Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010078322019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO.2836 OF 2019
IN
L. C. SUIT NO.2067 OF 2019
Pandharinath Narayan Pednekar (Deceased)
1(a) Smt. Vaishali Pandharinath Pednekar and
another
… PLAINTIFFS
Versus
Municipal Corporation of Greater Mumbai.
… DEFENDANT
APPEARANCES :
Mr. Rahul Thorat, Advocate for the Plaintiff.
Mrs. Sangita Honmane, Advocate for Defendant/MCGM.
CORAM : AMIT ANANT LAULKAR,
JUDGE
COURT ROOM NO.04
DATED : 17th SEPTEMBER, 2025
ORDER
1.
Being irked with action posed by the defendant so also
issuance of notice vide section 351 of the MMC Act, 1988 followed by
Speaking order dated 16.03.2019, the plaintiff herein filed present suit
for declaration and injunction wherein instant notice of motion was
moved seeking interim reliefs vide order 39 Rule 1 of The Code of Civil
Procedure, 1908.
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(2)
2.
Bonsai outline of the Notice of Motion states in volume
that the original plaintiff was absolute owner of the premises
admeasuring 3.40 meters X 5.20 meters situated at Opp. Jeevan Naiya
CHS, Pedneker Chawl, behind telephone exchange, Chembur Naka,
Chembur – East, Mumbai – 400 071
(For Brevity referred as ‘suit
premises’). Post demise of the original plaintiff, the present plaintiffs are
the absolute owners and as such in peaceful use, occupation and
possession of two structures at the suit premises. Plaintiff No.1(a) with
the help of plaintiff No.1(b) are presently conducting the business in
front portion of suit premises under the name and style as “M/s. Shilpa
Store” and the rare portion of the suit premises is being used by the
plaintiffs along with their family members as their residence. The suit
premises was originally constructed by father of the original plaintiff i.e.
Mr. Narayan Pedneker and the same has been in existence prior to year
1985. The suit premises is standing beside the road known as
Hajimalang Nagar and the same is neither in nor upon the said road.
The original plaintiff had procured and enjoying telephone, electricity
and water connection facilities at the suit premises. Since long they are
running snack center by obtaining requisite permission from the office
of Shop and Establishment Department of Mumbai Municipal
Corporation. The suit premises is continuously in existence since prior
to 1985 and it is part of censused structure, the same is falling within
the category of tolerated structure as per the policies framed by the
defendant/corporation. Despite such scenario, the defendant has cited
notice dated 12.02.2019 vide section 351 of MMC Act which suffers
from jurisdictional errors. Even prior to issuance of said notice, the
defendants, on the basis of some false and frivolous complaint, had
issued in the name of original plaintiff, notice dated 7th March, 2005
vide Section 314 of MMC Act and as such, the original plaintiff was
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Order (3) Notice of Motion No.2836/2019
In L.C. Suit No.2067/2019
directed to remove the suit premises as it was shown falling on the
public road. Till date no action is taken in pursuance of said notice.
Somehow eventually based on some false complaint defendants issued a
notice dated 12th February, 2019 under section 351 of MMC Act which
was duly replied by the original plaintiff. Thereafter, without pondering
over reply of the plaintiff the defendants passed speaking order dated
16.03.2019 and directed the plaintiffs to remove the notice structure.
Apparently, till date the defendants have not taken any action against
the notice structure in pursuance of their impugned notice. As per
plaintiffs, the Designated Officer has failed to appreciate that the suit
premises is in existence since prior to year 1985 and the same is
protected cum tolerated structure. The speaking order passed by the
designated officer is totally cryptic. The impugned notice followed by
speaking order is void, perverse and bad in law. Challenging the legality
and propriety of the said notice and speaking order, the original plaintiff
knocked the doors of this court and filed instant suit for declaration and
injunction followed by instant motion for interim reliefs. Finally, they
implored for conferring interim reliefs and oblige.
3. Post filing of instant motion the defendant/corporation
caused appearance before this court and raised potent objection for
conferring or extending any kind of interim reliefs in favour of the
plaintiffs, with their reply cum affidavit of JE Mr. Pawan Shingare, duly
referring about inspection report. He urged that there is bar of
jurisdiction to this court to entertain present suit out-rightly. According
to him, the notice structure is unauthorized construction and that
cannot be protected in any manner or means of the law. He further
states that upon receipt of complaint, the officer of the defendants
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(4)
visited suit premises on 12.02.2019 for inspection wherein he found
that the original plaintiff has unauthorizedly constructed the notice
structure in deviation with the plans approved by the competent
authority. Upon confrontation, the original plaintiff failed to place on
record any sanctioned plan/permission from the competent authority or
any document prior to the datum line in which notice structure is
reflected. Thus, he was issued impugned notice. Later on the original
plaintiff was conferred with opportunity to reply and explain. Finally
post considering his reply, the defendant authority passed the speaking
order dated 16.03.1019. The notice structure is neither authorized nor
tolerated one.
4. Though earlier the plaintiff was issued notice U/s. 314 of
MMC Act, but eventually the defendants found the notice structure as
unauthorized hence they are not prevented from issuing the impugned
notice vide section 351 of the MMC Act. Plaintiffs case lacks on all
parameters of interim reliefs. At the end, they crave for rejection of the
motion in
limine.
5. Heard learned Advocate Mr. Rahul Thorat for the plaintiffs
and learned Advocate Mrs. Sangita Honmane for the defendant MCGM,
at deep length.
6. I have pore over entire record keenly specially the written
notes of submissions placed by the parties.
7. In view of rival submission following points arose for
consideration, my findings thereon are as follows:
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Order (5) Notice of Motion No.2836/2019
In L.C. Suit No.2067/2019
Sr.No. POINTS FINDINGS
1. In whose favour prima facia case lies? Defendant
2. In whose favour balance of convenience lies? --Do---
3. To whom irreparable loss would cause? --Do--
4. What order? .. As per Final
Order.
REASONS
8. All above points are interlinked therefore they are taken up
together for consideration and due deliberation.
9. Incisively, the plaintiff has claimed temporary injunction
against the defendant authority. While conferring and adjudicating such
relief, the plaintiff must approach to the Court with equity. It being
equitable relief must show the bonafide’s of the plaintiff at its peak.
10. Precisely by way of present suit plaintiffs have challenged
notice vide section 351 of the MMC Act, and further sought declaration
to the effect that the said action as well as speaking order passed by the
defendant/MCGM be declared as null and void. Considering the specific
prayers, at the outset, there seems legal embargo rendering over the
reliefs claimed by the plaintiffs, which deserves deliberation.
11. 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
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(6)
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
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
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Order (7) Notice of Motion No.2836/2019
In L.C. Suit No.2067/2019
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".
12. The citation of
Mansoori (mentioned above) 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
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.
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(8)
13. 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.
14. Conjoint reading of aforesaid verdicts and keeping the dicta
of the Division Bench of the Hon'ble Bombay High Court in mind, it can
be inferred that the scope and ambit of the jurisdiction is narrow down
and as such, there is no unfettered right for unlimited challenge to the
orders, decisions, directions issued or any notices issued U/s 351 and
354-A by the Designated officer of MMC Act, except otherwise than the
jurisdictional error and plea of nullity. It may defer from case to case
basis. Utmost recently, the Hon'ble Bombay High Court, once again,
upholding the object of incorporating insertion of section 515A to the
MMC Act, reprimanded the legal mandate for entertaining suits in the
case of
Snehadeep Krida Mandal Vs. MHADA and others, Writ Petition
No.2174 of 2024, decision dated 28th February, 2025, in following
words :
16. Therefore, in our view, when a Civil Court receives
a plaint and an application for interim relief such as a
stay or status quo order-challenging notices issued by
the Municipal Corporation under Sections 351 or 354
of the BMC Act, or under similar provisions (pari
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Order (9) Notice of Motion No.2836/2019
In L.C. Suit No.2067/2019
materia) of the Maharashtra Municipal Corporations
Act, 1949 it must first determine whether the parties
have exhausted the statutory remedies available to
them. This includes pursuing the appropriate
mechanism for grievance redressal before seeking
judicial intervention.
17. The Trial Court must also address the issue of
jurisdiction by examining the averments in the plaint.
If these do not warrant the application of the legal
principles in question, then provisions analogous to
section 515A of the BMC Act or section 433A of the
MMC Act, 1949, must be considered. Importantly, the
Civil Court is duty-bound to take cognizance of the
statutory provisions and any legal bar-whether or no
such an objection is raised by any party thereto.
Finally, the Civil Court must keep in mind the
principles of law enumerated by the Division Bench of
this Court in the case of Abdul Razzaq Sunera (supra).
15. Applying aforesaid legal scenario to case in hand, it
emerges that apparently there is legal bar of jurisdiction while
entertaining reliefs claimed by the plaintiff. It is nowhere prima facie
shown by the plaintiff that there was a jurisdictional error on the part of
defendant authority while issuing impugned notice. The Court cannot
go along with the perception of the plaintiff thereby inferring that the
notice issued to them was bad in law without there being any clarity
and prima facie substance in it. At the moment, primarily, there is no
stock of pleading or documentary evidence coupled with conduct of the
parties and circumstances thereby revealing that the defendant/
corporation acted in bad faith and their action is completely bad in law
thereby depicting a jurisdictional error. As it seems from the record that
post citing notice under section 351, the plaintiff was given opportunity
to tender his reply and documents and eventually, after considering
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(10)
overall scenario and giving opportunity to the plaintiff of hearing, the
designated officer of the defendant passed speaking order dated
16.03.2019 thereby directing the plaintiff to pull down the notice
structure. Thus, it reflects that the rule of natural justice i.e.
Audi-
Alteram-Partem, is primarily followed thereby upholding the rights of
the plaintiff as regard notice structure is concerned, ensuring that he is
not adversely or prejudicially affected by an order made by the
defendant authority. Thus, in view of aforesaid legal scenario, I
perceive, primarily there is legal bar of jurisdiction which is popping up
and rotating around with instant
lis.
16. To add, on aforesaid count, the plaintiff has not prima facie
shown any jurisdictional error caused at the instance of the defendant.
At the most, the plaintiff could have pursued the appropriate
mechanism of grievance redressal before the defendant forum however,
no such steps shown to have been taken. Ultimately, instant suit
vise-a-
vise Notice of Motion renders shades of doubt over jurisdiction of this
Court to entertain the same.
17. Apart from aforesaid legal scenario, having scanned bunch
of documents placed on record, it reveals that as per plaintiff, the notice
structure is existing since long much prior to the year 1985 and they
have not carried out any new construction. Though it is urged that
notice structure is long existing but, there is no as such approval or
sanction conferred by the defendant/corporation for carrying out the
said work. No such approval or sanction plan is placed on record by the
plaintiff. On other side, the defendant on affidavit submitted the
Inspection report dated 12.02.2019 wherein the authorized Officer
visited the notice structure and he authored the inspection report. He
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Order (11) Notice of Motion No.2836/2019
In L.C. Suit No.2067/2019
found unauthorized construction therein. Pertinent to note that when
confronted, no sanction plan or permission was shown by the plaintiff
for the said work. I believe, that would be the point wherein the
defendant/ corporation called upon the plaintiff to pull-down the notice
structure. At the actual site it was revealed that unauthorized
construction which is being carried out that too without prior
permission from competent authority of the defendant/MCGM. Even
the plaintiffs have not placed on record any sanctioned plan/
permission from the competent authority or any document prior to the
datum line in which notice structure is reflected. Prima facie, plaintiffs
have not shown that the work carried out was mere temporary work to
the existing structure. In the event, I believe there is no prima facie
substance even on the merits, at the moment, in the submissions posed
by the plaintiffs. They have not shown prima facie substance in their
version. Certainly, plaintiffs are not entitled for equitable reliefs.
18. To fortify such aspects, a useful reference on the point can
also be taken from the verdict delivered by Hon'ble Bombay High Court
in the case of
Tushar Guru Salien Vs. State of Maharashtra in PIL
bearing No.67/2017 order dated 28.08.2019, wherein in Para No.5, the
Hon'ble High Court expounded and held that,
“
Concerning a property, a suit to enforce or protect
an interest in the property which is governed by a
Municipal Statute, the interest protected has to be
with respect to a plea that prim-facie, the structure
which is being targeted is an authorized structure.
Meaning thereby, the plaint must make an averment
of the sanction obtained from the Corporation and
must make an averment that the structure targeted is
prima-facie governed by the sanction. Merely
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(12)
pointing out deficiencies in the notice or the
authority of the person issuing the notice is neither
here nor there. Thus, the sine qua non of such kinds
of suits is a positive assertion made with reference to
the sanctioned building plans.”
19. In instant
lis, admittedly, the plaint is not annexed with any
permission or approval/sanction obtained from the defendant /
corporation for carrying out so called notice work which according to
defendant is an unauthorized structure. In absence of such vital
documents cum pleadings no positive assertion can be made regarding
the notice structure at this prima facie level.
20. With all the eloquence at his command, lnd. Advocate for
the plaintiff did submit that the original plaintiff was earlier cited with
notice vide Section 314 of the MMC act, and till date no action is
initiated by the defendant’s in pursuance with said notice. It is urged
that the defendant’s gave assurances and as such they were ready and
willing to provide to the plaintiff a permanent alternate accommodation
in lieu of notice structure however somehow said arrangement did not
materialize. Instead of following their words, with ill intention,
defendants have proposed action under section 351 of the MMC act and
issued false and frivolous impugned notice which is misconceived in
square manner.
21. Indeed, record unveils that earlier in the year 2005 the
defendents have issued notice under section 314 of the MMC act to the
original plaintiff but this fact itself may not frustrate their subsequent
action posed under section 351 of the MMC act. What is vital to
consider that the factors for issuing preceding notices are altogether
different. The notice structure may fall on the public road or not but
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Order (13) Notice of Motion No.2836/2019
In L.C. Suit No.2067/2019
when it is constructed in deviation of sanction plan the same deserves
action vide section 351 of the MMC Act. Pertinent to note that there is
no precise record thereby reflecting that the notice structure was
constructed with any sanctioned plan/ permission from the competent
authority. If that being factual scenario, the defendants are not
prevented from taking any action vide section 351 of the MMC Act.
Even there appears no stock of documents showing that the defendants
ever assured the plaintiff to provide with a permanent alternate
accommodation in lieu of notice structure. In the event, primarily, at the
moment, I found no bone of substance in the submissions put forth by
the plaintiffs for holding that the action posed by the defendants with
impugned notice has any shades of doubt.
22. Conspectus of the circumstances manifest that at the
moment plaintiffs have not shown prima facie substance in his version
and thus, his imploring stance for conferring interim injunction deserves
disapproval. The plaintiffs claim suffers from legal embargo as well it
has no legs to stand upon merits, even with further deliberation.
23. Conjoint effect of preceding scenario unveils that the
original plaintiff has not approached this Court with equity. They have
not shown prima facie case in their favour. None of the element goes to
highlight prima facie case and substance in the case put-forth by the
plaintiff. In absence of prima facie substance, it cannot be inferred that
balance of convenience lies in his favour. Certainly, it tilts in favor of the
defendant. In such scenario, if temporary injunction is granted then it
would cause more prejudice and loss to the defendant. The defendant
authority would put to more hardship as compared to the plaintiff.
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(14)
Naturally, instant notice of motion deserves disapproval. To sum up, I
answer all points in favour of the defendant.
24.
Ergo the order.
ORDER
Notice of Motion No.2836 of 2019 stands rejected and disposed
of accordingly.
(Amit Anant Laulkar)
Judge,
Date : 17.09.2025 City Civil Court, Mumbai
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Order (15) Notice of Motion No.2836/2019
In L.C. Suit No.2067/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
19.09.2025 5.30 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 17.09.2025
ORDER signed by P. O. on 19.09.2025
ORDER uploaded on 19.09.2025
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