Mrs. Indubai Kanhu Phadtare And ... vs The Municipal Corporation Of ...
2022 Latest Caselaw 5382 Bom

Megha                                         21_ao_527_2022 with IA_3235_22.odt


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CIVIL APPELLATE JURISDICTION

                APPEAL FROM ORDER No.527 OF 2022
                              WITH
               INTERIM APPLICATION NO.3235 OF 2022
                               IN
                APPEAL FROM ORDER No.527 OF 2022

Mrs. Indubai Kanhu Phadtare and
Ors.                                            ..Appellants
              Versus
The Municipal Corporation of
Greater Mumbai and Ors.                       ...Respondents.
                                  .....
Mr. Yogesh S. Naidu for the Appellants.
Mr. R.Y. Sirsikar for Respondent No.1-BMC.
Mr. Mayur Khandeparkar with Mr. P.B. Singhvi i/b. M/s. Lex Services
for Respondent No.3.


                        CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 14th JUNE, 2022.

P.C.:-

1. With consent, the matter is heard finally at the stage of

admission.

2. The Appellant has challenged the order dated 12/05/2022

whereby the learned Judge, City Civil Court at Dindoshi, Borivali,

refused the ad-interim relief.

3. Heard Mr. Naidu, learned counsel for the Appellant, Mr.

Sirsikar, learned counsel for BMC and Mr. Mayur Khandeparkar,

Megha 1/3 Megha 21_ao_527_2022 with IA_3235_22.odt

learned counsel for Respondent No.3. Perused the records and

considered the submissions advanced by the learned counsel for the

respective parties.

4. The Appellant herein, who is the original plaintiff has filed

a suit challenging notice under Section 351 of the MMC Act and

speaking order issued by Mumbai Municipal Corporation.

5. The Corporation had issued a notice under Sections 351 of

the MMC Act in respect of an unauthorised construction admeasuring

6.63 x 5 x 2.5 mtr in CTS No.221 and 222A opposite Palki Aura

Building, Dattapada road, Borivali (east). Subsequently by speaking

order dated 21/04/2022 the Corporation directed the Appellant-

Plaintiff to remove the said structure within 15 days. Aggrieved by the

said notice and order, the Appellant-Plaintiff filed a suit for declaration

that the impugned notice is illegal and bad in law. The Appellant-

Plaintiff also sought to restrain the Respondent from demolishing the

said structure.

6. By the impugned judgment the learned Judge rejected the

ad-interim relief interalia on the ground that the Appellant-Plaintiff has

failed to show that the said structure was constructed by obtaining

Megha 2/3 Megha 21_ao_527_2022 with IA_3235_22.odt

prior permission of the competent authority. The Appellant has placed

on record copy of permission dated 23/03/1993, a perusal of which

prima facie reveals that the Appellant-Plaintiff had sought permission

to repair the structure, which was demolished during communal rights

during January-1993. Under the said permission dated 23/03/1993

the Appellant was permitted to repair the structure of 15' x12' x 10'

with C.I. sheet wall and A.C. sheet roofing. The said permission prima

facie indicates that the said structure has been existing prior to 1993.

By the impugned notice the entire structure is sought to be

demolished. Considering the fact that the structure has been existing

since long, in my considered view status quo needs to be maintained

till the notice of motion is decided on merits.

7. Hence, the appeal is allowed. The Appellant-Plaintiff as

well as the Respondents are directed to maintain status-quo in respect

of the suit structure pending hearing of the notice of motion.

8. The appeal stands disposed of in above terms.

9. Civil /Interim Application(s) if any, stand disposed of.

(SMT. ANUJA PRABHUDESSAI, J.) Digitally signed by MEGHA MEGHA S PARAB S PARAB Date:

        2022.06.15
        18:44:04
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