Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010053332019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO.1921 OF 2019
IN
L. C. SUIT NO.1917 OF 2019
Mr. Hitesh G. Kanjani … PLAINTIFF
Versus
Municipal Corporation of Greater Mumbai … DEFENDANT
APPEARANCES :
Mr. Bipin Joshi, Advocate for the Plaintiff.
Mr. Swapnil Bharti, Advocate for Defendants/MCGM.
CORAM : AMIT ANANT LAULKAR,
JUDGE
COURT ROOM NO.04
DATED : 18th AUGUST, 2025
FINAL - ORDER
1. Posing exclusion to issuance of notice vide section 351 of
the MMC Act dated 18.07.2018 and Speaking order dated 11.04.2019,
passed for the suit structure
viz Mumbai Magic (Hotel Madhuban)
Construction of G + 1 structure (with basement), plaintiff herein
preferred this suit for declaration and injunction wherein instant notice
of motion is moved
inter-alia claiming temporary injunction against the
defendant corporation for not acting upon said notice followed by
speaking order and taking any action till final disposal of the suit.
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(2)
2.
Succinct outline of the Notice of Motion states in volume
that the plaintiff hails from Ghatkoper, Mumbai. He has been carrying
on the business of hotel in the suit premises. The structure in question is
pre-merger structure which is assessed to the municipal taxes. It is on
Government land and census structure bearing No1-1/1-C-191.
Originally, plaintiff’s father Late Ghanshyam Kanjani was owner of the
census structure (Suit premises). During his life time, similar action was
initiated by defendant vide notice under section 351 dated 12.12.1988,
against the suit structure. Being aggrieved, plaintiff's father had filed
the Suit No.9485 of 1988 as regards same suit structure. The subject
matter of above suit was the same as of subject matter of notice under
motion. It is urged that, in the earlier notice, having satisfied with
documentary evidence and tolerated structure, the then Deputy
Municipal Commissioner dropped the action and eventually, aforesaid
suit No.9485 of 1988 was withdrawn. Despite such scenario, the
defendant once again without taking notes of documentary evidence
cum reply of the plaintiff, issued impugned notice which is absolutely
bad in law. Challenging the legality and propriety of impugned notice as
well as speaking order in dispute, the plaintiff moved this Court and
preferred instant motion craving leave for interim reliefs and oblige.
3. Despite receipt of motion, the defendant did not opt to file
any reply, thus instant motion proceeded without reply of the
defendant.
4. Heard learned Advocate Mr. Bipin Joshi for the plaintiff.
Learned Advocate Mr. Swapnil Bharti, appearing for the defendant
tendered written notices of argument in support.
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Order (3) Notice of Motion No.1921/2019
In L.C. Suit No.1917/2019
5. Following points arose for consideration and my findings
thereon are as follows.
Sr.No. POINTS FINDINGS
1. In whose favour prima facia case lies? Plaintiff
2. In whose favour balance of convenience lies? Plaintiff
3. To whom irreparable loss would cause? Plaintiff
4. What order? .. As per Final
Order.
REASONS
As to Point Nos.1 to 3 :-
6. All above points are interlinked and interconnected,
therefore, for brevity they are taken up together for consideration cum
due deliberation.
7. By way of instant Motion, the plaintiff is imploring for
restraining the defendant from enforcing impugned notice vide section
351 of the MMC Act followed by speaking order in connection with the
suit premises.
8. It is admitted scenario that the suit structure is situated on
government land and as such, it is censused structure. Moreso, it was
originally plaintiff's father Late Ghanshyam Kanjani, was owner of this
census structure being suit premises. The documentary analysis put
forth before the Court and the compilation annexed with the plaint do
suggest that during life time of Mr. Ghanshyam Kanjani, a similar action
under section 351 of the MMC Act was initiated against the suit
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(4)
structure and eventually, having much deliberation and exchange of
documents, the defendants were convinced that the suit structure is
census structure deserving protection in the eyes of law, whereupon the
notice vide section 351 MMC act dated 12.12.1988 was dropped having
satisfied about the overall evidence and tolerated structure. As a result,
thereof, the suit instituted by Mr. Ghanshyam Kanjani bearing No.9485
of 1988 was withdrawn and the earlier action was called off by the
defendant. The bottom line is, earlier similar action posed against suit
structure was dropped by the defendant corporation and till date of
impugned notice which is subject matter of present suit, there was no as
such any action initiated against the said structure. It is vital to note
that said structure is census structure and thus, it deserves protection in
the eyes of law.
9. A feeble attempt was made on behalf of defendant thereby
highlighting that the earlier notice was for ground floor and basement
and instant notice under challenge is for G + 1 (with basement) and
therefore, it is clear that the upper floor is unauthorized construction. If
that being specific stance of the defendant then the notice under
challenge followed by speaking order ought to have mentioned the
exact portion of said alleged unauthorized construction however, it is
not done so for. In the impugned notice the Designated officer has not
clearly mentioned the unauthorized portion of the structure and on the
contrary, notice is given for the whole structure. This is major shortfall
on the part of the defendant. When the notice is issued for the entire
structure, despite having documentary clearance that the notice
structure is census structure, the impugned notice prima facie stands
invalidated. As of now, the only point for consideration is that the
impugned notice nowhere specifies the exact portion of the structure
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Order (5) Notice of Motion No.1921/2019
In L.C. Suit No.1917/2019
and on that count itself, the sequel action posed by the defendant
becomes defective at least at this prima facie moment. Without
specifications of alleged unauthorized structure, citing notice for the
whole suit structure, has less force in law. Precisely, entire scenario calls
for interference in the action planned by the defendants.
10. Pertinent to note that when the notice structure is censused
and situated on government land, so also on earlier occasion likewise
action under section 351 of the MMC Act was dropped by the
defendant, without there being any challenge and counter reply by the
defendant, nothing goes for inference that the subject matter of the
earlier suit vise-a-vise notice dated 12.12.1988 and the subject matter of
present suit vise-a-vise impugned noticed dated 18.07.2018, are
absolutely different. To counter the version of the plaintiff, defendants
have not brought anything on record. Many aspects were posed through
written notes of arguments but there is no such reliable affidavit in
reply to that effect. Certainly, on comparative analysis, the stance posed
by the plaintiff assumes significance.
11. Apparently, post issuance of impugned notice, the plaintiff
bounced back with his reply dated 22.07.2018 & 02.11.2018 thereby
showing the authenticity of notice structure. Though he pinpointed
censused nature of the suit structure along with documents of earlier
round of litigation in his reply, it unveils that the designated officer
glaringly ignored said reply without assigning reasons for disbelieving
the plaintiff cum his reply, vaguely in stereo typed manner observed
that all documents cannot be treated as conclusive proof as alleged.
Thus, the designated officer seems to have declined to ponder over said
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(6)
reply and proceeded to pass the speaking order further.
Prima facie such
conduct on the part of the designated officer looks hasty and non-
application of mind to the set of facts, thereby ignoring the basic object
of the rules of natural justice. Even he did not bother to consider that
the suit structure is censused structure and to point out in impugned
notice what according to him is specific structure which is alleged
unauthorized one. It is error on record having nullifying effect.
12. Post amendment to Municipal Corporation Act there was
insertion of section 515A of MMC Act, which speaks into volume that
“Save as otherwise provided in this Act, any notice issued, order passed
or direction issued by the designated officer under section 351 or 354A
shall not be questioned in any suit or other legal proceeding.” The
constitutional validity of section 515A of the MMC Act was challenged,
however, the Hon'ble Bombay High Court in the case of
Abdul Razzak
Sunesra Vs. Municipal Corporation Greater Bombay (2013(6) ALL MR
297) upheld the constitutional validity of said section and put stamp of
confirmation upon it. Aforesaid section contemplates that any notice
issued, order passed or direction issued by the designated officer cannot
be questioned in any suit or other legal proceeding. The bar is provided
regarding the application of section 351 and 354A of the MMC Act only.
Ordinarily, a Civil Court under the provisions of section 9 of the Code of
Civil Procedure, 1908, shall have the jurisdiction to try all suits of a civil
nature excepting suits of which cognizance is either expressly or
impliedly barred. As it can be seen that there is an express bar on the
jurisdiction of the Civil Court vide section 515A to entertain a suit
calling into question any notice, order or direction issued by the
designated officer under section 351 and section 354A of the MMC Act.
Preceding verdict delivered by the Hon'ble Bombay High Court clearly
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Order (7) Notice of Motion No.1921/2019
In L.C. Suit No.1917/2019
reveals that section 515A of the MMC Act is constitutionally valid and
there cannot be any doubt to that effect. In reference with the same,
eventually another decision was rendered by the Hon'ble Bombay High
Court in the case of Abdul Karim Ahmed Mansoori Vs. MCGM and
another, (2013(6) ALL MR 323), wherein it is held that,
"In every individual case depending upon the
pleadings, the issue of jurisdiction would have to be
decided by the Civil Court. The applicability of
Section 515A and the issue of jurisdiction must be,
therefore, gone into, dealt with and decided in each
case depending on the pleas raised by parties. The
law is well settled in as much as the learned Judge
will have to decide the issue of jurisdiction by
considering the averments in the plaint. If the
averments in the plaint do not make out any case
which would enable the Court to apply the legal
principles set out above, he would then apply the
provisions in question, namely, section 515A and
return an appropriating finding on the point of
jurisdiction depending on the materials placed
before him. It is not as if the bar should be ignored
or should not be taken note of The Civil Court is
obliged to take note of the provision and the
statutory bar whatever that plea is raised by the
Corporation before it".
13. The citation of
Mansoori (Spura) rules that the issue of
jurisdiction has to be decided by the Civil Court whenever the plea is
taken by the Corporation. The law is well settled in as much as the
learned Judge is required to decide the issue of jurisdiction by
considering the averments in the plaint. If the averments in the plaint
do not make out any case which would enable the Court to apply the
legal principles set out above, then the provisions of Section 515A
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(8)
would be applicable. It simply means that whenever there is an
unlawful action taken by the BMC officers or procedural defects
committed by the BMC officers or principle of natural justice are
violated by the BMC officers then Civil Court will have the jurisdiction.
If the order is at nullity, then Civil Court would have jurisdiction. The
citations of
Abdul Razzaq Sunersra and
Abdul Karim Ahmed Mansoori
(Supra) are not opposite to each other but go hand in hand with each
other. Both the citations are required to be read together. If both the
citations and principles mentioned in the citations are considered, then
it makes the position clear. If the BMC officer has committed any gross
violation of law and / or there is violation of natural law, equity or/and
there is a gross procedural violation then Civil Court can entertain the
suit against the BMC and its officers.
14. By taking stock of both aforesaid verdicts, they were
elaborately dealt with by the Hon'ble Bombay High Court in the case of
Yogesh Gada Vs. MCGM,
(Writ Petition No.2243 of 2023 and
Companion Matters) decision dated 10th April, 2014), wherein the
Hon'ble Bombay High Court expressed that, even if the jurisdiction of
the Civil Court has been excluded by Section 515A, it is still open if the
petitioners show that there is jurisdictional error on the part of the
authority. The scope to challenge the order has been thus narrow down
to this effect. It is held that, there is no scope of unlimited challenge to
the orders under the relevant sections of the MMC Act.
15. Applying aforesaid legal scenario to case in hand, it
emerges that apparently there is no such legal bar of jurisdiction
emerging while entertaining reliefs claimed by the plaintiff.
It is prima
facie shown by the plaintiff that there was gross procedural error on the
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Order (9) Notice of Motion No.1921/2019
In L.C. Suit No.1917/2019
part of defendant authority while issuing impugned notice and passing
speaking order thereby ignoring the earlier round of litigation and
censused nature of the suit structure so also by keeping ambiguity in
mentioning the exact portion of alleged unauthorised structure and
citing notice for the whole suit structure.Thus, preceding bar would not
pave way for summarily dismissal of the motion.
16. Without there being any counter stance, I believe, at this
prima facie stage, the version posed by the plaintiff finds substance.
There is plenty of record suggesting that the notice structure is censused
one. The propriety or legality of the impugned notice would be tested
eventually at the time of final adjudication of the suit, however, till
date, considering preceding discussion, it is desirable to protect the
structure as there lies prima facie case in favour the plaintiff. The
balance of convenience tilts in his side and if interim protection is not
granted then it will cause major irreparable loss to the plaintiff than the
defendant. There would be multiplicity of litigation defeating loud
object of the law, if interim relief is denied to the plaintiff. I believe the
motion deserves approval. Summing up, I answer all points in favour of
the plaintiff.
17.
Ergo the order.
ORDER
1. Prayer clause 1 of the Notice of Motion No.1921 of 2019 is made
absolute.
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(10)
2. Defendants, their agents and servants are temporarily restrained
from enforcing or acting upon the impugned notice vide section
351 of the MMC Act dated 18.07.2018 and Speaking order dated
11.04.2019, till final disposal of the suit.
3. Notice of Motion is disposed of accordingly.
(Amit Anant Laulkar)
Judge,
Date : 18.08.2025 City Civil Court, Mumbai.
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Order (11) Notice of Motion No.1921/2019
In L.C. Suit No.1917/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
19.08.2025 12.30 p.m. Shilpa P. Pawar
Stenographer - Grade IUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. Amit A. Laulkar
Court Room No. 4.
Date of Pronouncement of ORDER 18.08.2025
ORDER signed by P. O. on 19.08.2025
ORDER uploaded on 19.08.2025
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