Final Order 1

Order Details: Copy of Judgment
Pdf Text: JUDGMENT L. C. SUIT NO.527/2019
MHCC010005292019
Presented on 15.01.2019
Registered on 01.03.2019
Decided on 30.06.2026
Duration Yrs. Months Days
07 03 29
CNR No: MHCC010005292019
EXHIBIT- 32
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
LONG CAUSE SUIT NO. 527/2019
1. Phenomena Entertainment Media Private Limited,
a company incorporated under the provisions of
the Companies Act, 1956, having its address at
102, Prathamesh Tower, ‘A’ Wing, Raghuvanshi
Mill Compound, 11/12 Senapati Bapat Marg,
Mumbai - 400013.
2. Ms. Savita Gupta,
an adult Indian Inhabitant of Mumbai
Age 45 years, Occupation: Business
having her address at Unit No.101-A,
Prathamesh Tower, ‘A’ Wing, Raghuvanshi Mill
Compound, 11/12 Senapati Bapat Marg,
Mumbai - 400013. … Plaintiffs
Versus
1. Municipal Corporation of Greater
Mumbai,
a local statutory body having
its office at Mahapalika, Building,
Mahapalika Marg, Fort, Mumbai - 400 001.
2. Assistant Municipal Commissioner,
G/South Ward, Municipal Office, N. M. Joshi
Marg, Mumbai - 4000 13.
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3. Designated Officer – 2,
Assistant Engineer (B and F),
G/South Ward, Municipal Office, N. M. Joshi
Marg, Mumbai - 400013.
4. Raghuvanshi Mills Limited,
a company incorporated under the
provisions of the Companies Act, 1913,
having its registered office address at
11/12 Senapati Bapat Marg, Mahalaxmi,
Mumbai - 400013. … Defendants
APPEARANCE: -
Adv. Ashok Pande a/w Adv. Shobhit Shukla and Adv. Ruby Tripathi for
the plaintiffs.
Adv. Tavakkuli a/w Adv. Dharmesh Vyas and Adv. Amar Patil for the
defendants.
CORAM : HIS HONOUR JUDGE,
R.V. BHAKTA (C. R. NO. 61).
DATED : 30.06.2026
JUDGMENT
(Delivered on 30th June, 2026)
This is a suit for declaration that a notice bearing No.
ACGS/68/SR/BF dated 09.04.2018 issued u/S.351 of the MMC Act, as
well as a Speaking Order dated 07th May, 2018 passed thereon are
illegal, bad in law and for perpetual injunction restraining defendants
from implementing the aforesaid notice and taking action of demolition
in respect of property-Unit Nos.101 and 102, situated at 1st floor of the
structure ‘A’ known as ‘Prathamesh Towers’ standing on a portion of
land in Raghuvanshi Mill Compound bearing City Survey No.107 of
Lower Parel Division situated at 11-12, Senapati Bapat Marg, Lower
Parel, Mumbai - 400013. (hereinafter called as the 'suit property').
2. THE PLAINTIFF’S CASE: -
(i) The plaintiffs are in use, occupation and possession of the suit
property. The suit premises is one of the units situated in Building No.3
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known as “Prathamesh Towers”, located within the Raghuvanshi Mill
Compound. The said compound consists of several buildings which
were formerly used for ancillary purposes of the mill. It is the plaintiff’s
case that the Raghuvanshi Mill became a sick industrial undertaking
and was subsequently closed down. In order to address its liabilities
and liquidation proceedings, various revival schemes were proposed
before the Board for Industrial and Financial Reconstruction (B.I.F.R.),
which were not approved. Thereafter, the management of Raghuvanshi
Mill approached the Appellate Authority for Industrial and Financial
Reconstruction (A.A.I.F.R.) and obtained permission to dispose of
certain buildings situated within the mill compound for the purpose of
discharging the dues of the mill workers and other liabilities.
(ii) According to the plaintiffs, pursuant to the order passed by the
A.A.I.F.R., Raghuvanshi Mill appointed M/s. Chaitanya Developers for
development of the suit building comprising a basement, ground floor
and six upper floors containing various units. It is contended that M/s.
Chaitanya Developers carried out only necessary tenantable repairs to
the existing structure and thereafter sold different units to various
purchasers, including the plaintiffs. The purchasers subsequently
formed a co-operative society known as “Prathamesh Tower Premises
Co-operative Society Limited”. It is further contended that all members
of the society, including the plaintiffs, are regularly paying municipal
taxes and have obtained separate electricity connections. According to
the plaintiffs, the suit unit and other units in the building have been
duly recognized in the records of the defendants/B.M.C. and therefore,
the occupation and user of the building are acknowledged by the
defendants/B.M.C.
(iii) The plaintiffs further contend that the original owner of the land,
namely Khimji Bhagwandas Trust, had leased the entire property to
Raghuvanshi Mill. Thus, Raghuvanshi Mill was the lessee of the said
trust. It is further alleged that the buildings situated within the mill
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compound have been in existence for more than 100 years and are,
therefore, much prior to the ‘datum line’. According to the plaintiffs,
Building No.3 known as “Prathamesh Towers”, consisting of a
basement, ground floor and six upper floors having a number of
separate units, was also in existence prior to the ‘datum line’.
(iv) It is further the case of the plaintiffs that the defendants/B.M.C.
had granted permission for tenantable repairs to the suit building by
letters dated 11.12.1984 and 17.05.1989. During the course of such
repairs, the defendants/B.M.C. issued a notice dated 11.08.1997 under
section 354 of the M.M.C. Act. Raghuvanshi Mill submitted its reply
along with supporting documents, pursuant to which the proceedings
initiated under section 354A of the M.M.C. Act came to be dropped.
(v) Thereafter, the defendants/B.M.C. issued another notice dated
26.09.1997 under section 351 of the M.M.C. Act to Raghuvanshi Mill.
The said notice was replied to along with relevant documents.
However, a Speaking Order dated 04.07.1998 came to be passed
without properly considering the material placed on record. Aggrieved
thereby, Raghuvanshi Mill instituted Suit No.3601 of 1998 challenging
the said notice and speaking order. The said suit came to be decreed in
favour of Raghuvanshi Mill. The defendants did not challenge the said
judgment and decree before the appellate forum. Consequently, the
said decree attained finality and, according to the plaintiffs, operates as
‘Res-judicata’ between the parties. It is contended that the defendants
are, therefore, estopped from once again alleging that the suit building
is unauthorized. Despite the same, the defendants have issued the
impugned notice under section 351 of the M.M.C. Act and passed the
impugned speaking order with an alleged mala fide intention of
assisting Khimji Bhagwandas Trust in obtaining possession of the
leasehold property.
(vi) According to the plaintiffs, the impugned notice and speaking
order are illegal, arbitrary, vague and void ab initio, having been issued
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without granting a proper opportunity of hearing and without due
consideration of the plaintiff’s reply and supporting documents. It is
further contended that the impugned action has been initiated with
mala fide intent and in violation of the principles laid down by the
Hon’ble Supreme Court in ‘Sopan Maruti Thopte and Another vs. Pune
Municipal Corporation and Another, reported in 1996 (1) Maharashtra
Law Journal’. On these grounds, the plaintiffs have sought the reliefs
claimed in the suit.
3. THE DEFENDANT/B.M.C. CASE: -
(i) The defendants have resisted the suit by filing their Written
Statement and have denied the material averments contained in the
plaint which are going against their interest. According to the
defendants, upon a complaint made by Khimji Bhagwandas Trust, the
concerned Designated Officer carried out an inspection of the suit
property. During the inspection, it was found that Building No.3,
consisting of a basement, ground floor and six upper floors, comprising
approximately 35 units along with two lifts, had been constructed
without obtaining any sanctioned plan or requisite permission from the
defendants/Municipal Corporation. Photographs of the alleged
unauthorized construction were taken and an inspection report was
prepared. Thereafter, a notice was issued calling upon the plaintiffs to
produce documentary evidence regarding the legality of the structure
described in the notice schedule. Although the plaintiffs submitted a
reply through their advocate and produced certain documents, their
advocate failed to furnish any material demonstrating that the
structure, including the basement, upper floors, individual units and
lifts, either existed prior to the ‘datum line’ or had been constructed
pursuant to valid municipal permissions and sanctioned plans.
(ii) The defendants further contend that the plaintiffs have altered the
user of the suit premises without obtaining the requisite permission
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from the defendants/Municipal Corporation. Accordingly, unauthorized
change of user also constitutes one of the grounds for issuance of the
notice under section 351 of the M.M.C. Act.
(iii) The defendants further submit that the impugned notice and
speaking order were issued after granting the plaintiffs an adequate
opportunity of hearing and after considering the reply and documents
submitted by them. It is contended that the Designated Officer has
strictly complied with the principles laid down in Sopan Maruti Thopte
(supra) while passing the speaking order. According to the defendants,
the impugned notice and speaking order cannot be challenged before
this Court in view of the express bar contained in section 515A of the
M.M.C. Act. Consequently, it is contended that this Court lacks
jurisdiction to entertain and decide the present suit. On these grounds,
the defendants have prayed for dismissal of the suit.
4. I have heard the learned Advocate for the plaintiffs and the
learned Advocate for the defendants at length. Upon consideration of
the pleadings of the parties, the documentary evidence placed on
record and the submissions advanced on their behalf, my learned
predecessor framed the Issues at Exhibit-5. The same are reproduced
hereinbelow along with my findings thereon for the reasons recorded
hereinafter.
Sr.
No. ISSUES FINDINGS
1 Do the plaintiffs prove that the impugned notice
u/S.351 of the MMC Act dated 09.04.2018 and
the Speaking Order dated 07.05.2018 are
illegal, bad and not enforceable?
In the
negative.
2 Whether this Court has jurisdiction to try the
present suit?
In the
affirmative.
3 Are the plaintiffs entitled for relief of the
declaration and injunction as prayed?
In the
negative.
4 What order and decree? As per final
order.
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R E A S O N S
5. The plaintiffs, in order to prove their case, have filed an
evidence affidavit of PW-1 Hemant Kumar Ghag at (Exh.7). In support
of this, they have relied on a number of documents at (Exh.8) such as -
Sr.
No. Documents Exhibits
1 Original Authorization letter/resolution of the
Authorized Signatory of the plaintiff. Exh.9
2 Original registered Agreement for Sale dated
29/04/2024 entered into between plaintiff and
Chaitanya Developers. Exh.10
3 Original Share Certificate of the suit premises. Exh.11
4 Original electricity bill of the suit premises. Exh.12
5 Original bills with copy of cheque payment
issued by the Assessment Department of
G/South Office of the defendants for payment
of property tax in respect of the suit premises. Exh.13
6 Original maintenance receipts issued by the
Prathamesh Tower Premises Co-operative
Society Ltd. to the plaintiff in respect of the
suit premises. Exh.14
7 Xerox copy of I.O.D. dated 01.10.1975. Exh.15
8 Xerox copy of C.C. dated 09.10.1975. Exh.16
9 Xerox copy of B.C.C. dated 09.10.1975. Exh.17
10 Xerox copy of impugned plan dated
01.10.1975. Exh.18
11 Xerox copy of impugned plan dated
26.04.1977. Exh.19
12 Xerox copy of alleged Tikka Sheet. Exh.20
13 Photocopy of Impugned Notice dated 9th April
2018. Exh.21
14 Speaking Order dated May 7, 2018. Exh.22
15 Certified copy of Exh.15 in L. C. Suit No. 3601
of 1998. Exh.23
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6.
On the Contrary, the defendants/B.M.C. in order to
substantiate their defence have filed evidence affidavit of Sunil
Janaradhan Tawde at (Exhibit-25). In support of this, the
defendants/B.M.C. have also relied on documents such as -
Sr.
No. Documents Exhibits
1 List of documents. Exh.26
2 Inspection Report for action under section 351
of the M.M.C. Act. Exh.27
3 Notice under section 488 of the M.M.C. Act. Exh.28
4 Speaking Order dated 26.11.2018. Exh.29
ARGUMENTS: -
7. Learned Counsel for the plaintiffs submitted that it is an
undisputed fact that the plaintiffs are the owner and occupier of the
suit property. According to him, the suit property is an old structure
which was in existence prior to the ‘datum line’. Owing to the age and
condition of the structure, only tenantable repairs were required to be
carried out. It is contended that the plaintiff’s predecessor-in-title had
undertaken only such tenantable repairs after obtaining the requisite
permission from the defendants/B.M.C. and had not carried out any
new construction or structural additions. Despite the same, the
defendants/B.M.C. issued the impugned notice and passed the
impugned speaking order on false and untenable grounds, allegedly
with a mala fide intention of assisting the landlord/complainant in
securing possession of the leasehold property.
8. Learned Counsel further argued that prior to the issuance
of the impugned notice, the Designated Officer neither carried out a
proper inspection of the structure nor prepared a panchanama in
accordance with the guidelines laid down by the Hon’ble Supreme
Court. It was further contended that the speaking order came to be
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passed without proper consideration of the plaintiff’s reply and the
documents produced in support thereof. According to the plaintiffs, the
notice is vague, illegal and void ab initio, and the action of the
defendants/B.M.C. is vitiated by non-compliance with the principles of
natural justice and settled procedural requirements.
9. Learned Counsel for the plaintiffs further submitted that
the defendants/B.M.C. had earlier issued a notice dated 26.09.1997
under section 351 of the M.M.C. Act to the plaintiff’s predecessor-in-
title and had passed a speaking order thereon without duly considering
the reply and supporting documents. Consequently, Raghuvanshi Mill
instituted Suit No.3601 of 1998 challenging the said notice and
speaking order. He submitted that the allegations in the earlier notice
were confined to unauthorized additions and alterations to Reinforced
Cement Concrete (R.C.C.) and brick masonry work and no allegation
was made regarding additional floors or the existence of a basement.
The sketch annexed to the said notice itself depicted Building No.3 as
consisting of a ground floor and six upper floors. He further pointed
out that in the Written Statement filed by the defendants/B.M.C. in the
said suit, the existence of the ground-plus-six-floor structure was not
specifically denied. The said suit was decreed and it was held that the
structure was in existence prior to the ‘datum line’. Since the decree
was not challenged in appeal, it attained finality. It was, therefore,
contended that the present action of the defendants/B.M.C. is barred
by the principles of ‘Res-judicata’. According to him, the
defendants/B.M.C. have once again sought to treat the structure as
unauthorized by alleging construction of a basement, illegal additions
and alterations and change of user, solely with the intention of assisting
the landlord.
10. Learned Counsel further submitted that the sanctioned
plans of the years 1975 and 1977, as well as the Tikka Sheet relied
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upon by the defendants/B.M.C. are fabricated documents. According to
him, the plaintiffs have specifically pleaded this fact in the plaint. He
argued that the defendants/B.M.C. have failed to offer any satisfactory
explanation as to why these documents were not produced in Suit
No.3601 of 1998. According to him, this fact itself lends credence to
the plaintiff’s allegation that the documents have been subsequently
created with a view to justify demolition of the entire structure.
11. Learned Counsel further submitted that the evidence
placed on record clearly demonstrates that the impugned notice and
speaking order are a nullity in law. It was, therefore, argued that
notwithstanding the statutory bar contained in the M.M.C. Act, this
Court retains jurisdiction to entertain and adjudicate upon the present
suit. In support of his submissions, reliance was placed upon various
judicial pronouncements including ‘Abdul Karim Ahmed Mansoori vs.
Municipal Corporation of Greater Mumbai & Anr., Writ Petition (L)
No.2237 of 2013’, ‘The Commissioner, Akola Municipal Corporation vs.
Bhalchandra S/o Govind Mahashabde, 2013 (5) ALL MR 190’ and
‘Western Refrigeration Engineering vs. State of Maharashtra, Writ
Petition No.2544 of 2021’.
12.
Per contra, learned Counsel appearing for the
defendants/B.M.C. submitted that the plaintiffs have failed to produce
any evidence either before the Designated Officer or before this Court
to establish that the suit structure was in existence prior to the ‘datum
line’ or that only tenantable repairs were carried out. He contended
that the evidence on record clearly demonstrates that Building No.3
known as “Prathamesh Towers” was constructed without obtaining the
requisite permissions from the defendants/B.M.C.
13. He further submitted that the plea of ‘Res-judicata’ is
misconceived. According to him, the subject matter of Suit No.3601 of
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1998 and the issues involved therein are materially different from those
arising in the present proceedings. While the earlier proceedings
concerned a ground-plus-six-floor structure, the present notice pertains
to a basement, ground floor and six upper floors. Moreover, the present
notice also encompasses allegations relating to unauthorized change of
user, internal subdivision of the building into 35 units and installation
of lifts without obtaining defendant’s/B.M.C. approval. Therefore, the
decree passed in Suit No.3601 of 1998 cannot operate as ‘Res-judicata’
in the present proceedings.
14. Learned Counsel for the defendants further submitted that
the plaintiffs have failed to establish by any cogent evidence that the
suit structure was in existence prior to the ‘datum line’ or that it was
erected pursuant to valid permissions and sanctioned plans issued by
the defendants/B.M.C. He contended that the impugned notice and
speaking order were passed after following due procedure prescribed
under law and, therefore, the same cannot be challenged before this
Court in view of the express bar contained in section 515A of the
M.M.C. Act. In support of his submissions, reliance was placed upon
‘Asma Lateef and Anr. vs. Shabbir Ahmad and Ors., Civil Appeal
No.9695 of 2013 decided on 12.01.2024’, ‘Mrs. Sarina Esmeralda Lopez
vs. Mr. Vijay Goverdhandas Kalantri and Municipal Corporation of
Greater Mumbai, Civil Revision Application No.448 of 2013 decided on
16.01.2015’ and ‘Sonu Sood and Anr. vs. Municipal Corporation of
Greater Mumbai and Anr., Appeal From Order (Stamp) No.270 of 2021
decided on 21.01.2021’.
AS TO ISSUE NOS.1 TO 4: -
APPRECIATION AND MARSHALING OF EVIDENCE: -
15. Before adverting to the appreciation of evidence, it is
necessary to mention here that the plaintiffs have challenged the notice
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issued under section 351 of the M.M.C. Act and the speaking order
passed pursuant thereto on the ground that the same are void and
constitute a nullity in law. On the other hand, the defendants have
raised an objection to the maintainability of the suit by relying upon
the statutory bar contained in section 515A of the M.M.C. Act. The
plaintiffs contend that the impugned action is ex facie illegal and void
and therefore, falls within the limited exception recognized by law.
Consequently, the question of jurisdiction requires consideration at the
outset.
16. It is well settled that under section 9 of the Code of Civil
Procedure, a Civil Court has jurisdiction to entertain all suits of a civil
nature unless its jurisdiction is expressly or impliedly barred by statute.
Where a special enactment provides a complete mechanism for
redressal of grievances and expressly excludes the jurisdiction of the
Civil Court, the Court must ordinarily refrain from exercising
jurisdiction in matters covered by such enactment.
17. Section 515A of the M.M.C. Act specifically excludes the
jurisdiction of Civil Courts in matters relating to actions taken under
the Act, particularly those concerning unauthorized constructions. The
legislative intent behind the provision is to prevent prolonged delays in
the removal of illegal constructions arising from protracted civil
litigation.
18. The provision thus confers finality upon orders, directions
and notices issued under the M.M.C. Act and bars their challenge in
civil proceedings. However, the settled legal position recognizes a
limited exception where the impugned action is shown to be a nullity,
having been taken without jurisdiction or in flagrant violation of the
principles of natural justice.
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19. In the present case, the plaintiffs have sought to invoke the
jurisdiction of this Court by alleging that the impugned notice and
speaking order are illegal and void. However, mere use of expressions
such as “illegal”, “bad in law” or “void” is not sufficient to confer
jurisdiction upon a Civil Court. In ‘Mrs. Sarina Esmeralda Lopez vs.
Vijay Goverdhandas Kalantri (supra)’, the Hon’ble High Court of
Bombay has observed that:
“Mere use of the words illegal, bad in law without any
substantiation would not aid the plaintiff to invoke the
jurisdiction of the Civil Court as the jurisdiction of the Civil
Court can now be invoked only if the action is a nullity on
account of there being an error of jurisdiction."
20. Thus, in order to invoke the jurisdiction of the Civil Court,
the plaintiffs must establish that the impugned action suffers from a
jurisdictional defect or has been taken in violation of fundamental
principles of natural justice. The Court must examine whether a
reasonable opportunity of hearing was afforded, whether the statutory
procedure was followed, whether the authority applied its mind to the
relevant material, and whether reasons have been recorded in support
of the decision.
21. In light of the aforesaid legal position, it is necessary to
determine whether the plaintiffs have succeeded in establishing that
the impugned notice and speaking order are a nullity in law and are
therefore liable to be set aside.
22. The record reveals that the plaintiffs were served with the
impugned notice and submitted a detailed reply thereto along with
supporting documents. The material on record further indicates that an
opportunity of hearing was afforded to the plaintiffs before the
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speaking order came to be passed. The speaking order specifically
records that the plaintiffs failed to produce satisfactory documentary
evidence demonstrating that the structure was authorized or
constructed in accordance with sanctioned plans.
23. In view thereof, it cannot be said that the plaintiffs were
denied an opportunity of hearing or an opportunity to produce
documents in support of their case. The requirement of compliance
with the principles of natural justice appears to have been duly
satisfied.
24. On the contrary, it is the case of the defendants/B.M.C.
that the impugned action was initiated pursuant to a complaint
received from the owner of the land and communications received from
the office of the Hon’ble Chief Minister. Upon inspection of the site, the
concerned officer noticed the alleged unauthorized construction and
prepared an inspection report. Based upon such inspection, a notice
under section 351 of the M.M.C. Act was issued calling upon the
plaintiffs to establish the legality of the structure. As the plaintiffs failed
to furnish satisfactory proof regarding the legality of the construction,
the impugned speaking order came to be passed.
25. As stated supra, it is the case of the plaintiffs that the suit
unit forms part of Building No.3, known as “Prathamesh Towers”,
which was in existence prior to the ‘datum line’. According to the
plaintiffs, pursuant to the orders passed by the A.A.I.F.R., Raghuvanshi
Mill engaged M/s. Chaitanya Developers, who merely carried out
tenantable repairs and thereafter sold the individual units to various
purchasers. Consequently, the burden lies upon the plaintiffs to
establish that the structure was in existence prior to the ‘datum line’
and that the works undertaken by M/s. Chaitanya Developers were
confined to tenantable repairs and did not amount to fresh construction
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or structural additions.
26. At this stage, it is necessary to refer to the relevant
provisions of the M.M.C. Act and the Development Control Regulations.
These statutory provisions have been enacted to regulate planned
development and ensure public safety. Any construction undertaken in
contravention thereof is liable to be treated as unauthorized and is
subject to action by the Municipal Corporation.
27. Section 337 of the M.M.C. Act mandates issuance of notice
to the Commissioner before erection of any building. Section 342
requires prior notice in cases involving additions, alterations or change
of user. Section 347 further prohibits commencement of such work
without obtaining the requisite approval from the Municipal
Commissioner. The statutory scheme clearly contemplates prior scrutiny
and approval of building plans before construction activity is
undertaken.
28. It is further necessary to mention here that Rule 58 of the
Development Control Regulations clearly and exclusively deals with the
‘Development or Redevelopment of the Lands of the Cotton Textile
Mills’, which contemplates that,
“Only with the previous approval of the ‘Commissioner’ to
a layout prepared for development or re-development of
the entire open land and built-up area of a sick and/or
closed Cotton Textile Mill and on such conditions deemed
appropriate and specified by him and as a part of a
package of measures recommended by the Board of
Industrial and Financial Reconstruction (B.I.F.R.) for the
revival/rehabilitation of a potentially viable sick and/or
closed Mill, the Commissioner may allow:
(a) the existing built-up areas to be utilized -
(i) for the same Cotton Textile or related user subject
to observance of all other Regulations;
(ii) for diversified industrial user in accordance with
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the industrial location policy, with office space only
ancillary to and required for such users, subject to
and observance of all other Regulations;
(iii) for commercial purposes, as permitted under these
Regulations.”
29. Rule 58 clearly mandates prior approval of the
Commissioner to the redevelopment layout and prescribes the
permissible extent of development. Any redevelopment undertaken
without compliance with the said requirements would be contrary to
the statutory scheme.
30. Since the present suit arises from a notice issued under
section 351 of the M.M.C. Act, the initial burden lies on the
defendants/B.M.C. to show that it has complied with the statutory
requirements and followed due procedure under law while initiating
action against the alleged authorized structure. Where the Designated
Officer finds that a structure has been erected or altered in
contravention of the Act, he is empowered to issue a show-cause notice
calling upon the concerned person to establish the legality of the
structure.
31. Thereafter, the burden shifts upon the concerned persons
i.e. on plaintiffs to prove the legality of the structure by producing
cogent documentary evidence showing either that the structure existed
prior to the ‘datum line’ or that it was erected pursuant to valid
permissions, sanctioned plans and approval of the defendant’s/B.M.C.
because the relevant documents are within their special knowledge and
possession. Mere assertion of the structure, unsupported by the
documentary evidence, is insufficient to discharge such a burden.
32. It is an admitted position that Building No.3 known as
“Prathamesh Towers” presently comprises a basement, ground floor and
six upper floors. This fact is borne out from the inspection report and
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has also been admitted by the plaintiffs during cross-examination.
33. Upon a careful scrutiny of the evidence on record, it is
evident that the plaintiffs have failed to produce any documentary
evidence before either the Designated Officer or this Court to establish
that the basement, ground floor and six upper floors having 35 separate
units were in existence prior to the ‘datum line’ or that the same were
constructed pursuant to valid permissions and sanctioned plans issued
by the defendants/B.M.C.
34. In this regard, it is pertinent to note that it is an admitted
position on record that Building No.3, known as “Prathamesh Towers”,
presently comprises approximately 35 independent units, of which the
suit premises is one. However, the plaintiffs have failed to place any
evidence on record to establish that these 35 units were in existence
prior to the ‘datum line’ or that the predecessors-in-title of the
plaintiffs, namely Raghuvanshi Mill or M/s. Chaitanya Developer, had
converted Building No.3 into 35 separate units after obtaining the
requisite permission from the defendants/B.M.C.
35. It is also the plaintiff’s own case that, pursuant to the order
passed by the Appellate Authority for Industrial and Financial
Reconstruction (A.A.I.F.R.), Raghuvanshi Mill undertook redevelopment
of the suit property through M/s. Chaitanya Developer with a view to
overcoming its financial liabilities and liquidation proceedings.
Thereafter, separate units were sold to various purchasers, including
the plaintiffs. The A.A.I.F.R. order itself indicates that such
redevelopment was permissible only after obtaining the necessary
permissions and sanctioned plans from the defendants/B.M.C.
Therefore, it is abundantly clear that Raghuvanshi Mill and M/s.
Chaitanya Developer were required to redevelop Building No.3 strictly
in accordance with the permissions granted by the defendants/B.M.C.
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However, upon careful scrutiny of the evidence on record, it is evident
that the plaintiffs have failed to establish that the redevelopment of
Building No.3 was undertaken after obtaining the requisite permissions
and sanctioned plans from the defendants/B.M.C. in compliance with
the A.A.I.F.R. order.
36. In my considered view, the aforesaid conduct of the
plaintiff’s predecessors-in-title is not merely contrary to the order of the
A.A.I.F.R. but is in clear contempt thereof. In such circumstances, it was
incumbent upon Raghuvanshi Mill and M/s. Chaitanya Developer to
obtain prior approval from the defendants/B.M.C. before undertaking
any redevelopment activity.
37. At this stage, it is also necessary to note that the plans of
the years 1975 and 1977, as well as the sketch annexed to the
inspection report, indicate the existence of two lifts in Building No.3.
The plaintiffs have admitted this fact during cross-examination.
However, there is no evidence on record to demonstrate that the said
lifts were installed after obtaining the requisite permission from the
defendants/B.M.C. or that they existed prior to the ‘datum line’.
38. As stated earlier, the plaintiffs have consistently contended
that their predecessors-in-title carried out only tenantable repairs to
Building No.3 with the permission of the defendants/B.M.C.
39. However, a comprehensive examination of the evidence
reveals that the plaintiffs have failed to produce any material
demonstrating the condition of the original structure before the alleged
repairs were undertaken or its condition after the completion of such
repairs. It was expected from the plaintiffs to place on record evidence
showing the ‘pre-existing’ and ‘post-repair’ status of the structure in
order to substantiate the contention that the work undertaken
constituted merely tenantable repairs falling within the permissible
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legal framework. The plaintiffs having failed to produce such evidence,
an adverse inference under section 114(g) of the Indian Evidence Act is
liable to be drawn against them.
40. Another contention advanced on behalf of the plaintiffs is
that the plaintiff’s predecessors had earlier instituted Suit No.3601 of
1998 challenging a notice issued under section 351 of the M.M.C. Act
and the speaking order passed thereon. The said suit was decreed in
favour of the plaintiff’s predecessors, and the defendants/B.M.C. did
not challenge the decree in appeal. Consequently, the decree attained
finality. It is therefore contended that the present notice and speaking
order are barred by the principle of ‘Res-judicata’. In support of this, he
has relied on a number of case laws such as ‘Dadu Dayalu Mahasabha,
Jaipur (Trust) vs. Mahant Ram Niwas and Another, (2008) 11 SCC
753’, in which the Hon’ble Apex Court has held that, “when issues
which arise in the subsequent suit section 11 of the Code of Civil
Procedure shall apply”. ‘Bharat Wadhwa vs. Sushma Arora and others,
2013 SCC OnLine Del 2448’, in which the Hon’ble Apex Court has held
that, “section 11 of the Code of Civil Procedure when using the
expression “between parties under whom they or any of them claim
includes a transferee pendente lite, who is therefore bound by the
decree in all earlier suits as if they were a party thereto” and ‘M/s.
Faime Makers Private Limited vs. District Deputy Registrar, Co-
operative Societies (3), Mumbai and others, (2025) 5 SCC 772’, in
which the Hon’ble Apex Court has held that, “principle of ‘Res-judicata’
binding on quasi-judicial body.”
41. This contention raised by the plaintiffs is not acceptable
because, in the earlier suit, the subject matter pertained to a structure
consisting of ground plus six upper floors, whereas the present
proceedings concern a structure comprising a basement, ground floor
and six upper floors. Further, the allegation of unauthorized change of
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user, which forms one of the grounds in the present notice, was not the
subject matter of the earlier proceedings. Additionally, the present
notice pertains to a specific unit which was not directly in issue in Suit
No.3601 of 1998. Thus, the causes of action and issues involved in the
present proceedings are distinct and materially different from those
involved in the earlier suit. Cosequently, the principle of ‘Res-judicata’ is
not attracted.
42. The plaintiffs have further contended that the
defendants/B.M.C. failed to adhere to the procedure and guidelines
laid down by the Hon’ble Supreme Court in ‘Sopan Maruti Thopte and
Another vs. Pune Municipal Corporation and Another, reported in 1996
(1) Maharashtra Law Journal’. I find no merit in this submission. As
already discussed, the plaintiffs have failed to establish the legality and
authenticity of the suit structure. Moreover, the Hon’ble Supreme Court
has held that,
“The procedural lapses by the State or local bodies
which do not seriously affect the substantive rights of
a person, ought not to result in ad interim orders.”
43. Furthermore, in ‘Mohammad Imran Gulam Mohd. Gujarati
vs. Municipal Corporation of Greater Mumbai in Appeal From Order
(St.) No.25660 of 2019 with Interim Application No.1 of 2019 and
Interim Application No.2 of 2019 decided on 18.09.2019’, in which the
Hon’ble High Court of Bombay has held that,
"Merely by pointing out deficiencies in the notice or
the authority of the person issuing the notice was not
sufficient".
In these circumstances, only on the ground that the
defendants/B.M.C. have not followed the proper procedure and
thereon, some deficiencies in the notice which don't materially affect
the merits of the case do not make the illegal construction of the
plaintiffs legal.
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44. The plaintiffs have also contended that the impugned
notice and speaking order are based upon fabricated sanctioned plans
of the years 1975 and 1977 and Tikka Sheet. According to the
plaintiffs, the defendants/B.M.C. neither denied this allegation in its
written statement nor produced these documents in the earlier suit,
thereby supporting the allegation of fabrication.
45. In this context, after perusal of the written statement filed
by the defendants/B.M.C. it clearly shows that the defendants/B.M.C.
have specifically denied the allegation that the sanctioned plans of
1975 and 1977 and the Tikka Sheet are fabricated documents. Mere
non-production of particular documents in earlier proceedings, by
itself, cannot lead to an inference that the official defendant’s/B.M.C.
record is false and fabricated.
46. It is a settled principle that a party alleging fraud and
forgery or fabrication has to prove such allegations by producing cogent
and convincing evidence. Fraud or fabrication never presumes and
must be specifically pleaded and proved. Equally, official acts and
public records carry a presumption of regularity under section 114 (e)
of the Indian Evidence Act, 1982, unless the contrary is established by
satisfactory evidence. Needless to mention that fraud and forgery
require a high degree of proof and cannot rest on mere suspicion or
presumption. In the case of ‘Union of India vs. Chaturbhai M. Patel and
Company, reported in (1976) 1 SCC 747’, in which the Hon’ble Apex
Court has held that “fraud must be strictly plead, proved and cannot be
rest on suspicion.”
47. In the present case, apart from making a bald allegation,
the plaintiffs have not produced any documentary or expert evidence to
establish that the sanctioned plans of the years 1975 and 1977 or the
Tikka Sheet relied upon by the defendants/B.M.C. are forged,
fabricated, manipulated or otherwise unreliable. No material has been
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brought on record to rebut the presumption under section 114 (e) of
the Indian Evidence Act, 1982 attaching to the official
defendant’s/B.M.C. records. In the absence of any substantive evidence,
the allegation of fabrication cannot be accepted merely on suspicion or
conjecture. Consequently, the said contention deserves to be rejected.
48. The plaintiffs have further alleged that the impugned
action is mala fide as it was initiated pursuant to a complaint lodged by
the landlord and forwarded through the office of the Hon’ble Chief
Minister of Maharashtra. Even assuming that the proceedings were
initiated at the instance of the landowner or pursuant to such
communication, the same does not establish mala fides. Being the
Planning Authority under the relevant statutes, the B.M.C. is under a
statutory obligation to take action against unauthorized constructions
irrespective of the source of information. The decisive consideration is
whether the statutory procedure has been followed. As already held,
the plaintiffs have failed to establish the legality of the suit structure.
Therefore, the allegation of mala fides is devoid of merit.
49. In the present suit, the defendants/B.M.C. have also
challenged the maintainability of the suit on the ground that no prior
notice under section 527 of the M.M.C. Act was served before the
institution of the suit.
50. I do not agree with this contention raised by the
defendants/B.M.C because the impugned notice and speaking order
directed demolition of the suit structure and created an immediate
apprehension of coercive action. In such circumstances, the plaintiffs
were justified in approaching the Court without issuing the statutory
notice contemplated under section 527 of the M.M.C. Act. This aspect
has also been clarified by the Hon’ble High Court of Bombay in the case
of ‘M/s. Akash Impex vs. Municipal Corporation of Greater Mumbai,
2013 SCC OnLine 1339’ and in the case of ‘Motilal Sharma vs. B.M.C.
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First Appeal No.170/1982’, wherein the Hon’ble Apex Court has held
that, “threats to immediate demolition are stopped from contending
that pre-suit notice was not given.”
In these circumstances, I have not found any substance or force
in the above-said grounds raised by the defendants/B.M.C.
51. Upon an overall assessment of the evidence on record, I
am of the considered opinion that the plaintiffs have failed to prove
that Building No.3, consisting of approximately 35 units including suit
unit and two lifts, existed prior to the ‘datum line’ or was constructed
pursuant to a sanctioned plan or valid permission granted by the
defendants/B.M.C. The plaintiffs have also failed to establish that any
change of user was carried out with due authorization. Further, no
evidence has been produced to demonstrate compliance with Rule
58(1) of the Development Control Regulations for Greater Mumbai,
1991. Consequently, the redevelopment and change of user are also in
breach of the said Regulations and are not entitled to protection in law.
52. The evidence further establishes non-compliance with the
statutory requirements contemplated under sections 337 and 342 of the
M.M.C. Act concerning construction activity and change of user. The
record reveals that after granting the plaintiffs an adequate opportunity
of hearing and considering the documents produced, the Designated
Officer passed a reasoned speaking order directing demolition of the
unauthorized structure. Sub-section (2) of section 351 of the M.M.C.
Act expressly empowers the Designated Officer to pass such an order
where the noticee fails to establish the legality of the construction.
Consequently, no fault can be found with the impugned order.
53. In view of the foregoing discussion, I hold that the
plaintiffs have failed to establish the legality or authenticity of the suit
structure. On the contrary, the defendants/B.M.C. have succeeded in
demonstrating that the structure was erected and altered without
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obtaining the requisite permissions and sanctioned plans. The plaintiffs
are therefore not entitled to the equitable relief of injunction. The
conduct of the plaintiffs or their predecessors in title itself shows that
the plaintiffs are not entitled to the ‘equitable relief of injunction’ as
prayed by it in the present suit, as it is the basic principle of equity that,
“equity follows the law." Furthermore, applying the principle of caveat
emptor (buyer beware), it was incumbent upon the plaintiff to verify
the legality and authenticity of the property prior to purchase. In ‘Esha
Ekta Apartments Co-operative Housing Society Ltd. vs. Municipal
Corporation of Mumbai and others, reported in AIR 2013 SC 1861’, in
which the Hon’ble Apex Court has held that “the purchaser has to
inspect all the sanctions and plans prior to the purchase. Subsequently,
the purchaser cannot claim that he was not aware of illegal
construction done by the developer.” Accordingly, the plaintiffs cannot
derive any benefit either from their own conduct or from the acts of
their predecessors-in-title. The growing menace of unauthorized
construction must be curbed in the larger public interest. Consequently,
Issue Nos.1 and 3 are answered in the Negative and Issue No.2 is
answered in the Affirmative. Hence, the following order: -
ORDER
1. Long Cause Suit No.527/2019 is dismissed with costs.
2. Decree be drawn up accordingly.
3. Dictated and pronounced in open Court.
(R. V. Bhakta)
Judge, (C.R. No.61)
Date: 30.06.2026 City Civil Court, Gr. Mumbai.
Typed on : 30.06.2026
Checked on : 30.06.2026
Signed on : 30.06.2026
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER"
DATE: 30.06.2026, AT 05.30 P. M. Siddhesh S. Shirke
Stenographer (Grade-I)
Upload Date and Time Name of Stenographer
Name of the Judge (with Court no.) : Shri. R. V. Bhakta, (C. R. No.
61)
Date of pronouncement of
Judgment/Order : 30.06.2026
Judgment/Order signed by the P. O.
on
: 30.06.2026
Judgment/Order uploaded on : 30.06.2026
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