Final Order 1

Order Details: Notice of Motion
Pdf Text: L.C. Suit No.383/2018 ORDER IN N.M. No.1080/2018
MHCC010034972018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1080 OF 2018
(CNR NO.MHCC01-003497-2018)
IN
L.C. SUIT NO.383 OF 2018
Mr. Ubaid Hafizulla Khan ...PLAINTIFF
//VERSUS//
Municipal Corporation of Greater Mumbai &
Anr.
..DEFENDANTS
Appearance :
Advocate Pooja Narvekar for the plaintiff.
Advocate Amar Patil for defendant No.1 / BMC.
CORAM : HIS HONOUR JUDGE
SHRI. PRASHANT C. KALE
(COURT ROOM NO.06)
DATE : 03rd AUGUST, 2026.
ORDER
By this Notice of Motion, the plaintiff has prayed for restraining
defendant No.1 or any other persons claiming through them from
implementing notice dated 30.06.2017 issued under Section 351 of the
Mumbai Municipal Corporation Act (MMC Act) and order dated
08.11.2017 passed thereon from taking any action in respect of the
demolition of the premises occupied by the plaintiff being Shop No.14
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L.C. Suit No.383/2018 ORDER IN N.M. No.1080/2018
situated at Ground Floor, Dr. Johar Chawl, Dainik Shivneri Marg, Worli,
Mumbai- 400 018 including loft/mezzanine portion in respect thereof
under the guise of said notice and orders passed thereon.
2. In short, case of the plaintiff is that the premises in question stand
in the name of father of the plaintiff i.e. defendant No.2 herein. The
premises is occupied by the plaintiff under an authority given by his
father and since, presently the father of the plaintiff is not available in
the City of Mumbai, he has been shown as proforma defendant in the
present proceedings. That premises in question i.e. Shop No.14 situated
at Ground Floor, Dr. Johar Chawl, Dainik Shivneri Marg, Worli, Mumbai
400 018 was originally occupied by one Mr. Abdul Majid Shaikh. Said
Mr. Abdul Majid Shaikh expired somewhere on 14.07.2010 and
thereafter, the same was occupied by his wife. The wife of late
Mr. Abdul Majid Shaikh sold the said premises to father of the plaintiff.
The wife of the said Mr. Abdul Majid had signed necessary affidavit in
favour of the plaintiff’s father. Even, her son named Mr. Munir Abdul
Majid Shaikh had signed necessary affidavit/NOC. She had also signed
necessary indemnity bond and necessary irrevocable Power of Attorney
dated 05.11.2011. Accordingly, on the basis of the said documents, the
said widow of the late Mr. Abdul Majid Shaikh had put the plaintiff in
possession of the said premises.
3. The said late Mr. Abdul Majid Shaikh was having a regular
electricity connection standing in his name in respect of said premises
and accordingly the plaintiff is in possession of the said bill issued by
the office of BEST. Original premises in question in known as “Doctor
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L.C. Suit No.383/2018 ORDER IN N.M. No.1080/2018
Chawl” and is owned by private party. Accordingly, the said landlord
had also issued necessary rent receipts in favour of the deceased Mr.
Abdul Majid Shaikh. The plaintiff has been informed that the landlord
of the said property has not accepted the rent since last about 10 years
as there is dispute
inter-se between the landlord of the said property
and the office of defendant No.1. Defendant No.1 claimed that the
property belong to them, whereas the said landlord claims that the
property in question belongs to him as a private property. The plaintiff
has acquired the said property, the son of the plaintiff is carrying on his
business from the said premises regarding interior decoration and has
obtained necessary registration under the provisions of Sales Tax and
Maharashtra Value Added Tax authorities. By a letter dated 13.04.2004
issued by defendant No.1, they had provided necessary information, in
which the premises of the plaintiff had been shown alongwith
mezzanine floor. Despite the same, to the shock and surprise of the
plaintiff, the officers of defendant No.1 had attended the premises of
the plaintiff somewhere in the month of July 2017 and intimated to the
plaintiff that the premises of the plaintiff' and more particularly the
upper portion of the plaintiff’s premises is required to be demolished.
4. The officers of defendant No.1 had further intimated to the
plaintiff that they have already issued a notice to the plaintiff under the
provisions of Section 351 of the MMC Act. The plaintiff states that since
no notice of whatsoever nature has been received by the plaintiff, the
plaintiff had immediately exercised his rights under the provisions of
the Right to Information Act and obtained a copy of the said alleged
notice. Plaintiff has contacted to the office of defendant No.1, the officer
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of the defendant No.1 intimated to the plaintiff that by mistake such
notice have been issued to a dead person. The concerned officer of
defendant No.1 has informed the plaintiff that he need not worry about
the same if required, they will issue fresh notice to the plaintiff.
Ultimately, no action was taken on the basis of that notice. However,
once again somewhere on 25.11.2017, the son of the plaintiff was
served with an order being dated 08.11.2017 and it has been
mentioned that since the plaintiff has failed to reply to the said notice
issued under the provisions of Section 351 of MMC Act, the upper
portion of the said premises is required to be demolished being
unauthorized structure. Once again, the plaintiff has approached to
defendant No.1, the plaintiff was informed that the plaintiff should not
worry about the said order and the same has been issued in the routine
course.
5. There are various lacunas in the said order and though, the said
order and notice mention about the premises being Shop No.14,
however, in fact, the same are in respect of premises occupied by one
Zohri Begum Hafizullah Khan as mentioned in the notice itself. The
officers of defendant No.1 had further informed that since said Smt.
Zohri Begum Hafizullah Khan is occupying the Shop No.14, by mistake
the Shop No.14 has been mentioned in the said notice.
6. On verification, the plaintiff came to know that the said Smt.
Zohri Begum Hafizullah Khan is occupying the Shop No.17. The
plaintiff was shocked and surprised when officer of defendant No.1 had
informed him on 03.01.2018 that the officer of the Corporation will
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L.C. Suit No.383/2018 ORDER IN N.M. No.1080/2018
demolish the upper portion of the plaintiff’s premises at any point of
time. The notice issued by the office of defendant No.1 by itself is bad in
law. The plaintiff is filing the present suit seeking a declaration that it be
declared that the notice issued by the office of defendant No.1 under
the provision of Section 351 of MMC Act dated 30.06.2017 and order
passed thereon on 08.11.2017 are bad in law. Defendants have waived
their rights to receive any such notice under the provisions of Section
527 of the MMC Act. Hence, this Notice of Motion during the pendency
of this suit.
7. The documents filed by the plaintiff are as under.
Sr.
No.
List of documents Exhibits
1. Copy of the affidavit signed by Mr. Abdul
Majid.
A
2. Copy of affidavit/NOC being affidavit dated
05.11.2011.
B
3. Copy of the indemnity bond dated 05.11.2011. C
4. Copy of the power of attorney. D
5. Copy of a bill issued by the electricity company. E
6. Copy of various such rent receipts issued by the
landlord of the property.
F (Colly.)
7. Copies of registration under the provisions of
Sales Tax and Maharashtra Value Added Tax
authorities.
G (Colly.)
8. Copy of documents. H
9. Copies of the letter issued by the local MLA to
the office of the Corporation.
I (Colly.)
10. Copy of the letter/representation dated
09.03.2005 made by the predecessor of the
plaintiff.
J
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L.C. Suit No.383/2018 ORDER IN N.M. No.1080/2018
11. Copy of the auction notice issued by the office
of the defendant No.1.
K
12. Copy of the receipt issued by the office of the
defendant No.1.
L
13. Copy of the letter dated 13.04.2004. M
14. Copy of the alleged notice dated 30.06.2017
alleged to have been issued by the office of the
defendant No.1.
N
15. Copy of the order dated 08.11.2017 issued by
the office of the defendant No.1.
O
16. Copy of the bill. P
8. Defendant No.1/ Corporation filed reply and opposed the Notice
of Motion by submitting that the suit is bad for want of notice under
Section 527 of the MMC Act. The suit is not maintainable and deserves
to be dismissed with costs under Order VII Rule 3 of the Code of Civil
Procedure (CPC). The plaint nowhere discloses cause of action against
this defendant and defendant/ Corporation has followed due process of
law. This Court has no jurisdiction to try and entertain the Notice of
motion and suit in view of the provisions of Section 515-A of the MMC
Act. The plaintiff has no right, title or interest in suit premises and has
no legal entity to file any suit and Notice of Motion. Defendant No.1 has
denied all the allegations made by the plaintiff in his affidavit in
support of and prayed for dismissal of Notice of Motion. In the specific
contentions, the defendant / Corporation submitted that they have
received one complaint from Shri. Bhai Jagtap, MLA dated 13.01.2026
regarding unauthorized constructions carried out by the occupier at suit
premises and so also other complaints are received in respect of the suit
premises. Accordingly, inspection was carried on 27.06.2017 and the
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L.C. Suit No.383/2018 ORDER IN N.M. No.1080/2018
designated officer after considering the complaint, inspection report,
sketch photographs and record has issued notice under section 351 of
the MMC Act.
9. It has further submitted by defendant No.1 that the plaintiff has
not come before this Hon’ble Court with clean hands and suppressed
the material facts from this Hon’ble Court. The present suit is abuse of
process of law and not maintainable. The suit is liable to be dismissed
with compensatory costs as this defendant rightly initiated the action by
issuing Show Cause Notice u/s. 351 of the MMC Act and passed
speaking order by following due process of law. Thus, prayed for
dismissal of the notice of motion.
10. The defendant has filed following documents.
Sr.
No.
Particulars of documents. Annexure
No.
1. Copies of complaints dated 13.01.2016,
04.02.2016, 26.12.2016, 02.05.2017,
11.04.2017, 13.04.2017.
1 (Colly.)
2. Copy of Inspection Report with sketch dated
27.06.2017.
2
3. Copy of Show Cause Notice dated 30.06.2017. 3
4. Copy of Speaking order dated 08.11.2017. 4
11. Points for determination alongwith my findings thereon are as
under :
Sr.
No.
Points Findings
(i) Whether the plaintiff has
prima-
facie case ?
...Yes.
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(ii) Whether by grant of no
injunction, the plaintiff would
suffer irreparable loss?
...Yes.
(iii) Whether the balance of
convenience lies in favour of the
plaintiff ?
...Yes.
(iv) What order ? As per final order.
: REASONS FOR FINDINGS :
AS TO POINT NOS.(i) TO (iv) :
12. Heard both parties. The record reflects that ad-interim injunction
is operating in favour of the plaintiff. The plaintiff is coming with the
arguments that the notice under Section 351 of the MMC Act, was
issued on 30.06.2017. The said notice is reported to be served on one
Sayyed Harshad Jaidi who has nothing to do with the said premises. No
notice was served upon the plaintiff. There was no occasion for the
plaintiff to give any reply to the notice. The order came to be passed on
08.11.2017 and same was served upon the plaintiff on 25.11.2017.
Under the provisions of law, as per the circular issued by defendant /
Corporation and the directions of the Hon'ble Apex Court, it is
mandatory upon defendant / Corporation to give personal hearing to
the person against whom order is passed. In present case, no notice has
been issued to the plaintiff. The plaintiff is deprived of rights to make
representation and submit necessary documents in support of his
contentions. The entire action has been initiated against the plaintiff on
the basis of the complaint of one Kamal Zaidi.
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13. The record reflects that one Abdul Majid Shaikh was originally in
use, occupation and possession of the suit premises and he expired
somewhere on 14.07.2010. His wife had signed necessary affidavit in
favour of the plaintiff’s father i.e. defendant No.2 herein assigning the
rights in respect of the said premises and the relevant document is
appearing at Exhibit-A to the plaint.
14. Certainly, the present plaintiff is not the person to whom notice
U/s.351 of the MMC is served. The speaking order itself reflects that no
reply was filed to the notice and no documents about the authenticity of
the notice structure are produced before the designated officer of
defendant No.1. The interim protection in this case is operating since
10.01.2018, wherein it is observed that no opportunity was given to the
plaintiff to make any representation against the said notice upon which
impugned order came to be passed. The plaintiff is relying upon the
assessment filed at Exhibit-M, wherein it is enumerated that Room
No.14 is having ground floor which is used at Godown having area
19.80 M2 plus mezzanine floor used as residence having area 19.80 M2.
This assessment is dated 13.04.2004. Despite the observation of this
Court that no notice was issued to the plaintiff as required under
Section 351 of the MMC Act, there is no specific averment in the reply
affidavit filed by the Corporation in that regard. The copy of the Show
Cause Notice filed by the Corporation at Exhibit-3 reflects that RTI Copy
was received by Sayyed Arshad Zaidi on 24.07.2017.
15. The plaintiff is coming with the case that the upper portion of the
said premises is a loft, whereas the document filed by the plaintiff at
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Exhibit-M demonstrate that there is a construction of ground floor plus
mezzanine floor. There is no document to show that the notice and the
speaking order were served upon present the plaintiff being the
occupier of the premises. The interim order is in operation since 2018
and same is no where challenged by the defendant corporation. The
inspection report filed on record at Annexure-II by defendant No.1 is
not having mention of the names of the occupier. The plaintiff has
demonstrated that Abdul Majid in whose name the notice is issued had
expired on 14.07.2010 by filing affidavit of Mrs. Sairabanu Abdul Majid
Shaikh, the wife of Late Mr. Abdul Majid. It was for the defendant
/Corporation to demonstrate on whom the notice under Section 351 of
the MMC was served properly. The Corporation is silent in this regard
and same can be seen from the inspection report, in fact the map
annexed to the Annexure- II speaks about the name of occupier as Shri.
Johari Beaam Khan.
16. In present suit, the plaintiff has challenged the notice issued by
defendants / Corporation U/s.351 of the MMC Act. The learned
advocate for defendant / Corporation submitted that designated officer
of the Corporation has followed the due process of law.
17. Appreciating documents filed by the plaintiff and the written
notes of arguments filed by the plaintiff, the plaintiff is coming with the
specific contentions the said notice dated 30.06.2017 was not served
upon him. In this case, the landlord is stated to have made complaint
against the alleged construction. The plaintiff is relying upon the
assessment filed by him at Exhibit-M to the plaint which is dated
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L.C. Suit No.383/2018 ORDER IN N.M. No.1080/2018
13.04.2004 showing that the room No.14 is used as godown at Ground
Floor and Mezzanine Floor. The plaintiff is coming with the arguments
that there is no record in respect of minutes of personal hearing and
findings as to why the extreme stage of demolition is only option
available and other options like compounding and/or demolishing only
part of the property are not available.
18. It is settled law that opportunity of being heard should be given
to the party against whom adverse orders are being passed. Having
regard to the submissions on behalf of the plaintiff
prima facie no
opportunity was not granted to the plaintiff to prove the authenticity of
notice structure. The concerned officer of defendant has not followed
due process of law.
19. Analyzing the material on record by way of affidavit and counter
affidavit the plaintiff has made out "
a prima facie case" in his 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 him 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 the plaintiff. In these circumstances, this Notice of Motion is
made absolute in terms of the order dated 10.01.2018 and in terms of
the prayer clause- (a) of the Notice of Motion. Hence following order :-
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L.C. Suit No.383/2018 ORDER IN N.M. No.1080/2018
O R D E R
1. Notice of Motion No.1080 of 2018 in L.C. Suit No.383 of
2018 is made absolute in terms of prayer clause (a).
2. Costs will be the cost in the cause.
3. Proceeding of Notice of Motion No.1080 of 2018 in L.C.
Suit No.383 of 2018 is closed.
(PRASHANT C. KALE)
Judge, City Civil Court,
Date: 03.08.2026 Greater Bombay.
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L.C. Suit No.383/2018 ORDER IN N.M. No.1080/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04.08.2026 at 05.35 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
03.08.2026
Judgment/Order signed by P.O. on 04.08.2026
Judgment/Order uploaded on 04.08.2026
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