Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010135202019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4937 OF 2019
IN
L.C.SUIT NO.3418 OF 2019
Shri Paresh Devraj Shah
Age : 54 years, Occ Business
Indian Inhabitant, and
carrying on business at Comet Plaza
(previously known as Bharat Flour Mill),
Main Market, St. Xavier Road, Kanjur Village,
Kanjur Marg (East), Mumbai400 042 …. PLAINTIFF
Versus
1. Municipal Corporation of Greater Mumbai,
A body Corporation,
having its registered head office
at Mahapalika Bhavan, Mahapalika Marg,
Mumbai 400001.
2. Asstt. Municipal Commissioner
'S' Ward, Near Mangatram Petrol Pump,
Bhandup (W), Mumbai400 078 …. DEFENDANTS
CORAM : HIS HONOUR JUDGE
R. K. DESHPANDE.
(Court Room No.11).
DATED : 26th March, 2026
APPEARANCE :
Ld. Adv. Mr. R.P. Singh for the plaintiff.
Ld. Adv. Mrs. Sheetal Metakari for defendants/BMC.
ORDER
1. This is the suit to challenge the legality of notice issued by the
defendants corporation dated 03.08.2019 under section 351 of the
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MMC Act and the said order dated 10.12.2019 and for perpetual
injunction restraining defendants BMC from taking action restraining
the defendants.
2. Perused the record and proceeding. Heard both sides at length.
3. Facts of the case can be summarized as follows:-
According to plaintiff he has filed the present suit and by way of
that challenging the impugned notice dated 03.08.2019 and speaking
order dated 10.12.2019 on the grounds, more particularly described in
the plaint. Plaintiff further state that the impugned notice and speaking
order are illegal, bad in law and are required to be quashed and set
aside and the defendants are required to be restrained from acting,
implementing, enforcing the said notice and the reliefs which are
claimed are granted, no harm, loss, injustice and prejudice would be
caused to the defendants whereas if such reliefs are refused great harm,
loss, injustice and prejudice shall be caused to him which cannot be
compensated in terms of money.
4. On the other hand defendants have submitted that in view of the
new amendment to the MMC Act, and new incorporated section 515 A
of MMC Act, the notice and orders passed by the Designated Officer
shall not be challenged in court of law by way of present suit and the
City Civil Court has no jurisdiction to try and entertain the said suit.
Present notice of motion and suit is not maintainable and liable to be
dismissed with cost under order 7 Rule 3 of the CPC, when subject
matter of the suit is immovable property, the plaint shall contain
description of the said property sufficient to identify it. In the present
suit plaintiff failed to describe what suit premises is ? Hence on the sole
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ground, the present motion is liable to be dismissed. Defendants submit
that after receiving complaint from one Vajina Pinto regarding
unauthorized construction done by the plaintiff, on suit premises, the
concerned Beat Officer of the Corporation has inspected the site on
03.08.2019 and he prepared inspection report by taking measurement
of the unauthorized construction. At the relevant time he also asked
about the documents regarding the said structure to the occupier. But
the occupier of notice structure could not produce documents showing
the authenticity of the said structure. Hence, officer of the defendants
prepared the inspection report and forwarded the same to the Higher
authority for perusal and necessary order and when the designated
officer came to the conclusion that the notice structure is unauthorized
one and same is liable to be removed. Hence, notice under section 351
of the MMC Act, for unauthorized construction of G + 1 structure,
consist of 08 shops on ground floor and hall on whole area of first floor
with brick masonry wall and covered with A.C. sheets admeasuring
18.85 m. X 3.65m with total height 6.50m vide no.S/do4s/111/351-
MMC ACT/S331N01/dtd.03.08.2019 has been issued informing that
they have carried out the work without permission and contrary to the
provisions of section 342 and 347 of MMC Act and called the noticee to
show sufficient cause as to why the said work should not be remove, if
he is in possession of documentary evidence showing existence of the
structure prior to datum line. They are requested to produce the same
within the seven days from the date of service of the said notice. The
said notice was duly served upon the owner/occupier and in response
to notice plaintiff had replied the same through his advocate and after
considering reply, and each and every document , designated officer had
passed speaking order dated 10.12.2019 thereby directing the plaintiff
to remove/demolish pull down the notice structure 15 days from the
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date of receipt of order failing which the notice structure will be
demolished by the defendants entirely risk and cost of the plaintiff.
5. The defendants submit that the plaintiff could not produce any
documentary evidence showing authorization of work mentioned in the
said notice and the plaintiff has carried out the said structure without
the permission of defendants. By denying the parawise contention made
by the plaintiff by way of present motion at last defendants have prayed
for rejection of present notice of motion.
6. Considering the submissions, advanced before this Court,
following points are arise for my determination to which my findings
are given below:-
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has made out
prima facie case for granting temporary
injunction ? … In the negative.
(ii) Whether the balance of convenience lies
in favour of plaintiff ? … In the negative.
(iii) Whether the plaintiff would suffer
irreparable loss, if relief claimed for is
not granted ? … In the negative.
(iv). What Order ? … As per final Order.
-:REASONS:-
7. I have gone through the thoughtful consideration to submission
made by the advocate for rival parties.
AS TO POINT NO.1 TO 3:-
8. It reveals from the record that after taking the inspection of the
suit premises, defendants issued notice to the plaintiff. Accordingly the
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plaintiff replied the said notice. Plaintiff has challenged the notice under
section 351 of the MMC Act, and therefore, in view of explanation of
section 351 of the MMC Act, burden lies on the plaintiff to show the
satisfaction of designated officer that the work mentioned in the notice
is carried out in accordance with the provisions of MMC Act. Thus the
burden to prove the legality of the structure is upon the plaintiff. It is
the contention of plaintiff that notice structure is in existence since very
long period i.e., period to 1962. However, at this stage except the bare
words no trustworthy documents has been produced by the plaintiff to
show the existing of structure prior to datum line. No doubt the copy of
notification, SRA shows that the said CTS Survey no. 902 of Village
Kanjur Marg are in slum area. However, document available on record
show falls short to prove the existence notice structure prior to datum
line.
9. It is the contention of plaintiff that the notice structure situated at
slum area and same is in existence prior to datum line of 1962 and
same is protected as per the Slum Act. However, as per section 3(X) of
the Maharashtra Slum Area (Improvement Clearance and
Redevelopment) Act, 1971. The protected occupier means the occupier
of the dwelling structure, who hold the photo-pass. Thus the structure
to whom the photo pass or identity card cum certificate has been issued
by the competent authority is a protected structure. The plaintiff has not
produced on record photo-pass rather it is not a case of plaintiff that the
competent authority has issued photo pass in respect of the suit
structure in favour of plaintiff. Thus, I find no substance in the
submission advanced by advocate for plaintiff that notice structure is
protected and under the Slum Act.
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10. It would be worthwhile to mention that dispute is regarding the
notice structure which is more particularly described in the para no.1 of
the plaint. It is not the case of the plaintiff that he had obtained
previous permission for the construction of notice structure. But it is the
case of plaintiff that the suit premises is situated at slum area inspite of
that defendants have issued notice at the instance of false complaint by
the complainant and for that he relied upon the certain documents.
However as discussed above in response to the notice issued by the
defendants, plaintiff has filed his reply on record. But document did not
prove the authorization of notice structure. Accordingly, the defendants
have passed final order on 10.12.2019. In view of the above facts the
plaintiff has failed to make out prima facie case. Therefore, the balance
of convenience does not lie in favour of plaintiff. It is well settled that
the notice structure which has been constructed in violation of the rules
and regulation cannot be protected at any costs. Thus I hold that no
case is made out by the plaintiff for granting temporary injunction. The
balance of convenience does not tilt in favour of plaintiff. Accordingly,
considering the facts advanced before this court answer point no.1 to 3
in the negative and in result to answer to point no.4 following order is
passed.
ORDER
1. Notice of motion No. 4937 of 2019 is dismissed.
2. Accordingly Notice of Motion no. 4937 of 2019 is disposed of.
Date:26.03.2026
(R. K. Deshpande)
Judge
City Civil Court
Mumbai
Dictated on : 26.03.2026
Transcribed on : 26.03.2026
Checked on : 30.03.2026
Signed on : 30.03.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
30.03.2026
Name of the Stenographer
Mrs. V.N.Rajgole.
Name of the Judge (with Court Room No.) HHJ Shri R. K. Deshpande
(Court Room No.11).
Date of Pronouncement of Judgment/Order 26.03.2026
Judgment/Order signed by P.O. on 30.03.2026
Judgment/Order uploaded on 30.03.2026
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