Final Order 1

Order Details: Copy of Judgment
Pdf Text: S.C. Suit No.3297 of 2019 1 Judgment
MHCC010063962019 Presented on : 15.06.2019
Registered on : 10.12.2019
Decided on : 17.01.2026
Duration : Y M D
06 07 03
Exhibit No.27
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SUIT NO. 3297 OF 2019
Manjeet Kaur
Age Adult, Occ: Business
R/a. : R.C. Barrack-42, Room No. 501,
Indira Nagar, Chembur,
Mumbai - 400 071. … Plaintiff.
Versus
1. Assistant Commissioner
M/West, 2nd Floor, Durgadevi
Chowk, Madhukar Kadam Marg,
Deonar Colony, Govandi,
Mumbai- 400 043.
2. The Municipal Corporation of Greater
Mumbai,
Having its office at Mahapalika Bhavan,
Mahapalika Marg, Fort, Mumbai-400 001. ... Defendants
CORAM : HIS HONOUR JUDGE SHRI C. S. DATIR
(C.R. NO.04).
DATE : 17.01.2026
Appearance:
Ld. Advocate Ms. Simran Singh h/f Advocate Mr. Tushar Momaiyah for
plaintiff.
Advocate Ms. Vidya Vyavhare for defendant/MCGM.
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S.C. Suit No.3297 of 2019 2 Judgment
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
The plaintiff suit is nutshell is as under:
1. Plaintiff states that, she is lawful owner of Room no.501,
consisting of ground floor, admeasuring about 32 X 14 ft. with
mezzanine floor, having an equal area situated at R.C. barrack no.42,
Dr. C.J.Road, Chembur colony, Mumbai. (hereinafter referred to as the
‘suit property’ for the sake of brevity). Defendant is a Corporation. The
suit property was purchased by her from the previous occupant/owner
Mr. Kishan R. Wadhwa on 28/07/2006. It is a notarized document and
since then, she is in exclusion possession over the suit property.
She further contended that, after acquiring the property,
her name mutated in all documents of Government record i.e. Aadhar
card, Ration card, Electricity bill, Pan card etc.. Thereafter one
Shrutika Chaugule made complaint to the Municipal Corporation
against the plaintiff, alleging that, the plaintiff constructed
unauthorized first floor, which may caused to the other resident and
requested to demolish the same. In response to the said complaint the
concern officer of the BMC had visited the spot, made inspection and
submitted report to the competent officer, stating that, the plaintiff has
constructed unauthorized first floor, thereby competent officer had
issued Notice to the plaintiff under section 351 of The Mumbai
Municipal Corporation Act 1888 (Hereinafter referred to as MMC Act
for the sake of brevity). After due hearing and after reply of the
plaintiff, the competent officer issued Speaking Order, directing to the
plaintiff to demolish or remove the alleged unauthorized construction,
else, necessary order shall follow.
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S.C. Suit No.3297 of 2019 3 Judgment
2. According to the plaintiff, the inspection report, the Notice
issued under section 351 of MMC Act and Speaking Order are bad in
law, not correct therefore, necessary restraining order needs to be
issued. In fact, plaintiff is the lawful owner. Building was constructed
in the year 1949 or before that. Smt. Shrutika Chaugule has made
complaint to take revenge of the plaintiff but the competent officer did
not consider her submissions and directly issued Notice to remove the
alleged construction. Therefore, plaintiff has filed present suit
restraining the defendants from taking any action as alleged. She
prayed, suit be decree with costs.
3. Defendant has filed written statement vide Exh.6 and
contested the suit in toto, saying that, the contents/averments made by
the plaintiff in the suit are not correct. Plaintiff ought to have issued
statutory Notice to the defendant before filing of the suit under section
527 of the MMC Act. Plaint does not disclosed cause of action. The
suit property is vague and not identifiable. In view of section 515A of
the MMC Act, this Court has no jurisdiction to entertain the suit for
challenging the Notice under section 351 of the MMC Act. Plaintiff
ought to have approached before the proper forum for redress his
grievance. On the complaint of Smt. Shrutika Chaugule, the competent
officer of the BMC had visited the spot and noticed that, plaintiff has
constructed unauthorized first floor. He submitted report to the
competent officer, wherein he issued Notice. Plaintiff has submitted
reply but no cogent documents could filed to establish that, the alleged
construction carried out with the permission of BMC Rules. Thereafter,
Speaking Order came to be issued, even though, the plaintiff did not
remove the alleged construction. First floor construction is totally
illegal and unauthorized. Notice issued by BMC under section 351 of
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S.C. Suit No.3297 of 2019 4 Judgment
MMC Act is correct and legal as per the provision of law. Defendant is
taking steps as per the due procedure. Considering the same, suit
would not be tenable and liable to be dismissed. He prays, suit be
dismissed with costs. To support his contention, he placed reliance in
the case of Seema Arshad Zaheer & Ors. Vs. Municipal Corporation of
Gr. Mumbai & Ors, in Special Leave Petition (Civil) 9479/2005; dtd.
05/05/2006.
4. Heard arguments of both sides. Perused the record.
5. Considering the rival pleadings of the parties, my Ld. predecessor
has framed following issues on 06/12/2021. I record my findings to the
issues for the reasons discussed below :
Sr.No. Issues Findings
1. Does Plaintiff prove that, the notice
dtd. 09/04/2019 and order passed on
09/05/2019 is bad in law, illegal and in
operative ?
No.
2. Whether plaintiff is entitled for the
relief of perpetual injunction as prayed? No.
3. What order & Decree? As per Final
Order
R E A S O N S
As to Issue nos.1 and 2:
As issue no. 1 & 2 are intermingle, hence, discussed together for
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S.C. Suit No.3297 of 2019 5 Judgment
convience and to avoid repetations.
6. It is the main contention of the plaintiff that, she has
purchased the suit property from the previous owner Mr. Kishan R.
Wadhwa by way of agreement to sale on 28/07/2006. Since then, she
is in possession of the suit property. One Shrutika Chaugule made
complaint to the Corporation, stating that, the plaintiff has erected
unauthorized construction and thereby the concern officer of the
Corporation had visited the spot, made inspection, issued Notice and
passed Speaking Order.
It is the defence of the plaintiff that, the suit property is
declared as a “slum” as per Notification. His next defence is that, suit
structure was constructed prior to datum-line. When he has purchased
the suit property, already mezzanine floor was constructed, therefore,
Corporation has no right to issue Notice for alleged unauthorized
construction.
7. Defendants have denied the entire thing, stating that,
when the concerned officer has inspected the suit property, he found
that, plaintiff has constructed first floor unauthorizedly and thereby
inspection report carred out. Thereafter, Notice has been issued and
thereafter, Speaking Order came to be passed. Considering the rival
contention of the parties, I scrutinise the pleading of the parties and
documents filed by both the parties.
8. It appears that, one Shrutika Chaugule made complaint to
Mayor and Assistant Municipal Corporation on 06/11/2018 and
22/03/2019 vide Exh.23 & 24 respectively, stating that, there is
unauthorized construction in the suit property by plaintiff. The said
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S.C. Suit No.3297 of 2019 6 Judgment
complainant asked to the plaintiff to remove the same, as it is in danger
to the neighbours but she did not listen. Therefore, she made complaint
to the Corporation.
It further appears that, on the basis of complaint, the
concern officer of the Corporation has visited the spot on 09/04/2019,
stating that, the plaintiff is residing in the suit property. The land of the
spot belongs to Government. The work of status is existing and the area
of alleged unauthorized construction is 10.6 X 3.8 X 2.1. The
unauthorized first floor construction carried out by using BM wall and
AC sheet. It was a extension to the earlier construction and no
permission was sought from BMC authority. The inspection report is
placed on record vide Exh.21. Thereafter, the Designated Officer of the
BMC issued show cause Notice under section 351 of the MMC Act
1888, alleging that, why the unauthorized construction should not be
removed. In response to the show cause notice, the plaintiff has replied
to the notice but no documentary evidence had been produced.
Thereby the competent authority has issued Speaking Order vide
Exh.11. In the Speaking Order, the Designated Officer has clearly
mentioned that, the plaintiff failed to prove the existence of notice
structure is prior to the datum-line for the toleration of the residential
structure, which is on 17/04/1964 or to prove that, the notice structure
is an authorized one as per plans approved by Executive Engineer.
Therefore, the plaintiff was directed to remove the said notice structure
within 7 days from the date of receipt of this letter, failing which, the
same will be demolished by this office entirely at your risk and cost.
Inspite of the Speaking Order, plaintiff has not removed the same.
9. It is pertinent to note that, plaintiff has measirably failed to
show that, the alleged structure falls within the slum area declared by
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S.C. Suit No.3297 of 2019 7 Judgment
the Government Notification. Plaintiff also fails to satisfy that, the
alleged first floor construction is prior to daum-line or he made
construction with the permission of the Corporation. Therefore, Court
has no hesitation to conclude that, the alleged construction is
unauthorized construction of the first floor. Considering the entire
scenario, I am of the view that, plaintiff failed to prove the necessary
ingredient, therefore, suit must failed. Accordingly, I, answer issue nos.
1 & 2 in the negative and proceed to pass the following order.
ORDER
Suit No. 3297/2019 stands dismissed with cost.
(C. S. DATIR)
Judge,
Date: 17/01/2026 City Civil Court,Gr. Mumbai.
Dictated on : 17/01/2026
Typed on : 17/01/2026
Checked on : 17/01/2026
Signed on : 19/01/2026
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S.C. Suit No.3297 of 2019 8 Judgment
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
19/01/2026 S.S.Sawabt (Grade-I)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room no.) HHJ Shri C. S. DATIR
(Court Room No.04).
Date of Pronouncement of Judgment/Order 17/01/2026
Judgment/Order signed by P.O. on 19/01/2026
Judgment/Order uploaded on 19/01/2026
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