Order 1

Order Details: Copy of Judgment
Pdf Text: CNR NO : MHCC010060152018 1 L.C. Suit No. 1611/2018
JUDGMENT.
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
LONG CAUSE SUIT NO. 1611 OF 2018.
EXHIBIT NO. 18.
Suman Rajkumar Dixit,
Adult, Residing at Khot Chawl, near
Transit Camp, Vinoba Bhave Nagar, Kurla
(West), Mumbai- 400 070.
]
]
]
] …..PLAINTIFF
: V E R S U S :
The Asst. Municipal Commissioner,
‘L’ Ward, MCGM Office, New Market
Building, S.G. Barve Marg, Kurla (West),
Mumbai - 400 070………………………….
]
]
]
] …..DEFENDANT.
APPEARANCES :
Mr. V.T. Dubey, Ld. Advocate for the Plaintiff.
Mr. V.G. Shinde, Ld. Advocate for Defendant/MCGM.
**************
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO. 11.
DATED : 12th March, 2025.
J U D G M E N T.
01. This is suit to challenge legality of notice dtd. 28.04.2018,
issued by the defendant/BMC, u/s. 354-A of the Mumbai Municipal
Corporation Act (in short the MMC Act), in respect of construction of
1st and 2nd floor, made up of BM wall and MS section structure (in short
the suit structure) and final Order dtd. 16.05.2018 and for perpetual
injunction, restraining the defendant/BMC or anybody through it from
demolishing the suit structure, pursuant to impugned notice and final
Order.
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CNR NO : MHCC010060152018 2 L.C. Suit No. 1611/2018
JUDGMENT.
Facts of case can be summarized as below :-
02. The plaintiff is in possession of the suit structure, which is
very old and in existence since prior to year 1990. The suit structure is
situated on land belongs to the Collector and the said structure is not
required for any public purpose. Previously, Mr. Dattatray Krishna Sanas
was in possession of the suit structure and he assigned the suit structure
in favour of the plaintiff, pursuant to writing dtd. 10.05.2017. The land,
where the suit structure is situated declared as slum area by the
competent authority and accordingly, the survey has been carried out.
03. It is further stated that as the structure is very old and its
roof was badly damaged, therefore, the plaintiff replaced broken tin
sheet roof and carried out plastering and painting. However, the BMC
issued stop work notice u/s. 354-A of the MMC Act. The plaintiff was
not served with the notice but some unknown person handed over the
notice to him. Hence, she replied the said notice on 02.05.2018, but till
filing of the suit, no Order was passed. It is further stated that without
passing the Order, on 02.05.2018, Officer of the BMC threatened to
demolish the suit structure hence, the plaintiff approached this Court.
04. It is further stated that during pendency of the suit the
designated Officer has passed the final Order on 16.05.2018, without
considering the reply and documents submitted by the plaintiff. So also,
overlooking the fact that the suit structure is situated in slum area. The
defendant/BMC has no right to take action against the structure,
situated in slum area. In the circumstances, the impugned notice as well
as final Order are illegal and bad in law and the plaintiff is entitled for
decree as prayed.
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JUDGMENT.
05. Inspite of sufficient opportunity, the defendant/BMC failed
to file their Written Statement (WS), hence, the suit proceeded without
its WS as per roznama Order dtd. 23.01.2023.Thereafter, the plaintiff
filed affidavit in lieu of examination-in-chief at Exhibit 06. Apart from
the oral evidence, he relied upon the following documentary evidence.
Sr.
No.
Particulars of documents Exhibit
Nos.
1 Power of Attorney 8 Colly.
2 Electric connection 9
3 Ration Card 10
4 Bombay Shops and Establishment License 11
5 Survey receipt 12
6 Notice 13
7 Reply 14
8 Order dtd. 16.05.2018. 15
06. On the basis of the plaint and evidence of the plaintiff, the
following points are arises for determination, I have recorded my
findings for reasons to follow :
Sr. No. POINTS FINDINGS
1. Does the plaintiff prove that the notice
structure was already in existence at the
relevant time of stop work notice and no
any work was in progress ? … In the affirmative.
2. Does the plaintiff prove that the
impugned notice and final Order are
illegal and bad in law ? … In the affirmative.
3. Does the plaintiff is entitled for relief and
injunction as prayed ? … In the affirmative.
4 What order and decree ?
... Suit is decreed.
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JUDGMENT.
AS TO POINT NOS. 1 AND 2 :-
07. Suman (PW1) in her affidavit in evidence at Exhibit 06, re-
iterated contentions in the plaint. It is case of the plaintiff that the suit
structure is in existence since prior to 1990 and it has been assessed
prior to 1990.The suit structure was old and its roof was badly damaged
hence, the plaintiff replaced the broken cement sheet roof and carried
out plaster and painting. However, the defendant/BMC has issued stop
work notice on the basis of complaint of neighbour. In her cross-
examination she deposes that the she do not know who constructed the
suit structure and denied that after purchase, she carried out
construction of upper two floors. She admitted that presently, ground
and 1st floor structure are having ladi-coba slab and 2nd floor structure is
having cement sheet roof. She denied that Officer of the BMC inspected
the suit structure on 28.04.2018 and at that time, the work was in
progress.
08. Ld. Advocate for the plaintiff submitted that the suit
structure is in existence since prior to 1990 and the plaintiff has
purchased the suit structure from earlier occupier Mr. Dattatray Sanas.
In support of his submission, the advocate for the plaintiff relied upon
the affidavit and irrecoverable power of attorney in favour of the
plaintiff, Electricity bill, Ration Card, Shop and Establishment. However,
these documents are subsequent to year 1990 and falls short to prove
existence of the notice structure i.e. 1st and 2nd floor, prior to the year
1990, as claimed by the plaintiff.
09. Ld. Advocate for the plaintiff further submitted that the
plaintiff has replied the show cause notice and stated that the notice
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JUDGMENT.
structure is in existence since long and no any work was in progress. In
his submission, in view of specific case pleaded by the plaintiff, it was
for the BMC to show that at the relevant time, the work was in progress.
However, the BMC has not produced panchnama, inspection report,
photographs,showing status of the on-going work. He further submitted
that even in Speaking Order also the designated Officer has not denied
that the structure was in existence at the relevant time. He further
submitted that neither BMC filed the WS, nor, lead evidence. In the
circumstances, the evidence of the plaintiff that no any work was in
progress goes unchallenged. Therefore, the Court has accept the
evidence of the plaintiff that at the relevant time the structure is
complete in respect and no any work was in progress. While concluding
the oral submission, the advocate for the plaintiff filed WS.
10. On the other hand,Ld. Advocate for the BMC has submitted
that the plaintiff has not produced a single document to prove that 1st
and 2nd floor is in existence since 1990. He further submitted that the
burden lies upon the plaintiff to prove that the structure was complete
in all respect and at the relevant time, no any work was going on.
However, the plaintiff has not proved existence of notice structure prior
to 1990.
11. I have given thoughtful consideration to the submission,
made by Ld. Advocates for the parties. At the outset, it is important to
note that it is nowhere the plaintiff’s case that the notice structure has
been constructed after securing due permission from the defendant/
BMC or as per sanctioned plan. On the contrary, the plaintiff stated that
she has purchased the suit structure from earlier occupier Mr. Sanas in
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JUDGMENT.
the year 2017. However, there is no reference of 1st and 2nd floor i.e. the
notice structure in the documents relied by the plaintiff. The
defendant/BMC issued stop work notice u/s. 354-A of the MMC Act
alleging that the plaintiff commenced unauthorized construction of 1st
and 2nd floor without permission of defendant/BMC. The plaintiff came
with specific case that the notice structure is in existence since prior to
1990. In view of the specific case pleaded by the plaintiff, it was for
BMC to show that at that time of the work of 1st and 2nd floor was in
progress. It is well settled that if the construction is complete, provisions
of sec. 354-A of the the MMC Act, have no application and in that case
the remedy lies somewhere else. The plaintiff has produced on record,
the stop work notice dtd. 28.04.2018, as per the said notice, it is alleged
that construction of 1st and 2nd floor was carried out. Thus, this notice
falls short to show that at the relevant time the construction was in
progress.The defendant/BMC has not produced on record the inspection
report, photographs, showing that at the relevant time, the work as
alleged in the notice was in progress.
12. The Hon’ble Bombay High Court in the matter of Sopan
Maruti Thopte V/s. Pune Municipal Corporation, AIR 1996 Bom. 304,
laid down the guidelines to be followed by defendant/BMC, while
initiating action against the unauthorized construction. However,
despite of said guidelines, BMC has not produced on record panchnama,
photographs , copy of detection register to show that at the relevant
time the work was in progress. In the circumstances, it is difficult to
hold that at the relevant time the work was in progress and therefore,
issuance of stop work notice was justified. In the circumstances, I hold
that defendant /BMC has not followed the due process of law, before
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JUDGMENT.
initiating action against the notice structure. Thus, the impugned notice
and final Order are illegal and bad in law. Hence, I answer point No. 1
in the negative and point No. 2 in the affirmative.
AS TO POINT NO. 3 :
13. The cumulative effect of the above discussion is that the
defendant/BMC has not followed due process of law, while initiating
action against the notice structure. Therefore, the plaintiff is entitled for
the relief of injunction, restraining defendant/BMC from demolishing
the suit structure except by due process of law. Accordingly, I answer
point No. 3 in the affirmative and in answer to point No. 4 I pass the
following Order.
-: O R D E R :-
The suit is decreed in following terms with costs.
(i) It is hereby declared that the notice u/s. 354-A of the MMC
Act dtd. 28.04.2018 and the final Order dtd. 16.05.2018
are hereby declared as illegal and bad in law.
(ii) The defendant/BMC or anybody else through it is hereby
permanently restrained from the implementing the notice
and Order.
(iii) Decree be drawn-up accordingly.
(S.H. Salunkhe)
Mumbai. Ad-hoc Judge,
Dated : 12.03.2025. City Civil Court, Mumbai.
Directly typed on computer on : 12.03.2018.
Draft given to HHJ on : 25.03.2018.
Checked and Signed on : 26.03.2018.
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JUDGMENT.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
26.03.2025 at 4.21 p.m.
Name of the Stenographer
Mrs. S.R.Mejari
Name of the Judge (with Court Room No.) HHJ Shri S.H. Salunkhe
(Court Room No.11).
Date of Pronouncement of Judgment/Order 12.03.2025
Judgment/Order signed by P.O. on 26.03.2025
Judgment/Order uploaded on 26.03.2025
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