Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 L.C.S. No.1280/2019 [J]
MHCC010050512019 Presented on : 16.05.2019
Registered on : 16.05.2019
Decided on : 18.08.2025
Duration : 06Y 03M 02D
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
L.C. SUIT NO.1280 OF 2019
EXHIBIT NO. 13
Vikash Tukaram Dhakarav
Age: 29 years,
Adult Indian Inhabitant of Mumbai
Residing at :- Room No.1, Wadia Estate, Bail
Bazar, Near Stanley Chawl, Kurla (West),
Mumbai 400 070. …..PLAINTIFF.
: V E R S U S :
THE ASSISTANT MUNICIPAL
COMMISSIONER
“L” Ward, M.C.G.M. Office, New Market
Building, S.G. Barve Marg, Kurla (West),
Mumbai 400 070. …..DEFENDANT.
APPEARANCE :
Mr. V.T. Dubey, Ld. Advocate for the Plaintiff.
Mr. Botlawar , Ld. Advocate for Defendants/MCGM.
**************
CORAM : V. R. JAGDALE
ADDL. JUDGE CITY CIVIL COURT,
COURT ROOM NO. 11.
DATED : 18th August, 2025.
J U D G M E N T.
01. The plaintiff has sought relief of declaration that impugned
notice dtd.10.05.2019 under section 354A of the MMC Act, and order
dtd.04.06.2019 are illegal, bad in law and not binding upon him and
defendant be perpetually restrained from initiating any action against
the suit premises in pursuant to above notice.
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02. It is averred by the plaintiff that he is in use, occupation
and possession of room no.1, area admeasuring about 20 X 26 sq. ft.
being ground floor, made up of B M Wall AC Sheet roof, C.T.S. No.127
lying and situate at Wadia Estate, Bail Bazar, Near Stanley Chawl, Kurla
(West), Mumbai 400 070 (hereinafter referred as “the suit premises”
for the sake of brevity).
03. The suit premises is very old and is in existence since long
which was previously in use and occupation of previous occupier who
had sold it to the plaintiff. The plaintiff is having ration card, Adhar
Card and N.A. Order. The suit premises is duly assessed by BMC.
04. The suit premises being old it’s roof was damaged and
required repairs. Accordingly plaintiff has replaced the tin sheets of roof
and also carried out plastering and painting. But defendant has issued
notice u/s 354-A of the MMC Act, in the name of one Gangadhar
Ghadge who has no nexus with the suit premises and it is served upon
the plaintiff. The plaintiff had tendered reply to the impugned notice.
But defendant without application of mind and without considering
reply and documents passed Order on 04.06.2019. Hence plaintiff has
sought relief of declaration and perpetual injunction.
05. The defendant failed to file W.S. Accordingly suit proceeded
without W.S.
06. I have framed following points alongwith my findings
thereon with the reasons as under.-
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Sr. No. POINTS FINDINGS
1. Does the plaintiff prove that the suit
notice dated 10.05.2019 and the
consequential speaking order dated
04.06.2019 are bad in law ? In the negative
2. Whether the suit is bad for want of notice
U/s. 527 of the MMC Act ? In the negative
3. Whether jurisdiction of this Court is
barred in view of sectin 515A of the MMC
Act? In the affirmative.
4. Whether the plaintiff is entitled for the
relief of declaration, as sought ? In the negative
5. Whether the plaintiff is entitled for the
relief of perpetual injunction, as sought ? In the negative
6. What order and Decree ? As per final order.
07. Apart from oral evidence the plaintiff has relied upon
following documents :-
1. Ration Card (old), Ration Card (New) at Exh.4 Colly.
2. Adhar Card at Exh.5
3. N.A. Order at Exh.6
4. Assessment Bill and Payment receipt at Exh.7
5. Notice dated 10.05.2019 at Exh.8
6. Reply dated 14.05.2019 at Exh.9
7. Speaking Order dated 04.06.2019 at Exh.10
08. The defendant has not adduced oral as well as
documentary evidence.
09. I have perused written argument filed on behalf of the
plaintiff vide Exh.12 and heard learned advocate for the
defendant.
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AS TO POINT NO.1:-
10. The plaintiff pleads and reiterates in his deposition that he
is in use, occupation and possession of suit premises which was sold to
him by its previous occupier. The suit premises being old it’s roof was
damaged and required repairs. Accordingly plaintiff has replaced tin
sheets of roof and also carried out plastering and painting. But
defendant has issued notice u/s 354-A of the MMC Act, in the name of
one Gangadhar Ghadge who has no nexus with the suit premises and it
is served upon the plaintiff. The plaintiff had tendered reply to the
impugned notice. But defendant without application of mind and
without considering reply and documents passed Order on 04.06.2019.
Hence prayed that suit be decreed with costs.
11. Even though, defendant has not filed W.S. and has not
adduced rebuttal evidence disputing the case of the plaintiff. But same
does not imply that averments made in the plaint are admitted and it is
for the plaintiff to prove the same.
12. Accordingly plaintiff has produced on record notice dtd.
10.05.2019 vide Exh.8 and speaking Order dated 04.06.2019 vide
Exh.10. In the speaking Order it is specifically mentioned that plaintiff
has carried out unauthorized construction of structure on open plot
with B.M. Wall and A.C. sheet roof supported on M.S. angle adm. 8.53
mtr X 6.70 mtr X 5.18 mtr (ht) approximately. It is further mentioned
that plaintiff is called upon to stop the erection of said work and if
plaintiff fails to forthwith stop then it shall be liable to be demolish or
pull down in view of section 354A of MMC Act.
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13. As notice is issued under section 354A of MMC Act, it was
incumbent on the part of the defendant to comply with the mandate
laid down in the case of Sopan Maruti Thopte and Another Etc…. vs.
Pune Municipal Corporation And Another on 9th February, 1996
reported in AIR 1996 BOM 304, the Hon’ble High Court has laid down
the guidelines which are followed by the Corporation.
14. It is laid down if Corporation detects that building which is
reconstructed or extended without valid permission then it would be
open to the Commissioner to demolish the same by giving a short notice
of 24 hours after drawing a panchanama at the site and also by taking
photographs of such structure and/or extension. The photographs
should indicate the date when the same were taken.
15. Therefore, it is clear that above direction are mandatory in
nature and are to be followed in its letter and spirit. But in the present
suit it appears that defendant Corporation has not prepared
panchanama and also taken photographs indicating the date when the
same are taken.
16. Be it so, it is the case of the plaintiff that he has only
carried out repair of roof, plastering and painting work. But plaintiff has
not produced on record any photographs to substantiate the fact as to
what was the condition of the suit premises prior to carrying out repairs
and after carrying out repairs. The plaintiff could have produce on
record photographs to substantiate the fact that he has only carried out
repairs as stated above. But apart from his oral evidence plaintiff has
not produced on record any document to substantiate the above fact.
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17. Be it so, even though notice is issued under section 354-A
of the MMC Act, calling upon the plaintiff to stop the work and nothing
is produced on record by the defendant that at the time of issuance of
notice work was in progress. But plaintiff has also not produced on
record any document about construction permission and sanction plan.
He has also not produced on record any document to show that suit
premises existed prior to datum line.
18. At this juncture, the learned advocate for the defendant has
relied upon one judgment of Hon’ble High Court in the case of
Shivashankar Swami V/s. Municpal Corporation of Greater Bombay and
another reported in 2013 SCC Online Bom 1198 wherein it is observed
that “notice under section 354-A issued by Corporation - Construction
which was carried on contrary to law, despite notice under section 354-
A, cannot be protected -Suit seeking permanent injunction, rightly
dismissed.
19. Therefore, it is clear that in absence of construction
permission the plaintiff is not entitled for relief of declaration and
injunction as sought and therefore, it cannot be said that impugned
notice and speaking Order are bad in law and not binding upon
plaintiff. Hence I answered point no.1 in the negative.
AS TO POINT NO. 2:-
20. Even though defendant has not filed W.S. and raised plea
that suit is bad for want of notice under section 527 of the MMC Act.
But during cross examination the plaintiff has admitted that she has not
issued notice under section 527 of MMC Act, prior to filing of this suit.
The present suit has been filed to challenge notice under issued by the
Corporation/B.M.C. under Section 354 of the MMC Act. However, as per
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the provisions of Section 527 of the MMC Act there is 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 statutory notice
under Section 527 of the M.M.C. Act. In the case in hand, the plaintiff
has not filed suit in respect of any act done or execution or neglect or
default in the execution of this Act. The plaintiff has challenged notice
issued under Section 354 of the MMC Act.
21. 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. The
Hon'ble Bombay High Court in Motillal Mahadev Sharma (Since … vs
The Municipal Corporation of …) (AIR 2005 Bom 344) held that,
“
Plaintiff filed suit for declaration and also for consequential
relief of injunction against Corporation and when the plaintiff
wants to seek immediate relief from the Court in the form of
injunction, it is not necessary for him to issue statutory notice
or wait till the statutory notice is served and the period
prescribed under section 527 of the Act is over”.
22. In above referred judgment the Hon'ble Bombay High Court
held that if plaintiff want to seek immediate relief from the Court in the
form of injunction it not necessary for him to issue statutory notice and
wait till the period prescribed under Section 527 of the MMC Act is
over. In the case in hand, the 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. Thus, it is clear
that the plaintiff had sought immediate relief of temporary injunction.
In the circumstances, I find no substance in the submission of defendant
that suit is not maintainable for want of statutory notice under Section
527 of the MMC Act. Accordingly, I answer point No.2 in the negative.
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AS TO POINT NO.3:-
23. It would be worthwhile to mention that in view of section
515A of the MMC Act, there is bar to any notice issued, order passed or
direction issued by the Designated Officer, under section 351 of 354A
shall not be questioned in any suit or other legal proceedings.
24. But there are certain exception under which Civil Court
retain jurisdiction to entertain suit which includes
a) The act of issuance of notice is a nullity.
b) The designated authority has not acted in accordance with the basic
judicial procedure.
c) Power has been misused.
d) The action was not done in good faith.
25. Even though plaintiff has averred that notice and speaking
Order are null and void ab-initio. But it is settled that grounds of nullity
must be such that it is ex-facie borne out from the facts and plaintiff has
to demonstrate as to how the notice and speaking Order are nullity and
mere use of word illegal, bad in law and nullity are not sufficient to
hold that suit is maintainable. Therefore, in absence of any sort of
substantial pleading the jurisdiction of civil court cannot be retain to
entertain the suit. Therefore, suit is expressly barred in view of section
515A of the MMC Act and this Court has no jurisdiction to try, entertain
and dispose of suit. Hence I answer point No. 3 in the affirmative.
AS TO POINT NO.4 AND 5:-
26. While discussing point no.1 I have inferred and concluded
that plaintiff has failed to prove that impugned notice and speaking
Order are illegal and bad in law. Therefore, the same cannot be
declared void ab-initio and in nullity. So also, while discussing the point
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no.3 I have inferred and concluded that jurisdiction of this Court is
barred. Therefore, the plaintiff is not entitled for the relief of
declaration and perpetual injunction. Hence I answer point No. 4 and 5
in the negative and in the result answer to point no.6, I proceed to pass
following order.
O R D E R
01. Suit is dismissed with costs.
02. Decree be drawn accordingly.
03. Record and proceeding be sent back to the Record
department.
Date: 18.08.2025
(V. R. Jagdale)
Judge
City Civil Court
Mumbai
Dictated on : 18.08.2025
Signed on : 20.08.2025
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
dtd. 20.08.2025 5.55 p.m. Mrs. V.N.Rajgole
UPLOAD DATE AND TIME NAME OF STENOGRAPHERS
Name of the Judge(with CR No.) HHJ V. R. JAGDALE (C.R.NO.11)
Date of pronouncement of Judgment 18.08.2025
Order signed by P.O. on 20.08.2025
Order uploaded on 20.08.2025
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