Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010010182020
Presented on : 27-01-2020
Registered on : 27-01-2020
Decided on : 20-05-2026
Duration : 06 Y, 03 M, 25 D
IN THE BOMBAY CITY CIVIL COURT AT GR. BOMBAY
NOTICE OF MOTION No.401 OF 2020
IN
L.C. SUIT No.255 OF 2020
Mohammed Gafooruddin Siddiqui ) .. Plaintiff
V/s.
The Municipal Corporation of Greater
Mumbai & Anr.,
)
) .. Defendants
Appearance :
Ld. Adv. Shobhit Shukla for plaintiff.
Ld. Adv. V.G. Shinde for defendants/MCGM.
CORAM : HIS HONOUR ADDL. SESSIONS
JUDGE R. S. ARADHYE
CITY CIVIL COURT, GR.
BOMBAY (C.R. No.05)
DATE : 20/05/2026.
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O R A L O R D E R
Notice Dtd.11/01/2019 issued under Section 351 of MMC
Act, 1888 and subsequent speaking order Dtd.09/01/2020 is under
challenge in this suit. By way of this notice of motion plaintiff seeking
the relief of temporary injunction against the defendants/MCGM for
restraining them from acting upon the said notice and speaking order
against the notice structure till the final conclusion of this case.
2. I have gone through the affidavit in support of the notice
of motion filed by plaintiff and affidavit in reply of
defendants/MCGM.
3. It is the case of plaintiff that he is the co-owner/co-
landlord of a building known as "Saadath Manzil" situated at 35,
Bora Street, Null Bazaar, Mumbai-400 003 (hereinafter referred as
suit building) and originally it consist of ground plus 1 floor.
However, in the year 2006 redevelopment of the building with
structure of ground plus 6 floors covered with terrace is sanctioned.
To that effect office of the defendants/MCGM have issued IOD
Dtd.05/03/2005, commencement certificate Dtd.10/03/2005,
thereafter plan was amended and finally approved on 09/11/2006.
At last occupation certificate came to be issued to the plaintiff for
occupying the entire building.
4. It is also the contention of plaintiff that one late Mrs.
Sadatbi w/o Fayazuddin Siddiqui during her lifetime was in
possession and entitled to be owner of the building. On 27/04/1996
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said Mrs. Sadatbi w/o Fayazuddin Siddiqui executed gift deed in
respect of suit building in favour of the wife of plaintiff in the
presence of Mohammed Fayazuddin Siddiqui, and Abdul Kadar
Sheikh Hussain, also delivered it’s possession. The said Gift deed
Dtd.27/04/1996 subsequently confirmed by all the legal heirs of
said Mrs. Sadatbi w/o Fayazuddin Siddiqui including the plaintiff by
their joint affidavit cum declaration Dtd.17/03/1996. The suit
building as per plaintiff is assessed by the tax department of the
defendants/MCGM under Account No.CX14026200000000 and he is
regularly paying all the taxes and dues.
5. The construction of suit building, it is carried out as per
the sanctioned redevelopment plan approved by the Building and
Proposal Department on 22/05/2006. There is nothing any kind of
addition, alteration or extension of the structure to the existing
portion. The basis of grievance of younger brother of the plaintiff
namely Mohd. Azimuddin Siddiqui when he has at all no right, title
and interest in the suit building, defendants/MCGM have issued the
impugned notice and passed the speaking order without applying
the mind. Thus, with this factual background ultimately plaintiff has
prayed that notice of motion be made absolute in terms of clause (a)
and thereby officers of the defendants/MCGM be restrained from
taking further action on the basis of impugned notice and speaking
order in questions.
6. Defendants/MCGM have filed their affidavit in reply to this
notice of motion and taken the legal objection about maintainability of
the suit and jurisdiction of this Court in view of Section 527 and 515-A
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of MMC Act, 1888. It is the defence of defendants/MCGM that on
03/01/2019 when their officers have visited the site, it was found that
plaintiff has carried out (1) Unauthorised construction of shed at
ground floor at entrance of building towards northern side by way of
using M. S. Angles and roof covered with G.I sheet admeasuring 4.50m
x 2.10m x 3.50m. (2) unauthorized construction of shop at ground floor
on compulsory open space by using M. S. Angle ladi coba slabs, brick
masonry walls, enclosed with M. S. rolling Shutter admeasuring 4.50m
x 2.45m x 4.10m, mezzanine floor admeasuring 3.50 x 2.45 x 2.10m,
(3) unauthorized horizontal extension at 6th floor flat No.601 north side
window extended with cantilever gallery to window by way of using M.
S. angles and M S grills admeasuring 5.50 x 1.00 x 2.10 mt, (4)
unauthorized construction of entire flat on 7th floor by way of using B M
walls M S sheet partition walls, roof covered with ladi coba slab, it used
for residential purpose admeasuring 5.50 x 10.20 x 3.10 mt and (5)
unauthorized horizontal extension at 8th floor level on north side of
building vertical extension work by way of using ladi coba slab, brick
masonry walls admeasuring 2.90 x 3.50 x 4.80 mt at Sadat Tower, 35
bora street, Mumbai-400 003.
7. Measurements of the said construction along with the
photographs have been taken and submitted it to the higher
authority for further necessary action. As plaintiff failed to produce
any valid document showing its authorization, thus speaking order
came to be passed on 09/01/2020. It is thus, the contention of
defendants/MCGM that plaintiff do not find entitled for granting
interim relief in the form of temporary injunction and asked for
dismissal of notice of motion with the costs.
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8. The following points arise for consideration and my
findings thereon with the reasons are as under;
Sr. No. POINTS FINDINGS.
1. Whether plaintiff proves that he has
made out a prima facie case as alleged?
- Yes -
2. Whether plaintiff proves that balance of
convenience is also lies in his favour as
alleged?
- Yes -
3. Whether plaintiff proves that if the
interim relief of temporary injunction is
refused, he will suffer irreparable loss?
- Yes -
4. What Order ? Notice of Motion
is allowed.
REASONS
As to Point No.1 to 3:-
9. I have heard Ld. Advocate Shri. Shobhit Shukla for
plaintiff at length and Ld. Advocate V.G. Shinde for
defendants/MCGM.
10. In order to establish the prima facie case and balance of
convenience lies in his favour, plaintiff has relied upon the number
of documents i.e. copy of Affidavit cum Declaration executed by Late
Mrs. Sadatbi w/o Fayazuddin Siddiqui in favour of Plaintiff's wife
Dtd.27/04/1996, copy of Affidavit cum Declaration executed by the
husband of Late Mrs. Sadatbi w/o Fayazuddin Siddiqui
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Dtd.27/04/1996, copy of Joint Affidavit cum Declaration
Dtd.17/08/1996, copy of Deed of Confirmation Dtd.31/12/1996,
copy of registered General Power of Attorney Dtd.03/10/2003, copy
of I.O.D. issued by the Defendant No.1 to the suit building
Dtd.05.03.2005, copy of Commencement Photocopy Certificate
issued by the defendant No.1 Dtd.10/03/2005 with its extension
order Dtd.09/08/2005, copy of letter Dtd.22/05/2006 along with
the approved plan Dtd.22/05/2006, copy of Occupation Certificate
Dtd.09/11/2006, copy of property tax bill of the suit building, copy
of notice under Section 488 of the MMC Act, 1888 Dtd.
20/11/2018, copy of suit notice Dtd.11/01/2019, copy of letter
Dtd.18/01/2019 of the Plaintiff through his Advocate, copy of letter
Dtd.05/02/2019 of the plaintiff through his Advocate in reply to the
suit notice, copy of one of the rent receipt issued by the plaintiff's
wife to the tenant of the said shop on the Ground floor of the suit
building, copy of one of the said License issued to said tenant of the
Ground floor of the suit building, copy of Shop and Photocopy
Establishment Certificate issued to the said stall, copy of rent receipt
issued by the plaintiff's wife being the landlady of the said building
to the tenant of the said flat, copy of one of the electricity bill in
respect of the said flat, copy of ration card issued to the tenant of
the 7th Floor, copy of Aadhar Card issued to the said tenant at the
address of Flat No.701, copy of Annexure 'A' prepared by the
concerned office of the defendants/MCGM in respect of the suit
building and copy of order Dtd.09/01/2020 passed by the defendant
No.2.
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11. Against which defendants/MCGM have also placed their
reliance on the documents i.e. copy of Hon’ble High Court order in
W.P. No.147/2017, Dtd.14/12/2017, copy of inspection report
Dtd.03/01/2019 along with the photographs during inspection, copy
of notice under Section 351 of MMC Act, 1888 Dtd.11/01/2019
along with photocopy of approved plan u/No.EEBP/241/CA,
Dtd.09/11/2006 and copy of speaking order Dtd.09/01/2020.
12. Taking into consideration respective contentions of both the
parties and documents referred above, I think it necessary the
allegations made by the defendants/MCGM against the notice structure
which is referred as under :
Schedule – (1) Unauthorized construction of shed at ground floor at
entrance of building towards northern side by way of using M. S. Angles
and roof covered with G.I sheet admeasuring 4.50m x 2.10m x 3.50m.
(2) unauthorized construction of shop at ground floor on compulsory
open space by using M. S. Angle ladi coba slabs, brick masonry walls,
enclosed with M. S. rolling Shutter admeasuring 4.50m x 2.45m x
4.10m, mezzanine floor admeasuring 3.50 x 2.45 x 2.10m, (3)
unauthorized horizontal extension at 6th floor flat No.601 north side
window extended with cantilever gallery to window by way of using M.
S. angles and M S grills admeasuring 5.50 x 1.00 x 2.10 mt, (4)
unauthorized construction of entire flat on 7th floor by way of using B M
walls M S sheet partition walls, roof covered with ladi coba slab, it used
for residential purpose admeasuring 5.50 x 10.20 x 3.10 mt and (5)
unauthorized horizontal extension at 8th floor level on north side of
building vertical extension work by way of using ladi coba slab, brick
masonry walls admeasuring 2.90 x 3.50 x 4.80 mt bearing Cadastral
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Survey No.3484 of Bhuleshwar Division and Property No.6459 situated
at Sadat Tower, 35 bora street, Null Bazaar, Mumbai-400 003.
13. With respect to the allegations of unauthorized
construction of shed, shop on the ground floor, extension at 6th floor in
Flat No.601, unauthorized construction of entire flat on 7th floor and
unauthorized horizontal extension at 8th floor level, it is submitted by
the Ld. Advocate Shobhit Shukla that the sanctioned redevelopment
approved plan Dtd.22/05/2006 apparently shows the structure of suit
building as 1st to 6th floor including space for rooms and lift along with
the terrace, water tank and machine room above the 6th floor. There is
no 7th or 8th floor and the floor of terrace as well as space of water tank
and machine room office of the defendants/MCGM is treating it as two
another floors above the 6th floor. It is the bold stand taken by the
plaintiff's advocate that if either 7th or 8th floor found in the suit building
defendants/MCGM are at liberty to take any action against those floors
as per the provisions of law.
14. On the other hand, Ld. Advocate V.G. Shinde has argued
that the actual inspection of the building was carried out on
03/01/2019 and during which unauthorized construction mentioned in
the notice Dtd.11/01/2019 was found to the inspecting officers. In
response to the said notice along with the reply plaintiff filed various
documents i.e. his reply Dtd.18/01/2019, property tax bill, rent
receipts, license issued under the Shop Act license and registration
certificate of Shop and Establishment. But, failed to file the approved
sanctioned plan or permission of competent authority showing
authorization of the construction mentioned in the schedule of notice.
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In support of the defence on behalf of defendants/MCGM reliance has
been placed on the Judgment in the case Tushar Guru Salien Vs. State
of Maharashtra and Ors., P.I.L. No.67/2017, decided on 28/01/2019
and Mohd. Zuber Mohd. Yusuf Memon Vs. Municipal Corporation of
Greater Mumbai, AO No.27460/2016 with CA No.27463/2016. The
Hon'ble BOmbay High Court has observed in a Tushar Guru Salien case
that “
Concerning a property, a suit to enforce or protect an interest in
the property which is governed by a Municipal Statute, the interest
protected has to be with respect to a plea that prima-facie, the structure
which is being targeted is an authorized structure. Meaning thereby, the
plaint must make an averment of the sanction obtained from the
Corporation and must make an averment that the structure targeted is
prima-facie governed by the sanction. Merely pointing out deficiencies
in the notice or the authority of the person issuing the notice is neither
here nor there. Thus, the sine qua non of such kinds of suits is a positive
assertion made with reference to the sanctioned building plans.”
Whereas in the later case scope of Section 354-A of MMC Act, 1888 is
discussed and upheld the trial court's decision to deny ad-interim relief
to the appellant. The court observed that the appellant failed to present
sufficient primitive evidence or authentic authorized sanctions to
legalise the disputed structure, thereby permitting the municipal
corporation to proceed with its statutory enforcement actions.
15. It is thus, the contention of Ld. Advocate for the
defendants/MCGM that plaintiff has failed to make out the prima facie
case and show that balance of convenience lies in his favour, so under
such circumstances notice of motion is straightway liable to be
dismissed with cost.
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16. Plaintiff has mainly relied upon the copy of approved
redevelopment sanctioned plan Dtd.22/05/2006, I.O.D. issued by the
defendants/MCGM Dtd.05.03.2005, Commencement Photocopy
Certificate issued by the defendants/MCGM Dtd.10/03/2005,
extension order Dtd.09/08/2005, Occupation Certificate
Dtd.09/11/2006 and property tax bills etc. It is the fact that while
filing the reply to the impugned notice plaintiff has not submitted
the copy of sanctioned redevelopment approved plan
Dtd.22/05/2026 by which permission for redevelopment was
granted for the construction of ground plus 6 floors with terrace
above 6 floors and space for water tank and machine room. I have
minutely perused this plan which apparently shows that on the
ground floor front portion is covered as a ‘Set Back Area’ and then
there is a shop. There is a provision incorporated in the plan for
construction of 1st to 6th floor along with the rooms and space for lift.
Separate portions for terrace, water tank and machine rooms has
been shown in the plan.
17. The Assistant Engineer (B & P) Department has
accordingly sanctioned the plan subject to condition mentioned in
the file No.EEPEC/241/C/A Dtd.22/05/2026. The allegations
against plaintiff that he carried out unauthorized construction of shed,
shop on the ground floor, extension at 6th floor in Flat No.601,
unauthorized construction of entire flat on 7th floor and unauthorized
horizontal extension at 8th floor level. Against which stand of the
plaintiff is that there is no such 7th or 8th floor exists in the building and
if it is found defendants/MCGM can demolish it. Tax Assessment Bills
says about assessment of the property since 31/03/1961, but the
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property is under redevelopment, so this fact does not require to take
into consideration. Photocopies of the photographs tendered on behalf
of the defendants/MCGM along with the inspection report are not
visible and from which exact position does not come on record. The
copies of photographs are totally black and I think not helpful to the
defendants/MCGM to establish the allegations of unauthorized
construction at ground, 6th, 7th and 8th floor made by the plaintiff.
Defendants/MCGM have also relied upon the same sanctioned
redevelopment approved plan and showed some portion by red ink as
unauthorized work. But, there is nothing on record filed by the
defendants/MCGM in support of their contentions of carrying out
unauthorized construction by the plaintiff except the inspection report.
Therefore, taking into consideration respective contentions of plaintiff
in respect of non existence of 7th and 8th floor and liberty of
defendants/MCGM to take appropriate action against the said floors as
well as documents IOD, commencement certificate, and sanctioned
redevelopment approved plan Dtd.22/05/2006 and absence of
sufficient proof in support of inspection report, I am of the view that
ratio’s laid down in the cited cases are not helpful to the
defendants/MCGM, so in view of this my findings to the point No.1 to 3
are that plaintiff has established the facts that prima facie case and
balance of convenience lies in his favour and under such circumstances
if the interim relief is refused irreparable loss will be caused which
cannot be compensated in terms of money. In the result for point No.4
following order is passed.
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O R D E R
1. Notice of Motion No.401/2020 is hereby made absolute in terms
of prayer clause (a) of the motion.
2. Defendants/MCGM and their servants, agents or officers are
hereby temporarily restrained from acting upon or taking any
further action on the basis of impugned notice and speaking
order against the suit premises i.e. Saadath Manzil" situated at
35, Bora Street, Null Bazaar, Mumbai-400 003, comprising of
portion mentioned in the schedule, till the final disposal of this
suit.
3. Notice of motion stands disposed of accordingly
(Pronounced in open Court)
Date : 20/05/2026. (R. S. Aradhye)
Judge, City Civil Court,
Gr. Bombay (CR.5)
Dictated on : 20/05/2026
Transcribed on : 20/05/2026
Checked on : 20/05/2026
Signed on : 20/05/2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
20/05/2026 03.02 p.m. Sanjay Baliram Kaskar
(Stenographer Grade-I)
Name of the Judge H.H.J. Shri. R.S. Aradhye
(C.R. No.5)
Date of Pronouncement of
Judgment/Order.
20/05/2026
Judgment/order signed by P.O on 20/05/2026
Judgment/order uploaded on 20/05/2026
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