Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Suit No.2409/2019
...Order on NM No.3382/2019
MHCC010092422019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE of MOTION NO.3382 of 2019
IN
SUIT NO.2409 of 2019
Rosy Paul Nunes ....Plaintiff
Versus
Municipal Corporation of Gr. Mumbai. ….Defendants
CORAM : HIS HONOUR JUDGE SHRI C. S. DATIR
(C.R. NO.04).
DATE : 17.02.2026
Appearance:
Advocate Mr. S.K.Bhosale for plaintiff.
Advocate Ms. Vidya Vyavahare for defendant/MCGM.
ORDER
1. Plaintiff has taken out this Notice of Motion, requesting to
restrain the defendants from demolishing or pulling down the suit
structure or any portion thereof in pursuance of Notice dated
12/07/2018 issued under section 354A of MMC Act and Speaking
Order dated 31/08/2019.
2. According to plaintiff, she is occupier of the suit structure
for last more than 70 years. Her father was owner of the property prior
to 1955. Suit structure is permanent. Her father pays Assessment tax
time to time since 1955. Electricity meter was also installed by the
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BSES, The water meter was also installed. As suit premises is very old,
required certain repairs of plastering of wall and replacement of cracked
AC sheet on the roof. Repairs were completed in 2019 before the
impugned Notice came to be issued.
3. She further contended that, on account of false complaint,
defendant had issued impugned Notice under section 354A of MMC Act,
alleging that, it is a unauthorized construction with BM wall. The
Notice issued by the Corporation is illegal and bad in law. Defendant
threatened to demolish the suit structure. Whatever structure erected by
the plaintiff is tenantable repairs as provided under section 342 of MMC
Act and it is not permanent structure or unauthorized structure. The
photographs are place on record for the perusal of the Court. No sketch
or measurement has been mentioned in the alleged Notice.
4. She lastly prays, defendant be restrained from acting or
demolishing the suit structure in pursuance of the impugned Notice. To
support his contention, he placed following citations.
1. WP No. 1323/2005, M/s. Sub Vijay International Pvt. Ltd.
Vs. MCGM, dtd. 28/06/2006.
2. 1996 (1) Mh.L.J. Order in WP Nos. 4765 to 4767/1995,
Sopan Maruti Thopte & Anr. Vs. Pune Mun. Corpn.
3. SC Order in SLP No.9049/2006 Muni Suvrat Swami Jain
S.M.P. Singh Vs. Arun Nathuram Gaikwad & Ors.
4. HC Order dated 15/04/1999 in AO No.257/1999.
5. Circular dated 01/04/2006 by Mun.Corpn. Gr. Mumbai
with Circular dated- March 2006.
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5. As against, the Learned Advocate for defendant filed
affidavit of Vijay Mutrak, Jr. Engineer, cum say alongwith documents to
oppose the Notice of Motion, stating that, plaintiff has not issued
Statutory Notice to the defendant for filing the suit under section 527 of
MMC Act. On that ground alone, Notice is not tenable. The Notice
issued by the Corporation is its executive acts and it is not open to
challenged in the Court of law. Plaint does not disclosed the cause of
action.
6. He further contended that, one Nasim Qureshi has made
complaint on 24/06/2019 regarding the unauthorized construction and
on the basis of complaint, the competent officer of Corporation has
visited the spot and inspected the suit structure in question. While
inspecting the suit structure, they noticed that, plaintiff has made
unauthorized construction with BM walls 9.0 mtr. length X 6.0 mtr.
width and 2.4 mtr. height. They have also taken photographs and filed
on record. Thereafter, they have issued Notice under section 354A of
MMC Act to stop the work fourthwith. The Designated Officer has also
informed him that, if you have any permission approved by the
competent authority in favour of erection of the building or execution of
work, you may produce the permission within 24 hours from the service
of this Notice. In response to the 354A of MMC Act Notice, the plaintiff
has produced Assessment of property and property card before the
Designated Officer. An opportunity of personal hearing was given to him
and after hearing, the Designated Officer come to conclusion that, the
property Assessment document from AAC department, the structure
only 20.48 sqm of SAC and 13.02 of SAC area is prior to 1961-62 and
remaining structure out of 12 rooms is unauthorized.
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7. Therefore, the Designated Officer issued Speaking Order on
31/08/2019, stating that, to remove the additional structure beyond the
existing area but they did not remov the same and directly approach to
this Court. Therefore, Notice issued by the Corporation is legal, valid
and in accordance with law. Plaintiff has erected unauthorized
construction mentioned in the inspection report or even the Speaking
Order, which cannot be protected. Therefore, Notice of Motion be
dismissed with cost.
8. Heard arguments of both sides. Perused the record.
9. It appears that, the plaintiff appears to be owner of the
basic suit structure. The property card is place on record. The entire
structure is not disputed. The disputed structure is only 9.0 mtr. length
X 6.0 mtr. width and 2.4 mtr. height of BM walls. It appears, one Nasim
Qureshi has made complaint to the BMC office that, the unauthorized
construction was going on at the spot, therefore, the team of the BMC
Officers has came on the spot and inspected the suit property.
10. It further appears that, when the Designated Officer has
came on the spot on 11/07/2019, they noticed that, the structure was
in progress. The height, length and width of the unauthorized structure
is mentioned in the inspection report. The structure is of residential
purpose. They have also taken photographs and filed on record. The
photographs clearly shows that, the structure is in progress and several
rooms are being constructed at the spot. On the basis of inspection
report, the Designated Officer has issued Notice under section 354 A of
the MMC Act on 12/07/2019 and directed to the plaintiff to stop the
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work forthwith. He also directed, if any permission approved by the
competent authority in favour of erection of the building or execution of
the work, he was directed to produce the permission within 24 hours
from the service of Notice, else, the necessary action will be taken. In
response to the Notice under section 354A of the MMC Act, plaintiff
appears before Designated Officer and submitted Assessment of
property and Property card. Upon perusal entire record, the Designated
Officer has come to the conclusion that, only 20.48sqm of SAC and
13.02 sqm of SAC of structure area is prior to 1961-62 and remaining
structure out of 12 rooms is unauthorized, therefore, plaintiff was
directed to discontinue the work of construction and to remove the
additional constructed area. However, they did not removed the same.
11. It further appears that, the entire structure (basic structure)
is not disputed by the BMC. Only unauthorized construction which was
going on 12/07/2019, which is mentioned in the inspection report as
well as Speaking Order are disputed structure i.e.
(9.0 mtr. length X 6.0
mtr. width and 2.4 mtr. Height). Plaintiff failed to show that, they have
taken prior permission to construct the alleged unauthorized
construction. Not only this, the photographs say that, the construction
work is going on at that time, therefore, there is no question that, the
alleged construction is prior to datum-line. Therefore, it can be safely
say that, the alleged structure is unauthorized and it can not be
protected.
12. The Advocate of plaintiff has attracted my attention
towards the property card, property tax receipt, ration card, passport,
Pancard, electricity bills, birth certificate etc. I have perused the same
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minutely. No doubt, plaintiff is residing in the suit structure long back
and the property stands in his name. At the cost of repetition, I would
like to urge that, except the unauthorized construction mentioned in the
inspection note couple with speaking order, the remaining structure is
not disputed by the Corporation. Therefore, the documents filed by the
learned Advocate of plaintiff do not satisfy to the Court that, the
plaintiff has taken prior permission from the competent authority to
construct alleged unauthorized structure or it was of prior to datum-
line. In the circumstances, the citations filed by the Learned Advocate
of plaintiff would have no bearing. Thus, I proceed to pass the following
order.
ORDER
Notice of Motion No.3382/2019 stands dismissed and disposed of
accordingly.
(C. S. DATIR)
Judge,
Date: 17/02/2026 City Civil Court,Gr. Mumbai.
Dictated on : 17/02/2026
Typed on : 17/02/2026
Checked on : 17/02/2026
Signed on : 17/02/2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
17/02/2026 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 17/02/2026
Judgment/Order signed by P.O. on 17/02/2026
Judgment/Order uploaded on 17/02/2026
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