Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No. 1465/2018.
in L.C. Suit No. 720/2018.
MHCC010046032018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1465 OF 2018.
IN
L.C. SUIT NO. 720 OF 2018.
Mohd. Salim Ebrahim Khatri. ….. PLAINTIFF.
V/s.
MCGM. …. DEFENDANT.
CORAM : SHRI. V. R. JAGDALE.
(Court Room No.11).
DATED : 27th October, 2023.
APPEARANCES :
Mr. V. T. Dubey, Ld. Advocate for the Plaintiff.
Mr. Botlawar, Ld. Advocate for the Defendant/MCGM.
*****
ORDER
01. The plaintiff has taken out the Notice of Motion (for brevity
‘the NM’), restraining the defendant from enforcing the notice dtd.
26.03.2018, issued U/s. 354-A of the Mumbai Municipal Corporation
Act, 1888 (the MMC Act).
02. Perused NM and supporting affidavit in reply of the
defendant.
03. Heard Ld. Advocate for the plaintiff and defendant.
04. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
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Notice of Motion No. 1465/2018.
in L.C. Suit No. 720/2018.
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has made out
prima facie case in his favour? …No.
(ii). Whether balance of convenience lies in
favour of the plaintiff? …No.
(iii). Whether the plaintiff will suffer
irreparable loss, if the interim relief, as
sought is refused? …No.
(iv). What Order? …..........….…......................…As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
05. As these points are interlinked in order to avoid repetition
and for the sake of brevity they are discussed together.
06. By virtue of this NM, the plaintiff has come with a case that
he is in exclusive use, occupation and possession of land alongwith
structures standing thereon and situated on Old CTS No.48, New CTS
No.102, 103 and 103/1 of Sr. No. 48(part), village Tungwa, Sakivihar
Road, Opp. L & T Gate No.6, Powai (Tungwa), Mumbai 400072
(hereinafter referred as ‘suit premises’ for the sake of brevity).
07. The father of the plaintiff was a lessee in the suit premises
in which he was carrying out business as one of the partner in the name
and style M/s. Khatri Textiles Processors and is having all the necessary
documents which includes electricity bill, registration certificate and
trade license. The suit premises is duly assessed and he has filed copy of
assessment bill and payment receipts.
08. The plaintiff has given the suit premises on leave and
license basis to M/s. Neelam Automobile Private Ltd., in pursuant to
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Notice of Motion No. 1465/2018.
in L.C. Suit No. 720/2018.
leave and license agreement dtd.30.10.2017. The present licensee has
only renovated the existence structure which would be convenient for
carrying business. However, defendant has issued notice under section
354-A of the BMC Act, stating that unauthorized vertical extension to
the ground floor. The plaintiff has tendered reply on 07.02.2018 but
without considering reply order was passed on 09.02.2018 and
threatened to demolish the suit premises. Hence, he had to file this suit
along-with the NM for the aforesaid relief.
09. On the contrary, it is the contention of defendant that
during routine visit on 22.01.2018 the officer of the defendant came to
know that plaintiff is carrying out construction in the suit premises.
Accordingly, notice under section 488 of MMC Act was issued for
inspection of suit premises. On inspection of suit premises it was
noticed that plaintiff has carried out unauthorized vertical extension.
On inquiry about permission the plaintiff failed to produce same.
Thereafter, the inspecting officer has prepared inspection report and
taken photographs. Inspite of service of stop work notice
dtd.06.02.2018 plaintiff had not stopped unauthorized construction.
The plaintiff has not submitted any documents showing existence of
notice structure prior to datum line. Accordingly, the notice structure
was demolished. The plaintiff had sought ad-interim relief which was
also rejected. But plaintiff had again started reconstruction of
demolished structure and has reconstructed the demolished structure
without valid permission. Hence, plaintiff is not entitled for the relief
sought and prayed notice of motion be dismissed.
10. The plaintiff has filed on record various documents
alongwith the plaint which includes Electricity Bill, Registration
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Notice of Motion No. 1465/2018.
in L.C. Suit No. 720/2018.
Certificate, Trade License, Assessment Bills and Receipts. But plaintiff
has not filed on record any document which would substantiate the fact
that notice structure existed prior to datum line and it was constructed
after obtaining requisite permission from the competent authority.
11. Be it so, on the contrary the defendant has filed on record
various documents which includes notice under section 488 for taking
inspection of the suit premises. On perusal of the inspection report, it
appears that at the time of taking inspection the work of construction
was under progress. Accordingly, defendant had issued notice under
section 354-A of the MMC Act, calling upon the plaintiff to immediately
stop the unlawful work which he had commenced. The defendant had
also sought police protection to demolish the notice structure. On
perusal of the demolition programme and photographs filed on record it
appears that notice structure was sought to be demolished and
accordingly demolition was done. But it appears that even after notice
structure was demolished the plaintiff has erected the notice structure
again. Accordingly, notice was given on 26.03.2018 calling upon the
plaintiff to demolish the notice structure. Therefore, it is clear that
plaintiff had reconstructed the demolish structure without obtaining
requisite permission from the competent authority.
12. Therefore, the plaintiff has failed to make out prima facie
case and balance of convenience does not lie in the favour of plaintiff. If
it is so, then irreparable loss will not be caused to the plaintiff if,
injunction as sought is refused. Hence I answer point no.1 to 3 in the
negative and in result to answer to point no.4 pass the following order.
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Notice of Motion No. 1465/2018.
in L.C. Suit No. 720/2018.
-: O R D E R :-
(i). Notice of Motion No. 1465 of 2018 is dismissed.
(ii). Notice of Motion No. 1465 of 2018 is, accordingly, disposed of.
(V. R. Jagdale)
Mumbai. Judge,
Dated : 27.10.2025. City Civil Court, Mumbai.
Dictated on : 27.10.2025.
Transcribed on : 27.10.2025.
Checked and Signed on : 27.10.2025
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Notice of Motion No. 1465/2018.
in L.C. Suit No. 720/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
27.10.2025 at 01.03 p.m.
Name of the Stenographer
Mrs. V. N. Rajgole.
Name of the Judge (with Court Room No.) HHJ Shri V. R. Jagdale
(Court Room No.11).
Date of Pronouncement of Judgment/Order 27.10.2025
Judgment/Order signed by P.O. on 27.10.2025
Judgment/Order uploaded on 27.10.2025
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