Bombay High Court
Meena Towers Co-Operative Housing ... vs Mr. Raghunath Bhagoji Shinde And Ors on 15 July, 2025
2025:BHC-AS:28958
901.2700.18 AOST.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER ST NO. 2700 OF 2018
WITH
CIVIL APPLICATION NO. 2703 OF 2018
IN
APPEAL FROM ORDER ST NO. 2700 OF 2018
The Municipal Corporation of Greater
Bombay
A statutory Corporation established
under the Bombay Municipal Corporation
Act, 1888, having their Head Office at
Mahapalika Marg, Nagar Chowk, Fort,
Mumbai - 400 001.
Through the Assistant Municipal
Commissioner, "M/W" Ward. .....Appellant
Vs.
1. Shri. Rathunath Bhagoji Shinde
President to Milind Seva Sangh
Bearing Registration No.-F-14857
(Mumbai) Dated 31.08.1991, and
Sandhya Memorial Trust,
Registration No E-24734 Mumbai
Dated 30.01.2008 Having address
at Survey No.-14, Hissa No 1A 1
(part), CTS No-36641/(Part), Near
Budha Vihar, Opp. Swastik Chamber,
Shivaji Nagar, S. G. Barve Marg,
Chembur, Mumbai-400 071
2. Meena Towers Co-op. HSG SOC
LTD.
Plot No. 14 and 56, Swastik Park,
Oppo. Swastik Chambers, CST
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Road, Chembur, Mumbai 400071 ....Respondents
WITH
INTERIM APPLICATION NO. 17871 OF 2022
IN
APPEAL FROM ORDER ST NO. 2700 OF 2018
Shri. Rathunath Bhagoji Shinde ....Applicant
IN THE MATTER BETWEEN
Municipal Corporation of Greater Mumbai ....Appellant
Vs.
Shri. Rathunath Bhagoji Shinde ....Respondent
WITH
APPEAL FROM ORDER ST NO. 31483 OF 2018
WITH
CIVIL APPLICATION NO. 31488 OF 2018
IN
APPEAL FROM ORDER ST NO. 31483 OF 2018
Meena Towers Co-op. HSG SOC
LTD.
having Regn. No. BOM/W-M/HSG/
(TC)/8452 of 96-97, having address
at Plot No. 14 and 56, Swastik Park,
Oppo. Swastik Chambers, CST
Road, Chembur, Mumbai 400071 ....Appellant/Applicant
Vs.
1. Shri. Rathunath Bhagoji Shinde
President to Milind Seva Sangh
Bearing Registration No.-F-14857
(Mumbai) Dated 31.08.1991, and
Sandhya Memorial Trust,
Registration No E-24734 Mumbai
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901.2700.18 AOST.docx
Dated 30.01.2008 Having address
at Survey No.-14, Hissa No 1A 1
(part), CTS No-36641/(Part), Near
Budha Vihar, Opp. Swastik Chamber,
Shivaji Nagar, S. G. Barve Marg,
Chembur, Mumbai-400 071
2. The Municipal Corporation of Greater
Bombay
Having its registered office at:
Mahapalika Marg, Nagar Chowk, Fort,
Mumbai - 400 001.
3. The Assistant Engineers (B & F)
M/West Ward, Office Building,
Chembur, Mumbai 400 071. ....Respondents
Mr. Narendra Walawalkar, Senior Advocate a/w Mr. Om
Suryawanshi for the appellant AOST 2700/2018 and for
respondent nos. 2 and 3 in AOST No. 31483 of 2018
Mr. Surel Shah a/w. Mr. Ishaan Kapse i/b. Mr. Bipin Joshi for
Respondent No. 1 in both the appeals.
Mr. Sanjiv Sawant a/w Mr. Abhishek Matkar and Mr. Malhar
Bageshwar for respondent no. 2 in AOST 2700/2018 and for
appellant
in AOST 31483/2018
CORAM : GAURI GODSE, J.
RESERVED ON: 27th MARCH 2025
PRONOUNCED ON: 15th JULY 2025
JUDGMENT:
Basic Facts:
1. Appeal From Order Stamp No. 2700 of 2018 is preferred by 3/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx the Municipal Corporation to challenge the judgment and order passed by the City Civil Court granting interim relief to the plaintiff.
The suit is filed to challenge the notice issued by the Corporation under section 354A of the Mumbai Municipal Corporation Act ('the MMC Act') and the speaking order. Pending the suit, the notice of motion for interim protection is allowed, and the Corporation is restrained from enforcing the impugned notice and the speaking order.
2. Appeal From Order St No. 31483 of 2018 is preferred by the society. Following a complaint filed by the society of the building on the adjoining land, the Corporation carried out an inspection of the suit property and issued the suit notice. The society is subsequently added as a defendant in the suit.
3. The plaintiff claims to be the President of a public charitable trust. The plaintiff has pleaded that he has a right in respect of an area of 153.29 square meters of survey No. 14 Hissa No. 1A (part), CTS No. 366/41 (part). The plaintiff claims to have constructed a Buddha Vihar and has been in continuous occupation and possession of the suit property, i.e. the Buddha 4/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx Vihar. The plaintiff claims that the property was originally owned by one M/s Apte Amalgamation, and in a suit filed by the original owner against the plaintiff, consent terms dated 28 th June 1991 were filed in the City Civil Court in SC Suit No. 2436 of 1991. The plaintiff further claims that pursuant to the consent decree, an area of 300 square feet out of the said property was gifted to the plaintiff. He claims to have registered the consent terms and thus, claims ownership over a 300 square feet area (suit land). The plaintiff claims to have constructed the Buddha Vihar on the suit land sometime in 1992. The plaintiff claims that in the year 2006, further construction was carried out pursuant to the permission granted by the Slum Authority. He relies on the letter dated 21 st June 2006 issued by the Slum Authority. Thus, the plaintiff contended that he carried out no new construction, and only repair works were carried out in or around March 2017; hence, there was no reason to issue notice under Section 354A of the said Act.
4. The Corporation relies upon the allegations in the suit notice and the conclusions recorded in the speaking order. The Corporation issued a notice dated 25th March 2017 under Section 354A of the MMC Act alleging that an unauthorised construction of 5/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx a ground +2 storey RCC frame structure with brick masonry was constructed for the proposed Buddha Vihar at the South side of Meena Towers CHS. The notice described the unauthorised construction in the schedule. The notice was issued based on an inspection report, which contains a photograph of the offending structure and the particulars.
5. The plaintiff replied to the notice. The plaintiff contended that the Buddha Vihar was constructed sometime in 1992, and there was a common wall between Buddha Vihar and the building of Meena Tower CHS. In the reply, the plaintiff contended that pursuant to the permission granted by the Slum Authority in the year 2006, further construction was carried out by utilising the funds released by the minister. The reply further stated that Buddha Vihar was undergoing plastering and repairs, as it was in a state of disrepair.
6. The plaintiff produced the documents before the Corporation. The concerned Designated Officer examined all the documents and concluded that there was no valid permission from the planning authority, i.e., the Executive Engineer (Building Proposal) 6/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx of the Eastern Suburbs of the Municipal Corporation, for carrying out the work undertaken by the plaintiff. Hence, a speaking order was passed on 24th July 2017, and the ongoing construction, as per the notice, was deemed unauthorised and was held liable to be demolished. Hence, the suit was filed. Pending the suit, the notice of motion is allowed, and the Corporation is restrained from enforcing the impugned notice and the speaking order. Findings in brief in the impugned judgment:
7. The learned Judge of the City Civil Court allowed the notice of motion, holding that the suit land has been declared a slum and the inspection report shows the land to be owned by the State Government. The learned Judge held that column no. 33 of the inspection reports, though, indicate particulars to be stated about the Panchnama, but the column appears to be blank. By relying upon the assessment record, property card and slum notification, the learned Judge recorded a prima facie opinion that the area where the notice structure was situated was a slum. The learned Judge referred to the communication exchanged between the Designated Officer and the Deputy Collector and held that the 7/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx Deputy Collector, without verifying the records, had concluded that construction was on the open south side of Meena Towers CHS.
The learned Judge relied on the photographs and held that the construction appeared to be an old one, which was shifted under the consent terms in 1991. The learned Judge also relied upon the funds received by the plaintiff under the Member of Legislative Assembly funds to accept the plaintiff's contention that, pursuant to the permission granted by the Slum Authority, the construction was carried out. The learned Judge held that, admittedly, the notice structure was neither a public road, parking space, nor a public space. Hence, the learned Judge held that the plaintiff had proved a prima facie case and was thus entitled to lead evidence. The learned trial judge further held that if a temporary injunction is not granted, then the persons at large having religious feelings may suffer loss which cannot be compensated in terms of money. Hence, the interim protection was granted.
Submissions on behalf of the appellant:
8. Learned senior counsel for the appellant ('corporation') submitted that the inspection report was prepared after taking 8/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx measurements on the site. The sketch of the offending structure was part of the inspection report. On verifying the record that there was no permission issued by the Corporation and, considering a large area being constructed without any valid permission, a notice under section 354A of the MMC Act was issued. He submitted that in response to the notice, the plaintiff relied upon various documents; however, none of the documents refer to any valid construction permission. He submitted that the plaintiff claims rights in respect of the said structure based on the consent terms executed with the original owner. He points out the area mentioned in the consent terms to be 300 square feet from the suit land. He submitted that even the consent terms recorded that a statue of Buddha Vihar, admeasuring 2' x 2' x 2', was on the disputed land.
Hence, the parties agreed in the consent terms that the statue would be shifted to the 300 square feet area agreed to be surrendered by the owner in favour of the plaintiff for the construction of Buddha Vihar. The consent terms further stipulated that a gift deed would be executed to transfer the area of 300 square feet. The consent terms further also recorded that the construction of Buddha Vihar on the 300 square feet area 9/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx transferred to the plaintiff would be constructed after taking due permission from the Municipal Corporation.
9. Learned senior counsel for the Corporation thus submitted that, according to the case of the plaintiff himself, he has a right only on 300 square feet of land. The contents of the consent terms relied upon by the plaintiff thus show that the statue of Buddha, admeasuring 2' X 2' X 2', was agreed to be shifted in the area of 300 square feet gifted by the owner to the plaintiff. Learned senior counsel for the corporation pointed out the measurements from the inspection report and the notice, and submitted that the proposed construction started by the plaintiff was way beyond 300 square feet. He, thus, submitted that based on the plaintiff's pleading itself, it is clear that the plaintiff had carried out unauthorised construction.
10. Learned senior counsel for the Corporation submitted that the planning authority is the Municipal Corporation and that the Slum Authority is not empowered to grant any permission. He submitted that even otherwise, the copy of the letter of 2006 issued by the Slum Authority nowhere indicates that permission is granted 10/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx after approval of any construction plan. He submitted that the Corporation received a complaint from the Society. Hence, after taking inspection, the suit notice was issued. He submitted that there was no document on record to indicate that the suit structure was constructed on any slum area. He submitted that the letter issued by the Deputy Collector was in response to the Corporation's query, as the plaintiff claimed that it was a declared slum. He submitted that the Deputy Collector clearly intimated that there was no record to show that it was a declared slum or that it was owned by the Government. The Collector later recorded that there were various owners shown on the said land, and it was privately owned land. He, thus, submitted that in the absence of any notification declaring the area as a slum, there was no question of issuing any permission by the slum authorities. He submitted that even if an area is declared a slum, the appropriate authority for granting construction permission is the Municipal Corporation.
11. Learned senior counsel for the corporation further submitted that if Slum Authority or Maharashtra Housing and Area Development Authority is appointed as planning authority, the 11/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx procedure for grant of construction permission is only as per the provisions of the The Maharashtra Regional and Town Planning Act ('MRTP Act') and The Maharashtra Development Plan Rules 1970 ('the said Rules'). He submitted that the construction permission of 2006, relied upon by the plaintiff, nowhere indicates that it is in accordance with the provisions of the MRTP Act or the said Rules. He, thus, submitted that the construction started by the plaintiff is therefore patently illegal and thus, the concerned Designated Officer has rightly issued the speaking order for demolition. He submitted that the construction, if any, completed unauthorisedly by the plaintiff, cannot be protected in the absence of any valid permission for construction. He, thus, submitted that the observations by the learned Judge in the impugned order regarding the area being declared as a slum and the permission allegedly issued by the Slum Authority are perverse as it is completely contrary to the relevant provisions of the MRTP Act and the said Rules.
12. Learned senior counsel for the Corporation relied upon the decision of this Court in the case of Anil Madhav Gore Vs. 12/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx Bombay Municipal Corporation of Greater Bombay 1. He submitted that this Court observed that even in the protected area, only the census-protected structures in the slum area are protected. He, thus, submitted that even if the plaintiff's contention that the notice structure is constructed in a slum area, the same shall not be protected as even according to the plaintiff, it is not a censused structure. Learned counsel for the Corporation also relied upon the decision of this Court in the case of Mr. Mohd. Zuber Mohd. Yusuf Memon Vs. Municipal Corporation of Gr. Mumbai 2. He submitted that this Court has observed that in the absence of any completion certificate or occupation certificate to show that the construction is already complete, the notice under section 354A cannot be challenged on the ground that the construction is already completed. Learned senior counsel, therefore, submitted that the plaintiff would not be entitled to protect the structure on any count. He submitted that the plaintiff has not started the construction pursuant to any permission, and even if it is complete, it is illegally completed, and thus, the Corporation is entitled to implement the notice issued under section 354A of the MMC Act. 1 2002(1) Bom. C.R. 146 2 Appeal From Order (Stamp) No. 27460 of 2016 13/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx Submissions on behalf of respondent no.1 ('plaintiff') :
13. Learned senior counsel for the plaintiff supports the impugned judgment and order. He submits that the slum notification dated 30th January 1975 declares CTS No. 366/41 as a slum. He submits that, pursuant to the consent terms, the plaintiff had shifted the Buddha Vihar and completed the construction of the Buddha Vihar in 1992 on the demarcated area of 300 square feet. He further relied upon the letter issued by the Executive Engineer of the slum Authority on 21 st June 2006 to support the plaintiff's contention that further construction or renovation was carried out in the year 2006. He submits that when the suit notice was issued, the plaintiff was only carrying out repair works, which would not amount to any unauthorised construction. He submits that the inspection report indicated construction of ground plus one storey; however, in the reply to the notice of motion, the Corporation contended that the plaintiff was carrying out vertical construction. He thus submits that the suit notice does not clearly indicate the description of the offending structure and, therefore, the notice cannot be enforced. He submitted that the speaking order refers to the various documents, including consent terms; 14/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 :::
901.2700.18 AOST.docx however, the observations are completely contrary to the documents. He submitted that even the Corporation was of the opinion that the area had been declared a slum, which is clear from the letter issued by the Designated Officer to the Deputy Collector.
He submitted that the inspection report itself would indicate that the structure is far beyond the property of Meena Tower CHS. He, thus, submitted that the documents relied upon by the plaintiff and, more particularly, the letter of work order/permission issued by the Slum Authority clearly indicate that the plaintiff had never started any construction without any permission. He, thus, submits that the plaintiff would be entitled to lead evidence to support his contentions that there was no unauthorised construction. Learned senior counsel submitted that in the absence of any illegality or perversity in the reasons recorded in the discretionary relief granted by the City Civil Court, in an appeal, the order granting protection cannot be reversed.
14. To support his submissions, learned senior counsel for the plaintiff relied upon the latest decision of the Hon'ble Apex Court in the case of Ramakant Ambalal Choksi Vs. Harish Ambalal Choksi 15/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx and ors3. He submitted that the well-settled legal principles governing the grant of temporary injunction are discussed and settled by the Hon'ble Apex Court. He submits that the scope of jurisdiction of the Appellate Court under Order XLIII of the Code of Civil Procedure, 1908 ('CPC') should not be assumed to decline the interim relief. Learned senior counsel for the plaintiff relied upon the legal principles settled by this Court in the case of Sopan Maruti Thopte and anr Vs. Pune Municipal Corporation and anr 4. He submits that the legal principles settled in the case of Sopan Thopte would also be applicable to the notice issued under section 354A. To support his submissions, learned senior counsel for the plaintiff relied upon the decision of this Court in the case of Sub Vijay International Pvt. Ltd. Vs. Commissioner, Municipal Corporation of Gr. Mumbai and anr5. He submitted that the learned single Judge of this Court has observed that the legal principles settled by the Division bench of this Court in the case of Sopan Thopte, as recorded in paragraph 19 of its judgment, would also be applicable to the notice issued under section 354A. 3 2024 SCC OnLine SC 3538 4 1996(1) Mh.L.J. 963 5 2007(1) Mh.L.J. 74 16/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx
15. Learned counsel for the plaintiff, thus, submits that the purpose of notice is to enable the citizen to satisfy the Commissioner that the work is a pre-existing work carried out after obtaining necessary permission. He further submitted that the Hon'ble Division Bench in the case of Sopan Thopte held that the requirement of drawing a panchnama and taking photographs is a precondition for issuing notice under Section 351. He submitted that in view of the decision in the case of Sub Vijay International, the learned Judge of this Court held that the same principles would apply even for issuing notice under section 354A of the MMC Act. He thus submitted that the inspection report has an admittedly blank space in the panchnama column. He thus submits that, in the absence of a panchnama, the allegation in the notice under Section 354A cannot be accepted at face value. He thus submitted that the plaintiff would be entitled to lead evidence to support his submissions that no unauthorised construction had been started by the plaintiff.
16. Learned senior counsel for the plaintiff relied upon the definition of planning authority under sub-section (19) of Section 2 of the MRTP Act. He submitted that the planning authority includes 17/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx the Slum Authority in view of clause (b) of sub-section 19 of Section 2. He submits that Section 40 of the MRTP Act enables the State Government, by way of a notification, to appoint a special planning authority for developing certain areas. He, thus, submits that a Slum Authority, being the planning authority in view of the definition under Section 19, read with Section 40, the Corporation would not be entitled to issue a notice under Section 354A on the ground that it is a planning authority. Learned senior counsel for the plaintiff further submitted that section 354A would apply only to ongoing construction. He submits that in view of the completion of construction by the plaintiff, Section 354A would not be applicable as Section 351 would step in.
17. Learned senior counsel for the plaintiff referred to the contentions raised by the Corporation in the reply to the notice of motion. He submits that a completely new case was pleaded in the reply that the alleged unauthorised construction was a vertical structure. He thus, submits that contrary observations in the suit notice, speaking order and the contents of the reply to the notice of motion shows that the allegations in the notice cannot be accepted to be true and thus, the plaintiff would be entitled to lead evidence 18/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx to prove that there was no unauthorised construction. Learned senior counsel for the plaintiff, thus, submitted that there is no reason to interfere with the impugned order that grants the discretionary relief after considering the basic principles of Order XXXIX Rule 1 of CPC. He, thus, submits that there is no ground to reverse the discretionary relief of the injunction granted by the City Civil Court.
Submissions in rejoinder on behalf of the appellant:
18. In response to the submissions made on behalf of the plaintiff, learned senior counsel for the Corporation submitted that the work order/permission of 2006 relied upon by the plaintiff does not refer to the authorised officer having powers to grant permission as contemplated under Section 44 of the MRTP Act.
Learned senior counsel submitted that clause (b) of sub-section 19 of Section 2 defines a planning authority to mean a legal authority, including a special planning authority constituted or appointed or deemed to have been appointed under Section 40. In the present case, there is no reliance placed on clause (a). He submitted that the reliance placed on clause (b) would not be applicable as clause 19/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx
(b) defines the slum rehabilitation authority appointed under Section 3A of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 as the planning authority. He, thus, submits that the definition interpreted by the learned counsel for the plaintiff would not assist the grounds raised on behalf of the plaintiff. He submits that in any case, the planning authority cannot go beyond the provisions of Section 44 of the MRTP Act, read with the said Rules of 1970. He thus submits that, irrespective of its planning authority, the question remains that there is no valid permission as contemplated under Section 44, read with the said Rules of 1970.
19. Learned senior counsel for the Corporation relied upon a recent decision of the Division Bench of this Court in the case of High Court on its own motion (In the matter of Jilani Building at Bhiwandi) Vs. Bhiwandi Nizampur Municipal Corporation and ors 6. Learned senior counsel points out paragraph 74 of the said decision to support his submissions that even if an area is declared as a slum, the planning authority is the Municipal Corporation. He thus submits that the letter issued by the Slum Authority in 2006 6 2022 DGLS(Bom) 279 20/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx cannot be termed a valid permission. He submits that, except for relying upon the letter issued by the Slum Authority, the plaintiff has failed to show any document indicating permission to carry out the construction. He submitted that even as per the consent terms relied upon by the plaintiff, he was entitled to shift Buddha Vihar admeasuring 2' X 2' X 2' in the area of 300 square feet allotted to the plaintiff by the original owner. He thus submits that, in the absence of any permission, the notice issued by the Corporation must be implemented. He, thus, submits that the plaintiff is not entitled to any discretionary relief for the patently illegal construction started by the plaintiff.
Submissions on behalf of respondent no. 2-society:
20. Learned counsel for respondent no. 2 ('society') adopted the submissions made on behalf of the Corporation. He submitted that the inspection report clearly shows that the compound wall of the society is utilised by the plaintiff for erecting the unauthorised construction. He submits that the structure is constructed on a footpath adjoining the compound wall of the society. He submits that the legitimate occupants of the society are, therefore, facing 21/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx hardships in view of the unauthorised construction carried out by the plaintiff. He, thus, submits that the plaintiff would not be entitled to any discretionary relief of an injunction.
Analysis and Conclusions:
21. I have considered the submissions made on behalf of the parties. The respondent no.1- plaintiff claims ownership rights on an area of 300 square feet by relying upon the consent terms between the owner of the land and the plaintiff in a suit filed by the owner. The plaintiff does not plead that the suit structure is constructed on the 300 square feet area allotted to the plaintiff by the original owner. The inspection report shows the particulars of the offending structure, supported by a photograph. The burden would be on the plaintiff to plead and prove the nature and measurements of the existing structure, which he claims to be authorised.
22. The notice is issued for the ongoing unauthorised construction of a Budha Vihar on the date of issuing the notice. The plaintiff contends that the construction of Buddha Vihar was completed in 1992, and further construction was made in 2006. A 22/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx plain reading of the letter dated 21 st June 2006 records the issuance of a work order. The letter is issued to one M/s.
Dnyaneshwar Constructions with a subject of 'Construction of Welfare Centre at Milind Seva Mandal Shivaji Nagar Chembur'. The letter records payment of the security deposit by the contractor/builder, and thus, the work order is issued directing the contractor to start the work under the supervision of the supervising authority. However, there is no reference to a supervising authority, and the space is kept blank. The letter nowhere refers to any construction plan. There is nothing indicated in the letter about following the procedure prescribed under Section 44 of the MRTP Act, which is the relevant provision for granting construction permission. The said Rules of 1970 provide for a detailed procedure for getting the construction plan approved. Thus, there is nothing on record to indicate that there is any construction permission as contemplated under Section 44 of the MRTP Act.
23. The dispute raised regarding the letters exchanged between the Corporation and the Deputy Collector would not be of any relevance. There is nothing on record to indicate that the offending 23/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx structure exists in any slum area. The reference to the slum notification is regarding part of the area of Survey No. 14 Hissa No. 1A, CTS 366/41. It is nobody's contention that the entire survey no. 14 Hissa No. 1A is declared as a slum. The plaintiff does not plead that the structure is a censused structure. Thus, in the absence of any prima facie evidence that the structure exists in a slum area and it is a censused structure, it cannot be assumed that it is protected. Nothing is shown on record that the Slum Authority is appointed as a planning authority as defined under the MRTP Act.
24. The plaintiff relies upon the letter issued by the Slum Authority to contend that there is a construction permission. However, as recorded above, the letter issued by the slum board does not refer to any construction permission or approved construction plan. Thus, prima facie, there is no iota of evidence to indicate that construction permission was ever issued to the plaintiff. The plaintiff contends that the construction was already completed in 1992, and further construction was carried out in 2006. In the plaint paragraph 11, the plaintiff contends that the repair of Buddha Vihar and the welfare centre constitutes tenantable repairs under Section 342 of the MMC Act. In the reply 24/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx to the notice under section 354A, the plaintiff contended that the Buddha Vihar was under plastering and repairing when the notice was issued, since it was dilapidated. Though the plaintiff contends that only repair works, i.e. plastering work, were going on, there is nothing to indicate that any intimation as required under Section 342 of the Municipal Corporation Act was issued for carrying out the repairs. Thus, there is no dispute that the construction work was being carried out when the notice to stop work under section 354A was served upon the plaintiff.
25. The measurements in the sketch recorded in the inspection report and the photographs prima facie indicate that the construction of a large area was being carried out, which is far beyond the 300 square feet of the land claimed by the plaintiff. The plaintiff nowhere pleads any measurements of the existing structure, which, according to the plaintiff, has been in existence since 1992. The plaintiff's reply to the suit notice refers to the structure being dilapidated. The plaintiff's contentions are unbelievable, in as much as even according to the plaintiff, further construction was carried out in the year 2006. Thus, there is no document to indicate that in the year 2017, the construction started 25/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx by the plaintiff was only repair work on the already existing structure. On the date of the stop work notice, even according to the plaintiff plastering work was going on.
26. The plaintiff has not pleaded the particulars of the existing structure and the exact location. There are no pleadings about which part of CTS 366/41 is declared a slum. The observations of the learned Judge that the suit structure appears to be in a slum area are without any evidence. The blank space in the column of Panchnama in the inspection report is immaterial. The action of issuing notice under section 354A for the ongoing construction would not require the recording of panchnama. Section 354A requires the Designated Officer to be satisfied that the construction started is unauthorised. The panchnama would therefore be necessary only in the event the work of demolition is carried out. Thus, the observations of the learned Judge regarding not recording panchnama are not relevant for the grant of any discretionary relief in respect of the construction, which clearly is without any permission. The documents referred to by the learned Judge to hold that the concerned land was declared as a slum are completely contrary to the documents on record. None of the 26/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx documents indicates that the land on which the structure is constructed has been declared a slum.
27. In the decision of this court in the case of Anil Gore, the notice under section 351 of the MMC Act was challenged. One of the grounds of challenge was that the structure was situated in a slum area and therefore was protected. This court held that as per the policy of the corporation, only censused structures in a slum were protected. Hence, this court confirmed the trial court's order dismissing an interim application for injunction to protect the structure from demolition. In the present case, it is not pleaded that the structure is censused. Thus, in the absence of any prima facie evidence that the structure is on a land declared as a slum and that the structure is censused, the plaintiff would not be entitled to any protection on the ground that there is a slum notification and the slum board has issued permission. The legal principles settled by this court in the case of Anil Gore, therefore, support the corporation's submissions.
28. In the case of Mohd. Zuber, this court was dealing with a challenge to the notice under Section 354A of the MMC Act. This 27/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx court held that the photographs and the recitals in the notice revealed that when the notice was issued, the construction was in progress; hence, in the absence of valid permission, completion certificate and occupation certificate, the construction, if completed, cannot be termed as valid. In the decision of this court in the case of Suo Motu Public Interest Litigation against Bhiwandi Nizampur Municipal Corporation, this court held that in paragraphs 74 and 75 as under:
"74. We are, thus, of the clear opinion that the MCGM being a Planning Authority for the entire Greater Mumbai area (excluding those areas in which by law other planning authorities are appointed), the MCGM has jurisdiction to exercise all powers under the MMC Act as also the MRTP Act and the Slums Act, to take action against illegal structures as permissible in law, not only in regard to all such areas within its jurisdiction, but also the slum areas falling under the Slums Act, except when a demolition order has been made under the Slums Act. We find that even Section 4 of the Slums Act would cast no embargo on the MCGM to take appropriate action in regard to any buildings which are unauthorized and/or dilapidated. Per se, Section 4 does not prohibit the planning authority to exercise any of its authority in regard to the structures of 28/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx the nature Section 4would contemplate either before the area is declared as a "slum area" or after it is declared as a "slum area". It is nobody's case that prior to an area being declared as slum, the planning authority namely the MCGM would not have any authority under the MMC Act and the MRTP Act to take action against unauthorized construction in such areas in regard to structures in these areas. From a holistic reading of the provisions of the Slums Act as discussed above, it is difficult to conceive that merely because an area is declared to be a slum under Section 4, the planning authority would lose its control and authority to regulate the structure by implementing the provisions of the MMC Act and the MRTP Act in the event the structures are dilapidated and/or in any manner unauthorized.
75. The above discussion would lead us to conclude that Chapter I-B of the Slums Act imposes no embargo on the powers of the Municipal Corporation(s) to take action against unauthorised structures in the slum areas, including the slums declared under Section 4 of the Slums Act which may include slums on the State Government's land or land belonging to any other public authority, under the provisions of the MMC Act, Maharashtra Municipal Corporations Act and the MRTP Act. Such statutory mandate cannot be curtailed by any executive fiat including the Government Circulars dated 7 September 2010 and 10 29/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx October 2013, which we have discussed above in paragraph 46. We accordingly answer questions (i)(a) and
(i)(b) as posed by Mr.Jagtiani and as noted by us in paragraph 43, to hold that the MCGM and/or Municipal Corporations would wield all powers and authority to take actions against any structure beyond the photo-pass structure found to be unauthorized which is situated in such slums."
emphasis applied by me
29. Thus, in the present case, in the absence of any prima facie evidence that the structure is on land declared as a slum and that the structure is censused, the legal principles settled in the decision of Nizampur Municipal Corporation would squarely support the submissions made on behalf of the corporation.
30. In the decision of Ramakant Choksi, relied upon by the learned counsel for the plaintiff, the Hon'ble Apex Court held as under:
"34. The burden is on the plaintiff, by evidence aliunde by affidavit or otherwise, to prove that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition 30/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx precedent for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. 31/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 :::
901.2700.18 AOST.docx Thus, the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.
37. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. (See : Damodar Lal v. Sohan Devi, (2016) 3 SCC 78 )"
31. In the decision of Sopan Maruti Thopte, a reference made to the Division Bench is decided, on the question whether it is obligatory to give a personal hearing or early hearing to the parties after notice under clause (a) of sub-section (1) of Section 351 of the said Act is issued. The Hon'ble Division Bench held that when notice under Section 351 is given, fifteen days time shall be given to submit a reply, and if no sufficient cause is shown, the municipal authority shall give short reasons for not accepting the contention of the affected party. The Hon'ble Division Bench issued guidelines for taking further action for demolition. In the decision of Sub Vijay 32/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx International Pvt. Ltd ., this court held that the guidelines issued in the decision of Sopan Maruti Thopte are based on fair play by the local authorities and are binding upon the municipal corporation. This Court further held that the purpose of issuing notice under Section 354A to stop work and produce valid permission is to enable the person to satisfy the commissioner that the work is pre- existing work carried out after obtaining the necessary permission. Thus, this court held that even dehors the decision in the case of Sopan Maruti Thopte, the principle of fairness requires the municipalities and the corporation to give a reasonable notice to the person concerned before taking the action of demolition. In the present case, none of the contentions of the plaintiff raise any ground of breach of legal principles settled in the decision of Sopan Maruti Thopte.
32. In the present case, the stop work notice under section 354A describes the illegal ongoing work supported by the particulars in the inspection report and the photograph, giving the particulars of a large construction. In response, the plaintiff contends that the structure is an old structure constructed as per permission of the slum board on the 300 square feet of land given to him under the 33/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx terms of the consent terms by the original owner. The reply to the notice further states that since the structure was dilapidated, repair work was going on when the notice was served. However, none of the documents relied upon by the plaintiff support the contentions that the structure is legally constructed, or it is on a declared slum and protected on the ground that it is censused. The material produced by the corporation, including the inspection report and photographs, prima facie shows a large ongoing construction without permission on the date of the stop work notice. In the decision of Sopan Maruti Thopte, this court held that violators of the law cannot be liberally allowed to take the protection of the court by obtaining interim injunctions, which would have the effect of continuing such violations.
33. One of the plaintiff's contentions, accepted by the learned Trial Judge, is that the suit structure is a religious structure involving the sentiments of a large number of people. No religion preaches, promotes or supports any kind of illegal activity. Hence, religious sentiments cannot be used as a shield to protect any kind of breach of law and unlawful activity. Such a ground cannot be considered as a parameter for the grant of a discretionary and 34/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx equitable relief under Order XXXIX Rule 1 of CPC.
34. The existence of the prima facie right to enjoy the property is a condition precedent for the grant of a temporary injunction to maintain its status quo. The balance of convenience must be in favour of granting the injunction. The Court, while granting an injunction, should exercise sound judicial discretion. Thus, the legal principles settled by the Hon'ble Apex Court in the decision of Ramakant Choksi, relied upon by the learned counsel for the plaintiff, support the submissions made on behalf of the corporation that this is not a fit case to grant a temporary injunction. In my opinion, the findings recorded in the impugned judgment are unreasonable, perverse and unsustainable in law. Hence, the impugned judgment and order would warrant an interference by this court. The appeals, therefore, deserve to be allowed, and the interim injunction needs to be vacated.
35. I find it necessary to record that on 20 th March 2025, after the appeals were substantially argued, learned counsel for the plaintiff had sought time to take instructions whether the plaintiff would be agreeable to make an appropriate application before the 35/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx appropriate authority of the corporation for construction permission on the land to which he is entitled as per the pleading in the plaint. Hence, learned counsel for the respondent/plaintiff was granted time to take instructions whether the plaintiff would file an affidavit- cum-undertaking in this court stating that within how much time the plaintiff would file an appropriate application for permission and within how much time he would shift the existing Buddha statue from the offending structure to the structure that would be constructed as per the permission and if permission is not granted, he would shift the Buddha statue within reasonable time from the offending structure. No such affidavit was filed; hence, the hearing of the appeals was concluded.
36. However, in the facts and circumstances of the case, I find it appropriate to grant time to the plaintiff to apply for regularisation of that part of the structure on the land to which he is entitled as per the pleading in the plaint paragraph 6, i.e. 300 square feet gifted to the plaintiff under the consent terms dated 28 th June 1991 in S.C. Suit No. 2436 of 1991. Hence, notwithstanding vacating the injunction order granted by the impugned judgment and order, it will be open to the plaintiff to apply for regularisation. 36/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 :::
901.2700.18 AOST.docx
37. For the reasons recorded above, the appeals are allowed by passing the following order:
a) The impugned judgment and order dated 4 th September 2017 passed by the learned City Civil and Sessions Court, Greater Mumbai in Notice of Motion No. 2701 of 2017 in LC Suit No. 1722 of 2017 is quashed and set aside.
b) Notice of Motion No. 2701 of 2017 in LC Suit No. 1722 of 2017 is dismissed.
c) Notwithstanding vacating the injunction order granted by the impugned judgment and order, it will be open to the plaintiff to apply before the competent authority of the corporation, for regularisation of that part of the structure on the area of 300 square feet gifted to the plaintiff under the consent terms dated 28 th June 1991 in S.C. Suit No. 2436 of 1991.
d) If such an application is made within four weeks, the same shall be decided by the competent authority of the corporation within eight weeks thereafter.
e) To enable the plaintiff to make an appropriate 37/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 ::: 901.2700.18 AOST.docx application, no demolition shall be carried out for four weeks from today. If such an application is made within the time granted, no demolition shall be carried out for eight weeks from the date of application and for a period of two weeks from the date of communication of the order if it is adverse to the plaintiff.
f) In the event, the application for regularisation is not made, within the time granted by this order, the protection granted by this order shall stand vacated.
g) Both appeals are allowed in the aforesaid terms, subject to the aforesaid liberty granted.
[GAURI GODSE, J.] IRESH Digitally signed by IRESH MASHAL MASHAL Date: 2025.07.15 18:43:21 +0530 38/38 ::: Uploaded on - 15/07/2025 ::: Downloaded on - 15/07/2025 22:26:08 :::