Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NOTICE OF MOTION NO. 555 OF 2020
L.C. SUIT NO. 50 OF 2020
MHCC010019852020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 555 OF 2020.
IN
L.C. SUIT NO. 50 OF 2020
Mr. Abdul Sabir Mohd. Idris …. PLAINTIFF.
V/s.
MCGM …. DEFENDANT.
CORAM : SHRI. V. R. JAGDALE
(Court Room No.11).
DATED : 12th September, 2025.
APPEARANCES :
Mr. V.T. Dubey, the Ld. Advocate for Plaintiff.
Mr. Suryakant Botlawar, the Ld. Advocate for Defendant/MCGM.
*****
ORDER
01. In this suit plaintiff has challenged legality of notice dtd.
25.09.2019, u/s.354A MMC Act, in respect of Gala No.K-18, area adm.
700 sq. ft. ground plus mezzanine floor, KBM Compound, Military Road,
Andheri (East), Mumbai 400072, (herein referred as ‘suit premises’ for
the sake of brevity), more particularly described in para-1 of the plaint.
02. Inter-alia in view of urgency the plaintiff has taken out this
Notice of Motion (‘the NM’), under Order XXXIX of the Civil Procedure
Code,1908 (CPC) for temporary injunction.
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2 NOTICE OF MOTION NO. 555 OF 2020
L.C. SUIT NO. 50 OF 2020
03. The defendant/BMC opposed the NM, by filing affidavit in
reply cum written statement vide Exhibit 3.
04. I have perused affidavit in support of notice of motion,
affidavit in reply cum written statement and affidavit in rejoinder.
05. Perused the record and proceeding. Heard both sides.
06. Considering the record and proceeding, the point for
determination, along-with my findings and the reasons therefore, are as
under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has made out prima
facie case in his favour? In the negative.
(ii). Whether balance of convenience lies in
favour of the plaintiff? In the negative.
(iii). Whether irreparable loss will be caused to
the plaintiff, if the interim relief, as sought
is refused? In the negative.
(iv). What Order? As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 4 :
07. The Ld. Advocate for the plaintiff has filed written
argument contending that plaintiff is in use and occupation of the suit
premises which is old, in existence prior to 1962 and is a tolerated
structure.
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L.C. SUIT NO. 50 OF 2020
08. The defendant had issued notice dtd. 25.09.2019 under
section 354A of MMC Act. The plaintiff had tendered reply on
27.09.2019 and defendant has passed speaking Order on 13.12.2019.
But while passing Order the defendant had not considered the reply and
documents annexed alongwith it and defendant has come to a
conclusion that documents submitted by the plaintiff does not prove the
existence of suit premises prior to datum line.
09. But the plaintiff has not followed the guidelines laid down
in the case of Municipal Corporation of Gr. Mumbai and others V/s.
Sunben Hightech Developers Pvt. Ltd., decided on 24.10.2019 in Civil
Appeal NO. 7627 of 2019 with Civil Appeal No. 7626 of 2019 and
prayed that notice of motion be made absolute.
10. On the contrary, the defendant has adopted reply cum
written statement as oral argument.
11. On perusal of reply it is contended by the defendant that it
had issued notice only in respect of vertical extension over the existing
structure. On inspection it was revealed that plaintiff has unauthorized
construction above existing ground structure Adm. (5.18m X 6.70m X
7.0m. ht) mtr. using M.S.I. Section and Angles, was found in progress.
The construction of the offending structure was in progress without
permission from the competent authority. Accordingly, officer of the
defendant prepared observation note/ inspection report and took
photographs at the time of inspection.
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L.C. SUIT NO. 50 OF 2020
12. As the plaintiff failed to produce construction permission
for the offending structure a stop work notice was issued to him on
25.09.2019 under section 354A of MMC Act. The plaintiff had filed
reply and produced documents alongwith it. But plaintiff failed to
produce any document which proved that notice structure was
authorized. Therefore, speaking Order was passed on 22.12.2019. The
defendant has followed due process of law and prayed that notice
motion be dismissed with costs.
13. It would be worthwhile to mention that subject matter of
the suit is not the suit premises. But is the vertical extension to the
ground structure which is mentioned in the notice dtd.25.09.2019.
Therefore, the grievance of the corporation is only in respect of notice
structure and not the suit premises.
14. Even though, it is contention of the plaintiff that the suit
premises is in existence prior to 1962 and it is tolerated structure. It is
further contention of the plaintiff that suit premises is situated on slum
land and he has not carried out illegal and unauthorized construction.
But the plaintiff has not produced on record any document to
substantiate the fact that suit premises is in existence prior to 1962, it is
tolerated structure and situated on slum land.
15. Irrespective of the above fact the only grievance of the
defendant is in respect of notice structure and not the suit premises.
Accordingly, defendant has produced on record notice dtd.25.09.2019
in column no.15 and 16 it is mentioned that offending structure is
vertical extension to the existing ground and it is addition to the
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5 NOTICE OF MOTION NO. 555 OF 2020
L.C. SUIT NO. 50 OF 2020
existing structure. In the speaking Order dtd.30.09.2019 it is mentioned
that plaintiff has not produced any document to prove the authenticity
of the ongoing notice structure prior to the datum line.
16. The defendant has also filed photographs to substantiate
the ongoing progress of the offending structure indicating date and
time. Thereafter, notice was issued to the plaintiff on 25.09.2019 calling
upon him to stop the ongoing construction and if he failed to produce
document it is liable to be removed. Thereafter, as the plaintiff has
failed to produce document to prove authenticity of notice structure
prior to datum line accordingly he was directed to remove the same and
thereafter speaking Order was passed on 13.12.2019. Therefore it is
clear that defendant corporation has followed the guidelines laid down
in the citation mentioned above and followed due procedure of law.
17. But the plaintiff has failed to produce any document about
authenticity of notice structure which clearly implies he has failed to
make out prima facie case. Therefore, balance of convenience does not
tilt in favour of the plaintiff and irreparable loss will not be caused to
him, if injunction is refused. Hence I answer point no.1 to 3 in the
negative and answer to point no.4 I pass the following order.
-: ORDER :-
(i) Notice of Motion No.555 of 2020 is dismissed.
(ii) Notice of Motion No.555 of 2020 is accordingly disposed of.
(V.R. Jagdale)
Mumbai. Judge,
Dated : 12.09.2025. City Civil Court, Mumbai.
Directly typed on computer on :12.09.2025
Draft given to HHJ on :12.09.2025
Checked and Signed on :12.09.2025
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L.C. SUIT NO. 50 OF 2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
12.09.2025 at 12.20 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 12.09.2025
Judgment/Order signed by P.O. on 12.09.2025
Judgment/Order uploaded on 12.09.2025
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