “6) First Date of Assessment Certificate issued by Assistant Assessor and Collector of MCGM G-North Ward dated 27.07.2022, wherein first date of assessment is prior to 1961-62.” 5. The requirement in law, as pointed out by Dr. The requirement in law, as pointed out by Dr. Tulzapurkar, for a non cessed structure to be taken into consideration would be as per Regulation 33(7) (1)(b) which reads thus: “33(7) Reconstruction or redevelopment of cessed buildings in the Island City by Co-operative Housing Societies or of old buildings belonging to the Corporation: (1) ………….. (a) ………….. (b) All the eligible occupants of cessed and non cessed building/structures (existing prior to 30.09.1969) certified by MBRRB, existing on the plot having cessed building only, shall be re-accommodated in the redeveloped building.” 6. Thus, the question is whether the non cessed structure in question i.e. the garage, was in existence prior to 30th September 1969. Dr. Tulzapurkar has drawn our attention to the assessment as undertaken by the Municipal Corporation, and which according to him, also reflected in the remark as made on behalf of the MHADA that the Assessor and Collector of the Municipal Corporation, G- North Ward has certified on 27 th July 2022 that the first date of assessment is prior to 1961-62. This fact, as borne out by the assessment, would be required to be verified and an Affidavit to that effect would be required to be placed on record on behalf of the Municipal Corporation, as we find that in the notesheet at Exhibit ‘S’ (Page 154) which was prepared on the basis of which the Municipal Commissioner has taken a decision. This aspect has not been considered and it is on this basis the impugned decision has been taken, in not permitting the non cessed structure to be taken into consideration. 7. Hence, proper Affidavit in this regard on the assessment of the structure is vital, which needs to be more clarified by the Municipal Corporation. Let such Affidavit be filed on or before the adjourned date of hearing. Copy of the same be furnished on the Petitioners and all other parties. 8. Stand over to 17th July 2025 (HOB).” 2. 7. Hence, proper Affidavit in this regard on the assessment of the structure is vital, which needs to be more clarified by the Municipal Corporation. Let such Affidavit be filed on or before the adjourned date of hearing. Copy of the same be furnished on the Petitioners and all other parties. 8. Stand over to 17th July 2025 (HOB).” 2. Thereafter, on 4 th November 2025, this court passed an order, wherein we opined that the Competent Authority of the Municipal Corporation accordingly needs to take an appropriate view of the matter by taking into consideration all such documents which are on record of this petition as also available with the Department of Assessment of BMC in considering as to whether any amounts/penalty or any other form of regulation can be invoked and pass appropriate orders granting change of user. We also observed that the BMC needs to take an appropriate view of the matter, as it was an admitted position that several old buildings in Mumbai of the “earlier era” had garages and with the passage of time the user of the garages in many cases was discontinued, which were used for other purposes. We also observed that in the ordinary course it was incumbent upon the BMC that such change of user should have been appropriately considered in accordance with law. We had expressed a hope that the Municipal Commissioner of the BMC would duly apply his mind to such issues. Also it was observed that an inspection be undertaken of all the garages in the old buildings in Mumbai for an appropriate action as per law to be taken in regard to any change of user of such premises having changed assessment, so that when the building goes for redevelopment, such issues, as raised in the present petition, would not arise. The order dated 4 th November 2025 is required to be noted, which reads thus:- “P.C. 1. On 4 th July 2025 we passed a detailed order on the present proceeding. As seen from the said order the dispute in the present petition pertains to a garage, in the building in question which was demolished in August-2023. It is the Petitioner’s case that the garage was occupied by the Petitioner as an office (commercial user). On 4 th July 2025 we passed a detailed order on the present proceeding. As seen from the said order the dispute in the present petition pertains to a garage, in the building in question which was demolished in August-2023. It is the Petitioner’s case that the garage was occupied by the Petitioner as an office (commercial user). Hence, qua the area of subject garage, the Petitioner asserts that the Petitioner would be entitled for such category of permanent alternate accommodation in the redeveloped premises. In other words, it is the Petitioner’s contention that the area of the garage needs to be included in the redevelopment plan for the construction of permanent alternate accommodation in lieu thereof. There would not have been any dispute if the Brihanmumbai Municipal Corporation (`BMC’) was to accept the Petitioner’s contention of such entitlement. However, the case of the BMC is that the area of garage cannot be considered for the purpose of total FSI which would be available for undertaking the redevelopment construction, inasmuch as the garage being used as an office was not permitted by the BMC. In other words, the case of BMC is that the garage would remain a garage and benefits of garage as a commercial premises cannot be provided as it is recognized to be a commercial area by the BMC. These are the broad contours of the case which falls for adjudication in the present proceedings. As noted in the order dated 4 th July 2025 this Court has also noted the provisions of Regulation 33(7) of DCPR-2034. 2. A reply affidavit was directed to be filed by the BMC by an earlier order passed by this Court. In pursuance thereto an affidavit dated 17 th July 2025 has been filed in which following statements relevant to the controversy are made in paras 3, 4, 4(b) and 5 : “3. I further say that the present Affidavit is being filed in compliance of the Order dated 4.7.2025 passed by this Hon’ble Court whereby this Hon’ble Court directed Respondent No.1 to verify on Affidavit the fact, on the basis of which the Assessor and Collector of Municipal Corporation, G/North Ward has certified on 27.72022 that the first date of assessment of structure in question is prior to 1961-62 which MHADA has also taken into consideration. Further, in the Note sheet on the basis of which the decision has been taken by the Hon’ble Municipal Commissioner, the aforesaid fact has not been considered and the impugned decision is taken in not permitting the non-cess structure to be taken into consideration. Hereto annexed and marked as Exhibit “A” is a copy of the said Order dated 4.7.2025 passed by this Hon’ble Court. 4. I say that on the property bearing Final Plot No.765(b), TPS-IV Cadastral Survey No.2/103 of Mahim Division situated at College Lane, Dadar (West), Mumbai, there existed two structures description of which from the assessment angle is as follows : B. Garage : (i) Adjacent to the structure of house there existed a Garage bearing Ward No.GN-4482(1AB)/SAC No.GN060262–80000. Based on the records available with Respondent No.1 since 1976, it is discerned that the structure of Garages was assessed prior to 1961-62 and upto 30.9.1980, it was being assessed at a ratable value of Rs.375/- NPA (Non-Residential). (ii) This Garage structure was thereafter extended and altered so as to put it to use as an office. This composite unauthorised unit of which Garage was a part, was reassessed on account of extension and change in user as office with effect from 110.1980 with ratable value of Rs.1885/- NPA (NR). (iii) It is pertinent to note that in the plans approved on 24.3.1979, there were two distinct Garages and were never included in the Plan as part of FSI. (iv) Pertinently, the Repair Cess is not levied to this property. 5. I say that as per the record available in the Respondent BMC office, the details of the property in dispute i.e. Garage is as follows : 3. Thus, a categorical stand has been taken by the BMC that the structures/ garages were assessed prior to 1980 at ratable value @ Rs.375/- NPA (non resident). If the statement made in the reply affidavit is to be accepted, for the last 45 years the premises were used not as a garage. Also as per the inspection extract in respect of the property (Exh.F. page 112), the user set out therein of this garage, is described to be in use as an office, although such extract pertains to the year 1995-96. Also there is a certification showing that the first assessment of the building was made in the year 1961-62. 4. Also as per the inspection extract in respect of the property (Exh.F. page 112), the user set out therein of this garage, is described to be in use as an office, although such extract pertains to the year 1995-96. Also there is a certification showing that the first assessment of the building was made in the year 1961-62. 4. Our attention is also drawn to the NOC/ Certification by MHADA (Exhibit-J, page 118) in regard to the garage in question against the name of the Petitioner, it has been categorically set out that the first date of assessment certificate issued by the Assistant Assessor and Collector of BMC, G/North Ward dated 22 nd July 2022, which refers to the first date of assessment being prior to the year 1961-62. Thus, MHADA has also certified on the basis of the BMC bill (of the year 2019-20) that the garage was being used as an office. 5. The Petitioner hence has documents to indicate that for last more than 4 decades the garage was being used as an office. The BMC is stated to have accepted the same by issuing assessment bills. Hence it is contended that it cannot now take a position, that such assessment needs to be now discarded. Also the BMC permitted such user for all these years and the Petitioner or the society was never called upon to regularize the user if it was so required. 6. Thus, the role of the BMC cannot be of mute spectator as an assessment exercise undertaken by the BMC for the last several years. It is an established fact on the record not only by MHADA but also BMC that the garages were used as commercial premises and for such reason the benefit of area is required to be taken into consideration in the redevelopment. We accept Mr.Chavan’s contention that although there appears to be lapse on the part of BMC, however, it is not fate accompli as the BMC can certainly charge penalty or some regularization charges, which in fact would aid the assessment already made and so that the redevelopment of the demolished building can be proceeded by utilizing the FSI of the garage. This would not cause any prejudice to the BMC or bring about a situation that the same would be contrary to the rules or regulations. 7. This would not cause any prejudice to the BMC or bring about a situation that the same would be contrary to the rules or regulations. 7. In our opinion, this is a peculiar case and therefore appropriate view needs to be taken by the BMC considering the prior actions of the BMC and the benefit of inclusion of the area of garage is required to be granted subject to payment of appropriate amounts as permissible in law. 8. In such circumstances we are of the opinion that the Competent Authority of the BMC needs to accordingly take appropriate view of the matter by taking into consideration all such documents which are on record of this petition as also available with the Department of Assessment of BMC in considering as to whether any amounts/penalty or any other form of regulation can be invoked and pass appropriate orders granting change of user. 9. We accordingly permit the Petitioner to submit all such relevant documents with the Competent Authority of BMC within a period of two weeks from today, although it appears that majority of the documents are already part of the petition and the Competent Authority of BMC has already examined them while filing reply affidavit. Hence appropriate decision is required to be taken expeditiously. The Petitioner at the first instance shall appear before the Competent Authority on 14 th November 2025 at 11.00 a.m. The Competent Authority after examining all such documents available with BMC and as submitted by the Petitioner, take appropriate decision levying penalty/ charges and pass an order to regularize the use of the garage for commercial purpose. 10. We clarify that we have passed aforesaid order in the peculiar circumstances of the case and it shall not be considered as a precedent. 11. We may also observe that in fact the BMC needs to take appropriate view of the matter, as it is an admitted position that several old buildings in Mumbai of the earlier era had garages and in the course of years the user of the garages in many cases was discontinued, and there was a change of user. 11. We may also observe that in fact the BMC needs to take appropriate view of the matter, as it is an admitted position that several old buildings in Mumbai of the earlier era had garages and in the course of years the user of the garages in many cases was discontinued, and there was a change of user. In the ordinary course it was incumbent upon the BMC that such change of user should have been appropriately considered in accordance with law, however, the BMC in many cases which have reached the Courts, has resorted to take a position different from what is the existing reality, even different from what could be gathered from its own records of assessment of the garages, not as garages. We are sure that the Municipal Commissioner of the BMC would duly apply his mind to such issues and cause an inspection to be undertaken of all the garages in the old buildings in Mumbai and take appropriate action as per law in regard to any change of user of such premises so that when the building goes for redevelopment, such issues, as raised in the present petition, would not arise. 12. Needless to observe that all such issues are required to be dealt with as per law and the DCPR provisions. We accordingly direct that appropriate orders be passed by the Competent Authority within a period of three weeks from today. 13. List the proceedings after three weeks. High on board, so that further appropriate orders can be passed depending on the view the Competent Authority may take, on the aforesaid orders passed by us.” (emphasis applied) 3. In pursuance of the aforesaid orders, Mr. Sanjay Jadhav, Executive Engineer (Building Proposal), City-III, has granted a hearing to the Petitioner and has passed an order dated 9 th December 2025. The order blames the Petitioner for having not applied for regularization at the appropriate time prior to the redevelopment while completely overlooking the observations made by the court on the issue in regard to the regularizing the garage structure and its change of user and assessment. The order blames the Petitioner for having not applied for regularization at the appropriate time prior to the redevelopment while completely overlooking the observations made by the court on the issue in regard to the regularizing the garage structure and its change of user and assessment. The order records that although the structure, as a garage, was an authorized structure, the user cannot be recognized as authorized, and is treated as unauthorized, on the ground that post-facto permission from the planning authority, upon payment of penalty, cannot be accepted as the Petitioner never approached the planning authority for regularization of the user by counting the area in FSI, as per the prevailing regulations. It is on such premise that the Petitioner’s application has been rejected. We may observe that, although a speaking order is stated to have been passed with the approval of the Municipal Commissioner, there is nothing on record to indicate that the Municipal Commissioner, as directed by us, has applied his mind to the facts of the case. 4. In this view of the matter, and having considered the contentions urged before us, we are, of the clear opinion, that the order of the Executive Engineer as confirmed by the Municipal Commissioner is passed overlooking the correct factual position on the subject matter, as also the factors which were required to be taken into consideration by the said officer, in respect of which we had made observations in the earlier orders, as noted hereinabove. We had specifically observed that the concerned officer was required to be aware of the ground realities, in regard to which we have made reference to such buildings and that over passage of time, the user of garages had undergone changes and were also subjected to appropriate assessment. The present case was a peculiar instance of such nature as also an assessment was undertaken. Thus, the abundant powers available with the Municipal Corporation to consider the assessed premises for such use which was recognized and not disputed so as to regularize the same ought to have been exercised by the Executive Engineer to grant the benefits. The present case was a peculiar instance of such nature as also an assessment was undertaken. Thus, the abundant powers available with the Municipal Corporation to consider the assessed premises for such use which was recognized and not disputed so as to regularize the same ought to have been exercised by the Executive Engineer to grant the benefits. We are of the opinion that in the midst of development, after the building had been demolished, shifting the burden upon the petitioner on the ground that the petitioner had not applied for regularization at the relevant time, which could have been then granted, prima facie is not a justified/reasonable approach on the part of the Executive Engineer. The Municipal Commissioner completely overlooked this position. We are, therefore, left with no alternative but to direct the Competent Officer to file an affidavit placing on record how many garages in the city of Mumbai have been granted regularization in the last five years, as clearly observed by us in paragraph 11 of the earlier order. 5. Further, the details of regularization of illegal structures granted by the Municipal Corporation during the last five years, the data of which is readily available with the Building Proposal Department, shall also be placed on record in the affidavit to be filed with the approval of the Municipal Commissioner. The affidavit shall contain all particulars, including the area of the structures so regularized, in a tabular format. Let such affidavit be filed and placed on record within a period of two weeks from today. 6. We are also constrained to observe that the Municipal Corporation in large number of cases do not adhere to the rules and the law, resulting in generation of unwarranted litigation, before this Court being contested at public costs when there are glaring illegalities, which require far greater attention. Comparatively this is a very small case. 7. Stand over to 24 th December 2025 (HOB).