Final Order 2

Order Details: Copy of Judgment
Pdf Text: JUDGMENT L. C. SUIT NO.1169/2019
MHCC010042832019
Presented on 15.04.2019
Registered on 02.05.2019
Decided on 30.06.2026
Duration Yrs. Month Days
07 01 28
CNR No: MHCC010042832019
EXHIBIT- 53
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
LONG CAUSE SUIT NO. 1169/2019
M/s. Sanketh Metal Pvt. Ltd.,
a Company incorporated under the provision
of the Companies Act, 1956 having its registered
address at Unit No.606, B-Wing, Prathamesh
Tower, Raghuvanshi Mills Compound, Senapati
Bapat Marg, Lower Parel, Mumbai 400013. … Plaintiff
Versus
1. Municipal Corporation of Greater
Mumbai,
a Body Corporate constituted under the
Mumbai Municipal Corporation Act, 1888
having its office at Mahapalika Bhavan,
Mahapalika Marg, Opp. C.S.T., Fort,
Mumbai - 400 001.
2. Designated Officer - 2,
Asst. Engineer (B. and F.),
G/South Ward Municipal Office, N. M. Joshi
Marg, Lower Parel, Mumbai - 400013. … Defendants
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APPEARANCE: -
Adv. Hardik Desai i/b Adv. Tushar Goradia for the plaintiff.
Adv. Tavakkuli along with Adv. Dharmesh Vyas and Adv. Amar Patil for
the defendants.
CORAM : HIS HONOUR JUDGE,
R.V. BHAKTA (C. R. NO. 61).
DATED : 30.06.2026
JUDGMENT
(Delivered on 30th June, 2026)
This is a suit for declaration that a notice bearing No.
ACGS/128/SR/BF dated 11.04.2018 issued u/S.351 of the MMC Act,
as well as a Speaking Order dated 29th March, 2019 passed thereon are
illegal, bad in law and for perpetual injunction restraining defendants
from implementing the aforesaid notice and taking action of demolition
in respect of property-Unit No.606, situated at 6th floor of the structure
‘B’ known as ‘Prathamesh Towers’ standing on a portion of land in
Raghuvanshi Mill Compound bearing City Survey No.107 of Lower
Parel Division situated at 11-12, Senapati Bapat Marg, Lower Parel,
Mumbai - 400013. (hereinafter called as the 'suit property').
2. THE PLAINTIFF’S CASE: -
(i) The plaintiff is in use, occupation and possession of the suit
property. The suit premises is one of the units situated in Building No.3
known as “Prathamesh Towers”, located within the Raghuvanshi Mill
Compound. The said compound consists of several buildings which
were formerly used for ancillary purposes of the mill. It is the plaintiff’s
case that the Raghuvanshi Mill became a sick industrial undertaking
and was subsequently closed down. In order to address its liabilities
and liquidation proceedings, various revival schemes were proposed
before the Board for Industrial and Financial Reconstruction (B.I.F.R.),
which were not approved. Thereafter, the management of Raghuvanshi
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Mill approached the Appellate Authority for Industrial and Financial
Reconstruction (A.A.I.F.R.) and obtained permission to dispose of
certain buildings situated within the mill compound for the purpose of
discharging the dues of the mill workers and other liabilities.
(ii) According to the plaintiff, pursuant to the order passed by the
A.A.I.F.R., Raghuvanshi Mill appointed M/s. Chaitanya Developers for
development of the suit building comprising a basement, ground floor
and six upper floors containing various units. It is contended that M/s.
Chaitanya Developers carried out only necessary tenantable repairs to
the existing structure and thereafter sold different units to various
purchasers, including the plaintiff. The purchasers subsequently formed
a co-operative society known as “Prathamesh Tower Premises Co-
operative Society Limited”. It is further contended that all members of
the society, including the plaintiff, are regularly paying municipal taxes
and have obtained separate electricity connections. According to the
plaintiff, the suit unit and other units in the building have been duly
recognized in the records of the defendants/B.M.C. and therefore, the
occupation and user of the building are acknowledged by the
defendants/B.M.C.
(iii) The plaintiff further contends that the original owner of the land,
namely Khimji Bhagwandas Trust, had leased the entire property to
Raghuvanshi Mill. Thus, Raghuvanshi Mill was the lessee of the said
trust. It is further alleged that the buildings situated within the mill
compound have been in existence for more than 100 years and are,
therefore, much prior to the ‘datum line’. According to the plaintiff,
Building No.3 known as “Prathamesh Towers”, consisting of a
basement, ground floor and six upper floors having a number of
separate units, was also in existence prior to the ‘datum line’.
(iv) It is further the case of the plaintiff that the defendants/B.M.C.
had granted permission for tenantable repairs to the suit building by
letters dated 11.12.1984 and 17.05.1989. During the course of such
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repairs, the defendants/B.M.C. issued a notice dated 11.08.1997 under
section 354 of the M.M.C. Act. Raghuvanshi Mill submitted its reply
along with supporting documents, pursuant to which the proceedings
initiated under section 354A of the M.M.C. Act came to be dropped.
(v) Thereafter, the defendants/B.M.C. issued another notice dated
26.09.1997 under section 351 of the M.M.C. Act to Raghuvanshi Mill.
The said notice was replied to along with relevant documents.
However, a Speaking Order dated 04.07.1998 came to be passed
without properly considering the material placed on record. Aggrieved
thereby, Raghuvanshi Mill instituted Suit No.3601 of 1998 challenging
the said notice and speaking order. The said suit came to be decreed in
favour of Raghuvanshi Mill. The defendants did not challenge the said
judgment and decree before the appellate forum. Consequently, the
said decree attained finality and, according to the plaintiff, operates as
‘Res-judicata’ between the parties. It is contended that the defendants
are, therefore, estopped from once again alleging that the suit building
is unauthorized. Despite the same, the defendants have issued the
impugned notice under section 351 of the M.M.C. Act and passed the
impugned speaking order with an alleged mala fide intention of
assisting Khimji Bhagwandas Trust in obtaining possession of the
leasehold property.
(vi) According to the plaintiff, the impugned notice and speaking order
are illegal, arbitrary, vague and void ab initio, having been issued
without granting a proper opportunity of hearing and without due
consideration of the plaintiff’s reply and supporting documents. It is
further contended that the impugned action has been initiated with
mala fide intent and in violation of the principles laid down by the
Hon’ble Supreme Court in ‘Sopan Maruti Thopte and Another vs. Pune
Municipal Corporation and Another, reported in 1996 (1) Maharashtra
Law Journal’. On these grounds, the plaintiff has sought the reliefs
claimed in the suit.
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3. THE DEFENDANT/B.M.C. CASE: -
(i) The defendants have resisted the suit by filing their Written
Statement and have denied the material averments contained in the
plaint which are going against their interest. According to the
defendants, upon a complaint made by Khimji Bhagwandas Trust, the
concerned Designated Officer carried out an inspection of the suit
property. During the inspection, it was found that Building No.3,
consisting of a basement, ground floor and six upper floors, comprising
approximately 35 units along with two lifts, had been constructed
without obtaining any sanctioned plan or requisite permission from the
defendants/Municipal Corporation. Photographs of the alleged
unauthorized construction were taken and an inspection report was
prepared. Thereafter, a notice was issued calling upon the plaintiff to
produce documentary evidence regarding the legality of the structure
described in the notice schedule. Although the plaintiff submitted a
reply through its advocate and produced certain documents, its
advocate failed to furnish any material demonstrating that the
structure, including the basement, upper floors, individual units and
lifts, either existed prior to the ‘datum line’ or had been constructed
pursuant to valid municipal permissions and sanctioned plans.
(ii) The defendants further contend that the plaintiff has altered the
user of the suit premises without obtaining the requisite permission
from the defendants/Municipal Corporation. Accordingly, unauthorized
change of user also constitutes one of the grounds for issuance of the
notice under section 351 of the M.M.C. Act.
(iii) The defendants further submit that the impugned notice and
speaking order were issued after granting the plaintiff an adequate
opportunity of hearing and after considering the reply and documents
submitted by it. It is contended that the Designated Officer has strictly
complied with the principles laid down in Sopan Maruti Thopte (supra)
while passing the speaking order. According to the defendants, the
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impugned notice and order cannot be challenged before this Court in
view of the express bar contained in section 515A of the M.M.C. Act.
Consequently, it is contended that this Court lacks jurisdiction to
entertain and decide the present suit. On these grounds, the defendants
have prayed for dismissal of the suit.
4. I have heard the learned Advocate for the plaintiff and the
learned Advocate for the defendants at length. Upon consideration of
the pleadings of the parties, the documentary evidence placed on
record and the submissions advanced on their behalf, my learned
predecessor framed the Issues at Exhibit-4. The same are reproduced
hereinbelow along with my findings thereon for the reasons recorded
hereinafter.
Sr.
No. ISSUES FINDINGS
1. Does the plaintiff prove that impugned notice
u/S.351 of the MMC Act dated 11.04.2018 and
Speaking Order dated 29.03.2019 are illegal, bad
and not enforceable?
In the
negative.
2. Whether this Court has jurisdiction to try the
present suit?
In the
affirmative.
3. Is the plaintiff entitled for relief of the declaration
and injunction as prayed?
In the
negative.
4. What order and decree? As per final
order.
R E A S O N S
5. The plaintiff, in order to prove its case, has filed an
evidence affidavit of PW-1 Manish Manmohan Mundra at (Exh.6). In
support of this, it has relied on a number of documents at (Exh.7) such
as -
Sr.
No. Documents Exhibits
1 Photocopy of the plaint in Suit
No.3601/1998 (without annexures). Exh.8
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Sr.
No. Documents Exhibits
2 Photocopy of the Notice of Motion No.4034
of 1998. Exh.9
3 Photocopy of the order dated 16th July 1998
passed by the Hon’ble Court. Exh.10
4 Photocopy of the Reply-cum-Written
Statement filed by defendants. Exh.11
5 Photocopy of the affidavit of rejoinder dated
26th June 2000 filed by defendant. Exh.12
6 Photocopy of the order dated 4th July 2002
passed by Hon’ble Court. Exh.13
7 Photocopy of the Issues dated 27th
November 2003 passed by the Hon’ble
Court. Exh.14
8 Photocopy of the cross-examination of Mr.
Jawaharlal Khanna conducted on 17th
November 2004 by the Advocate for MCGM
in Suit No.3601/1998. Exh.15
9 Photocopy of the cross-examination of Mr.
Jawaharlal Khanna conducted on 8th
February 2005 by the Advocate for MCGM
in Suit No.3601/1998. Exh.16
10 Photocopy of affidavit in support in Suit
No.3601/1998. Exh.17
11 Photocopy of the application dated 29th
March 2005 filed by MCGM. Exh.18
12 Photocopy of another application dated 29th
March 2005 filed by MCGM. Exh.19
13 Photocopy of the Examination-in-chief and
cross-examination of Mr. Sadanand
Pandurang Chorghe (DW-1) on 29th March
2005. Exh.20
14 Photocopy of the Examination-in-chief of
Mr. Dilipkumar V. Bhube (DW-2) dated 5th
May 2005 along with his cross-examination. Exh.21
15 Photocopy of the Judgment dated 20th April
2006 passed by City Civil Court in Suit
No.3601/1998. Exh.22
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Sr.
No. Documents Exhibits
16 Photocopy of the Decree dated 20th April
2006 passed by City Civil Court in Suit
No.3601/1998. Exh.23
17 Photocopy of the Roznama in Suit
No.3601/1998. Exh.24
18 Original notice dated 11th April 2018 issued
to the plaintiff by the defendant. Exh.25
19 Photocopy of the plaintiff’s Advocate letter
dated 18th April 2018 in reply to the notice. Exh.26
20 Photocopy of the Order dated 4th May 2018
passed by the MCGM and received by the
plaintiffs. Exh.27
21 Photocopy of the plaint (without
annexures) in Suit No.2052/2018. Exh.28
22 Photocopy of the order dated 22nd June
2018 from the official website of this
Hon’ble Court. Exh.29
23 Photocopy of the written submission dated
13th August 2018 issued to the plaintiff by
the defendant. Exh.30
24 Original of the order dated 29th March 2019
issued to the plaintiff by the defendant. Exh.31
25 Additional compilation of documents. Exh.34
26 Certified true copy of resolution. Exh.35
27 Color printouts of satellite images of suit
premises in all 9. Exh.36
28 Certified copy of affidavit of examination in
chief in L.C. no. 3601 of 1998. Exh.37
29 Certified copy of list of documents. Exh.38
30 Additional compilation of documents. Exh.41
31 Certified copy of agreement Exhibit
U/sec.79 of the Indian Evidence Act. Exh.42
6.
On the Contrary, the defendants/B.M.C. in order to
substantiate their defence have filed evidence affidavit of Sunil
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Janaradhan Tawde at (Exhibit-43). In support of this, the
defendants/B.M.C. have also relied on documents such as -
Sr.
No. Documents Exhibits
1 List of documents. Exh.44
2 Notice under section 488 of the M.M.C. Act. Exh.45
3 Inspection Report for action under section
351 of the M.M.C. Act. Exh.46
4 Letter dated 23.04.2018 to A. A. and C.
‘G/South Ward’. Exh.47
5 Letter dated 24.04.2018 from A. A. and C.
‘G/South Ward’. Exh.48
6 Letter dated 28.05.2018 from EEBP. Exh.49
7 Letter dated 07.06.2018 from Assistant
Commissioner G/S.
Exh.50
8 Letter dated 07.06.2018 from EEBP. Exh.51
9 Letter dated 03.08.2018 from TATA POWER. Exh.52
ARGUMENTS: -
7. Learned Counsel for the plaintiff submitted that it is an
undisputed fact that the plaintiff is the owner and occupier of the suit
property. According to him, the suit property is an old structure which
was in existence prior to the ‘datum line’. Owing to the age and
condition of the structure, only tenantable repairs were required to be
carried out. He contended that the plaintiff’s predecessor-in-title had
undertaken only such tenantable repairs after obtaining the requisite
permission from the defendants/B.M.C. and had not carried out any
new construction or structural additions. Despite the same, the
defendants/B.M.C. issued the impugned notice and passed the
impugned speaking order on false and untenable grounds, allegedly
with a mala fide intention of assisting the landlord/complainant in
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securing possession of the leasehold property.
8. Learned Counsel further argued that prior to the issuance
of the impugned notice, the Designated Officer neither carried out a
proper inspection of the structure nor prepared a panchanama in
accordance with the guidelines laid down by the Hon’ble Supreme
Court. It was further contended that the Speaking Order came to be
passed without proper consideration of the plaintiff’s reply and the
documents produced in support thereof. According to the plaintiff, the
notice is vague, illegal and void ab initio, and the action of the
defendants/B.M.C. is vitiated by non-compliance with the principles of
natural justice and settled procedural requirements.
9. Learned Counsel for the plaintiff further submitted that the
defendants/B.M.C. had earlier issued a notice dated 26.09.1997 under
section 351 of the M.M.C. Act to the plaintiff’s predecessor-in-title and
had passed a speaking order thereon without duly considering the reply
and supporting documents. Consequently, Raghuvanshi Mill instituted
Suit No.3601 of 1998 challenging the said notice and speaking order.
He submitted that the allegations in the earlier notice were confined to
unauthorized additions and alterations to Reinforced Cement Concrete
(R.C.C.) and brick masonry work and no allegation was made
regarding additional floors or the existence of a basement. The sketch
annexed to the said notice itself depicted Building No.3 as consisting of
a ground floor and six upper floors. He further pointed out that in the
Written Statement filed by the defendants/B.M.C. in the said suit, the
existence of the ground-plus-six-floor structure was not specifically
denied. The said suit was decreed and it was held that the structure
was in existence prior to the ‘datum line’. Since the decree was not
challenged in appeal, it attained finality. It was, therefore, contended
that the present action of the defendants/B.M.C. is barred by the
principles of ‘Res-judicata’. According to him, the defendants/B.M.C.
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have once again sought to treat the structure as unauthorized by
alleging construction of a basement, illegal additions and alterations
and change of user, solely with the intention of assisting the landlord.
10. Learned Counsel further submitted that the sanctioned
plans of the years 1975 and 1977, as well as the Tikka Sheet relied
upon by the defendants/B.M.C. are fabricated documents. According to
him, the plaintiff has specifically pleaded this fact in the plaint. He
argued that the defendants/B.M.C. have failed to offer any satisfactory
explanation as to why these documents were not produced in Suit
No.3601 of 1998. According to him, this fact itself lends credence to
the plaintiff’s allegation that the documents have been subsequently
created with a view to justify demolition of the entire structure.
11. Learned Counsel further submitted that the evidence
placed on record clearly demonstrates that the impugned notice and
speaking order are a nullity in law. It was, therefore, argued that
notwithstanding the statutory bar contained in the M.M.C. Act, this
Court retains jurisdiction to entertain and adjudicate upon the present
suit. In support of his submissions, reliance was placed upon various
judicial pronouncements including ‘Abdul Karim Ahmed Mansoori vs.
Municipal Corporation of Greater Mumbai & Anr., Writ Petition (L)
No.2237 of 2013’, ‘The Commissioner, Akola Municipal Corporation vs.
Bhalchandra S/o Govind Mahashabde, 2013 (5) ALL MR 190’ and
‘Western Refrigeration Engineering vs. State of Maharashtra, Writ
Petition No.2544 of 2021’.
12.
Per contra, learned Counsel appearing for the
defendants/B.M.C. submitted that the plaintiff has failed to produce
any evidence either before the Designated Officer or before this Court
to establish that the suit structure was in existence prior to the ‘datum
line’ or that only tenantable repairs were carried out. He contended
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that the evidence on record clearly demonstrates that Building No.3
known as “Prathamesh Towers” was constructed without obtaining the
requisite permissions from the defendants/B.M.C.
13. He further submitted that the plea of ‘Res-judicata’ is
misconceived. According to him, the subject matter of Suit No.3601 of
1998 and the issues involved therein are materially different from those
arising in the present proceedings. While the earlier proceedings
concerned a ground-plus-six-floor structure, the present notice pertains
to a basement, ground floor and six upper floors. Moreover, the present
notice also encompasses allegations relating to unauthorized change of
user, internal subdivision of the building into 35 units and installation
of lifts without obtaining defendant’s/B.M.C. approval. Therefore, the
decree passed in Suit No.3601 of 1998 cannot operate as ‘Res-judicata’
in the present proceedings.
14. Learned Counsel for the defendants further submitted that
the plaintiff has failed to establish by any cogent evidence that the suit
structure was in existence prior to the ‘datum line’ or that it was
erected pursuant to valid permissions and sanctioned plans issued by
the defendants/B.M.C. He contended that the impugned notice and
speaking order were passed after following due procedure prescribed
under law and, therefore, the same cannot be challenged before this
Court in view of the express bar contained in section 515A of the
M.M.C. Act. In support of his submissions, reliance was placed upon
‘Asma Lateef and Anr. vs. Shabbir Ahmad and Ors., Civil Appeal
No.9695 of 2013 decided on 12.01.2024’, ‘Mrs. Sarina Esmeralda Lopez
vs. Mr. Vijay Goverdhandas Kalantri and Municipal Corporation of
Greater Mumbai, Civil Revision Application No.448 of 2013 decided on
16.01.2015’ and ‘Sonu Sood and Anr. vs. Municipal Corporation of
Greater Mumbai and Anr., Appeal From Order (Stamp) No.270 of 2021
decided on 21.01.2021’.
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AS TO ISSUE NOS.1 TO 4: -
APPRECIATION AND MARSHALING OF EVIDENCE: -
15. Before adverting to the appreciation of evidence, it is
necessary to mention here that the plaintiff has challenged the notice
issued under section 351 of the M.M.C. Act and the speaking order
passed pursuant thereto on the ground that the same are void and
constitute a nullity in law. On the other hand, the defendants have
raised an objection to the maintainability of the suit by relying upon
the statutory bar contained in section 515A of the M.M.C. Act. The
plaintiff contends that the impugned action is ex facie illegal and void
and therefore, falls within the limited exception recognized by law.
Consequently, the question of jurisdiction requires consideration at the
outset.
16. It is well settled that under section 9 of the Code of Civil
Procedure, a Civil Court has jurisdiction to entertain all suits of a civil
nature unless its jurisdiction is expressly or impliedly barred by statute.
Where a special enactment provides a complete mechanism for
redressal of grievances and expressly excludes the jurisdiction of the
Civil Court, the Court must ordinarily refrain from exercising
jurisdiction in matters covered by such enactment.
17. Section 515A of the M.M.C. Act specifically excludes the
jurisdiction of Civil Courts in matters relating to actions taken under
the Act, particularly those concerning unauthorized constructions. The
legislative intent behind the provision is to prevent prolonged delays in
the removal of illegal constructions arising from protracted civil
litigation.
18. The provision thus confers finality upon orders, directions
and notices issued under the M.M.C. Act and bars their challenge in
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civil proceedings. However, the settled legal position recognizes a
limited exception where the impugned action is shown to be a nullity,
having been taken without jurisdiction or in flagrant violation of the
principles of natural justice.
19. In the present case, the plaintiff has sought to invoke the
jurisdiction of this Court by alleging that the impugned notice and
speaking order are illegal and void. However, mere use of expressions
such as “illegal”, “bad in law” or “void” is not sufficient to confer
jurisdiction upon a Civil Court. In ‘Mrs. Sarina Esmeralda Lopez vs.
Vijay Goverdhandas Kalantri (supra)’, the Hon’ble High Court of
Bombay has observed that:
Mere use of the words illegal, bad in law without any
substantiation would not aid the plaintiff to invoke the
jurisdiction of the Civil Court as the jurisdiction of the Civil
Court can now be invoked only if the action is a nullity on
account of there being an error of jurisdiction."
20. Thus, in order to invoke the jurisdiction of the Civil Court,
the plaintiff must establish that the impugned action suffers from a
jurisdictional defect or has been taken in violation of fundamental
principles of natural justice. The Court must examine whether a
reasonable opportunity of hearing was afforded, whether the statutory
procedure was followed, whether the authority applied its mind to the
relevant material, and whether reasons have been recorded in support
of the decision.
21. In light of the aforesaid legal position, it is necessary to
determine whether the plaintiff has succeeded in establishing that the
impugned notice and speaking order are a nullity in law and are
therefore liable to be set aside.
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22. The record reveals that the plaintiff was served with the
impugned notice and submitted a detailed reply thereto along with
supporting documents. The material on record further indicates that an
opportunity of hearing was afforded to the plaintiff before the speaking
order came to be passed. The speaking order specifically records that
the plaintiff failed to produce satisfactory documentary evidence
demonstrating that the structure was authorized or constructed in
accordance with sanctioned plans.
23. In view thereof, it cannot be said that the plaintiff was
denied an opportunity of hearing or an opportunity to produce
documents in support of its case. The requirement of compliance with
the principles of natural justice appears to have been duly satisfied.
24. On the contrary, it is the case of the defendants/B.M.C.
that the impugned action was initiated pursuant to a complaint
received from the owner of the land and communications received from
the office of the Hon’ble Chief Minister. Upon inspection of the site, the
concerned officer noticed the alleged unauthorized construction and
prepared an inspection report. Based upon such inspection, a notice
under section 351 of the M.M.C. Act was issued calling upon the
plaintiff to establish the legality of the structure. As the plaintiff failed
to furnish satisfactory proof regarding the legality of the construction,
the impugned speaking order came to be passed.
25. As stated supra, it is the case of the plaintiff that the suit
unit forms part of Building No.3, known as “Prathamesh Towers”,
which was in existence prior to the ‘datum line’. According to the
plaintiff, pursuant to the orders passed by the A.A.I.F.R., Raghuvanshi
Mill engaged M/s. Chaitanya Developers, who merely carried out
tenantable repairs and thereafter sold the individual units to various
purchasers. Consequently, the burden lies upon the plaintiff to establish
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that the structure was in existence prior to the ‘datum line’ and that the
works undertaken by M/s. Chaitanya Developers were confined to
tenantable repairs and did not amount to fresh construction or
structural additions.
26. At this stage, it is necessary to refer to the relevant
provisions of the M.M.C. Act and the Development Control Regulations.
These statutory provisions have been enacted to regulate planned
development and ensure public safety. Any construction undertaken in
contravention thereof is liable to be treated as unauthorized and is
subject to action by the Municipal Corporation.
27. Section 337 of the M.M.C. Act mandates issuance of notice
to the Commissioner before erection of any building. Section 342
requires prior notice in cases involving additions, alterations or change
of user. Section 347 further prohibits commencement of such work
without obtaining the requisite approval from the Municipal
Commissioner. The statutory scheme clearly contemplates prior scrutiny
and approval of building plans before construction activity is
undertaken.
28. It is further necessary to mention here that Rule 58 of the
Development Control Regulations clearly and exclusively deals with the
‘Development or Redevelopment of the Lands of the Cotton Textile
Mills’, which contemplates that,
“Only with the previous approval of the ‘Commissioner’ to
a layout prepared for development or re-development of
the entire open land and built-up area of a sick and/or
closed Cotton Textile Mill and on such conditions deemed
appropriate and specified by him and as a part of a
package of measures recommended by the Board of
Industrial and Financial Reconstruction (B.I.F.R.) for the
revival/rehabilitation of a potentially viable sick and/or
closed Mill, the Commissioner may allow:
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(a) the existing built-up areas to be utilized -
(i) for the same Cotton Textile or related user subject
to observance of all other Regulations;
(ii) for diversified industrial user in accordance with
the industrial location policy, with office space only
ancillary to and required for such users, subject to
and observance of all other Regulations;
(iii) for commercial purposes, as permitted under these
Regulations.”
29. Rule 58 clearly mandates prior approval of the
Commissioner to the redevelopment layout and prescribes the
permissible extent of development. Any redevelopment undertaken
without compliance with the said requirements would be contrary to
the statutory scheme.
30. Since the present suit arises from a notice issued under
section 351 of the M.M.C. Act, the initial burden lies on the
defendants/B.M.C. to show that it has complied with the statutory
requirements and followed due procedure under law while initiating
action against the alleged authorized structure. Where the Designated
Officer finds that a structure has been erected or altered in
contravention of the Act, he is empowered to issue a show-cause notice
calling upon the concerned person to establish the legality of the
structure.
31. Thereafter, the burden shifts upon the concerned person
i.e. on plaintiff to prove the legality of the structure by producing
cogent documentary evidence showing either that the structure existed
prior to the ‘datum line’ or that it was erected pursuant to valid
permissions, sanctioned plans and approval of the defendant’s/B.M.C.
because the relevant documents are within its special knowledge and
possession. Mere assertion of the structure, unsupported by the
documentary evidence, is insufficient to discharge such a burden.
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32. It is an admitted position that Building No.3 known as
“Prathamesh Towers” presently comprises a basement, ground floor and
six upper floors. This fact is borne out from the inspection report and
has also been admitted by the plaintiff during cross-examination.
33. Upon a careful scrutiny of the evidence on record, it is
evident that the plaintiff has failed to produce any documentary
evidence before either the Designated Officer or this Court to establish
that the basement, ground floor and six upper floors having 35 separate
units were in existence prior to the ‘datum line’ or that the same were
constructed pursuant to valid permissions and sanctioned plans issued
by the defendants/B.M.C.
34. In this regard, it is pertinent to note that it is an admitted
position on record that Building No.3, known as “Prathamesh Towers”,
presently comprises approximately 35 independent units, of which the
suit premises is one. However, the plaintiff has failed to place any
evidence on record to establish that these 35 units were in existence
prior to the ‘datum line’ or that the predecessors-in-title of the plaintiff,
namely Raghuvanshi Mill or M/s. Chaitanya Developer, had converted
Building No.3 into 35 separate units after obtaining the requisite
permission from the defendants/B.M.C.
35. It is also the plaintiff’s own case that, pursuant to the order
passed by the Appellate Authority for Industrial and Financial
Reconstruction (A.A.I.F.R.), Raghuvanshi Mill undertook redevelopment
of the suit property through M/s. Chaitanya Developer with a view to
overcoming its financial liabilities and liquidation proceedings.
Thereafter, separate units were sold to various purchasers, including
the plaintiff. The A.A.I.F.R. order itself indicates that such
redevelopment was permissible only after obtaining the necessary
permissions and sanctioned plans from the defendants/B.M.C.
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Therefore, it is abundantly clear that Raghuvanshi Mill and M/s.
Chaitanya Developer were required to redevelop Building No.3 strictly
in accordance with the permissions granted by the defendants/B.M.C.
However, upon careful scrutiny of the evidence on record, it is evident
that the plaintiff has failed to establish that the redevelopment of
Building No.3 was undertaken after obtaining the requisite permissions
and sanctioned plans from the defendants/B.M.C. in compliance with
the A.A.I.F.R. order.
36. In my considered view, the aforesaid conduct of the
plaintiff’s predecessors-in-title is not merely contrary to the order of the
A.A.I.F.R. but is in clear contempt thereof. In such circumstances, it was
incumbent upon Raghuvanshi Mill and M/s. Chaitanya Developer to
obtain prior approval from the defendants/B.M.C. before undertaking
any redevelopment activity.
37. At this stage, it is also necessary to note that the plans of
the years 1975 and 1977, as well as the sketch annexed to the
inspection report, indicate the existence of two lifts in Building No.3.
The plaintiff has admitted this fact during cross-examination. However,
there is no evidence on record to demonstrate that the said lifts were
installed after obtaining the requisite permission from the
defendants/B.M.C. or that they existed prior to the ‘datum line’.
38. As stated earlier, the plaintiff has consistently contended
that its predecessors-in-title carried out only tenantable repairs to
Building No.3 with the permission of the defendants/B.M.C.
39. However, a comprehensive examination of the evidence
reveals that the plaintiff has failed to produce any material
demonstrating the condition of the original structure before the alleged
repairs were undertaken or its condition after the completion of such
repairs. It was expected from the plaintiff to place on record evidence
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showing the ‘pre-existing’ and ‘post-repair’ status of the structure in
order to substantiate the contention that the work undertaken
constituted merely tenantable repairs falling within the permissible
legal framework. The plaintiff having failed to produce such evidence,
an adverse inference under section 114(g) of the Indian Evidence Act is
liable to be drawn against it.
40. Another contention advanced on behalf of the plaintiff is
that the plaintiff’s predecessors had earlier instituted Suit No.3601 of
1998 challenging a notice issued under section 351 of the M.M.C. Act
and the speaking order passed thereon. The said suit was decreed in
favour of the plaintiff’s predecessors, and the defendants/B.M.C. did
not challenge the decree in appeal. Consequently, the decree attained
finality. It is therefore contended that the present notice and speaking
order are barred by the principle of ‘Res-judicata’. In support of this, he
has relied on a number of case laws such as ‘Dadu Dayalu Mahasabha,
Jaipur (Trust) vs. Mahant Ram Niwas and Another, (2008) 11 SCC
753’, in which the Hon’ble Apex Court has held that, “when issues
which arise in the subsequent suit section 11 of the Code of Civil
Procedure shall apply”. ‘Bharat Wadhwa vs. Sushma Arora and others,
2013 SCC OnLine Del 2448’, in which the Hon’ble Apex Court has held
that, “section 11 of the Code of Civil Procedure when using the
expression “between parties under whom they or any of them claim
includes a transferee pendente lite, who is therefore bound by the
decree in all earlier suits as if they were a party thereto” and ‘M/s.
Faime Makers Private Limited vs. District Deputy Registrar, Co-
operative Societies (3), Mumbai and others, (2025) 5 SCC 772’, in
which the Hon’ble Apex Court has held that, “principle of ‘Res-judicata’
binding on quasi-judicial body.”
41. This contention raised by the plaintiff is not acceptable
because, in the earlier suit, the subject matter pertained to a structure
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consisting of ground plus six upper floors, whereas the present
proceedings concern a structure comprising a basement, ground floor
and six upper floors. Further, the allegation of unauthorized change of
user, which forms one of the grounds in the present notice, was not the
subject matter of the earlier proceedings. Additionally, the present
notice pertains to a specific unit which was not directly in issue in Suit
No.3601 of 1998. Thus, the causes of action and issues involved in the
present proceedings are distinct and materially different from those
involved in the earlier suit. Consequently, the principle of ‘Res-judicata’
is not attracted.
42. The plaintiff has further contended that the
defendants/B.M.C. failed to adhere to the procedure and guidelines
laid down by the Hon’ble Supreme Court in ‘Sopan Maruti Thopte and
Another vs. Pune Municipal Corporation and Another, reported in 1996
(1) Maharashtra Law Journal’. I find no merit in this submission. As
already discussed, the plaintiff has failed to establish the legality and
authenticity of the suit structure. Moreover, the Hon’ble Supreme Court
has held that,
“The procedural lapses by the State or local bodies
which do not seriously affect the substantive rights of
a person, ought not to result in ad interim orders.”
43. Furthermore, in ‘Mohammad Imran Gulam Mohd. Gujarati
vs. Municipal Corporation of Greater Mumbai in Appeal From Order
(St.) No.25660 of 2019 with Interim Application No.1 of 2019 and
Interim Application No.2 of 2019 decided on 18.09.2019’, in which the
Hon’ble High Court of Bombay has held that,
"Merely by pointing out deficiencies in the notice or
the authority of the person issuing the notice was not
sufficient".
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In these circumstances, only on the ground that the
defendants/B.M.C. have not followed the proper procedure and
thereon, some deficiencies in the notice which don't materially affect
the merits of the case do not make the illegal construction of the
plaintiff legal.
44. The plaintiff has also contended that the impugned notice
and speaking order are based upon fabricated sanctioned plans of the
years 1975 and 1977 and Tikka Sheet. According to the plaintiff, the
defendants/B.M.C. neither denied this allegation in its written
statement nor produced these documents in the earlier suit, thereby
supporting the allegation of fabrication.
45. In this context, after perusal of the written statement filed
by the defendants/B.M.C. it clearly shows that the defendants/B.M.C.
have specifically denied the allegation that the sanctioned plans of
1975 and 1977 and the Tikka Sheet are fabricated documents. Mere
non-production of particular documents in earlier proceedings, by
itself, cannot lead to an inference that the official defendant’s/B.M.C.
record is false and fabricated.
46. It is a settled principle that a party alleging fraud and
forgery or fabrication has to prove such allegations by producing cogent
and convincing evidence. Fraud or fabrication never presumes and
must be specifically pleaded and proved. Equally, official acts and
public records carry a presumption of regularity under section 114 (e)
of the Indian Evidence Act, 1982, unless the contrary is established by
satisfactory evidence. Needless to mention that fraud and forgery
require a high degree of proof and cannot rest on mere suspicion or
presumption. In the case of ‘Union of India vs. Chaturbhai M. Patel and
Company, reported in (1976) 1 SCC 747’, in which the Hon’ble Apex
Court has held that “fraud must be strictly plead, proved and cannot be
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rest on suspicion.”
47. In the present case, apart from making a bald allegation,
the plaintiff has not produced any documentary or expert evidence to
establish that the sanctioned plans of the years 1975 and 1977 or the
Tikka Sheet relied upon by the defendants/B.M.C. are forged,
fabricated, manipulated or otherwise unreliable. No material has been
brought on record to rebut the presumption under section 114 (e) of
the Indian Evidence Act, 1982 attaching to the official
defendant’s/B.M.C. records. In the absence of any substantive evidence,
the allegation of fabrication cannot be accepted merely on suspicion or
conjecture. Consequently, the said contention deserves to be rejected.
48. The plaintiff has further alleged that the impugned action
is mala fide as it was initiated pursuant to a complaint lodged by the
landlord and forwarded through the office of the Hon’ble Chief Minister
of Maharashtra. Even assuming that the proceedings were initiated at
the instance of the landowner or pursuant to such communication, the
same does not establish mala fides. Being the Planning Authority under
the relevant statutes, the B.M.C. is under a statutory obligation to take
action against unauthorized constructions irrespective of the source of
information. The decisive consideration is whether the statutory
procedure has been followed. As already held, the plaintiff has failed to
establish the legality of the suit structure. Therefore, the allegation of
mala fides is devoid of merit.
49. In the present suit, the defendants/B.M.C. have also
challenged the maintainability of the suit on the ground that no prior
notice under section 527 of the M.M.C. Act was served before the
institution of the suit.
50. I do not agree with this contention raised by the
defendants/B.M.C because the impugned notice and speaking order
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directed demolition of the suit structure and created an immediate
apprehension of coercive action. In such circumstances, the plaintiff
was justified in approaching the Court without issuing the statutory
notice contemplated under section 527 of the M.M.C. Act. This aspect
has also been clarified by the Hon’ble High Court of Bombay in the case
of ‘M/s. Akash Impex vs. Municipal Corporation of Greater Mumbai,
2013 SCC OnLine 1339’ and in the case of ‘Motilal Sharma vs. B.M.C.
First Appeal No.170/1982’, wherein the Hon’ble Apex Court has held
that, “threats to immediate demolition are stopped from contending
that pre-suit notice was not given.”
In these circumstances, I have not found any substance or force
in the above-said grounds raised by the defendants/B.M.C.
51. Upon an overall assessment of the evidence on record, I
am of the considered opinion that the plaintiff has failed to prove that
Building No.3, consisting of approximately 35 units including suit unit
and two lifts, existed prior to the ‘datum line’ or was constructed
pursuant to a sanctioned plan or valid permission granted by the
defendants/B.M.C. The plaintiff has also failed to establish that any
change of user was carried out with due authorization. Further, no
evidence has been produced to demonstrate compliance with Rule
58(1) of the Development Control Regulations for Greater Mumbai,
1991. Consequently, the redevelopment and change of user are also in
breach of the said Regulations and are not entitled to protection in law.
52. The evidence further establishes non-compliance with the
statutory requirements contemplated under sections 337 and 342 of the
M.M.C. Act concerning construction activity and change of user. The
record reveals that after granting the plaintiff an adequate opportunity
of hearing and considering the documents produced, the Designated
Officer passed a reasoned speaking order directing demolition of the
unauthorized structure. Sub-section (2) of section 351 of the M.M.C.
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Act expressly empowers the Designated Officer to pass such an order
where the noticee fails to establish the legality of the construction.
Consequently, no fault can be found with the impugned order.
53. In view of the foregoing discussion, I hold that the plaintiff
has failed to establish the legality or authenticity of the suit structure.
On the contrary, the defendants/B.M.C. have succeeded in
demonstrating that the structure was erected and altered without
obtaining the requisite permissions and sanctioned plans. The plaintiff
is therefore not entitled to the equitable relief of injunction. The
conduct of the plaintiff or its predecessors in title itself shows that the
plaintiff is not entitled to the ‘equitable relief of injunction’ as prayed by
it in the present suit, as it is the basic principle of equity that, “equity
follows the law." Furthermore, applying the principle of caveat emptor
(buyer beware), it was incumbent upon the plaintiff to verify the
legality and authenticity of the property prior to purchase. In ‘Esha Ekta
Apartments Co-operative Housing Society Ltd. vs. Municipal
Corporation of Mumbai and others, reported in AIR 2013 SC 1861’, in
which the Hon’ble Apex Court has held that “the purchaser has to
inspect all the sanctions and plans prior to the purchase. Subsequently,
the purchaser cannot claim that he was not aware of illegal
construction done by the developer.” Accordingly, the plaintiff cannot
derive any benefit either from its own conduct or from the acts of its
predecessors-in-title. The growing menace of unauthorized construction
must be curbed in the larger public interest. Consequently, Issue Nos.1
and 3 are answered in the Negative and Issue No.2 is answered in the
Affirmative. Hence, the following order: -
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JUDGMENT ..26.. L. C. SUIT NO.1169/2019
ORDER
1. Long Cause Suit No.1169/2019 is dismissed with costs.
2. Decree be drawn up accordingly.
3. Dictated and pronounced in open Court.
(R. V. Bhakta)
Judge, (C.R. No.61)
Date: 30.06.2026 City Civil Court, Gr. Mumbai.
Typed on : 30.06.2026
Checked on : 30.06.2026
Signed on : 30.06.2026
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER"
DATE: 30.06.2026, AT 05.30 P. M. Siddhesh S. Shirke
Stenographer (Grade-I)
Upload Date and Time Name of Stenographer
Name of the Judge (with Court no.) : Shri. R. V. Bhakta, (C. R. No.
61)
Date of pronouncement of
Judgment/Order : 30.06.2026
Judgment/Order signed by the P. O.
on
: 30.06.2026
Judgment/Order uploaded on : 30.06.2026
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