Final Order 3

Order Details: Copy of Judgment
Pdf Text: MHCC010046892018 Received on : 09.04.2018
Registered on : 12.04.2018
Decided on : 31.07.2026
Duration : 8Y, 3M, 22D
IN THE BOMBAY CITY CIVIL COURT AT GR. MUMBAI
Exhibit No.38
SUIT NO.1066 OF 2018
Suryaprakash Fateh Bahadur Singh
Age then 40 years, Occupation : Business.
Indian Inhabitant of Mumbai
having address at : Shop No.1, Mahavir
Estate, Lokmanya Tilak Nagar, Sakinaka,
Kurla (West), Mumbai 400 072. .. Plaintiff
Versus
Municipal Corporation of Greater Mumbai
Having its office at Mahapalika Marg,
Fort, Mumbai 400 001. .. Defendant
APPEARANCES:
Mr. Mohan Khatavkar, Advocate for plaintiff.
Mr. Botlawar, Advocate for Defendant/MCGM.
CORAM: R. K. DESHPANDE, JUDGE
COURT ROOM NO.43
DATED: 31st JULY, 2026
JUDGMENT
It is to be noted here that while passing order in Appeal
From Order (St) No.411 of 2026, with Interim Application (St) No.412
of 2026, in the case of
“Suryaprakash Fateh Bahadur Singh Vs. MCGM”,
-- 1 of 23 --
(2)
the Hon’ble Bombay High Court directed this Court to dispose of this
suit within period of six months and further directed to both parties to
remain present before the Court on 13.01.2026 in order to submit the
draft issues. Later on, issues are framed in this suit by the Court.
But,
due to summer vacation, which starts from 08.05.2026 to 07.06.2026,
as the functioning of Civil court was remained closed, so by the consent
of both parties matter was posted on 08.06.2026. Subsequently, after
deciding applications, recording evidence tendered by both sides and
after prolong argument, at last on 24.07.2026, the present suit was
posted for passing judgment on 31.07.2026. Accordingly, today, this
Court is going to deliver this judgment in this suit.
2. The plaintiff has filed the present suit seeking order of
declaration that the Notice bearing No. L/DO2L/161/354-A/MMC Act/
L435NO1/09/2/2018 dated 09.02.2018, issued under section 354-A of
Mumbai Municipal Corporation Act (in short MMC Act) and order dated
30.05.2018, is null, void, bad in law, arbitrary and cannot be acted
upon in respect of the suit premises as well as further sought relief of
perpetual injunction restraining the defendant, their servants and
agents from demolishing the suit premises viz admeasuring 40' x 26'
made of B.M. Wall and AC Sheet roof with height in the rear side 17'
and front side 16' situated at Survey No.404 (pt), 405 (pt) at Shop
No.1, Mahavir Estate, Lokmanya Tilak Nagar, Mohili Village, Sakinaka,
Kurla (West), Mumbai 400 072, as shown in the rough sketch plan
pursuant to notice dated 09.02.2018 and speaking order dated
30.05.2018. The above referred premises shall be referred as ‘suit
premises’ hereinafter.
-- 2 of 23 --
Judgment (3) Suit No. 1066/2018
In brief, case of the plaintiff is as under:
3. Plaintiff is in use, occupation and possession of the suit
premises since 1980 on tenancy basis. Rent receipts have been issued in
his name under the signature of landlord. Plaintiff is carrying on
business of manufacturing of Grills in the suit premises and the
defendant has issued Shops and Establishment Licence in the name of
the plaintiff and nature of his business having address of suit premises.
The suit premises is assessed to Municipal taxes and N.A. Taxes. Suit
premises is declared as slum in the year 1997. Electric connection also
issued in the name of plaintiff at the address of suit premises. Plaintiff is
duly paying electricity bill.
4. In the year 2008, the MMRDA had taken part of the suit
premises for the purpose of widening of Andheri Ghatkopar Link Road
and a letter dated 08.05.2008 was issued to the plaintiff at the address
of suit premises directing him to demolish the part of the structure
affected by road winding. But, he is paying the electricity bill regularly
and he has not carried out any work of construction and the suit
premises is existing since its inception when he had taken the same on
monthly tenancy basis. The suit premises comprising of ground and
mezzanine floor with height rear side 17 and in the front side 16.
Electricity bill issued on 12.01.2013 mention the address as 'Shop No.1,
1st Floor, Mahavir Estate, Lokmanya Nagar, Near Ghatkopar Andheri
Link Road, Mumbai 400072. Same is under the name of Suryaprakash
Fateh Bahadur Singh. According to the plaintiff, electricity bill refers to
the first floor being in existence from the year 2013 as the plaintiff is
paying its electricity bill of the first floor.
-- 3 of 23 --
(4)
5. The defendant has issued impugned notice under section
354-A of MMC Act dated 09.02.2018 thereby alleging that the Plaintiff
has carried out
unauthorized construction of 1st and 2nd floor on existing
ground floor premises using B. M. & Siporex Block Walls, M. S. Angles,
Ladi Coba Slab admg. (8.9m x 11.6m x 6mht). However, the said notice
has not provided to the plaintiff and received copy was pasted on the
wall on 05.04.2018. Therefore, plaintiff went to the Defendant to
confirm about the notice, but defendant shown inability to provide any
detail and suggested the plaintiff to submit reply. On 05.04.2018, at
about 2.30 p.m. Asst. Engineer with Mukadam came to the suit
premises and after causal enquiry, informed that the suit premises
would be demolished within a week or thereafter any time without any
further information. The plaintiff submit his reply on 06.04.2018 with
all the documents for its consideration and requested for granting
opportunity to deal with the Notice. The defendant did not pay the heed
and therefore, the threat of demolition is imminent. Plaintiff also
received the copy of the Order dated 21.02.2018, intimating that no
reply was submitted and directed the plaintiff to remove the suit
premises within 24 hours.
6. The Notice itself is a vague since it does not revealed the
construction, but it reveals the existence of suit premises. Plaintiff has
not carried out any work of construction and the suit premises is
existing since it was tenanted. The photographs show that all the
tenanted premises existing adjacent to the suit premises having similar
nature. Plaintiff has received the order passed by the designated officer
dated 30/5/2018 and threatened to demolish the suit premises after
police protection. The suit premises situated on slum notified area and
the datum line is 01/01/2000 but the defendant considered the datum
-- 4 of 23 --
Judgment (5) Suit No. 1066/2018
line that of 01/04/1962 and therefore, it is not tenable in law. Suit
premise was already in existence on the date when the defendant issued
notice under section 354A of the MMC Act. The inspection report dated
09.02.2018 does not bear any signature of officer nor there is any
Panchnama. There is only one photograph annexed to the inspection
report which is of one of the rooms of the suit premise. Plaintiff is a
lawful tenant and has been carrying on commercial activity from the
suit premises since beginning and continuously. Suit premises is
required to be protected. Therefore, plaintiff has filed the present suit.
7. Defendant/Corporation appeared in the matter and filed
their written statement on record below Exh.3 and additional written
statement below Exh.8. Defendant has strongly denied the contention of
plaintiff and contended that plaintiff failed to give statutory notice
under section 527 of the MMC Act to the defendant and as such, suit is
liable to be dismissed. It is further contended that on receipt of
complaint in respect of unauthorised construction at Gala No. 1 & 2,
Mahavir Estate, Lokmanya Tilak Nagar, A. G. Link Road, Sakinaka,
Mumbai 72, the suit site was inspected by concerned officer Shri. Sunil
Salunkhe. (Jr. Engineer 'Building & Factory') on 09.02.2018 and it was
found that
unauthorized construction of 1st and 2nd floor on existing
ground floor structure using B. M. & Siporex Block Walls, M. S. Angles,
Ladi Coba Slab admg. (8.9m x 11.6m x 6mht) was in progress. The
officer inquired about the documents regarding the said structure to the
Occupier/Owner, but the said occupier/owner could not produce any
documents showing the authenticity of the structure. Hence the officer
prepared the inspection report and took photographs and forwarded the
same to the Higher authority for perusal and necessary order.
Thereafter, Designated Officer after perusal of referred documents
-- 5 of 23 --
(6)
came to the conclusion the notice structure is unauthorized one and
liable to be removed. Hence, issued notice under section 354-A of the
MMC Act dated 09.02.2018 and served upon the addressee. By the said
notice, addressee, owner/occupier, informed that they have carried out
the work without permission and contrary to the provisions of Section
342 and 347 of MMC Act. He was called upon to stop the unauthorised
construction work immediately and to produce permission within 24
hours after the receipt of the said notice failing which the unauthorised
construction work will be demolished at their risk and cost of Plaintiff.
Said notice was accepted by the plaintiff himself and acknowledgment
is made to that effect by putting his signature. However, plaintiff failed
to give any reply to the said notice and did not stop further construction
work. Hence, final speaking order was passed on 21.02.2018. It was
duly served upon the plaintiff on 22.02.2018, by acknowledged his
signature.
8. Moreover, this Court while passing order in notice of
motion was pleased to give direction to defendant for consideration of
reply of Plaintiff and to pass fresh speaking order and not to take
coercive action till then and plaintiff is directed to maintain status quo.
But, in-spite of stop work notice, the plaintiff failed to stop the further
construction work. Later on, after considering the reply given by the
plaintiff dated 07.04.2018, Designated Officer of the defendant passed
the fresh speaking reasoned order dated 30.05.2018. Said order was
duly served upon the plaintiff. Plaintiff could not produce any
documentary evidence showing sanctioned plan or permission from
corporation or either authorization of the work mentioned in the subject
notice or its existence prior to datum line prescribed by MCGM for
tolerating the unauthorised work. The plaintiff has failed to produce
-- 6 of 23 --
Judgment (7) Suit No. 1066/2018
Census Receipt in respect of the Notice structure, Photo-pass and
Government Notification Gazette that the Suit Structure under Slum
area. Plaintiff has not produced any documents proving the authenticity
of notice structure. Plaintiff is not entitled to seek protection against the
notice structure.
9. The defendant had followed the due process of law, taken
out inspection of suit premises, took measurements of unauthorized
construction, passed reasoned order after giving sufficient and
reasonable opportunity given to the plaintiff. Plaintiff failed to show
any permission to carry out such construction. Therefore, said
construction is apparently totally illegal, unauthorized and such
structure cannot be protected, even if it is completed. As such, plaintiff
is not entitled for grant of any relief and suit is liable to be dismissed.
10. In the light of submission advanced before this Court and
the material available on record, I am giving my issue below Exh.09 and
findings with reasons thereto as under:
Sr.No. ISSUES FINDINGS
1 Whether the plaintiff prove that notice under
section 354-A of the MMC Act, dated
09.02.2018 and speaking order dated
30.05.2018 passed by the defendant are
illegal, malafide and bad in law?
No
2 Whether the suit is bad for want of notice
under section 527 of the MMC Act?
No
3 Whether the plaintiff is entitled for the relief
of declaration as sought?
No
4 Whether the plaintiff is entitled for the relief
of perpetual injunction as sought?
No
-- 7 of 23 --
(8)
5 What order and decree? As per Final
Order
REASONS
11. In order to prove his claim, plaintiff has filed affidavit of his
examination-in-chief on record below Exh.11. He has been cross
examined on behalf of defendant. Plaintiff has filed his evidence closed
pursis below Exh.29. Defendant/Corporation has also filed affidavit of
examination-in-chief of DW-01 Sachin B. Beldar, on record below
Exh.30. He has been cross examined by learned advocate for plaintiff.
Defendant has filed evidence closed pursis below Exh.37.
12. Beside the oral evidence, plaintiff has relied upon the
documentary evidence filed along with list below Exh.12. The details
are as follows.
Sr.No. Exhibit
Number
Nature of the document
01. Exh.16 Certified copy of GR dated 20.10.1977.
02. Exh.17
colly
Three Rent receipts issued by Mahaveer Etate in the
name of Suryaprakashji.
03. Exh.18
colly
Four Certified copies of Bombay Shop and
Establishment Licences issued in the name of Fateh
Bahadur Rambaksh Singh.
04. Exh.19 Certified copy of Assessment issued by BMC for
Assessment year 2002-03.
05. Exh.20 Exh.20 Certified copy of the notice issued by
MMRDA dated 08.05.2008 in the name of
Suryaprakash Fateh Bahadur Singh.
06. Exh.21 Certified copy of approved NA assessed dated
17.01.1989.
07. Exh.22 Certified copy of letter issued by Tahasildar, Kurla
dated 25.11.1989.
-- 8 of 23 --
Judgment (9) Suit No. 1066/2018
08. Exh.23 Photocopy of the notice issued by BMC under
section 354-A of the MMC Act, dated 09.02.2018.
09. Exh.24 Photocopy of inspection report.
10. Exh.25 Speaking order dated 21.02.2018
11. Exh.26 Speaking order dated 30.05.2018.
12. Exh.27 True copy of letter issued by Dy. Collector dated
24.04.2017
13. Exh.28 Photocopy of letter issued by Suryaprakash Singh in
the name of Zhopadpatti Punervasan Pradhikaran
dated 27.01.2026.
14. Article A True Copy of Electricit Bills dated 12.01.2013 and
14.06.2016
15. Article B Photocopy of reply given by Advocate for plaintiff
dated 06.04.2018.
16. Exh.36 Electricity bill.
13. It is to be noted here that in support of its contention,
Defendant has also filed documents on record below Exh.31, as follows
Sr.No. Exhibit
Number
Nature of the document
01. Exh.32 Photo Copy of inspection report dated 09.02.2018
02. Exh.33
colly
Original copy of notice under section 354-A of the
MMC Act, dated 09.02.2018
03. Exh.34
colly
Speaking order dated 21.02.2018
04. Exh.35 Speaking order dated 30.05.2018
14. Heard argument advanced by Advocate for plaintiff as well
as Advocate for defendant.
15. During the course of argument, it is argued on behalf of
advocate for plaintiff that at the time of issuance of notice under section
354A of the MMC Act, no work was in progress and the alleged on-
-- 9 of 23 --
(10)
going construction mentioned in the suit premises is tolerated one.
Hence, the said notice is illegal, void and not enforceable under the law.
In support of the argument, learned advocate for plaintiff has relied
upon the observations laid down by the Hon’ble Supreme Court which
are given below.
i.
Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others,
(2020) 7 SCC 1.
ii.
Sopan Maruti Thopate and another Vs. Pune Municipal Corporation and
another, 1996(1) Mh. L. J. 964.
ii.
Ravinder Singh alias Kaku Vs. State of Punjab, (2022) 7 Supreme Court
Cases 581.
iv.
Anvar P. V. Vs. P. K. Basheer and others, (2014) 10 SCC 473
v.
Life Insurance Corporation of India and another Vs. Ram Pal Singh Bisen,
(2010) 4 SCC 491.
vi.
Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others (2009) 9 SCC
221.
vii.
Sait Tarajee Khimchand and others Vs. Yelamarti Satyam Alias Satteyya and
others, (1972) 4 SCC 562.
16. On the other hand, learned advocate for defendant/
corporation strongly opposed the argument advanced on behalf of
plaintiff.
i.
Tushar Guru Salien Vs. State of Maharashtra and others, (22)-PIL-67-17.doc
ii.
Seema Arshad Zaheer and other Vs. Municipal Corporation of Greater
Mumbai and others, (2006) Supreme 263.
iii.
Shivshankar Swami Vs. Municipal Corporation of Greater Bombay and
another 2013 SCC Online Bom 1198
iv.
James Cyryl Lobo Vs, The Municipal Corporation of Greater Mumbai,
Appeal From Order No.8 of 2018, decided on 3.09.2018 by the Hon’ble
Bombay High Court.
v.
R.H. Harsora Prviate Limited and another Vs. Designated Office, Assistant
Engineer (B & F) and another, 2020 SCC Online Bom 2780
17. Looking the facts in the case in hand, I have carefully gone
through the observations laid down by way of above citations. Here, it
-- 10 of 23 --
Judgment (11) Suit No. 1066/2018
is most humbly and respectfully submitted that the ratio laid down by
way of above citations are noted by me while deciding this suit.
AS TO ISSUE NO.1
18. In order to support his contention, plaintiff Suryaprakash
Fateh Bahadur Singh has examined himself as PW-1 below Exh-11. By
way of his affidavit of examination-in-chief on record, he reiterated the
contents of the plaint. He deposed that he is in possession of suit
premises since 1980 on tenancy basis and paying rent to the landlord,
who has constructed the suit premises and let out on the tenancy basis.
He has been paying rent to the landlord and rent receipt has been
issued on his name. According to PW-1 suit premises is also assessed by
the defendant/corporation and it has issued municipal tax receipts after
payment of tax. PW-1 deposed that suit land was declared as slum as
per Government Gazette in the year 1977. In the year 2008, the
MMRDA had taken part of suit premises for the purpose of widening at
Andheri-Ghatkopar link road and letter dated 08/05/2008 was issued in
his name and also at the address of suit premises. PW-1 deposed that in
the year 1988-89 suit premises was also assessed to NA taxes by the
Tahasildar office and NA tax plan has been issued.
19. It has come in the evidence of PW-1 Suryaprakash Fateh
Bahadur Singh that, he has not carried out any work of constructions as
alleged and the suit premises is in existence since it inception when the
landlord given the suit premises to him on the monthly tenancy basis. In
spite of that defendant/corporation have issued notice having notice
bearing no. L/DO2L/161/354-A/MMC Act/L435NO1/09/2/2018 under
reference No. 54582 dated 09/02/2018 under section 354-A of MMC
-- 11 of 23 --
(12)
Act thereby alleging that he has carried out unauthorized construction
of 1st and 2nd floor on the existing ground floor premises as per schedule
notice Exh.33. PW-1 further deposed that he has not received the copy
of said notice, but received copy of said notice which was pasted on
wall on 05/04/2018, hence he went to defendant/corporation in order
to confirm about the said notice. That time defendant has shown
inability to provide details and to submit reply. On 05/04/2018 at
about 2.30 p.m., the Chief Engineer of defendant with mukadum came
to the suit premises and after casual inquiry, they revealed that they
have sought police protection and the suit premises would be
demolished within a week or thereafter any time without any further
information. So on 06/04/2018, he filed his reply alongwith all
documents relevant documents.
20. According to PW-1 Suryaprakash Fateh Bahadur Singh,
defendant appears to be pre-occupied and did not pay the heed,
therefore the date of demolish is imminent. PW-1 deposed that on
21.02.2018, speaking order was passed with direction to remove the
suit premises within 24 hours. The said notice also addressed to the
wrong person. Hence, looking the facts and taking details in respect of
alleged notice, he filed his reply dated 06.04.2018 which was received
to the defendant on 07.04.2018. Subsequently, after considering the
reply and document, Designated Officer of defendant has passed
speaking order dated 30.05.2018. According to PW-1 no any work is
going on, so notice of stop work cannot be issued and enforced against
the plaintiff.
21. PW-1 Suryaprakash Fateh Bahadur Singh during his cross
examination admitted that he has not given notice to the defendant/
-- 12 of 23 --
Judgment (13) Suit No. 1066/2018
corporation under section 527 of MMC Act. He has not filed any rent or
tenancy agreement in respect of suit premises on record. PW-1 further
admitted that the assessment bill for the year 2002-03 below Exh-19
disclosed the name of one Janardan Khavnekar as a occupier and in the
said bill, description of the property is mentioned as AC sheet as
godown. PW-1 Suryaprakash Fateh Bahadur Singh further admitted that
defendant/corporation has not issued any permission in respect of
ongoing construction of unauthorised work which is mentioned in the
schedule of the notice dated 09/02/2018 below Exh-23. Moreover, he
admitted that he does not have approved plan issued by BMC about the
alleged construction. PW-1 admitted that he knows the fact in respect of
passing speaking order by defendant/corporation.
22. In the suit in hand, defendant/corporation also examined
DW-1 Sachin B. Beldar below Exh-30. DW-1 deposed that on receipt of
complaint in respect of unauthorized construction at Gala No.1 and 2
Mahavir Estate, Lokmanya Tilak Nagar, A. G. Link Road, Sakinaka,
Mumbai, the suit site was inspected by concern officer Sunil Salunkhe
on 09/02/2018 and then it was found that unauthorised construction
on 1st and 2nd floor of existing ground floor structure using B.M. &
Siporex Block Walls, M.S.Angles, Ladi Coba Slab, admeasuring (8.9m x
11.6m x 6m ht) was in progress. Hence the officer of defendant
inquired about the documents regarding the construction of said
structure to the occupier/owner. But owner/occupier of the structure
could not produce any document showing authenticity of the structure,
hence he prepared inspection report and took photographs and
forwarded the same to the Higher authority for perusal and necessary
order. Subsequently, Designated Officer of “L” ward, after carefully going
through the same, came to the conclusion that the notice structure is
-- 13 of 23 --
(14)
unauthorised and liable to be demolished/removed, hence notice under
section 354-A of the MMC Act dated 09/02/2018 came to be issued and
served upon the addressee. DW-1 deposed that by way of said notice,
notice addressee/occupier/owner informed that they have carried out
the work without the prior permission and contrary to the provision of
Sec.342 and 347 of MMC Act and notice addressee was called upon to
stop the unauthroised work immediately and produce the permission
within 24 hours after receipt of the said notice failing which the
unauthorized construction will be demolished at the risk and cost of the
plaintiff.
23. It has come in the evidence of DW-1 that the said notice
was accepted by the plaintiff himself, and acknowledgment was made
to that effect by putting his signature. But in-spite of that plaintiff
failed to give any reply to the said notice within time and did not stop
the further construction work, hence final speaking order is passed on
21/02/2018 which duly served on the plaintiff on 22/02/2018. DW-1
Sachin Beldar, deposed that the defendant has followed due process of
law by issuing notice under section 354-A of MMC Act and further
added that as plaintiff has made unauthorised constructions on the suit
premises without having permission of competent authority, hence he is
not entitled for protection as prayed.
24. DW-1 Sachin Beldar, cross-examined by the advocate for
plaintiff and during his cross-examination, DW-1 admitted that he does
not have any personal knowledge about the issuance of notice in this
case. DW-1 admitted that whenever he used to visit the site of
unauthorised construction that time, they used to maintain register. He
admitted that so far as slum area is concerned, datum line is
-- 14 of 23 --
Judgment (15) Suit No. 1066/2018
01/01/2000, but DW-1 added that he cannot say whether CTS No. 404
is declared as slum. Except this, nothing material could be brought on
record by the plaintiff to discard the oral evidence of DW-01.
25. In the light of submission, I have carefully gone through the
record. Admittedly, service of notice dated 09.02.2018 under section
354-A of the MMC Act, on the plaintiff is not seriously disputed.
Moreover, nothing is on record to show that
after obtaining necessary
permission/sanction from defendant, plaintiff has carried out the
construction as per notice schedule as per notice structure. Though,
plaintiff has filed 3 rent receipts issued by Mahavir Estate in the name
of Suryaprakashji below Exh.17 colly. But these 3 receipts disclosed that
it was issued for open plot having measurement 25 x 25 for Gala No.1.
Similarly, 4 Certified copies of Bombay Shop and Establishment Licences
disclosed that, it were issued in the name of Fateh Bahadur Rambaksh
Singh on his postal address Mahavir Estate, Shop No.1 and 2, Link
Road, Sakinaka, Mumbai below Exh.18 colly. The Certified copy of
Assessment issued by BMC for Assessment year 2002-03 below Exh-19,
show that it was issued in the name of Pandurang Janardan Khavnekar
as occupier along with Suryaprakash Fateh Bahadur Singh. Certified
copy of the notice issued by MMRDA dated 08.05.2008 in the name of
Suryaprakash Fateh Bahadur Singh below Exh.20 disclosed that it is
having address as Lokmanya Tilak Nagar and said notice was issued to
the plaintiff for handing over the possession of the structure to the
MMRDA. Certified copy of approved NA assessed dated 17.01.1989
below Exh.21 as well as certified copy of notice issued by Tahasildar,
Kurla dated 25.11.1989 below Exh.22 are not the documents to show
the validity of notice structure. True copy of letter issued by Dy.
Collector dated 24.04.2017 below Exh.27 shows that survey No.405 to
-- 15 of 23 --
(16)
407, have not been declared as slum in Government Gazette. Similarly
copy of electricity bill below Exh-36 colly disclosed that same was the
issued in the name of plaintiff on the address Shop No.1, 1st floor,
Mahavir Estate, Sakinaka, Near Andheri Link Road and the year of
issuance of bill is from 2013, but all those documents are not the
document to show the authenticity and validity of the notice structure
i.e. unauthorized construction of suit premises.
26. So far as the documents filed by the defendant on record
are concerned, it reveals from the copy of inspection report Exh.32 that
on 09.02.2018, at about 12.58 hours, when inspecting officer of
defendant had visited the suit premises, that time he found that
unauthorized construction of work was going-on, on the suit premises
without holding any permission from the defendant. Accordingly, he
prepared inspection report mentioning the nature of unouthorised
construction and on that basis notice U/s.354-A dated 09/02/2028
below Exh.33 came to be issued in the name plaintiff directing the
plaintiff to produce permission with 24 hours from the issuance of
notice. However, as the plaintiff failed to submit his reply the said notice
and has not produced any permission for construction, hence speaking
order came to be passed on 21.02.2018 below Exh.34. However, after
passing the order, as the plaintiff has tendered his reply dated
06.04.2018 along with certain documents with defendant, then fresh
speaking order dated 30.05.2018 came to be passed by the designated
officer below Exh.35 with direction to remove the notice structure
within 24 hours from the receipt of order, failing which said
unauthorized work will be demolished by the officer of the defendant at
the cost of plaintiff and consequences, without further intimation.
-- 16 of 23 --
Judgment (17) Suit No. 1066/2018
27. In short it reveals that the documents which were produced
by the defendant on record, are also not seriously disputed by the
plaintiff. So, it can be safely said that as the plaintiff has carried out
unauthorized construction without having any permission from the
defendant, necessary notice under section 354-A of the MMC Act, was
issued to the plaintiff and later on, after considering the reply and
documents submitted by the plaintiff, fresh speaking order has been
passed on 30.05.2018. Hence, defendant has followed due process of
law.
28. Advocate for plaintiff submitted that suit structure is
situated in slum area and same is tolerable one. Hence, defendant has
no right to issue any such notice as the notice structure/suit premises is
protected as per the provisions of Slum Act. Therefore, defendant has
no authority to take any such action in respect of the notice structure.
He submitted that suit premises is in existence prior to datum line, and
no work was in progress, therefore issuance of notice under section
354A of the MMC Act and accordingly, passing speaking order cannot
be said to be due process of law.
29. Per contra, advocate for defendant corporation submitted
that the fact in respect of receipt of notice is not disputed by the
plaintiff. More so he also filed his reply on record and after giving
necessary opportunity speaking order is passed by the Designated
Officer of the defendant. It is to be noted here that learned advocate
for defendant took me through the contents of inspection report dated
09.02.2018 filed by defendant on record below Exh.32, it shows that at
the relevant time, status of work was going on which can also reflected
in the report. As per clause No.05 work status is mentioned as on
-- 17 of 23 --
(18)
going. In the clause No.15 of the said inspection report, extension to
existing structure is mentioned. As per clause No.18, it is mentioned
that no any permission for construction was shown on the site while
clause No.19 disclosed that, measurement of unauthorized construction
was taken by the officer. Clause No.27 shows that unauthorized
construction of 1st and 2nd floor on existing ground structure using B. M.
& Siporex Block Walls, M. S. Angles, Ladi Coba Slab admg. (8.9 m x
11.6 m x 6 m ht). Subsequently, notice under section 354-A of the MMC
Act dated 09.02.2018, available on record below Exh.33 came to be
issued. It is to be noted here that, though the plaintiff has disputed the
service of notice issued by the defendant under section 354-A of the
MMC Act, but contents of inspection report are not seriously disputed
by him. No doubt, the plaintiff has filed Government Gazette on record
to show that Survey No.404 has been declared as slum and datum line
is of 1.1.2000, but it is necessary to make it clear that the scale of
datum line is applicable only in case of existing structure and no in
respect of the structure where the construction is going on. No census
receipt or photo-pass appears to be filed by the plaintiff on record.
30. The plaintiff has come with the case that the alleged
unauthorized work is in existence since long much prior to 1980,
therefore the burden is on the plaintiff to show that the alleged notice
structure was already in existence prior to date of datum line. However,
the plaintiff has not produced any documentary evidence or
photographs showing the date and status of structure prior to datum
line. Hence, I hold that plaintiff has failed to show that notice structure
was already in existence. Plaintiff has failed to furnish copy of photo-
pass in order to show that the alleged unauthorized construction is
protected. Thus, the evidence produced of behalf of plaintiff is too short
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Judgment (19) Suit No. 1066/2018
to show that the notice structure is protected under the slum Act and
accordingly the impugned notice is illegal and bad in law. Hence, I
answer Issue No.1 in negative.
AS TO POINT NO.2
31. It is the case of the plaintiff that suit premises is situated on
40' x 26' made of B.M. Wall and AC Sheet roof with height in the rear
side 17' and front side 16' situated at Survey No.404 (pt), 405 (pt) at
Shop No.1., Mahavir Estate, Lokmanya Tilak Nagar, Mohili Village,
Sakinaka, Kurla (West), Mumbai 400 072, and plaintiff has filed the
present suit challenging the notice issued by defendant No.1
corporation under section 354-A of the MMC Act. The defendant/BMC
has took the defence that in absence of statutory notice under section
527 of the MMC Act, suit is not maintainable. Admittedly, the plaintiff
has not given statutory notice under section 527 of the MMC Act, before
filing the present suit. As per the provision of section 527 of the MMC
Act, before filing the suit, there is a bar for filing suit in respect of any
act done in pursuance or execution of the Act or any neglect or default
in the execution of this Act without issuance of statutory notice under
section 527 of the MMC Act.
32. Learned Advocate for the plaintiff submitted that the
plaintiff has taken out Notice of Motion for urgent relief. He submitted
that it is settled principle of law that when plaintiff wants to seek
immediate relief from the Court in the form of injunction, it is not
necessary for him to wait till the period of Statutory notice is over.
Here, it is useful to refer the judgment of the Hon’ble High Court in the
case of Motilal Mahadeo Sharma and Ors Vs. MCGM, (2005 SCC Online
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(20)
Bombay 401) wherein the Hon'ble High Court observed that;
“Plaintiff filed suit for declaration and also for
consequential relief of injunction against corporation and
the plaintiff wants to seek immediate relief from the court
in the form of injunction, then it is not necessary for him
to issue statutory notice or wait till the notice is served and
the period prescribed under section 527 of the Act is over"
33. In the case in hand, plaintiff had taken out Notice of
motion for temporary injunction restraining the defendant/corporation
from taking any action on the basis of notice under challenge. In view of
above referred judgment, I find no substance in the contention of
learned advocate for defendant No.1/Corporation that the suit is not
maintainable for want of statutory notice under section 527 of the MMC
Act. Accordingly, I answer issue No.2 in negative.
AS TO ISSUE NO.3 and 4 :
34. In light of my above-said discussion and findings, I hold
that plaintiff has failed to prove that notice issued under section 354-A
of the MMC Act, dated 09.02.2018 and speaking order passed on by the
defendant on 30.05.2018, are illegal, malafide and bad in law. Nothing
is on record to show that the plaintiff has carried out the construction of
suit premises with prior sanction of defendant and said unauthorized
construction was in existence prior to datum line and same is tolerable.
35. In the case of
Mohd. Imran Gulam Mohd Jujarathi and
another Vs. Municipal Corporation of Greater 18.09.2019 in AO
No.25660/2018 and in Tushar Guru Salian Vs. State of Maharashtra
and Others, dated 28.08.2019 in PIL No.67 of 2017, the Hon’ble High
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Judgment (21) Suit No. 1066/2018
Court has held that:
The plaint must make an averment of sanction obtained from the
Corporation and must make an averment that the structure
targeted is prima facie governed by the sanction. Merely pointing
out the deficiencies in the notice or authority of the person
issuing such notice is neither here nor there. Thus, the sine quo
non of such kind of suit is a positive assertion made with
reference to the sanctioned building plan.
36. In the case in hand, the perusal of plaint clearly discloses
that there is no such pleading that notice structure constructed or re-
constructed by landlord is on the basis of sanctioned plan with the
permission of competent authority.
37. In short, it appears from the record that defendant has
followed due process of law and there is no substance in the argument
advanced on behalf of plaintiff that defendant has not followed the
guidelines laid by the Hon’ble Supreme Court which are incorporated by
defendant in their circular dated 24.04.2025, on the basis of judgment
of
Sopan Thopate.
38. As discussed above, plaintiff has failed to prove that he was
carrying out the construction with the permission of defendant,
therefore it cannot be said that notice dated 09.02.2018, is bad and
illegal.
39. It is to be noted here that according to the plaintiff suit
premises is of admeasuring 40' x 26' made of B.M. Wall and AC Sheet
roof with height in the rear side 17' and front side 16' situated at Survey
No.404 (pt), 405 (pt) at Shop No.1, Mahavir Estate, Lokmanya Tilak
Nagar, Mohili Village, Sakinaka, Kurla (West), Mumbai 400 072. From
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(22)
the carefully perusal of plaint, it appears that plaintiff has not given
exact identification of the suit premises. Plaintiff has not mentioned the
four boundaries and exact measurement of the suit premises. As per
Order VII Rule 3 of the Civil Procedure Code, if subject mater is
immovable property then plaint shall contain description of the property
sufficient to identify, therefore, I find that plaintiff has not properly
described the suit premises in the plaint.
40. In the light of my above discussion, I hold that no case is
made out by plaintiff to grant relief of declaration and perpetual
injunction as prayed.
41. So, in view of my negative findings to Issue No.1, I hold
that plaintiff is not entitled for relief of declaration and injunction as
prayed. Hence, I answer Issue No.3 and 4 in negative and in answer to
Issue No.5 following order is passed.
ORDER
1. Suit is dismissed with cost.
2. Decree be drawn up accordingly.
Date : 31.07.2026
(R. K. Deshpande)
Judge
Court Room No.43,
Bombay City Civil Court,
Gr. Mumbai
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Judgment (23) Suit No. 1066/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT”
UPLOAD DATE TIME NAME OF STENOGRAPHER
31.07.2026 5.30 p.m. Shilpa P. Pawar
Stenographer (Grade-I)
Name of the Judge H.H.J. R. K. Deshpande, Judge
(C.R.No.43)
Date of Pronouncement of
Judgment
31.07.2026
Judgment signed by P.O on 31.07.2026
Judgment uploaded on 31.07.2026
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