Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Suit No.1576/2019
...Order on NM No.2469/2019
MHCC010067802019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE of MOTION NO.2469 of 2019
IN
SUIT NO. 1576 of 2019
Chandrakant Dinkar Bhosle & Anr. ....Plaintiffs
Versus
Municipal Corporation of Gr. Mumbai & Anr. ….Defendants
CORAM : HIS HONOUR JUDGE SHRI C. S. DATIR
(C.R. NO.04).
DATE : 24.03.2026
Appearance:
Advocate Mr. A.R. Pandey a/w Shobhit Shukla for plaintiff.
Advocate Ms. Rupali Patil for defendant/MCGM.
ORDER
1. Plaintiff has taken out this Notice of Motion, requesting to
restrain the defendant or his representative from demolishing the suit
shed being a part and parcel of the suit Hotel in pursuance of the Notice
under section 351 of the MMC Act dated 02/02/2019, first impugned
order dated 18/06/2019 and second impugned order dated
01/08/2019. The suit property is more elaborated in the plaint as well
as Notice of Motion.
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2. According to him, he has challenged the illegality of the
action of the defendant set out in the plaint and Notice of Motion.
According to him, plaintiff no.1 purchased the suit Hotel in the year of
1999. Initially, it was run by the Anil Sharma (Predecessor in title).
After purchasing the suit property, he pays maintenance charges to the
society and other necessary charges. He has obtained necessary licenses
from the authority to run the Hotel. The Hotel is situated in the
building at ground floor. The suit structure i.e. shed is part and parcel of
the suit Hotel since long. The shed is erected in front of the Hotel for
hygienic condition. It does not create nuisance to the public at large.
One complainant by name Sanjay Sawant made complaint to the BMC
to blackmail him and to get the premium from plaintiff. On the basis of
false complaint, the defendant wanted to demolish the suit shed
without following due process of law. Plaintiff had filed earlier suit no.
1238/2012, which came to be decreed on 19/4/2017 in favour of
plaintiff and protected the shed in question by observing that, the
Notice issued under section 351 of MMC Act was illegal and bad in law.
3. They have further contended that, inspite of the said
Judgment and decree dated 19/04/2017, defendant has issued Notice
under section 351 of the MMC Act on 02/02/2019, wherein disputed
shed was targeted to be demolished. In fact, the defendant can not
reissue Notice on the same cause of action, therefore, the Notice in
question is illegal and bad in law. Defendants are not entitled to issue
the said Notice under section 351 of the MMC Act, therefore, the said
Notice needs to be declared as null and void and required to be struck
down. The Notice is contrary to the provisions of section 342 and 347
of the MMC Act. Whatever documents filed by the plaintiff before the
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Designated Officer have been not considered and it was flatly denied.
The defendant ought not to have issued the impugned Notice again and
the especially, when the previous notice was struck down by the Court.
Even defendant has not considered the guidelines laid down in case of
Sopan Maruti Thopte & Anr. Vs. Pune Municipal Corporation & Anr.,
Report in 1996 (2), ALL MR 383. Therefore, he prays, Notice of Motion
No. 2469 be allowed as prayed. To support his contention, he placed
following citations;
1. Gujarat Bottling Co. Ltd. and Ors. Vs. Coca Cola Company a
& Ors., C.A. No.6839,6840/1995.
2. Anand Prasad Agarwalla Vs Tarkeshwar Prasad Agarwalla
V882-883 2001 SC.
3. Dalpat Kumar Ors. Vs. Prahlad Singh & Ors. C.A. 5054-55
of 1991 dtd. 16/12/1991 SC.
4. Zenit Mataplast Vs. State of Maharashtra & Ors. SC-2009.
5. M. Gurudas & Ors. Vs. Rasranjaj and Ors. SC/8491/2006.
6. Pali Hill Tourist Hotel Pvt. Ltd. Vs. MCGM, A.O. 715/2014
BHC dtd. 06/06/2017.
7. Tanuja Jayanti lal Bhagat Vs. MCGM, WP(L) 231/17.
8. Mohd Yusuf Abdul Sattar Vs. MCGM, A.O. N.O-712/1996.
4. Defendant has filed reply cum written statement and
objected the same, saying that, the averments made in the plaint and
Notice of Motion are not correct. Order passed by the Designated
Officer shall not be challenged in the Civil Court under section 515A of
the MMC Act. Plaintiff has not issued Statutory Notice under section
527 of the MMC Act before filing the suit. If Designated Officer has
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issued the Notice under section 351 and 354A of the MMC Act
regarding unauthorized construction, the Civil Court has no jurisdiction
to entertain the suit. Even plaint does not disclosed the cause of action.
5. Defendant has further contended that, they had issued
Notice under section 351 of the MMC Act for removal of unauthorized
construction. Though earlier suit was decreed but it was decreed only
on the ground that, the Notice was not issued by the Designated Officer.
The earlier Notice was declared as null and void, that does not mean
that, the defendant can not reissue impugned Notice, if alleged
construction appears to be unauthorized.
6. He has further contended that, in fact, suit premises was
inspected by the concern officer of the defendant on 02/02/2019,
observing that, the owner of the suit premises had carried out
unauthorized construction of the shed erected by M.S. pipe and angles
with fiber sheet roofing covering compulsory open space between
approved building line and compound wall, admeasuring 15 mtr. X 4
mtr. X 3 mtr. as mentioned in the sketch to the Notice structure. The
officer of the defendant made enquiry about the documents but the
owner of the Hotel failed to produce the same, showing the authenticity
of the structure. Hence, officer has prepared Inspection report. And
after going through the entire documents, he came to conclusion that,
Notice structure is unauthorized and liable to be removed, hence,
Notice under section 351 of the MMC Act dated 02/02/2019 came to be
issued. Sufficient time was granted to the plaintiff to produce the
documents, if any, but they did not. Therefore, Designated Officer has
passed Speaking Order on 18/06/2019 and thereby, directed to the
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plaintiff to remove the said Notice structure within 7 days. The Notice
issued by defendant is valid, correct and in accordance with law. There
is no illegality as such. The alleged construction is unauthorized and it
can not be protected. Plaintiff has suppressed material thing from the
Court. No prima facie case is made out. No balance of convenience tilt
in his favour. Hence, Notice of Motion be dismissed with costs. To
support his contention, he placed following citations and circular.
1. Abdul Razzaq Sunesra Vs. MCGM, Writ Petition (L)
NO.1709/2013 dtd. 17/07/2013.
2. Appeal From Order No.8/2021, dtd. 18/02/2021 by
Hon’ble High Court.
3. Circular No. HO/13761/C dtd. 10/10/2001.
7. Heard arguments of both sides. Perused the record.
8. It is the main contention of the plaintiff that, they have
purchased the suit property from one Anil Sharma in the year of 1999.
His predecessor in title was running the Hotel Ruchira. After purchasing
the suit property, plaintiff continued to run the said Hotel. He is legally
owner and in possession over the suit property.
His main defence is, the impugned Notice issued by the
Corporation under section 351 of the MMC Act is illegal and not in
accordance with law. On the basis of impugned Notice, the defendant
can not passed Speaking Order to remove or demolish the shed of the
Hotel.
9. The learned Advocate of plaintiff has argued that, the
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defendant/Corporation had also issued Notice under section 351 of the
MMC Act on 25/4/2012 in respect of the same shed. On the basis of
said Notice, the plaintiff had filed suit No.1238/2012. The said suit
came to be decreed in favour of plaintiff on 19/4/2017, therefore,
plaintiff is not supposed to reissue Notice under section 351 of the MMC
Act on 02/02/2019 and on that basis, Corporation can not passed
further Speaking Order.
10. I am of the view that, the said contention of the plaintiff is
not acceptable, because, though the previous suit No.1238/2012 came
to be decreed in favour of plaintiff, observing that, the impugned Notice
under section 351 of the MMC Act dated 25/4/2012 was illegal and bad
in law. However, upon perusal of the decree passed on 19/4/2017, my
Predecessor has observed that,
‘The disputed shed is not erected as per sanction plan. For
the very reason, the plaintiff had not filed the sanction
plan on record. In absence of sanction plan, one can not
say that, the disputed shed is authorized. Even he has not
filed the copy of the Sale Deed of the shop on record for
the kind perusal of the Court’. There is no document on
record to show that, the plaintiff has erected shed as per
the sanction plan.”
11. I am of the view that, my predecessor has came to
conclusion that, shed was not erected as per sanction plan, however,
suit was decreed on the ground that, the impugned notice was not
issued by competent Designated Officer.
Therefore, I am of the view that, though the earlier Notice
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was declared as illegal and bad in law, that does not mean, the
Corporation is legally prevented to issue another impugned Notice, if
exigency arises. Admittedly, there is no documents on record that, the
shed in question is erected as per the sanction plan or with the
permission of the competent authority. Thus, I am of candid opinion
that, the BMC/ Corporation has every right to issue another Notice
under section 351 of the MMC Act, if necessary.
12. According to BMC/Corporation, the impugned shed is
illegal and unauthorized. Even plaintiff has extended earlier shed
illegally and for that purpose, he has attracted my attention towards the
earlier Notice dated 23/4/2012.
I have perused the same minutely, wherein, the sketch map
clearly goes to show that, the measurement of the alleged unauthorized
shed was 5.65 mtr X 13.30 mtr. X 3.35 mtr.
The Advocate of defendant has also attracted my attention
towards the present impugned Notice under section 351 of the MMC
Act dated 02/02/2019, wherein, the measurement of the alleged shed is
15 mtr. X 4 mtr.
It means, the shed was extended by the plaintiff illegaly to
the earlier shed. If the earlier shed is extended, the Corporation has
right to issue Notice under section 351 of the MMC Act. Mere earlier
Notice declared as illegal, that does not means, the Corporation is
permanently prevented from issuing further Notices on the subsequent
cause of action. Therefore, the Notice issued by the Corporation is
rightly issued on 02/02/2019. Plaintiff is taking undue advantage of the
previous order passed in suit No. 1238/2012. He is avoiding to file
sanction plan on record if at all, in existence.
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I am of view that, there is no sanction plan regarding the
shed in question, that is why, plaintiff failed to file the same on record.
The competent Designated Officer has visited the spot in question,
measured the extended area and came to conclusion that, plaintiff has
erected unauthorized construction of shed erected by M.S. pipes and
angles with fiber sheet roofing covering compulsory open space
between approved building line and compound wall, admeasuring as
shown in the sketch.
The Corporation has also filed one circular
No.HO/13761/C dtd. 10/10/2001 wherein, it has mentioned that,
In case of Co-operative Housing Society, licensee of
the eating house shall also give undertaking to stop
the use of open space without any claims whatsoever
as and when directed by the BMC. No cooking
/preparation of the eatables be allowed in the open
space. Similarly fast food stalls/ice cream parlour/
pan bidi stall etc. shall not be permitted in open space
to be used.
13. Considering the totality, the citations filed by learned
Advocate of plaintiff would have no bearing. The Notice issued by the
BMC/Corporation under section 351 of the MMC Act dated 02/02/2019
and thereby passed Speaking Order are correct, valid and have binding
force to the wrongdoer. There is no illegality as such. Hence, Proceed
to pass following order.
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ORDER
Notice of Motion No.2469/2019 stands dismissed and
finally disposed of.
(C. S. DATIR)
Judge,
Date: 24/03/2026 City Civil Court,Gr. Mumbai.
Dictated on : 24/03/2026
Typed on : 24/03/2026
Checked on : 25/03/2026
Signed on : 25/03/2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
25/03/2026 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 24/03/2026
Judgment/Order signed by P.O. on 25/03/2026
Judgment/Order uploaded on 25/03/2026
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