Order 1

Order Details: Notice of Motion
Pdf Text: L.C. Suit No.672/2017 N.M. NO.1051 OF 2018
MHCC010034102018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1051 OF 2018
(CNR NO.MHCC01-003410-2018)
IN
L.C. SUIT NO.672 OF 2017
Neeta Mhaske ... Plaintiff.
V/s.
Designated Officer-I,
Asst. Engineer (Bldg. & Fact.) & Anr. ... Defendants.
Appearance :
Advocate Sanket Mungle alongwith Advocate Aditya Kathare for the
plaintiff.
Advocate Amar Patil for defendants /BMC.
CORAM : HIS HONOUR JUDGE
SHRI. PRASHANT C. KALE
(COURT ROOM NO.06)
DATE : 20th JULY, 2026.
ORDER
By this Notice of Motion, the plaintiff has prayed for following
prayers.
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L.C. Suit No.672/2017 N.M. NO.1051 OF 2018
“a) That this Hon'ble Court be pleased to pass a temporary
injunction restraining the Defendants, their servants, agents,
representative and/or person or persons claiming through or
under them from taking any action pursuant to the notice
U/s.354A of the MMC Act bearing reference No.23563 dated
10.03.2017, and order dated 14.03.2017, in respect of notice
premises situated at 1A & 1B, Bharat Bazar, Opp. Marshal
Showroom, Gandhi Nagar, Upper Worli, Worli, Mumbai- 400 018,
pending the hearing and final disposal of the above suit;
b) ……….
c) ……….
d) ………of the case, be granted.”
2. Read the affidavit in support, reply of the defendant, and
respective submissions. Read the rulings cited by both the parties.
Having regard to the observations laid down in the rulings cited before
me, I have dealt with the issues in controversy. Heard both the parties.
By this suit, the plaintiff is challenging the notice issued U/s.354(A) of
the Mumbai Municipal Corporation Act (MMC Act) and the speaking
order dated 14.03.2017. Record reflects that, on 15.03.2017 parties
were directed to maintain status quo in respect of the suit property in
terms of photograph filed at Exhibit- F.
3. Perused the documents filed by the plaintiff.
Sr.
No.
Particulars of Documents Annexure
i. Copy of Deeds of Assignment. A (Colly.)
ii. Copy of Power of Attorneys. B (Colly.)
iii. Copy of Plaintiff's Application for transfer of C (Colly.)
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L.C. Suit No.672/2017 N.M. NO.1051 OF 2018
Assignment.
iv. Copy of MCGM's Circular / Guidelines. D
v. Copy of Plaintiff's Application for repairs. E
vi. Photographs F
vii. Copy of Shops & Establishment Certificate. G
viii. Assessment G-1
ix. Copy of Notice U/s.354A of MMC Act. H
x. Copy of Plaintiff's Advocate's reply. I
xi. Copy of order of Stop Work Notice. I-1
4. Perused documents filed by defendants / BMC.
Sr.
No.
Particulars of Documents Annexure
i. Copy of Photographs dated 10.03.2017. 1
ii. Copy of Panchanama dated 10.03.2017. 2
iii. Copy of Inspection Report dated 10.03.2017 3
iv. Copy of Stop Work Notice dated 10.03.2017. 4
v. Copy of Order dated 14.03.2017. 5
5. The plaintiff is coming with the case that the action of issuing
notice and passing of speaking order are contrary to the provisions of
law. No opportunity of hearing was given to the plaintiff, consequently
defendants have waived their rights to receive any notice U/s.527 of the
MMC Act. The entire action sought to be initiated by the defendant by
itself is nullity and has been done with
malafide intentions. Hence, the
plaintiff has no other option then to approach the Civil Court. Thus, the
bar of Section 515A of MMC Act will not come in the way of the
plaintiff. Defendants failed to consider the reply filed the plaintiff vide
advocate's letter dated 11.03.2017 and all the documentary proofs
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stating there is no any unauthorized construction in progress.
6. Defendants failed to consider the application of the plaintiff for
tenantable repairs ("Exhibit No. E Pg No. 41-42A") which was never
answered by defendants. When the plaintiff inquired for the same then
it was conveyed to her that no such permission will be needed for the
tenantable repairs which were carried out and completed by the
plaintiff in the month of February, 2017. By issuing the notice in the
month of March, 2017 without the panchanama in presence of pancha's
reflects that the notice is bad-in law. Defendants have failed to follow
the mandatory requirements stated in the both judgments i.e. in case of,
"Sopan Maruti Thopte V/s. Pune Municipal Corporation, 1996(1)
Mh.L.J. 963" and " Sub Vijay International Pvt. Ltd. Vs. Commissioner,
BMC, 2007(1) Mh.L.J. 74 " before issuing the Impugned Notice.
Defendants have not followed the mandate of the panchnama with
proper signature of two pancha's as well as not taken the photographs
showing the date and time.
7. In view of the aforesaid facts and circumstances and the points of
arguments, it is submitted by the plaintiff that, the plaintiff has made
out a
prima-facie case for grant of interim injunction pending the trial
of the Suit. If the injunction pending the hearing of the Suit is not
granted, irreparable loss would be caused to the plaintiff as the plaintiff
will be deprived of her source of livelihood which cannot be
compensated in terms of money.
8.
Per Contra, it is submitted by defendants/ Corporation that the
ruling in the case of, Sopan Maruti Thopte (cited supra), is not helpful
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to the plaintiff. The present suit and Notice of Motion is challenging the
legality of the notice issued U/s.354A. Impugned notice is issued in
view of the unauthorized construction on the spot for which the plaintiff
has failed to produce documents. The action taken by defendants /
Corporation is by following due process of law. Documents filed by the
plaintiff are not helpful to her while substantiating the contentions in
the suit. The suit is not maintainable in view of the provision of Section
515A of the MMC Act and non-compliance of the provisions of Section
527 of the MMC Act. Thus, prayed for dismissal of the Notice of
Motion.
9. The plaintiff is coming with the case that, for the purpose of
carrying out tenantable repairs, no permission is required under the
provisions of MMC Act as could be seen from the exceptions given in
Section 352 of the MMC Act. The plaintiff further submitted that the
entire action has been initiated by the defendant with
malafide. The
notice issued U/s.354A of the MMC Act and speaking order came to be
passed for demolition in respect of the premises of the plaintiff is
completely illegal. The notice issued does not adhere to the directions
issued by Hon'ble Supreme Court or the MMC Guidelines.
10. In present case notice U/s.354A of MMC Act is issued. There is
no material on record to show that after issuance of notice U/s.354A of
the MMC Act, the construction was ongoing. There is no subsequent
inspection report other than the report dated 10.03.2017 on the basis of
which the notice U/s.354A came to be issued. It is the contention of the
plaintiff that conduct of defendants is grossly illegal, with high
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handedness, arbitrary, without jurisdiction and without justification and
bias and based on personal perception and with treats to the plaintiff
and therefore, she is before this Court. Defendants / Corporation is
silent in respect of the status of the construction after issuing impugned
notice U/s.354A of the MMC Act in their affidavit. In fact, the notice
issued U/s.354A of the MMC Act provides that if the erection of the
building or the execution of work not stopped forthwith the said
building will be removed or pulled down. The speaking order is itself
reflects that the ongoing construction must have stopped after notice
U/s.354A of the MMC Act, as the words then ongoing construction are
used.
11. The provisions of Section 351 and 354A of the Mumbai Municipal
Corporation Act (MMC Act), deals with different situations. In the case
of, Muni Suvrat-Swami Jain S.M.P. Sangh Vs. Arun Nathuram Gaikwad
and Others, (2006) 8 SCC 590, explaining interplay between Section
351 and 354A of the MMC Act, 1888, the Hon'ble Supreme Court
enunciated that the provisions of Section 354 A have nothing to do with
the question of demolition.
12. Conversely, as the impugned notice which is issued in respect of
unauthorized structure, defendants / Corporation would not be now in
a position to take action on the strength of the said notice alone. If
unauthorized construction has been carried out at the suit structure, as
is alleged on behalf of the Corporation, appropriate action under
Section 351 of the MMC Act, would be warranted. The provisions
contained in Section 354A of the MMC Act, can not be legitimately
resorted to, to support an action of demolition of unauthorizedly
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erected structure, at a distant point of time; which would be amenable
to action of Section 351 of the MMC Act.
13. Analyzing the material on record, it nowhere speaks about
personal hearing being given to the plaintiff. The plaintiff is coming
with the case that tenantable repairs are being carried by the plaintiff.
Apparently, the sum and substance of the arguments of the plaintiff is
that the action on the part of defendants is
malafide without following
the principles of natural justice and therefore, seeking protection at the
hands of this Court.
14. Injunction is a judicial process by which a party is required to do
or to refrain from doing any particular act. It is in the nature of
preventive relief to a litigant to prevent future possible injury. In other
words, the court in exercise of the power of granting ad interim
injunction is to preserve the subject matter of the suit in the status quo
for the time being. It is settled law that the grant of injunction is a
discretionary relief. The exercise thereof is subject to the court satisfying
that (1) there is a serious disputed question to be tried in the suit and
that an act, on the facts before the court, there is probability of his
being entitled to the relief asked for by the plaintiff/defendant; (2) the
court's interference is necessary to protect the party from the species of
injury. In other words, irreparable injury or damage would ensue before
the legal right would be established at trial; and (3) that the
comparative hardship or mischief or inconvenience which is likely to
occur from withholding the injunction will be greater than that would
be likely to arise from granting it.
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15. Analyzing the material on record by way of affidavit and counter
affidavit the plaintiff has made out "
a prima facie case" in her favour
which needs adjudication at the trial. The plaintiff has raised substantial
question, which needs investigation and a decision on merits. Further
the plaintiff has apparently established that non-interference by this
Court would result in "irreparable injury" to her and that there is no
other alternate remedy. On weighing competing possibilities or
probabilities of likelihood of injury, pending the suit, the subject-matter
needs to be maintained in status quo. Thus, balance of convenience lies
in favour of plaintiff. In view of the above discussion and observations, I
pass the following order.
ORDER
(i) Notice of Motion No.1051 of 2018 is made absolute in
terms of prayer clause (a).
(ii) Parties to bear their own cost.
(iii) The proceedings in Notice of Motion No.1051 of 2018 is
disposed of.
(PRASHANT C. KALE)
Judge, City Civil Court,
Date: 20.07.2026 Greater Bombay.
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L.C. Suit No.672/2017 N.M. NO.1051 OF 2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20.07.2026 at 06.15 p.m. N.S. Bakre
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ SHRI. PRASHANT C. KALE
(C.R.NO.06)
Date of pronouncement of Judgment/
Order
20.07.2026
Judgment/Order signed by P.O. on 20.07.2026
Judgment/Order uploaded on 20.07.2026
Ld. Advocate for the BMC has relied upon rulings in the case of,
Nashik Municipal Corporation V/s. Sunil Baburao Kshirsagar & Ors.,
Civil
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