Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 L.C.S. No.606 of 2019
MHCC010025992019 Presented on : 06.03.2019
Registered on : 07.03.2019
Decided on : 03.11.2025
Duration : 06Y 07M 28D
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
L.C. SUIT NO.606 OF 2019
EXHIBIT NO. 30
Avinash Bhaskar Sawant,
Age: 45 years,
Having address at Bhaskar Sawant Chawl,
Passpoli Gaothan, Sakivihar Road, Pawai,
Mumbai 400087. …..PLAINTIFF.
: V E R S U S :
MUNICIPAL CORPORATION FOR GREATER
MUMBAI,
(a Body Corporate incorporated under the
Provisions of BMC Act 1889) having its
head office at Annexe Building, Mahapalika
Marg, Mumbai C.S.T., Mumbai 400001. …..DEFENDANT.
APPEARANCE :
Mr. V.T. Dubey, Ld. Advocate for the plaintiff.
Mrs. Sheetal Metakari, Ld. Advocate for the Defendant.
**************
CORAM : V. R. JAGDALE
ADDL. JUDGE CITY CIVIL COURT,
COURT ROOM NO. 11.
DATED : 3rd November, 2025.
J U D G M E N T.
01. The plaintiff has sought relief of declaration that impugned
notice dtd.14.05.2018 and speaking Order dtd. 27.11.2018 are illegal,
bad in law and not binding upon him and defendant be perpetually
restrained from initiating any action against the suit premises in
pursuant to above notice.
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02. It is averred by the plaintiff that he is in exclusive use,
occupation and possession of Commercial Premises admeasuring 120 X
30 ft. being ground plus first floor, Bhaskar Sawant Chawl, Passpoli
Gaothan, CTS No.22, 22/1 to 7, Sakivihar Road, Pawai, Mumbai
400087 (hereinafter referred as “the suit premises” for the sake of
brevity).
03. The plaintiff’s maternal grandfather was owner of the
property alongwith suit premises which came in possession of plaintiff’s
father by virtue of writing dated 27.12.1971 and thereafter came in the
favour of his mother. After demise of his mother plaintiff became owner
of the suit premises which is duly assessed prior to 1961 to 1962.
04. The suit premises is situated on land which is notified slum.
The suit premises was previously repaired with prior approved
permission dtd. 14.07.1974 obtained by plaintiff’s father. The suit
premises was badly damaged and required urgent repairs. Accordingly
plaintiff had applied for grant of repair permission by his application
dated. 01.06.2018 and defendant deemed to have granted permission.
05. Inspite of above fact the defendant has issued notice u/s
354-A of the BMC Act. The plaintiff has tendered reply alongwith
documents. But Order dtd.27.11.2018 is passed without application of
mind. Hence plaintiff has sought relief of declaration and injunction.
06. The defendant has filed written statement and additional
written statement vide Exh.3 and 4 and denied all the adverse
allegations.
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07. It is contended by the defendant that in pursuant to receipt
of telephonic complaint dtd. 08.05.2018 the notice premises was
inspected by official of Corporation on 09.05.2018 at about 4.30 p.m.
and he noticed unauthorized construction of first floor having size of
27.43 X 6.09 mtr. 167.04 sq. mtrs. with M.S. angles with AC Sheet
work.
08. On enquiry about documents pertaining to structure the
occupier/owner was unable to produce documents showing authenticity
of the structure. Thereafter the officer of the defendant has taken
measurement of unauthorized work and have prepared inspection
report alongwith photographs. The notice was duly served on the
owner/occupier. The plaintiff tendered reply on 01.06.2018 alongwith
documents. But the Designated Officer came to a conclusion that
plaintiff was unable to prove authorization of notice structure.
Accordingly plaintiff was directed to remove unauthorized notice
structure failing which it is liable to be removed and accordingly, it was
demolished on 06.03.2019. But thereafter, by suppressing material facts
the plaintiff has reconstructed demolished notice structure.
09. The suit is bad for want of notice under section 527 of
MMC Act. The jurisdiction of Court is barred in view of section 515-A of
MMC Act. As the plaintiff has failed to prove authorization of structure
he is not entitled for relief sought. Hence prayed suit be dismissed with
costs.
10. On the basis of pleadings my learned Predecessor framed
issues at Exh.05 and I have reproduced the same alongwith my findings
thereon for the reasons as follows :-
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Sr. No. ISSUES FINDINGS
1. Does the plaintiff prove that the notice
dtd.14.05.2018, issued under section 354-
A of the MMC Act, and the Order
dtd.27.11.2018 are bad in law ? In the negative.
2. Does the plaintiff prove that he only
carried tenantable repairs to the suit
premises ? In the negative.
3. Does the plaintiff prove that the suit
premises is situated on the land, which is
declared as ‘Slum area’? In the affirmative.
4. Does the defendant prove that the suit
premises was already demolished on
30.01.2019 and 06.03.2019 ? In the negative.
5. Does the defendant prove that after
demolition, the plaintiff reconstructed the
notice structure? In the negative.
6. Whether the plaintiff is suppressing
material facts from this Court ? In the negative.
7. Whether the suit is bad for want of notice
U/s. 527 of the MMC Act ? In the negative.
8. Whether the plaintiff is entitled for the
relief of declaration, as sought ? In the negative.
9. Whether the plaintiff is entitled for the
relief of perpetual injunction, as sought ? In the negative.
10. What order and Decree ? As per final order.
11. Apart from his oral evidence the plaintiff has relied upon
following documents :-
Sr.
No.
Particulars of documents Exhibit
Nos.
1 Writing dated 27.12.1971 8
2 Death Certificate 9
3 Property Registered Cards 10 colly.
4 Tika Sheets 11 colly.
5 Govt. Gazette dated 2.3.1978 12
6 Assessment Bill. 13
7 Electric Bills. 14
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8 Permission dated 01.06.2018 15
9 Notice dated 14.05.2018 16
10 Order dated 27.11.2018 17 colly.
12. On behalf of the defendant Amish Ravindrarao Bangade
has filed his affidavit in lieu of examination-in-chief vide Exh.20 and
relied upon following documents.
Sr.
No.
Particulars of documents Exhibit
Nos.
1. True copy of Inspection report dated
10.05.2018
22
2. True copy of Notice u/sec. 354(A) dated
12.05.2018 alongwith photographs showing
ongoing construction of the notice structure.
23
3. True copy of final order dtd.27.11.2018 24
4. True copy of the demolition orders dated
30.01.2019 and 06.03.2019 and demolition
reports.
25
5. Photographs showing demolition of notice
structure on 30.01.2019 and 06.03.2019
26
6. True copy of Inspection report dated
18.12.2020 with the photographs of newly
construction structure.
27
13. I have heard the Ld. advocate for the plaintiff and
defendant.
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AS TO ISSUE NO.1 TO 6:-
14. As the aforesaid issues are interlined they are discussed
together for the sake of brevity and convenience.
15. The plaintiff pleads and reiterates in his deposition that he
is in exclusive use, occupation of suit premises which is duly assessed
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prior to 1961 to 1962. The suit premises is situated on land which is
notified slum. The suit premises was previously repaired with prior
approved permission dtd. 14.07.1974 obtained by his father. The suit
premises was badly damaged and required urgent repairs. Accordingly
he had applied for grant of repair permission by his application dated.
01.06.2018 and defendant deemed to have granted permission.
16. Even though during cross examination plaintiff has
admitted that he does not recollect the date when he had applied for
permission for repairs and also the exact date on which repairs of the
suit premises were carried out. But plaintiff has filed on record
application dtd.01.06.2018, vide Exh.16 by virtue of which he has
sought permission to repairs the suit premises. But in the above
application he has not mentioned the details of repairs sought to be
carried out and also the fact that he wants to only carry out tenantable
repairs. It also appears that he has not annexed any documentary
evidence in respect of condition of the suit premises to substantiate the
fact that it requires only tenantable repairs. Irrespective of the above
fact that plaintiff appears to have carried out repairs without permission
of the defendant and there is nothing on record to suggest that the
plaintiff has only carried out tenantable repairs of the suit premises.
17. In the plaint as well as his affidavit it is the case of the
plaintiff that suit premises is situated on CTS No.22, 22/1 to 22/7.
Accordingly, plaintiff has filed on record, property extract vide Exh.10
colly. in respect of above CTS No. On perusal of above property extract
it appears that area of CTS No.22, 22/1 to 22/7 is 12, 10-1, 9-0, 10-
1,10-1, 9-0, 9-0 and 10-1 sq. mtrs. respectively.
18. The plaintiff has also filed on record copy of Gazette vide
Exh.12. On perusal of above Gazette it appears that above CTS No. and
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area mentioned against the respective CTS No. is declared slum.
Therefore, it appears that suit premises is situated on a land which is
declared slum.
19. Even though as per section 47-1 of the Slum Act, the
corporation seizes to have power to initiate any action against the suit
structure. But in view of judgment of the Hon’ble High Court in Public
Interest Litigation No. 1 of 2020 in case of Jilani Building at Bhiwandi
V/s Bhiwandi Nizampur Municipal Corporation and Ors., has held in
para no.74 and 75 that merely because and area is declared slum under
section 4, the planning authority would lose its control and authority to
regulate the structure. Chapter I B of the Slum Act, imposes no
embargo on the powers of Municipal Corporation to take action against
unauthorized structure in the slum area, including the slums declared
under section 4 of the Slum Act.
20. Therefore, there is no substance in the submission
advanced by Ld. Advocate for the plaintiff that in view of section 47
defendant are not empowered to take action in regard to structure
which is situated on property declared as slum.
21. On the contrary, in view of observations made in the above
PIL the defendant are empowered to take action against unauthorized
construction irrespective of the fact that it is either situated on land
which is declared slum or otherwise.
22. The plaintiff has also filed on record assessment bill vide
Exh.13. On perusal of the assessment bill the last date of assessment is
mentioned dtd. 31.03.1961. But it is only pertaining to tiled shed and
not pertaining to the suit premises which is ground + 1st floor structure.
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Therefore, the above assessment bill is not of much help to prove the
fact that suit premises is in existence prior to datum line.
23. Be it so, on behalf of the defendant Amish Ravindrarao
Bangade has deposed that in pursuant to receipt of complaint
dtd.08.05.2018 regarding unauthorized construction at the suit site,
notice premises was inspected and it was noticed unauthorized
construction of first floor having size of 27.43 X 6.09 ,mtr. X 2.74 mtr.
height with M.S. angles with AC sheet work. On inquiry regarding the
documents pertaining the structure the occupier/owner could not
produce the same showing authenticity of the structure. Accordingly the
concerned officer had taken measurement and prepared inspection
report and also took photographs of the ongoing work. Accordingly,
notice was issued to the plaintiff who was directed to remove the
structure as he had contravened provision of section 342 and 347 of the
MMC Act.
24. The plaintiff tendered reply on 01.06.2018 alongwith
certain documents. But after perusal of the reply and documents the
designated officer came to a conclusion that above documents do not
prove the authorization of notice structure. Accordingly, final order was
passed on 27.11.2018. As the plaintiff failed to remove the notice
structure the defendant had arranged for demolition on 30.01.2019
and with the aid of police demolition of remaining notice structure was
carried out. Even though, interim relief was refused and on re-
inspection it was found that plaintiff has constructed the notice
structure. Accordingly inspection report was prepared on 18.12.2020
and at that time concerned officer also took photographs of the new
structure.
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25. To substantiate the above fact the defendant has filed on
record copy of inspection report dtd.10.05.2018 vide Exh.22. On
perusal of above inspection report the status of work is mentioned as
ongoing and same is seen in the inspection image. On perusal of Exh.23
which is impugned notice under section 354-A it was intimated to the
plaintiff that he has carried out unauthorized work as per the schedule
mentioned therein and he was called upon to forthwith stop the
ongoing construction. The defendant has also produced on record
photograph alongwith Exh.23 in which date and time is mentioned. On
perusal of the photograph it appears that at the relevant time work of
construction was in progress. On perusal of Exh.24, it appears that
speaking order was passed on 27.11.2018 and while passing speaking
order all the documents produced by the plaintiff were considered and
the Designated Officer came to a conclusion that documents does not
prove authorization of notice structure.
26. On perusal of Exh.24 it appears that defendant had sought
police aid to demolish the notice structure. On perusal of demolition
programme, it appears that on 06.03.2019 demolition was carried out
of upper floor which is also seen in the various photographs annexed
alongwith it. But on perusal of inspection report vide Exh.27
dtd.18.12.2020, it appears that structure which was demolished on
06.03.2019 was being constructed and on perusal of photographs it
appears that structure is against reconstructed in which hotel is being
run. Therefore, it appears that after demolition the plaintiff has again
reconstructed the structure in which he is running hotel without
requisite permission and he has also reconstructed it without obtaining
permission/sanctioned from competent authority.
27. Therefore, the plaintiff has failed to prove that he has only
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carried out tenantable repairs and impugned notice and order are illegal
and bad in law. On the contrary, the oral as well as documentary
evidence of defendant is sufficient to prove that suit premises was
demolished was reconstructed illegally by the plaintiff who has
suppressed material facts. Hence, I answered issue nos.1,2,4 to 6 in the
negative and issue no.3 in the affirmative.
AS TO ISSUE NO.7:-
28. The present suit has been filed to challenge notice issued by
the Corporation/B.M.C. under Section 354-A of the MMC Act.
Defendant/B.M.C. took defence that in absence of statutory notice
under Section 527 of the M.M.C. Act suit is not maintainable. However,
as per the provisions of Section 527 of the MMC Act there is bar for
filing suit in respect of any act done in pursuance or execution of the act
or any neglect or default in the execution of this Act without statutory
notice under Section 527 of the M.M.C. Act. In the case in hand, the
plaintiff has not filed suit in respect of any act done or execution or
neglect or default in the execution of this Act. The plaintiff has
challenged notice issued under Section 354-A of the MMC Act.
29. It is settled principle of law that when plaintiff wants to
seek immediate relief from the Court in the form of injunction it is not
necessary for him to wait till the period of statutory notice is over. The
Hon'ble Bombay High Court in Motillal Mahadev Sharma (Since … vs
The Municipal Corporation of …) (AIR 2005 Bom 344) held that,
“
Plaintiff filed suit for declaration and also for consequential
relief of injunction against Corporation and when the plaintiff
wants to seek immediate relief from the Court in the form of
injunction, it is not necessary for him to issue statutory notice
or wait till the statutory notice is served and the period
prescribed under section 527 of the Act is over”.
30. In above referred judgment the Hon'ble Bombay High Court
held that if plaintiff want to seek immediate relief from the Court in the
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form of injunction it not necessary for him to issue statutory notice and
wait till the period prescribed under Section 527 of the MMC Act is
over. In the case in hand, the plaintiff had taken out Notice of Motion
for temporary injunction restraining the defendant/Corporation from
taking any action on the basis of notice under challenge. Thus, it is clear
that the plaintiff had sought immediate relief of temporary injunction.
In the circumstances, I find no substance in the contention of defendant
that suit is not maintainable for want of statutory notice under Section
527 of the MMC Act. Accordingly, I answer issue no.7 in the negative.
AS TO ISSUE NO.8 AND 9:-
31. The plaintiff has failed to prove that notice structure
existed prior to datum line and he has only carried out tenantable
repairs. The plaintiff has also failed to prove that suit structure is
authorized. On the contrary, the defendant has proved that suit
structure is unauthorized which was demolished and thereafter, the
plaintiff has erected it without obtaining requisite permission.
Therefore, impugned notice and speaking order are not illegal and bad
in law. On account of above fact the plaintiff is not entitled for relief of
declaration and perpetual injunction as sought. Hence I answer issue
no.8 and 9 are in the negative and in result to answer to issue no.10 I
pass the following order.
O R D E R
01. Suit is dismissed with costs.
02. Decree be drawn accordingly.
03. Record and proceeding be sent back to the Record department.
Date: 03.11.2025
(V. R. Jagdale)
Judge
City Civil Court
Mumbai
Dictated on : 03.11.2025
Transcribed on : 03.11.2025
Signed on : 03.11.2025
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
03.11.2025 5.55 p.m. Mrs. V.N.Rajgole
UPLOAD DATE AND TIME NAME OF STENOGRAPHERS
Name of the Judge(with CR No.) Hhj V. R. JAGDALE (C.R.No.11)
Date of pronouncement of Judgment 03.11.2025
Order signed by P.O. on 03.11.2025
Order uploaded on 03.11.2025
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