Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 L.C.Suit No.985/2020
...Order on NM No.3179/2019
MHCC010086442019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE of MOTION NO.3179 of 2019
IN
L.C. SUIT NO.985 of 2020
Chitra Salunke ....Applicant
In the matter between
Chitra Salunke ....Plaintiff
Versus
Municipal Corporation of Gr. Mumbai. ….Defendants
CORAM : HIS HONOUR JUDGE SHRI C. S. DATIR
(C.R. NO.04).
DATE : 23.01.2026
Appearance:
Advocate Mr. Sahil Mahajan for plaintiff.
Advocate Ms. Vidya Vyavhare for defendant/MCGM.
ORDER
1. Plaintiff has taken out this Notice of Motion, challenged the
impugned order dated 03/08/2019 on the basis of Notice No.MW/
DO2MW/152/53-1-MRTP Act/MW19/ No1/26-6-2019, issued under
Maharashtra Regional Town Planning Act, (Hereinafter referred to as
‘MRTP Act’ for the sake of brevity). He requests, impugned Notice be
stayed till pendency of the suit. Plaintiff also prays that, during the
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pendency of the suit, defendants be restrained from taking action
against the applicant in pursuance of impugned order dated
03/08/2019.
2. According to him, the impugned order dated 03/08/2019
on the basis of notice is null and void and required to be quashed and
set aside. Plaintiff has purchased flat from one Kamran Mustaq Shaikh
on 21/06/2019. Since then, he is in possession. On 26/06/2019
defendant no.2 issued notice under section 53(1) of the MRTP Act to
the the developer, Architect and 8 tenants/occupants of the various flats
of the building. However, the said notice does not disclose about the
specific alleged unauthorized construction in flat no.701. It is not
possible to know the exact nature of illegality covered under the Notice.
He further contended that, by way of Notice dated 26/06/2019,
defendant no.2 called upon the members to demolish the portions
constructed beyond the approval and in contravention to the approval
granted by the Engineer. The plaintiff had replied the notice and asked
to give information regarding the illegal construction but defendant did
not give its details. Therefore, the alleged notice required to be stayed
and defendants be restrained from taking any action against him. To
support his contention, he placed reliance on following citations.
1. Laxman Barkya Wadkar (Since deceased through legal heir
and representative) & Ors Vs. Mumbai Municipal
Corporation of India; 2011 SCC OnLine Bom 2162.
2. Directions in the matter of demolition of structures, in RE;
(2025) 5 SCC 1.
3. Defendant/Corporation have filed reply and resisted the
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Notice of Motion in toto, saying that, plaintiff has not given statutory
notice under section 527 of Mumbai Municipal Corporation Act.
(Hereinafter referred to as MMC Act for the sake of brevity) before
filing suit. Plaint does not disclosed the cause of action. The suit does
not disclosed the description of the property under Order-7 Rule-3 of
CPC. The suit is also not tenable under section 149 of MRTP Act.
Inspecting officer of the defendant have asked to the occupier to
produce authentic documents as such a plan, permission granted for
erection of structure but they did not file. The Inspecting officer took
measurements, photographs and prepared inspection report on
26/06/2019. After inspection report, the officer made sketch and
submitted to the Designated Officer, but after perusing the sanction
plan, he came to the conclusion that, the plaintiff had carried out
unauthorized construction and no permission was granted to erect the
same. That is why, show cause notice was issued. Plaintiff was asked to
remove illegal construction but they did not. Even they have not
produced any documents to show that, the alleged structure is made as
per the sanctioned plan. Without cogent documents, they can not erect
illegal construction, which is squarely contravention of the MMC rules.
On the basis of entire documents, speaking order came to be passed.
There is no illegality as such. The notice issued by Corporation is
correct and in accordance with law, therefore, Notice of Motion be
rejected with cost. To support his contention, she placed reliance in the
case of Sarina Esmeralda Lopez Vs. Vijay Goverdhandas Kalantri & ors.
in Civil Revision Application No. 448/2013, dtd. 16/01/2015.
4. Heard arguments of both sides. Perused the record.
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5. It is the main contention of the plaintiff that, the impugned
notice is incomplete, illegal and not binding on the plaintiff. No details
of the illegal structure has been mentioned in the notice. Notice is
nullity, therefore, this Court has jurisdiction to set aside the said
impugned notice.
I am of the view that, I have gone trough the notice dated
26/06/2019. It reveals that, it has been issued under section 53(1) of
the MRTP Act. The Designated Officer has mentioned in the notice that,
the unauthorized work carried out in contravention to the approval
granted by the office of Executive Engineer dated 03/02/2009 to the
flat in question. The plaintiff has replied to the notice dated
26/06/2019 and given personal hearing. After due hearing, the
Designated Officer come to conclusion that, the alleged development in
the premises of flat no 701 is unauthorized staircase erected in M.S.
Sections in the kitchen. The staircase is erected for accessing the
terrace above the flat. Therefore, he was directed to remove the same
but he did not. The Designated officer has clearly mentioned that, the
plaintiff has erected unauthorized staircase in M.S. Sections in the
Kitchen and staircase is erecting for accessing the terrace above the flat.
6. According to the plaintiff, it is not unauthorized staircase.
Then, it is the duty of the plaintiff to show the sanction plan given by
the Executive Engineer by BMC that, he was allowed to erect the
staircase in the flat to access to the terrace from inside. As plaintiff
failed to show the same, it means, it is a unauthorized construction.
The notice appears to be genuine. Considering the same, the citation
filed by the learned Advocate of plaintiff would not be helpful. Hence, I
proceed to pass the following order.
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ORDER
Notice of Motion No.3179/2019 stands dismissed.
(C. S. DATIR)
Judge,
Date: 23/01/2026 City Civil Court,Gr. Mumbai.
Dictated on : 23/01/2026
Typed on : 23/01/2026
Checked on : 23/01/2026
Signed on : 23/01/2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
23/01/2026 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 23/01/2026
Judgment/Order signed by P.O. on 23/01/2026
Judgment/Order uploaded on 23/01/2026
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