Final Order 1

Order Details: Copy of Judgment
Pdf Text: L.C. Suit No.7651/1994 ..1.. Judgment
MHCC010034382019
Presented on : 15-12-1994
Registered on : 27-03-2019
Decided on : 18-11-2025
Duration : 30 Y, 11 M, 03 D
IN THE BOMBAY CITY CIVIL COURT AT GR. BOMBAY
L.C. SUIT NO.7651 OF 1994
Exh.42
Mohamad Farooque Ansari
of Bombay, Indian Inhabitant,
Residing at : Room No.9A, & 9B on the
Ground Floor in Ibrahim Building
No.150, and carrying out business at
Patra Shed No.4023 (1A) known as
Mohabat Ansari Chawl, M.A. Road,
Bombay-400 008.
)
)
)
)
)
)
)
) .. Plaintiff
V/s.
The Municipal Corporation of Gr.
Mumbai,
having its office at Mahapalika Bhavan,
Mumbai, Mahapalika Marg, Fort,
Mumbai-400 001.
)
)
)
)
) .. Defendants
Appearance :
Ld. Adv. Mr. Anirudha Sapre, for plaintiff.
Ld. Adv. Ms. Sangita Honmane, for defendants/MCGM.
=====================================
Claim :- Suit for Declaration and Injunction.
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L.C. Suit No.7651/1994 ..2.. Judgment
CORAM : HIS HONOUR THE ADDL.
SESSIONS JUDGE SHRI.
ANIL D. SALUNKHE (C.R.5)
DATE : 18/11/2025
JUDGMENT
(Delivered on 18th November, 2025 )
. This is the suit for declaration and injunction.
2. The facts of the plaintiff’s case in brief are as under:-
That the plaintiff’s father Mr. Mohabat Abdulla was the
monthly contractual tenant during his life time in respect of Room No.9
divided into two parts and numbered as 9A and 9B on the Ground
Floor, of a building known as Ibrahim Building at 150, M.A. Road,
Bombay-400 008. Mr. Shantilal Ladhani is owner/landlord of said
Ibrahim Building. Plaintiff and his family members are residing in said
above Room No.9 divided as a Room No.9A and 9B.
3. Further, according to the plaintiff, to the rear side of
Ibrahim Building there was a plot of land admeasuring 379 sq. mts. in
Cadestral Survey No.1691 of Byculla Division. Plaintiff’s father in the
year 1947 took the said plot from its lessee Mr. Mohamad Nazir Haji
Bhikhai. Then in the year 1947 itself plaintiff’s father constructed B.M.
Walls upto 3' and tin sheets thereon with C.I. Sheets roof and consisted
of a ground and one upper floor with four galas on the ground floor
each admeasuring 9' X 18' and two galas on upper floor each
admeasuring 18’ X 18’ and House bearing No.150-C with height of 20’
on the rear side of Ibrahim Building at M.A. Road, Bombay-400 008
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L.C. Suit No.7651/1994 ..3.. Judgment
(The subject matter of the present suit is above described premises i.e.
plot and structure therein, so hereinafter same is referred as a suit
premises).
4. Plaintiff states that, his father during his lifetime was
carrying out the business of small scale of manufacturing shoes and
purses at the suit premises. The suit premises is assessed to Municipal
taxes since year 1947 under No.E/4023 (1-A), but owner thereof is
incorrectly shown as original lessee Mr. Mohamad Nazir Haji Bhikhai.
According to plaintiff, since 1946-1947 initially his father and now he is
in possession of the suit premises. During lifetime of his father several
times defendant/MCGM visited to the suit premises, inspected the same
and thereafter, issued notice to the plaintiff’s father, but on inquiry they
found nothing illegal. So, they dropped notices and closed grievance
with regard to suit premises.
5. However, on 22/03/1994 plaintiff received letter from
Assistant Engineer Building and Factory Department of E-Ward directing
plaintiff to remove the structure at alleged suit premises. Plaintiff
replied said letter in notice by showing how suit premises is not
considerable for taking any action. However, on 28/03/1994 the Ward
Officers of the E-Ward passed order for demolition of the structure
situated at suit premises. Not only this on 28/03/1994 the officers of
the defendant/MCGM with police force reached at suit premises and
demolished upper portion of the structure therein illegally. Plaintiff tried
on his level best to show that, nothing illegal on his part or on the part
of his father, but only on the basis of false complaint the officers of the
defendant/MCGM visited to the suit premises and harassed him. Lastly,
-- 3 of 18 --
L.C. Suit No.7651/1994 ..4.. Judgment
because of defendant/MCGM including its officers did not listen,
plaintiff filed Writ Petition No.1177/1994 before Hon’ble High Court for
relief of declaration and mandatory injunction. After appearance of the
defendant/MCGM in said Writ Petition No.1177/1994, Hon’ble High
Court after considering submission of both sides rejected said writ
petition on 20/06/1994 with liberty to file Civil Suit on the ground that
disputed question of facts cannot be decided by way of writ petition.
Again plaintiff filed Appeal No.679/1994 against order dated
20/06/1994 in Writ Petition No.1177/1994, but thereafter get
withdrawn the same on 05/10/1994 with liberty to filed suit.
Thereafter, plaintiff filed present suit for relief in the form of
declaration that the letter dated 22/03/1994 as well as order to that
effect passed on 28/03/2024 including act of demolishing upper
portion on 28/03/2024 be declared as a illegal and direct
defendant/MCGM to restore the earlier position by reconstructing
demolished portion of upper floor and relief of injunction against
defendant/MCGM.
6. During pendency of the suit on the basis of complaint
received on 14/12/2016 from Shri. Jamal Ahmed Ansari, the Junior
Engineer of BMC Shri. Y.Y. Kondgekar visited to the Room No.9 at
Ibrahim Building inspected the same and submit report relates to
ongoing unauthorized construction therein. Therefore, notice under
section 354A of MMC Act issued on 15/12/2016. Plaintiff filed reply
on 17/12/2016. Again the officers of the defendant/MCGM i.e. Shri.
Y.Y. Kondgekar visited to the suit premises on 03/04/2017 and
inspected the same wherein he found vertical extension to existing
ground floor structure by using brick masonry admeasuring 03
-- 4 of 18 --
L.C. Suit No.7651/1994 ..5.. Judgment
meter in lane and having height 0.5 meter. So, on the basis of report
of the said officers, the designated officer of the defendant/MCGM
passed speaking order on 04/04/2017 with direction to remove the
said unauthorized structure forthwith. Therefore, plaintiff filed
Chamber Summons No.1219/2023 and in view of order therein
dated 30/09/2023, made amendment in plaint and claimed relief of
declaration in the form of notice dated 15/04/2016 and speaking
order dated 04/04/2017 be declared as a null and void.
7. Defendant/MCGM resisted the suit claim by filing written
statement vide Exh.2. In written statement defendant/MCGM has
denied status of plaintiff’s father in suit premises as per case pleaded in
plaint. According to defendant/MCGM, plaintiff’s father did not took
suit premises from its owner/lessee Mr. Mohamad Nazir Haji Bhikhai.
However, in spite of issuing prior notice under section 527 of MMC Act
plaintiff has filed this suit. Further, according to defendant/MCGM suit
is also not maintainable before this court as per amended provision i.e.
section 515A of the MMC Act.
8. Further it is case of the defendant/MCGM that, the letter
dated 22/03/1994 and subsequent notice dated 15/12/2016 are not
relates to one and the same property. On the contrary, according to
defendant/MCGM the location of the suit premises shown in letter
dated 22/03/1994 is at the back side of Ibrahim Building and
unauthorized structure shown in notice dated 15/12/2016 is at Room
No.9 of Ibrahim Building. However, plaintiff by suppressing material
facts and dishonestly tried to make unauthorized construction at Room
No.9 of Ibrahim Building by taking undue advantage of earlier pending
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L.C. Suit No.7651/1994 ..6.. Judgment
Suit No.7651/1994 and order therein i.e. order dated 02/8/1996 in NM
No.6321/1994 allowing plaintiff for reconstruction of demolished upper
floor as per act of the defendants dated 28/03/1994. However,
according to defendant/MCGM, plaintiff is not having permission of the
defendant/MCGM for making any construction in suit premises as per
letter dated 22/03/1994 or notice dated 15/12/2016.
Defendant/MCGM also denied that existence of the suit premises prior
to datum line i.e. 01/04/1962 as alleged. In short, defendant/MCGM
has denied any wrong on the part of officers of the defendant/MCGM
during entire action initiated against plaintiff. However, plaintiff has
filed present false suit. So, present suit is not maintainable for want of
notice under section 527 of MMC Act. So, defendant/MCGM has prayed
for dismissal of the suit with costs.
9. In view of rival pleadings Predecessor of this Court framed
issues vide Exh.6, so said issues alongwith my findings and reasons
thereon are as under :-
Sr.No. Issues Findings
1. Does the plaintiff prove that the action of
demolition carried out by the defendant in
respect of first floor consisting two galas
each admeasuring 18' X 18' made with CI
sheets, wall and CI sheet roof and doors,
shutters, bathrooms, shed in common
passage at building No.150 pursuant to
the order dated 28/03/1994 on the
impugned letter dated 22/03/1994
bearing No.WOE/30329/Bldg in respect of
the suit premises is bad in law, illegal and
in-operative ?
No
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L.C. Suit No.7651/1994 ..7.. Judgment
2. Does the plaintiff prove that the impugned
notice dated 15/12/2016 issued under
section 354-A of the MMC Ac bearing
No.E/DO2E/206/354-AMMCAct/E180N01
/15.12.2016 for unauthorized vertical
extension to the existing ground-floor
structure and the impugned order dated
04/04/2017 is illegal, nullity, bad in law,
not enforceable not binding on the
plaintiff and liable to be quashed and set
aside ?
No
3. Whether the suit is bad for want of notice
under section 527 of the MMC Act 1888 ?
No
4. Whether the plaintiff is entitled to the
reliefs of declaration, as prayed for ?
No
5. Whether the plaintiff is entitled to the
relief of mandatory injunction, as prayed
for ?
No
6. Whether the plaintiff is entitled to the
reliefs of permanent injunction, as prayed
for ?
No
7. What order and decree ? Suit stands
dismissed.
: REASONS :
As to issue Nos.1 and 2 :
10. Heard Learned Counsel Shri. Anirudha Sapre for the
plaintiff as well as Ld. Advocate Ms. Sangita Honmane for
defendant/MCGM, I have gone through the entire record. In order to
prove the suit claim, plaintiff Mohamad Farooque Mohobat Ali Ansari
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L.C. Suit No.7651/1994 ..8.. Judgment
deposed as a PW.1 vide Exh.7 and closed evidence by filing evidence
close pursis at Exh.32. Defendant/MCGM also examined its officer Mr.
Chavan Ranjit Bhimrao, Junior Engineer as a DW.1 vide Exh.34 and
closed evidence by filing evidence close pursis at Exh.38. In support of
the oral evidence plaintiff relied on near about 17 documents as
under :-
Sr.
No.
Exhibits Particulars
1. Exhibit-9 Assessment Bill issue
2. Exhibit-10 Letter dated 24/07/1979 issued by the
Superintendent of Bombay City Survey and
Land Records.
3. Exhibit-11 Letter dated 06/02/1989 bearing
No.Estates/15023/LB of 6/2/89 and it also
bears the signature of Ward Officer (Estates)
4. Exhibit-12 C.T.S. Plan issued by the Superintendent of
Bombay City Survey and Land Records.
5. Exhibit-13 Letters dated 25/01/1972.
6. Exhibit-14 Letter dated 12/12/1973 bearing
No.WOE/57734/BD/12-12-1973, it bears
the signature of Assistant Engineer, Building
and Drg. E-Ward.
7. Exhibit-15 Letter dated 13/04/1982 issued by the
Assistant Assessor and Collector, E-Ward.
8. Exhibit-16 Letter dated 15/03/1983 bearing
No.WOE/36329/Bldg dated 15.03.1983.
9. Exhibit-17 Notice under section 351 dated 12.10.1988
bearing Notice No.EVI/50/BF 88-89.
10. Exhibit-18 Letter dated 27/10/1988 issued by the Ward
Officer, E-Ward office.
11. Exhibit-19 Letter dated 08/10/1989 bearing
No.WOE/38061/Building dated
08/10/1989.
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L.C. Suit No.7651/1994 ..9.. Judgment
12. Exhibit-20 Letter dated 20/05/1991 bearing
No.WOE/71023/F (Bldg).
13. Exhibit-21 Letter dated 05/04/1994.
14. Exhibit-22 Affidavit in reply dated 05/05/1994 filed by
the defendant in Writ Petition
No.1177/1994.
15. Exhibit-23 Impugned notice bearing
No.E/DO2E/206/354A-MMC
Act/E180N01/15/12/2016 dated
15/12/2016, Ref. No.17563.
16. Exhibit-24 Reply dated 17/12/2016.
17. Exhibit-25 Impugned Speaking Order dated
04/04/2017 passed by the Designated
Officer, Asst. Engineer (B&F) E-Ward.
11. Defendant/MCGM also filed copy of the complaint dated
14/12/2016 received from Jamal Ahmed Ansari Exh.35, copy of the
notice dated 15/12/2016 under section 354A of MMC Act already
marked as Exh.23, copy of the reply received from plaintiff dated
17/12/2016 already marked as Exh.24 and order passed by Designated
Officer dated 04/04/2017 already marked as Exh.25.
I would like to mention, in spite of giving sufficient
opportunity neither plaintiff nor defendant/MCGM filed readable copy
of the order dated 20/06/1994 passed by Hon’ble High Court rejected
Writ Petition No.1177/1994. No copy of order dated 05/10/1994
passed by Hon’ble High Court in Appeal No.679/1994 filed on record.
There is no explanation on behalf of both parties with regard the same.
12. On perusal of the examination-in-chief of plaintiff i.e. PW.1
Mohamad Farooque Mohobat Ali Ansari vide Exh.7 along with cross-
examination, it reveals, he has deposed as per case pleaded in plaint
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L.C. Suit No.7651/1994 ..10.. Judgment
including how his father came in possession of the suit premises from
original lessee and thereafter, continued his possession over the suit
premises. In fact even though plaintiff has pleaded about his possession
over the suit premises, but no single documents on record filed by
plaintiff to show or establish i.e. suit premises was transferred in the
name of his father by original lessee or landlord. Nothing is on record to
show or establish that, plaintiff’s father made attempt to get transfer the
suit premises in his name from the name of original lessee Mr.
Mohamad Nazir Haji Bhikhai by way of filing application before officers
of defendant/MCGM. No any documents on record showing any of the
act on the part of father of the plaintiff which amounts to his attempt to
get transfer the suit premises in his favour by following any of the mode
prescribed under law to acquire the immovable property having value
more than 100/- rupees. Apart from issue of transfer of suit premises, if
we peruse the cross-examination of plaintiff, it reveals that he has
admitted that, he is not having plan of alleged notice structure shown in
letter dated 22/03/1994 or notice dated 15/12/2016. Nothing is on
record to show plaintiff’s father or plaintiff himself filed any proposal
along with plan to get permission from defendant/MCGM with regard
to alleged notice structure as per letter dated 22/03/1994 or notice
dated 15/12/2016.
13. In the circumstances, on perusal of the documents i.e.
Exh.9 to Exh.25 filed on record on behalf of plaintiff, it reveals plaintiff
has filed letter dated 24/07/1979 issued by Superintendent of Bombay
City Survey and Land Records to Mohanlal Abdul Ansari in respect of
structures on City Survey No.1691. Basically, the contents in said letter
does not shows reference of the description of the so called structure, so
-- 10 of 18 --
L.C. Suit No.7651/1994 ..11.. Judgment
same is not helpful to the plaintiff to establish his case. Another
document i.e. letter dated 06/02/1989 Exh.11 issued by Ward Officer
(Estates) to Ansari Mohabat Abdulla with regard to Plot No.33 on
account of arrears of ground floor rent etc, so contents therein are also
not tallied with the description of the suit premises shown in plaint. So,
said Exh.11 is not helpful to the plaintiff. On perusal of letter dated
25/01/1972 Exhibit-13 it shows Assistant Engineer- F (B&D) issued the
same to Mohabat Abdulla on 25/01/1972 with regard to illegal and
unlawful work at 150C, Maulala Azad (Laddani Bldg) Bombay-400 008
showing reference of unauthorized works are seen carried out at above
place. Basically, dispute in present matter is relates to unlawful work at
Ibrahim Building and its rear side. Furthermore, nothing is on record to
show on what basis said letter Exh.13 is issued by the concern officer.
Furthermore, said letter Exh.13 does not bear the description of the
property in respect of which it has been issued, so same is not helpful to
the plaintiff. Letter No.WOE/57734/BD/12-12-1973, dated 12/12/1973
bears the signature of Assistant Engineer, Building and Drg. E-Ward
Exhibit-14 and it shows concern officer inform to Mohamed Abdulla
Ansari about issue of unauthorized construction is being treated as a
closed. Basically, on what basis concern officer issued letter Exh.14 and
in respect of which unauthorized structure it has been closed is not
mentioned in the said letter. There is no explanation on behalf of the
plaintiff with regard the same. Letter dated 13/04/1982 Exhibit-15
shows it has been issued by the Assistant Assessor and Collector, E-
Ward showing reference of issue of assessment of property bearing E-
Ward No.4023(IA) etc assessed prior to 01/04/1961. Basically, said
letter Exh.15 is issued on 13/04/1982, but on what documents it has
been issued to show the assessment prior to 01/04/1961 is not
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L.C. Suit No.7651/1994 ..12.. Judgment
mentioned anywhere. Plaintiff has not explained the same. Description
of notice structure also not mentioned in said letter Exh.15.
14. Letter dated 15/03/1983 bearing No.WOE/36329/Bldg
dated 15.03.1983 Exhibit-16 shows it has been issued in respect of
unauthorized wooden boxes at Otla, Iron of roofs, sheds, lofts mories,
iron shutters etc. However, said letter Exh.16 does not bears description
of alleged unauthorized structure and its sketch, so same is also not
helpful to the plaintiff. Letter dated 27/10/1988 issued by the Ward
Officer, E-Ward office Exhibit-18 shows same is in respect of
unauthorized construction of morry and bathroom in house gally
between 148 and150B. In fact said letter is issued to Mr. Farook Mohd.
Abdulla on 27/10/1988 with direction to remove the unauthorized
work therein, so same is not helpful to the plaintiff. Letter dated
08/10/1989 bearing No.WOE/38061/Building dated 08/10/1989
Exhibit-19 shows it has been issued in respect of unauthorized
construction of Patra Chawl, ground floor plus first floor, morry and
150B, bathroom, iron shutters at behind Laddhani estate. In fact in
present suit dispute is in respect of alleged unauthorized structure
behind the Ibrahim building. Further the contents in said letter Exh.19
does not bear the description or sketch of the alleged unauthorized
structure, so same is not helpful to the plaintiff. Letter dated
20/05/1991 bearing No.WOE/71023/F (Bldg) Exhibit-20 shows it has
been issued to communicate the repair permission for existing structure
behind Ibrahim Building. Basically, in this suit plaintiff has not asked
any relief on the basis of repair permissions. On the contrary, the said
letter Exh.20 shows, his request for repair permission was not
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L.C. Suit No.7651/1994 ..13.. Judgment
considered and directed him to approach E.E.B.P. (C) through license
Architect etc, so same is not helpful to the plaintiff.
15. In the circumstances, considering all above correspondence
and nature of dispute involved in this suit, according to me, all above
letters are not proved the legality of alleged unauthorized structure as
per letter dated 22/03/1994 or notice dated 15/12/2016. As regards to
C.T.S. Plan issued by the Superintendent of Bombay City Survey and
Land Records Exhibit-12, I would like to mention here, in said map also
alleged suit premises as per letter dated 22/03/1994 or unauthorized
structure as per notice dated 15/12/2016 not shown specifically. So,
said map Exh.12 is not helpful to the plaintiff for any relief. In short,
nothing is on record except pleading and oral evidence to establish or
prove that, before 1972 plaintiff’s father or plaintiff was in possession of
suit premises and existence of notice structure.
16. On perusal of the evidence of DW.1 Shri. Chavan Ranjit
Bhimrao, the officers of defendant/MCGM vide Exh.33 including his
cross-examination it reveals his entire deposition is repetition of case
pleaded in written statement. Basically, as per earlier letter dated
22/03/1994 dispute is not in respect of Room No.9 divided into Room
No.9A and 9B, but dispute is in respect of structure in front of said
Room No.9. DW.1 has deposed in detail about how the plaintiff is asking
relief sought in absence of any documents in order to establish the
existence of notice structure with permission of the defendant/MCGM.
As per notice dated 15/12/2016, it shows dispute is relates to alleged
unauthorized structure at Room No.9 of Ibrahim Building. Therefore,
from all above aspects particularly evidence of DW.1 Shri. Chavan Ranjit
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L.C. Suit No.7651/1994 ..14.. Judgment
Bhimrao and remaining documentary evidence on record, I find that,
the letter dated 22/03/1994 and notice dated 15/12/2016 are not
relates to same premises/unauthorized structure.
17. In short, considering correspondence shown by plaintiff as
per Exh.10, Exh.11, Exh.13 to 16 and Exh.18 to Exh.21 relates to visit
of the responsible officers of the defendant/MCGM and postponement
of initiating action against plaintiff with regard to suit premises,
according to me, the said correspondence cannot regularize or legalize
alleged construction i.e. suit structure as per letter dated 22/03/1994.
In fact nothing is on record showing prior to 01/04/1962 i.e. datum
line the suit structure was in existence. In other words, even we
consider the all above documents filed by plaintiff, it does not speaks or
shows i.e. prior to 01/04/1962, suit structure was in existence.
Therefore, only negligence on the part of the responsible officer to take
action during the period between alleged construction and notice issued
under reference cannot be ground to claim notice structure is legal.
Therefore, alleged letter issued by plaintiff dated 22/03/1994 or notice
dated 15/12/2016 and speaking order to that effect passed on
28/03/1994 or 04/04/2017 does not shows any illegality on the part of
the defendant/MCGM. Therefore, I do not find any illegality on the part
of officers of defendant/MCGM in letter dated 22/03/1994 or notice
dated 15/12/2016 as well as speaking order dated 28/03/1994 or
04/04/2017 and in demolishing of upper floor on 28/03/1994.
Therefore, I answer issue Nos.1 and 2 in the negative.
As to issue No.3 :
18. As regards to compliance of notice under section 527 of
MMC Act, I would like to mention here as per section 527 of MMC Act,
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L.C. Suit No.7651/1994 ..15.. Judgment
no suit shall be instituted against the corporation in respect of any act
done in the execution of MMC Act until the expiration of one month
next after notice in writing. In fact letter in question dated 22/03/1994
shows only seven days has been given from the day of issuing said
letter. In the case of
Motilal Mahadev Sharma V/s. The Municipal
Corporation of Greater Bombay reported in 2005(3) ALL MR 869,
Hon’ble Bombay High Court has held that when the plaintiff wants to
seek immediate relief from the court in the form of injunction, it is not
necessary for him to issue the statutory notice or wait till the statutory
notice is served and the period prescribed under section 527 of MMC is
over. Therefore, when letter on record itself speaks about seven days
were given to the plaintiff for reply to same is inconsistent/contrary to
the legal position and wording of section 527 of MMC Act. Furthermore,
record shows after receipt of the letter, plaintiff by filing Writ Petition
No.1177/1994 it was challenged before Hon’ble High Court and
thereafter, with permission of the Hon’ble High Court then withdrawn
the suit with liberty to file fresh suit before this court i.e. court of City
Civil Court, Mumbai. Therefore, suit is not bad for want of notice. So, I
answer issue No.3 in the negative.
As to issue Nos.4 to 6 :-
19. As regards to relief of declaration and mandatory
injunction Ld. Advocate for plaintiff specifically submitted that, the
Assistant Engineer (B & F) Department, E-Ward who issued letter dated
22/03/1994 was not empowered to issue such letter/notice. Further,
Designated Officer/Assistant Engineer who passed order dated
28/03/1994 for demolition of unauthorized structure was not
-- 15 of 18 --
L.C. Suit No.7651/1994 ..16.. Judgment
empowered to pass such order. So, letter dated 22/03/1994 and order
to that effect passed on 28/03/1994 are illegal. Ld. Advocate for
plaintiff submitted that, Notice of Motion No.6321/1994 filed by
plaintiff was allowed and defendants/MCGM were directed to restore
the demolished portion. In fact notice in question shows plaintiff was
permitted to get suit structure constructed to its original position.
Basically, nothing is on record to show that the initial structure on suit
premises i.e. notice structure was with permission of the
defendant/MCGM or it was in existence prioir to datum line i.e.
01/04/1962.
In the case of Tushar Guru Salien Vs. State of Maharashtra
and others (judgment in Public Interest Litigation No.67/2017) their
Lordship of our Hon’ble High Court observed in para number 5 as
under:
5” 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
prim-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.
-- 16 of 18 --
L.C. Suit No.7651/1994 ..17.. Judgment
Therefore, considering the facts of present case i.e.
pleading and evidence on record according to me, only showing defect
in the alleged act of the plaintiff itself is not sufficient to hold that, the
suit structure is legal or with permission of the defendant/MCGM.
Therefore, in absence of infringement of plaintiff’s rights at the hands of
defendant/MCGM, question of asking relief like mandatory or
permanent injunction before court of equity does not arise. So, question
of granting any relief in favour of plaintiff like declaration as well as
mandatory injunction or injunction as prayed does not arise. So, I
answer issue Nos.4 to 6 in the negative.
As to issue No.7:-
20. In view of findings as to issue Nos.1 to 6, I hold that the
suit is liable to be dismissed. Hence, following order is passed.
O R D E R
1. Suit stands dismissed.
2. parties bear their own costs.
3. Decree be drawn up accordingly.
Dictated and pronounced in the open court.
Date : 18/11/2025. (Anil D. Salunkhe)
Judge, City Civil Court,
Gr. Bombay (CR.5)
Dictated on : 18/11/2025
Transcribed on : 19/11/2025
Checked on : 28/11/2025
Signed on : 04/12/2025
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L.C. Suit No.7651/1994 ..18.. Judgment
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
08/12/2025 12.02 p.m. Sanjay Baliram Kaskar
(Stenographer Grade-I)
Name of the Judge H.H.J. Shri. Anil D. Salunkhe
(C.R. No.5)
Date of Pronouncement of
Judgment/Order.
18/11/2025
Judgment/order signed by P.O on 04/12/2025
Judgment/order uploaded on 08/12/2025
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