Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 L.C. Suit No.1846/2018
...Order on NM No.2008/2018
MHCC010065732018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE of MOTION NO.2008 of 2018
IN
L.C. SUIT NO.1846 of 2018
Mr. Shahid A. Khan ....Plaintiff
Versus
Municipal Corporation of Gr. Mumbai & Ors. ….Defendants
CORAM : HIS HONOUR JUDGE SHRI C. S. DATIR
(C.R. NO.04).
DATE : 10.09.2026
Appearance:
Advocate Mr. Murudkar for plaintiff.
Advocate Ms. Rupali Patil for defendant/MCGM.
Advocate Mr. Raj Gupta h/f Adv. Khobragade for defendant no.3
ORDER
1. Plaintiff has taken out this Notice of Motion, requesting to
restrain the defendant from acting in pursuance to the impugned Notice
issued under section 351 of the MMC Act on 31/01/2018.
2. According to him, he is an occupier of shop and run the
business in the name and style of ‘Shalimar Stones’ at L.B.S. road,
Mulund, Mumbai. The owner of the said factory was allowed to the
plaintiff’s father as a employee in the factory namely ‘Qadir Tin Factory’.
After the death of plaintiff’s father, plaintiff being a son is using and
occupying the said premises till date. The previous owner has allowed
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the plaintiff’s father to use and occupy the unit on humanity ground
and since then, plaintiff is in possession. Tehsildar has also issued
certificate on 22/08/1976 to run the shop. Therefore, the question
does not arise that plaintiff has erected illegal construction thereon.
3. He has further contended that, in the year 1980, the
Government had conducted survey and issued census card in the name
of plaintiff’s father. The suit premises is in existence since beginning as
it is. Plaintiff or his father never made illegal construction at the site.
He has also obtained shop and establishment certificate. He has also
obtained MSEB electricity connection and paying assessment tax since
1995. The defendant Corporation ought not to have issued impugned
Notice for demolition. Whatever documents submitted by the plaintiff
were not considered by the competent officer and without giving
personal hearing, the Speaking Order came to be passed. Some
developer has vested interest in the suit property as they want to
develop the property in order to deprive the right of the plaintiff. In
fact, no cause of action arose to file the suit. Notice is illegal, bad in
law and not binding upon him, therefore, Notice of Motion be allowed.
To support his contention, he placed following citations.
1. First Appeal No.1161/2024, Diwakar Ratan Thakur Vs.
MCGM, AIR Online 2025 BOM 260
2. Amba Chawl Wadi Rahiwasi Seva Sangh, Mumbai Vs.
MCGM & Ors. 2005 AIH 3221 (Bombay High Court)
3. Suresh Shankar Rokade Vs. MCGM & Anr. 2018(5) ABR
165 (Bombay High Court)
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4. As against, the defendant has filed reply and resisted the
Notice of Motion, stating that, the averments made therein are not true
and correct. As per section 515A of the MMC Act, the Civil Court has no
jurisdiction to entertain and try the impugned Notice. Before filing the
suit, Statutory Notice has not given to the plaintiff under section 527 of
the MMC Act. To issue impugned Notices regarding illegal structure is
executive and administrative act of the Corporation. No valid cause of
action arose to file the suit.
5. He further contended that, plaintiff has not produced single
document neither before the Designated Officer nor before the Court
which will be proved that, structure is constructed with prior permission
of the authority or structure is regularized by the authority. Defendants
have inspected the suit structure on 31/01/2018 through their officers
and during inspection, they found that, plaintiff has done unauthorized
construction of shop with MS sheet wall and GI sheet roofing
admeasuring as shown in the sketch. The copy of inspection report and
photographs are annexed herewith.
6. Thereafter, Notice under section 351 of the MMC Act dated
31/01/2018 came to be issued directing to show sufficient cause within
7 days as to why the unauthorized construction should not be
demolished. Plaintiff has filed reply to the impugned Notice and after
considering the documents, detailed reasoned order came to be passed.
Plaintiff failed to file single documents which will prove the authenticity
of the Notice structure. As plaintiff structure is unauthorized, he can
not seek protection and even he has not applied to regularize the suit
structure. The suit structure does not fall in slum area declared by the
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Government. Plaintiff has suppressed the material facts from the Court,
therefore, he is not entitled the relief. Considering the same, Notice of
Motion be dismissed with costs.
7. Heard arguments of both sides. Perused the record.
8. It is the main contention of the plaintiff that, initially his
father was employee in the factory namely ‘Qadri Tin Factory’. The
owner of the said factory was allowed to the plaintiff’s father to use and
occupy the suit premises on the humanity ground and thereafter,
plaintiff runs the said shop as a owner. After the demise of father of
plaintiff, plaintiff himself run the shop since long.
9. Learned Advocate of plaintiff has further argued that, he
has paid the property tax for non agricultural purpose and thereby, the
property became non agricultural, therefore, he is entitled the
protection.
I am of view that, the said contention of the plaintiff is not
correct, because, mere party are using the property unauthorizedly for
non agricultural purpose and for that, if Government saddled penalty,
that does not mean, the said property became non agricultural.
10. According to him, the Government has conducted census
and issued census card to him and therefore, he is protected by the act.
I am of view that, the said defence also would not be
tenable, because, plaintiff is not owner of the suit structure. He has
occupied the suit structure and constructed it unauthorizedly. Mere he
is in possession over the property, that does not mean, his possession
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over the suit structure is protected under the census survey. The census
survey at the most indicate that, he is in possession of the suit structure.
11. The Learned Advocate of plaintiff has further attracted my
attention towards the census certificate dated 28/10/1980. Though he
might be having census certificate, that does not mean, he has right to
construct the structure by illegal way. After all permission from the
competent authority is mandatory. In the present case, plaintiff failed to
obtain the same. Therefore, that defence also would not tenable.
12. Further he has submitted that, the shop act license,
electricity bill, property tax to prove that the suit structure is authorized
by the competent officer. But I am not agree with this contention,
because, those documents are not sufficient to show that, he has
constructed the shop with the permission of the competent officer.
13. On the contrary, it appears that, during the course of
inspection the officer of the defendant, they found that the suit
structure is unauthorized and thereby, Notice under section 351 of the
MMC Act came to be issued. He was called upon by the show cause
Notice that, the suit structure is authorized by the Corporation but he
failed to file the same and thereby, after giving personal hearing,
Speaking Order came to be passed. Upon considering the documents,
the Designated Officer has come to the conclusion that, plaintiff has
constructed unauthorized construction of shop with MS sheet wall, and
GI sheet, roofing admeasuring 21.70 mtr. X 5.85 mtr with average
height 4.90 mtr..
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14. There is no single documents to place on record to show
that, the alleged structure is constructed with the prior permission of
the Corporation. The alleged photo-pass or census certificate, shop act
license, property tax do not show that, the plaintiff has sought any
permission from the competent authority to erect the Notice structure
or the Notice structure is prior to the datum-line i.e. 01/04/1962 ( for
commercial purpose). Therefore, those documents are not helpful to the
plaintiff in the given scenario.
15. In short, the Notice structure is not authorized. Plaintiff is
neither owner, nor obtained necessary permission from the Corporation
to construct it. In the circumstance, he is not entitled protection as
alleged. In the circumstance, the citations filed by him would not be
helpful. Hence, I proceed to pass the following order.
ORDER
Notice of Motion No.2008 of 2018 is hereby
dismissed and disposed of accordingly.
(C. S. DATIR)
Judge,
Date: 10/09/2026 City Civil Court,Gr. Mumbai.
Dictated on : 10/09/2026
Typed on : 10/09/2026
Checked on : 10/09/2026
Signed on : 10/09/2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
10/09/2026 S.S.Sawant (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 10/09/2026
Judgment/Order signed by P.O. on 10/09/2026
Judgment/Order uploaded on 10/09/2026
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