[Cites 8, Cited by 0]
Bombay High Court
Mr. Moshin Salim Chunawala vs The State Of Maharashtra Thr. And Others on 17 January, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-AS:2031
AO.547.2025.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 547 OF 2025
WITH
INTERIM APPLICATION NO. 12539 OF 2025
IN
APPEAL FROM ORDER NO. 547 OF 2025
Moshin Salim Chunawala .. Appellant
Versus
The State of Maharashtra & Ors. .. Respondents
....................
Mr. Anil D'Souza a/w Ms. Anita Naik, Advocates for Appellant.
Mr. Dinesh Haldankar, AGP for State.
....................
CORAM : MILIND N. JADHAV, J.
DATE : JANUARY 17, 2026.
P.C.:
1. Heard Mr. D'Souza, learned Advocate for Appellant and Mr.
Haldankar, learned AGP for Respondents - State.
2. The present Appeal From Order impugns order dated
29.03.2025 in Notice of Motion No. 688 of 2018 passed by the Adhoc
Additional Session Judge, City Civil Court, Dindoshi, Borivali Division
whereby the Trial Court rejected the Notice of Motion filed by the
Appellant. Appeal From Order and Interim Application is filed on
07.04.2025. By consent of parties Appeal From Order is heard finally.
3. Briefly stated, the present Appeal From Order arises out of
recovery proceedings initiated by Respondents towards police
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protection charges due and payable by Appellant. Appellant is a
businessman engaged in the business of construction, having ongoing
construction projects at Vasai, Nallasopara, Virar and Malad.
3.1. It is Appellant's case that in the year 2012, he received
threatening phone calls from an underworld criminal demanding a
sum of Rs.50,00,000/- failing which he was threatened with death.
Appellant immediately lodged written complaint with the concerned
police authorities. Despite further threatening calls received by him in
September 2013, no effective action was taken by the authorities on
his complaint.
3.2. It is Appellant's case that in May 2014, he was provided with
police protection by Respondents pursuant to an administrative
decision taken by the Police authorities to provide protection to
persons who had received threats from the said underworld. Appellant
was thus provided with police protection thereafter. It is Appellant's
case that he was not informed that the said police protection provided
to him was chargeable.
3.3. Appellant states that on 29.11.2014, while recording his
statement, he categorically informed the authorities that the police
protection, if it is to be continued, should be provided to him without
payment / charges.
3.4. It is Appellant's case that on 05.03.2015 and 26.06.2015, he
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received bills from the office of the Commissioner of Police, Mumbai,
demanding charges towards Police protection provided to him. By
letter dated 26.12.2015, Appellant objected to the said bills,
contending that he was never informed that the Police protection was
chargeable.
3.5. It is Appellant's case that without responding to his
objections, Respondents issued a Demand Notice dated 22.11.2016
through the Tahsildar, Andheri, seeking recovery of Rs.8,28,795/-
under Section 174 of the Maharashtra Land Revenue Code, 1966 (for
short 'MLR Code').
3.6. Upon inquiry, Appellant was informed that the demand
pertained to Police protection charges. Thereafter, by letter dated
01.02.2017 Appellant made representations to the Commissioner of
Police, Senior Police Inspector, Collector, Tahsildar and the Ministry of
Home Affairs contending that Police protection was provided to him
suo motu and that he had never applied for paid Police protection and
no communication regarding charges to be paid by him towards Police
protection was ever informed to him.
3.7. It is Appellant's case that despite his representations, no
response was received by him. On 13.02.2017, Appellant received
undated notice of lis pendens from the Tahsildar. Appellant sought
clarification by letter dated 27.02.2017 followed by reminders dated
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10.05.2017 and 03.07.2017 which also remained unanswered.
3.8. Thereafter, Appellant approached the Ministry of Home
Affairs by letter dated 24.08.2017, followed by a reminder dated
25.09.2017 seeking a hearing in the matter.
3.9. Simultaneously, Appellant filed Application under the Right
to Information Act, 2005 dated 28.09.2017 seeking details regarding
grant of Police protection to him. The response furnished to him
merely enclosed copy of Government Resolution dated 03.01.2000 and
Circular dated 24.01.2008.
3.10. As information supplied was incomplete, Appellant preferred
a First Appeal and thereafter a Second Appeal. During the hearing of
Second Appeal, Respondents failed to produce any written order of the
Protection Committee sanctioning paid Police protection to him and
stated that the decision was allegedly taken orally.
3.11. It is Appellant's case that on 01.01.2018, the Tahsildar
sought Appellant's bank details through his housing society, pursuant
to which Appellant's bank account with the Bharat Co-operative Bank
(Mumbai) Ltd. was frozen.
3.12. In the aforesaid circumstances, Appellant was constrained to
file Civil Suit No.458 of 2018 challenging the Demand Notice,
recovery proceedings and consequential actions contending that the
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Police protection provided to him was not paid Police protection and
the demand raised was therefore illegal and unsustainable in law.
3.13. By order dated 29.03.2025, learned Trial Court rejected
Notice of Motion No.688 of 2018 filed by Appellant. Being aggrieved,
with the order dated 29.03.2025, Appellant filed present Appeal From
Order before this Court.
4. Mr. D'Souza, learned Advocate for Appellant would submit
that the impugned Order dated 29.03.2025 passed in Notice of Motion
No.688 of 2018 in Suit No.458 of 2018 by the learned Ad-hoc
Additional Sessions Judge, City Civil Court, Dindoshi, Borivali Division,
is illegal, erroneous and unsustainable in law, whereby the Notice of
Motion filed by Appellant came to be rejected.
4.1. He would submit that the Trial Court has failed to consider
and apply the binding ratio laid down by this Court that mere demand
does not create liability and recovery cannot be initiated without prior
adjudication in the case of Samani Decorators Pvt. Ltd. and Anr. vs.
Collector, Mumbai City and Ors.1 as also the decision of this Court in
the case of Maqsood, son of Maqbool Chohan and Ors. vs. State of
Maharashtra and Ors.,2 rendering the impugned order unsustainable.
4.2. He would submit that the learned Trial Court has completely
failed to appreciate the settled position of law that Demand Notice
1 2019 SCC OnLine Bom. 9858
2 Writ Petition No.804 of 2002 - Decided on 14.02.2018
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dated 08.04.2015 issued by the Tahsildar under Section 267 of the
MLR Code seeking recovery as arrears of land revenue must necessarily
be preceded by adjudication and crystallization of liability. He would
submit that unless there is a prior determination as to whether the
amount is due and payable and, if so, the quantum thereof, no
recovery proceedings can be initiated as arrears of land revenue.
4.3. He would submit that admittedly no adjudication or
determination of liability was ever undertaken prior to issuance of the
impugned Demand Notice and therefore the said notice is ex facie bad
in law. He would submit that the learned Trial Court has failed to
consider the law laid down by the Supreme Court that recovery
proceedings under revenue laws are impermissible unless the liability
sought to be recovered is crystallized pursuant to a lawful adjudication
by a competent authority in the case of State of Kerala vs. V.R.
Kalliyanikutty 3, which is also followed by the Division Bench of this
Court in the case of Maqsood, son of Maqbool Chohan (supra).
4.4. He would submit that the impugned order has been passed
in complete ignorance of the settled principle that without
determination and crystallization of liability, there cannot be recovery
akin to recovery of arrears of land revenue under the provisions of the
MLR Code.
3 (1999) 3 SCC 657
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4.5. He would submit that there is no enabling provision either
under any statute or executive instruction permitting recovery of
alleged Police Protection Charges as arrears of land revenue. He would
submit that even in the Written Statement filed by the State of
Maharashtra, no such statutory provision has been pointed out and
therefore the impugned Demand Notice and all subsequent
proceedings under the MLR Code are without jurisdiction and bad in
law.
4.6. He would submit that on merits the learned Trial Court has
failed to consider that when Appellant initially applied for seeking
Police protection due to threats received by him from the underworld,
no protection was granted to him. He would submit that subsequently
after considerable lapse of time, the State of Maharashtra, on its own
volition, provided Police protection to Appellant without disclosing
any terms or conditions and without indicating that he was required to
reimburse the charges for the police protection.
4.7. He would submit that a sudden demand was thereafter
issued to the Appellant without adjudication of the liability and
without following the principles of natural justice and therefore the
impugned Demand Notice itself is illegal and unsustainable.
4.8. He would submit that final hearing of the Notice of Motion
concluded on 19.10.2024 and the matter was closed for orders.
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Thereafter, the matter was listed on Board on 20.11.2024, 20.12.2024,
18.01.2025, 15.02.2025 and 01.03.2025 without pronouncement of
any order and ultimately, the impugned order was passed only on
29.03.2025, i.e., after a gap of more than five months.
4.9. He would submit that due to the prolonged gap between
conclusion of arguments and pronouncement of the order, the learned
Trial Court failed to consider the factual and legal submissions
advanced on behalf of Appellant including the binding judgments
cited. He would submit that such conduct violates principles of natural
justice as deprecated by the Supreme Court in the case of Anil Rai Vs.
State of Bihar 4 and Ratilal Jhaverbhai Parmar and Ors. vs. State of
Gujarat and Ors.5.
4.10. He would submit that despite repeated requests,
Respondents failed to place on record any order of the Protection
Committee clarifying whether the police protection provided to the
Appellant was paid or unpaid.
4.11. He would submit that Appellant never received any
communication or confirmation from Respondents stating that the
Police protection facility provided to him was chargeable.
4.12. He would submit that the police protection provided to him
by the authorities was at their own discretion due to threat calls
4 (2001) 7 SCC 318
5 2024 SCC OnLine SC 2985
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received by him from underworld don Ravi Pujari in the year 2014
without any formal request made by Appellant.
4.13. He would submit that police protection was provided to the
Appellant for a period of four months without following the prescribed
procedure and without obtaining consent of the Appellant. He would
submit that the statement of the Appellant dated 29.11.2014 clearly
records that police protection should be provided to him only if it is not
chargeable.
4.14. He would submit that the letter dated 15.02.2018, produced
by Respondents Authorities before the Trial Court specifically states
that the request of Appellant for waiver of police protection charges
was under consideration and pending which fact has been completely
ignored by the learned Trial Court. He would submit that there exists
no written communication or order indicating that the protection
provided to the Appellant was a paid facility.
4.15. He would submit that during the year 2014, Appellant was
not earning and was financially incapable of bearing any such police
protection charges, which is evident from contemporaneous
communications. He would submit that despite repeated letters
addressed by the Appellant between 2015 and 2018 to the
Respondents, they failed to provide any response confirming that the
police protection provided to him was a paid service.
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4.16. He would submit that the Respondents suppressed the
material fact that Appellant had clearly stated that protection should
be provided only if it was provided free of cost and despite this, they
neither clarified the nature of the protection nor disclosed any charges
payable for the same.
4.17. He would submit that the Appellant became aware of the
alleged paid nature of the police protection provided to him only in
2015, after several months of police protection provided to him and
even thereafter Respondents admitted by their letter dated 15.02.2018
that his waiver request was pending, rendering the impugned recovery
proceedings illegal.
4.18. He would submit that during subsistence of the status quo
order dated 16.02.2018, Respondents Authorities issued a demand
notice dated 13.09.2024 seeking recovery of Rs.18,75,735/- which was
received by Appellant on 13.12.2024 which would amount to contempt
of Court. Copy of this notice is not appended. Statement to this effect
is made in ground (u) on page No. 9 of Appeal From Order. Copy of
this notice is not appended. Statement to this effect is made in ground
(u) in page No.9.
4.19. He would submit that the learned Trial Judge failed to
appreciate that Respondents have no equity in their favour and that
the impugned order is unreasoned, arbitrary and passed without
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proper appreciation of pleadings and material on record.
4.20. He would submit that the impugned order has been passed
on the basis of suppression, misrepresentation and deliberate
withholding of material facts by Respondents / Authorities and it is
therefore liable to be set aside.
5. PER CONTRA, Mr. Haldankar, learned AGP for State would
draw my attention to the Affidavit filed by Mr. Raju Kasbe (ACP),
Protection Branch - 1 to oppose the Appeal From Order and the
Interim Application. He would submit that the Appellant/original
plaintiff had approached D.N. Nagar Police Station seeking police
protection on the ground that he had received a threatening call from
the Ravi Pujari gang demanding an amount of Rs.50 lakhs. He would
submit that the said Application was forwarded to the Deputy
Commissioner of Police, Zone-9 for consideration. He would submit
that on 19.12.2012, a report / suggestion was received from DCP
Zone-9 recommending paid police protection to be provided to the
Appellant in view of the threat perception. The said communication is
annexed as Exhibit-A to Appeal From Order.
5.1. He would submit that thereafter Threat Perception Reports
(for short "TPRs") were called for from the Crime Branch, Special
Branch and Zone-9. He would submit that while two TPRs were
negative, the report of Zone-9 was positive for providing protection to
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the Appellant on paid basis. He would submit that the Protection
Review Committee however resolved to reject the demand for
protection and based on the said recommendation, the Police
Commissioner, Mumbai therefore denied protection to Appellant. He
would submit that the said decision was communicated to the
Appellant by letter dated 01.06.2013, which is appended as Exhibit-B
to the Appeal From Order.
5.2. He would submit that DCP Zone-9 address letter dated
02.09.2014 to ACP Protection Branch-1 stating that as Appellant is
receiving threats D.N. Nagar Police Station was providing police
protection free of cost however due to oncoming festival period they
are unable to continue providing police protection and hence ACP
Protection Branch-1 is to provide chargeable police protection to
Appellant.
5.3. He would submit that as per the internal noting maintained
by the office, police protection was provided to the Appellant from
23.09.2014 and that the Police Commissioner, Mumbai, by remark
dated 22.12.2014, categorized the same as "paid protection". He
would submit that the relevant noting is confidential and can be
produced before the Court if called upon to do so. He would further
submit that the said protection was provided on payment basis.
5.4. He would submit that during the said period, on 29.11.2014,
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Appellant recorded his statement stating that protection should be
provided if the police department finds that his life is under threat and
that such protection should be provided to him free of cost.
5.5. He would submit that bill dated 05.03.2015 was raised for
the period from 23.09.2014 to 28.12.2014 for an amount of
Rs.6,40,766/-.
5.6. He would submit that upon receipt of the said bill, Appellant
addressed a letter dated 04.04.2015 (Inward No. 558/2015) stating
that he had sought protection free of cost and requested that earlier
charges be waived and that he be charged prospectively. He would
submit that thereafter another bill dated 26.06.2015 for an amount of
Rs.8,28,790/- was issued.
5.7. He would submit that thereafter police protection to
Appellant was discontinued from 16.05.2015 as per the directions of
the Police Commissioner, Mumbai, and the same was communicated to
DCP Zone-9 by letter dated 21.05.2015.
5.8. He would submit that Appellant addressed multiple
representations dated 20.05.2017, 29.07.2017, 22.08.2017 and
03.11.2017 seeking waiver or cancellation of the police protection
charges. He would submit that the said requests were rejected by the
Deputy Commissioner of Police (Protection and Security) by
communications of corresponding dates, annexed as Exhibit-I (Colly)
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to the Appellant.
5.9. He would submit that the bills raised on the Appellant were
forwarded to the Collector, Mumbai Suburban District for recovery by
letters dated 02.05.2016 and 07.12.2015. He would submit that
pursuant thereto, a Demand Notice dated 22.11.2016 was issued
which came to be challenged by the Appellant by filing Suit No.458 of
2018 along with Notice of Motion No. 28 of 2018. He would submit
that the Notice of Motion is rejected by the Trial Court, leading to the
present Appeal From Order. He would further submit that Appellant
has deliberately not challenged the bills dated 05.03.2015 and
26.06.2015 but has challenged only the Demand Notice dated
22.11.2016 to avoid payment of Court fees and further the Suit is
barred by limitation as also for want of issuance of statutory notice
under Section 80 of the Code of Civil Procedure, 1908 (for short
'CPC').
5.10. He would submit that by an undated letter received on
04.04.2015, Appellant sought waiver of earlier police protection
charges and requested police protection only during daytime hours.
He would submit that the said letter clearly and prima facie
demonstrates that Appellant, being a builder, is financially capable of
paying police protection charges. He would place reliance on the
Circular dated 04.01.2018, particularly on paragraph 13 thereof which
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mandates payment of police protection charges.
5.11. He would further submit that the Circular dated 24.01.2008,
relied upon by the Appellant, if read in its proper context, particularly
Clauses 3 and 4 thereof clarifies that even Members of Parliament,
Members of Legislative Assembly and Government servants are
required to pay police protection charges if the protection is provided
to them beyond their official duties.
5.12. He would submit that Section 47 of the Maharashtra Police
Act, 1951 expressly provides that police protection is to be provided on
payment basis.
5.13. He would submit that Appellant is a builder and is / was
fully aware that the police protection provided to him was provided on
paid basis and that his case was squarely covered under paragraph 13
of the Circular dated 04.01.2018. He would further submit that
granting free police protection would burden public funds and
taxpayers' money.
5.14. He would submit that on the aforesaid grounds the Appeal
From Order be dismissed and Appellant be directed to pay the amount
in the bill dated 05.03.2015 alongwith interest.
6. I have heard Mr. D'Souza, learned Advocate for Appellant
and Mr. Haldankar, learned AGP for the State and with their able
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assistance perused the record of the case. Submissions made by the
learned Advocates at the bar have received due consideration of the
Court.
7. At the outset it is seen that Appellant had taken out a Notice
of Motion before the Trial Court seeking interim reliefs including
protection against coercive recovery / enforcement, pending
adjudication of the Civil Suit. It is noted that the Trial Court by the
impugned order dated 29.03.2025 rejected the Notice of Motion
primarily on the ground that no prima facie case for grant of interim
relief was made out at that stage.
8. In the Appeal From Order before me, it is seen that the
parties are seriously at variance on foundational and material facts
including whether the police protection provided to Appellant was free
of cost or on a paid basis, whether the Appellant was informed or had
consented to any chargeable Police protection, the legality and basis of
the bills raised, the time frame during which Police protection was
provided, the nature and effect of correspondence exchanged between
parties in relation thereto and the permissibility of the recovery
proceedings initiated thereafter. These issues involve disputed
questions of fact which cannot be conclusively determined at this stage
merely on the basis of rival pleadings as the dispute between the
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parties is already subject matter of a substantive Civil Suit, which is
pending adjudication before the competent Trial Court. This Court,
therefore, refrains from expressing any opinion on the merits of the
rival claims so as not to prejudice either party's case in the pending
proceedings.
9. Considering the pendency of the Civil Suit and in order to
balance the equities between the parties, Adjudication cannot be done
by this Court on the basis of the rival claims. Appellant has received
Police security admittedly and hence onus is on him to prove in trial
that he is not liable to pay for the same. Only if he proves, the burden
will then shift on the State in rebuttal. If this Court decides the above
issue merely on the basis of pleadings the Suit trial will become
infructuous. Hence, this Court is of the view that no final adjudication
in the present Appeal From Order or on the correctness of the order
rejecting the Notice of Motion is warranted at this stage.
10. Accordingly, the Appellant is directed to deposit 25% of the
disputed amount in the bill dated 26.06.2015 and original demand
notice dated 22.11.2016 or furnish security of an equivalent value
before the Trial Court within a period of 4 weeks from today. The said
deposit shall be subject to the final outcome of the pending Civil Suit.
11. In view thereof the Trial Court is directed by this Court to
proceed with the trial expeditiously and determine the same preferably
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within 6 months from today.
12. Until the trial is determined, Respondent Nos. 5 and 6 i.e.
Collector of Mumbai (Suburban) and Tahsildar Andheri shall not take
any coercive steps against the Appellant with regard to the Demand
Notice and for a further period of 2 weeks thereafter if the order is
adverse to the Appellant - Plaintiff.
13. It is clarified that no opinion on merits, either with regard to
the rejection of the Notice of Motion or the claims of the parties has
been expressed by this Court. In the event if the Appellant succeeds in
the Civil Suit, the amount so deposited by him shall be refunded along
with interest as may be determined by the Trial Court in accordance
with law. While determining the Suit, Trial Court shall not be
influenced by the observations and findings in the impugned order as
prima facie view is expressed and it shall determine the trial on
evidence of the parties.
14. With the above directions and clarifications the Appeal From
Order is disposed of. Interim Application is also disposed.
[ MILIND N. JADHAV, J. ]
Ajay by RAVINDRA
RAVINDRA MOHAN
MOHAN AMBERKAR
AMBERKAR Date:
2026.01.17
12:54:51 +0530
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