Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No. 295/2019.
in L.C. Suit No. 140/2019.
MHCC010007402019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 295 OF 2019.
IN
L.C. SUIT NO. 140 OF 2019.
Savita Pawan Jain. …. PLAINTIFF.
V/s.
MCGM. …. DEFENDANTS.
CORAM : SHRI. V. R. JAGDALE
(Court Room No.11).
DATED : 12th August, 2025.
APPEARANCES :
Mr.B.P. Shukla, the Ld. Advocate for Plaintiff.
Mrs.Metakari a/w Mr.S.R. Yadav, the Ld. Advocates for
Defendant/MCGM.
*****
ORDER
01. This is the suit to challenge the notice U/s. 354A of the
MMC Act.
02. Inter-alia in view of urgency the plaintiff has taken out the
present NM for temporary injunction, restraining defendant/BMC from
demolishing the suit premises.
Facts of the plaintiff’s case can be summarized as below :-
03. The plaintiff is in use, possession and occupation of the suit
premises situated at CTS No. 581 to 585 more particularly described in
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2 Notice of Motion No. 295/2019.
in L.C. Suit No. 140/2019.
para-1 of the plaint. Sarladevi Thakur was owner and landlord of plot of
land bearing CTS No.581 to 585 and chawl situated thereon in which
suit premises is situated. The above CTS is situated in slum area and
was declared slum by notification dated 02.12.1978.
04. Initially Purnima Jhaveri was occupying the suit premises
in the capacity of tenant and paying rent to the landlord. But she
relinquished all her right, title and interest in the suit premises in favour
of plaintiff by executing deed of assignment dtd.04.08.2015.
Accordingly plaintiff has been accepted as a tenant and was paying rent
to the landlord.
05. The plaintiff has obtained the electricity connection at the
address of the suit premises and she is carrying business of building
material in the name and style M/s. Mamta Traders. The suit premises
required urgent repairs and accordingly plaintiff had submitted
application dtd. 29.10.2018 with Assistance Engineer seeking
permission to carry repairs. In pursuant to letter dtd.03.11.2018
permission was granted and plaintiff has carried out tenantable repairs
without any addition and alteration.
06. On the basis of false complaint notice was issued to the
plaintiff under section 354A of MMC Act, alleging that she has carried
out vertical extension to the suit premises. But impugned notice is
vague and does not mention details of the allege addition. The plaintiff
has tendered reply on 20.11.2018. But reply was not considered and
she was directed to remove suit premises within 24 hours of receipt of
notice. Hence, the plaintiff has prayed for relief of temporary injunction.
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3 Notice of Motion No. 295/2019.
in L.C. Suit No. 140/2019.
07. The defendant/BMC has filed reply cum written statement
contending that defendant had received complaint from Jyoti Singh
regarding unauthorized construction. Accordingly notice premises was
inspected and it was found that plaintiff has carried out unauthorized
vertical extension to the existing ground floor. The occupier could not
furnish document showing the authenticity of the structure. Accordingly
notice was issued under section 354A of the MMC Act, calling upon the
plaintiff to remove the unauthorized notice structure.
08. Even though plaintiff has contended that suit premises is
situated on land which is declared slum and is a censused structure. But
plaintiff failed to produce slum certificate in respect of notice structure.
Therefore, corporation is authorized to initiate action and suit is barred
in view of section 515 of the MMC Act, and prayed that notice of
motion be dismissed with costs.
09. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has made out prima
facie case ? …In the negative.
(ii). Whether balance of convenience lies in
favour of the plaintiff? …In the negative.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted? …In the negative.
(iv). What Order? …As per final Order .
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4 Notice of Motion No. 295/2019.
in L.C. Suit No. 140/2019.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
10. The Ld. Advocate for the plaintiff filed written submissions
and re-iterated contentions of the plaint. The main contention raised by
the plaintiff is that suit premises is situated in chawl which is situated
on plot of land bearing CTS No.581 to 585 which is declared slum and
it is also notified under Slum Act. It is further contended that plaintiff
who is tenant of the suit premises is carrying on business of building
material in the name and style Mamta Traders. But the suit premises
being old required repairs. Accordingly plaintiff has submitted
application dtd. 29.10.2018 seeking permission for repairs which was
granted. Inspite of above fact on the basis of false complaint notice has
been issued under section 354-A of MMC Act, and prayed that notice of
motion be made absolute.
11. On the contrary, the Ld. Advocate for defendant/BMC has
submitted that reply cum written statement be treated as written
argument and is the main contention of the defendant that plaintiff has
not produced slum certificate and defendant being planning authority is
empowered to take action even if, offending structure is situated in
slum area.
12. It is further contended that after inspection it was revealed
that plaintiff has carried out unauthorized vertical extension to the
existing ground floor. Accordingly, notice was issued to her under
section 354A of MMC Act and inspection report, notice and photographs
show on going construction are filed on record. The plaintiff has failed
to produce any document to show authorization of notice structure and
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5 Notice of Motion No. 295/2019.
in L.C. Suit No. 140/2019.
the suit itself is barred by section 515 of MMC Act. Hence, prayed notice
of motion be dismissed with costs.
13. The plaintiff has come with a case that suit premises is
situated in a chawl which is situated on plot of land bearing CTS
No.581 to 585 which is situated in slum area. Even though, plaintiff has
not filed on record slum certificate. But plaintiff has filed on record
notification dtd. 02.12.1978 to substantiate the above fact. On perusal
of the above notification it appears that CTS No. 581 to 585 of village
Kanjur are situated on slum land and in the inspection report the
defendant has not mentioned the CTS number.
14. The plaintiff has also produced on record property card of
CTS no. 581 and on perusal of the ownership column it appears that
land situated in the above CTS No. is owned by Sarladevi Thakur and
Ashok Thakur. Therefore, prima facie it appears that suit premises is
situated on slum land.
15. Be it so, the defendant being planning authority is
empowered to take action against unauthorized construction even if, it
is situated on slum land and this aspect has been dealt by Hon’ble High
Court in the case of Jilani Building at Bhiwandi V/s. Bhiwandi
Nizampur Municipal Corporation and Ors., in Civil Appellate
Jurisdiction Suo Motu Public Interest Litigation No.1 of 2020. In para
no.74 of the above judgment it is clearly held that MCGM being
planning authority has jurisdiction to exercise all powers under MMC
Act, as also the MRTP Act, and the Slums Act, to take action against
illegal structures as permissible in law and Slum Act, does not impose
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6 Notice of Motion No. 295/2019.
in L.C. Suit No. 140/2019.
embargo on the power of Municipal Corporation including the slums
declare under section 4 of the Slum Act. Therefore, it is clear that
corporation is not precluded from taking action even if property is
situated on slum land.
16. The plaintiff has also produced on record letter
dtd.27.10.2018 to substantiate the fact that she had sought permission
to carry out tenantable repairs from the corporation. On perusal of reply
dated 03.11.2018 the Corporation had granted permission under
section 342 of the MMC Act, which included 1. Replacing of roof with
the same material etc. 2. Changing floor tiles, 3. Plastering, painting,
pointing and excluded 1. Changing horizontal and vertical existing
dimension of the structure, 2. Addition or extension of mezzanine floor
of loft, 3. Flattening of roof or repairing roof with different material
etc., But plaintiff has not produced on record any documentary
evidence i.e., photographs to substantiate the fact that she has only
carried out tenantable repairs and not addition and alteration as alleged
by the defendant.
17. It appears that in the guise of carrying out tenantable
repairs the plaintiff has carried out vertical extension and increase the
height of the existing structure. Accordingly, on 13.11.2018, Jyoti Singh
who is landlord of the plaintiff had submitted application to that effect.
18. It further appears that thereafter, the corporation has
carried out inspection and the inspection report is filed alongwith
sketch and photograph. On perusal of the inspection and photograph it
appears that work was in progress at the time of inspection.
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7 Notice of Motion No. 295/2019.
in L.C. Suit No. 140/2019.
Accordingly, notice was issued to the plaintiff under section 354A of
BMC Act, calling upon her to stop the work. But the plaintiff failed to
comply with the above notice. Therefore, it is clear that plaintiff has
failed to make out prima facie case and the balance of convenience does
not tilt in her favour.
19. Irrespective of the above fact, the jurisdiction of this Court
is expressly barred in view of section 515 of the MMC Act, and
therefore, plaintiff is not entitled for the relief sought. Hence I answer
point no.1 to 3 in the negative and in result to answer to point no.4
pass the following Order.
-: ORDER :-
(i). Notice of Motion No. 295/2019 stands dismissed.
(ii). Notice of Motion No. 295/2019 is, accordingly,
disposed of.
(V. R. Jagdale)
Mumbai. Judge,
Dated : 12.08.2025. City Civil Court, Mumbai.
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8 Notice of Motion No. 295/2019.
in L.C. Suit No. 140/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
12.08.2025 at 1.21 p.m.
Name of the Stenographer
Mrs. V.N.Rajgole.
Name of the Judge (with Court Room No.) HHJ Shri V.R.Jagdale.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 12.08.2025
Judgment/Order signed by P.O. on 12.08.2025
Judgment/Order uploaded on 12.08.2025
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