Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010038892020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1301 OF 2020
IN
L. C. SUIT NO. 1243 OF 2020
Zainul Abdeen Abdul Rauf Khan.
Age 63 years, carrying on his business,
under the name and style of Suleman Ahmadi
Backery, 175, L.B.S. Marg,
Kurla (West), Mumbai 400070. 	…. PLAINTIFF
Versus
1. THE MUNICIPAL CORPORATION FOR
GR. 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
CORAM : HIS HONOUR JUDGE
R. K. DESHPANDE.
(Court Room No.11).
DATED : 20.06.2026
APPEARANCE :
Ld. Adv. Mr. V.T. Dubey for the plaintiff.
Ld. Adv. Mr. Botlawar for defendant/BMC.
ORDER
The plaintiff has taken out this notice of motion seeking relief of
temporary injunction in respect of notice issued by defendant corporation
having notice no.L/DO4L/168/354-A MMC ACT/L281N01/22.07.2020
dtd.25.07.2020 reference no.109972 and speaking order passed on
11.08.2020, directing the defendant, their servants, agents and any other
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persons claiming by, acting on their behalf may be restrained by order and
injunction from demolishing or pulling down or removing the suit premises
or any portion thereof, i.e., Suleman Ahmadi Backery being ground plus
mezzanine floor, area adm. about 1000 sq. ft. lying and situate at 175,
L.B.S. Marg, Kurla (West), Mumbai 400070, without following due process
of law.
2. The defendant filed its reply and strongly opposed the present
motion by way of filing its reply on record below Exh.02.
3. Perused the record and proceeding. Heard both sides.
4. Considering the submissions, advanced before this Court, following
points are arise for my determination to which my findings are given
below:-
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has made out
prima facie case for granting temporary
injunction ? … In the affirmative
(ii) Whether the balance of convenience lies
in favour of plaintiff ? … In the affirmative
(iii) Whether the plaintiff would suffer
irreparable loss, if relief claimed for is
not granted ? … In the affirmative
(iv). What Order ? … As per final Order.
5. I have gone through the thoughtful consideration to submission
made by the advocate for rival parties.
-:REASONS:-
AS TO POINT NO.1 TO 3:-
6. According to plaintiff he is the monthly tenant in respect of suit
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premises and running backery under the name and style of ‘Suleman
Ahmedi Backery’ since its inception and he is having all necessary
documents including license the trade license and shop establishment
license. The suit premises is duly assessed by the officer of defendant time
to time and accordingly plaintiff is paying assessment tax in respect of suit
premises. Plaintiff states that due to heavy rainy season, there was some
leakage in the suit premises from the broken cement sheet roof and
accordingly in order to avoid the leakage in the suit premises, he has
replaced cement sheet by same material and he has not carried out any
illegal or unauthorized construction in the suit premises. However, on
14.08.2020 concerned officer attached to (L) Ward of defendant, came to
the suit premises and threaten to demolish the suit premises without
serving any notice to the plaintiff as he stated that he has already served
upon the notice to the plaintiff and there is no need to show such notice
again. The plaintiff states that when he requested the officer that he has
not served a notice and show the proof of service of notice to him, then the
officer had handed xerox copy of notice and one order dated 25.07.2020
and 11.08.2020. After going through the said notice and order, plaintiff
came to know that same has been issued to one Miraj Shaikh next to new
India, Azad Restaurant, which is adjoining to the suit premises and not to
the plaintiff. Since the new India Azad restaurant is adjoining structure
and is totally different from the suit premises and its owner has nothing to
do with the said premises and therefore, the impugned notice and order
passed by defendant is not binding upon the suit premises as same has
been duly served upon the plaintiff, who is the tenant of suit premises and
ultimately if anything will happen to the suit premises on the basis of said
notice and order issued by defendant, the plaintiff will be loss suit
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premises. Therefore, plaintiff states that in view of the non service of
notice and order dated 25.07.2020 and 11.08.2020 same is not applicable
to him.
7. According to plaintiff defendant have not issued the said notice and
order to the plaintiff. In such circumstances the plaintiff submits that in
view of the non service of notice dated 25.07.2020 to the plaintiff. So also
Miraj Shaikh is the owner of adjoining hotel and has nothing to do the suit
premises . Hence notice dtd.25.07.2020 and order passed on 11.08.2020
not binding upon him. As such defendant have no right to demolish the
suit premises without following the due process of law.
8. On the other hand, the motion filed by plaintiff strongly opposed by
the defendant by way of filing its reply and written statement on record
below Exh.2. According to defendant corporation, it was incumbent on the
plaintiff to issue statutory notice to defendant before filing the present suit
as required under section 527 of the Bombay Municipal Corporation Act.
But the plaintiff has failed and neglected to give any such notice to the
defendant. Hence, the suit is not maintainable, and same is liable to be
dismissed with costs. Moreover, no cause of action against defendant arise.
The defendant submitted that the notice of motion is not maintainable and
same is liable to be dismissed with cost under order 7 Rule 3 of the Civil
Procedure Code. In the present suit plaintiff had failed to describe what is
suit property and notice property are varying in description. The defendant
submit that on the routine round of inspection of the officer of this
defendant beat No.168, L Ward on 25.07.2020 it has been found
unauthorized vertical extension to the existing ground structure and u/a
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construction of mezzanine floor and construction of the shed in front of
Ahmedi Bakery, next to India Azad Restaurant, LBS Marg, Kurla-West,
Mumbai 70, was in progress. So inspecting officer of defendant enquired
about owner/occupier of unauthorized construction, then it came to know
that, the said unauthorized construction has been started by one Miraj
Shaikh and the structure is used for commercial purpose. The erection was
in the nature of extension and addition to existing structure. At the time of
inspection, the officers of the defendant had asked for the permission in
respect of the said on going work to the plaintiff. However, plaintiff has
failed to produce any such document to leads to conclusion of inspecting
officer that plaintiff has undertaken the work without the valid permission
from the Competent Authority. The defendant submit that thereafter the
officer of defendant had asked the permission in respect of said ongoing
work to the plaintiff. However, he failed to produce the same that leads to
conclusion of inspecting officer that plaintiff has undertaken the work
without the valid permission from C.A. Thereafter officer of defendant has
taken the measurement of the said unauthorized work, the same were
found as
(1) Unauthorized vertical extension of about 3 ft to existing
ground structure using brick masonry wall and AC roof sheets. (2) U/a
construction of mezzanine floor adm 6.7 m X 5.0 m X 2.0 mt height
approx and (3) U/a construction of shed ad 6.7 m X 4.3 m X 3.0 ht approx
with the help of GI Sheet at open passage in front of shop.
9. According to defendant later on the concerned officer forwarded
Inspecting report alongwith photographs to his superior officer and after
going through it, when he came to conclusion that plaintiff has started u/a
erection without permission of Competent Authority and stop work notice
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is required to be issued. Hence accordingly the designated officer had
issued stop work notice dated 25.07.2020 under section 354 A of the MMC
Act, in the name of Mr. Miraz Shaikh, owner/occupier for
(1)
Unauthorized vertical extension of about 3 ft to existing ground structure
using brick masonry wall and AC roof sheets. (2) U/a construction of
mezzanine floor adm 6.7 m X 5.0 m X 2.0 mt height approx and (3) U/a
construction of shed ad 6.7 m X 4.3 m X 3.0 ht approx with the help of GI
Sheet at open passage in front of shop.
10. The defendant submit that the copy of said under section 354-A has
been served upon the Mr. Miraj, who was present at suit site on
28.07.2020 and the copy of said notice also been served upon the Kurla
Police Station on 28.07.2020 for taking necessary action. By pointing out
certain other facts, defendant submits that the plaintiff has neither replied
the said notice nor he submitted any conclusive proof. Such as permission
of competent authority, sanction plan for carrying out construction work
but the plaintiff has failed to prove authenticity of this structure before the
designated officer and hence, speaking order is passed on 11.08.2020 with
direction to remove the unauthorized structure of the suit premises. The
defendant submit that the plaintiff has not filed any documents to prove or
establish that he has started the construction of notice work with prior
permission of Competent Authority or the structure was already in
existence and is protected as per policy of datum line. Hence, looking the
above facts at last defendant have prayed for dismissal of present notice of
motion
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11. In the light of above submissions advanced before this Court, I have
carefully gone through the record, including the various documents
tendered by both the parties.
12. Whenever an injunction a sought to restrain the implementation of
notice u/s 354-A of the M.M.C. Act, prime consideration will be whether
the construction was going on the date of notice, and whether the plaintiff
has stopped the work after service of notice under section 354-A of the
M.M.C. Act. Injunction being a equitable remedy and the conduct of
plaintiff will be also a prime factor to consider plaintiff’s entitlement to the
relief of injunction.
13. The advocate for plaintiff submitted that the notice issued by
defendant never served on the plaintiff and same has been served to one
Miraj Shaikh, on the address of next to New India, Azad Restaurant, L.B.S.
Marg, Kurla (West), Mumbai and the plaintiff has nothing to do with the
said premises, as he is running his business being a tenant in respect of
premises under the name and style ‘Suleman Ahmadi Backery’ since its
inception. Advocate for plaintiff submitted that notice under section 354A
of the MMC Act, in the case in hand was also issued in the name of
owner/occupier Miraj Shaikh, on his above mentioned address and later
on speaking order is passed on 11.08.2020. In such scenario, plaintiff
submitted that at no point of time, notice about alleged illegal structure is
served upon him, so in absence of proper service of notice, inspection
report, panchanama, photographs with date, time and place of inspection,
the entire allegations of defendant regarding alleged construction about
his structure are baseless. Hence he prayed for allowing the present notice
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of motion with direction to the defendant to follow due process of law
before taking any action according to law.
14. On the other hand advocate for defendant corporation strongly
opposed the argument advanced on behalf of plaintiff and he submitted
that after getting a complaint from local residential person about the
illegal construction carried out by the plaintiff, and after making
inspection by the concerned officer of defendant on the site of suit
premises, when he found that plaintiff carried out illegal construction.
Hence by taking measurement, he asked the plaintiff for necessary
documents including the permission. But at the relevant time, concerned
person failed to produce any such authorization or permission issued by
competent authority in respect of alleged construction. Hence after making
inspection report, concerned officer has submitted the same with his
superior and on that basis notice was issued in the name of plaintiff.
Advocate for defendant submitted that in response to the notice issued by
the defendant, the plaintiff has neither replied the said notice nor he filed
any document on record in order to show that authorization of notice
structure. Hence, speaking order is passed by the designated officer
according to law with direction to remove the suit structure/ premises
within the period of 15 days from the date of passing order. Hence the
order passed by the defendant is legal and proper.
15. As already discussed the notice issued under section 354-A of the
MMC Act, is not appears to be issued and duly served in the name of Zainul
Abdeen Abdul Rauf Khan on his address Suleman Ahmedi Backery, 175, L.B.S.
Marg, Kurla (West), Mumbai (who is a present plaintiff) and same is
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appears to be issued in the name of one Miraj Shaikh (who is not a
plaintiff) on his address next to New India, Azad Restaurant, L.B.S. Marg,
Kurla (West), Mumbai. The defendant corporation at this stage not
justified about the non issuance notice to plaintiff. More so, the receipt of
said notice by the plaintiff is also appears to be doubtful. Consequently I
hold that plaintiff has made out a triable issue. Hence, I answer point no.1
in the affirmative. The balance of convenience is lies in favour of plaintiff.
If defendant is allowed to implement the notice dated 25.07.2020 and
speaking order passed on 11.08.2020. It may amount to allow the
defendant to demolish the suit premises without following due process of
law. Therefore, the plaintiff has made out a case of irreparable loss.
Consequently, I answer point no.1 to 3 in the affirmative and in response
to point No.4, I proceed to pass following order.
ORDER
The Notice of Motion No.1301 of 2020 is made absolute in terms of
prayer clause (a).
2. The defendant is temporarily restrained till the disposal of the suit
from implementing impugned notice dated 25.07.2020 and impugned
speaking order dated 11.08.2020 from the act against the suit premises.
3. Costs in cause.
4. Notice of Motion is disposed of accordingly.
Date 20.06.2026
(R. K. Deshpande)
Judge
City Civil Court
Mumbai
Dictated on : 20.06.2026
Transcribed on : 20.06.2026
Checked on : 20.06.2026
Signed on : 20.06.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
20.06.2026
Name of the Stenographer
Mrs. V.N.Rajgole.
Name of the Judge (with Court Room No.) HHJ Shri R. K. Deshpande
(Court Room No.11).
Date of Pronouncement of Judgment/Order 20.06.2026
Judgment/Order signed by P.O. on 20.06.2026
Judgment/Order uploaded on 20.06.2026
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