[Cites 5, Cited by 0]
Bombay High Court
Sailappan Sodali Muthu vs The Municipal Corporation Of Greater ... on 20 January, 2026
2026:BHC-AS:3440
38-FA-653-2011.doc
rsk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.653 OF 2011
WITH
CIVIL APPLICATION NO.2893 OF 2011
Sailappan Sodali Muthu
Age: 54 Occupation: Business
Adult, Mumbai Inhabitant, residing at
Plot No.201, Gauri Nagar, Gorai Khadi,
L. T. Road, Borivali (W)
Mumbai 400 092 ... Appellant
(Org. Plaintiff)
Versus
The Municipal Corporation Of
Greater Mumbai
A Corporation duly incorporated under
The Bombay Corporation Act, 1888
Having its head office at Mahapalika Bhavan,
Mahapalika Marg, Mumbai 400 001 ...Respondent
( Org. Defendants)
_____________________________________________________
Mr. Pradeep J. Thorat i/b Mr. P. B. Gujar for the Appellant.
Ms. Pallavi Khale i/b. Ms. Komal Punjabi for Respondent No.1.
_____________________________________________________
CORAM : JITENDRA JAIN, J.
DATED : 20 JANUARY 2026
JUDGMENT:
1. This appeal is filed challenging the order passed by the City Civil
Court on 23 February 2011 whereby notice issued under Section 314 of
Digitally
signed by
RAJESHWARI
the Mumbai Municipal Corporation Act, 1888 (MMC Act) was held to
RAJESHWARI SUBODH
SUBODH KARVE
KARVE Date:
2026.01.23
13:47:58
+0530 be valid and it was held that the structure in respect of which the notice
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was issued was situated on the dumping ground belonging to the
Corporation.
2. The appellant-plaintiff in the plaint had prayed that the
impugned notice under Section 314 of the MMC Act dated 28 April
2008 is illegal, bad in law, null and void.
3. The scanned copy of the impugned notice is reproduced
hereunder:-----
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4. Section 314 of the MMC Act empowers the Commissioner to
remove without notice anything erected, deposited or hawked in
contravention of Sections 312, 313 or 313A of the MMC Act .
5. Section 312 of the MMC Act deals with prohibition of structures
or fixtures which cause obstruction in streets. Section 313 of the MMC
Act prohibits deposit upon any street or upon any open channel, drain
or well in any streets, any stall, chair, bench etc. in any public place so
as to form an obstruction thereto or encroachment thereon or prohibit
project at a height of less than 12 feet from the surface of the street or
attached to or suspend from any wall or portion of building abetting
on a street at a height less than 12 feet. Section 313A of the MMC Act
provides for license for sale in public places.
6. Before issuing notice under Section 314, the Commissioner has
to satisfy himself as to whether there is contravention of Sections 312,
313 or 313A of the MMC Act for exercising his powers under Section
314 of the MMC Act. The said satisfaction has to be reflected in the
notice which is issued. In the instant case, the impugned notice
( scanned as above) does not specify as to which of the provisions of the
MMC Act viz., Sections 312, 313, 313A is contravened for empowering
the Commissioner to initiate proceedings under Section 314 of the
MMC Act.
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7. The notice on the face of it appears to have been issued
mechanically and without application of mind.
8. The respondent-Corporation did not file any written statement
before the trial Court in which they could have justified the nature of
contravention for which the power was exercised. Therefore, in the
instant case, the respondent-Corporation has failed to satisfy
jurisdictional condition for issuance of notice under Section 314 of the
MMC Act.
9. Since the notice itself does not satisfy the jurisdictional condition
required under Section 314 of the MMC Act, in my view the impugned
notice cannot be sustained and has to be quashed and set aside.
10. Mr. Thorat, learned counsel for the appellant has raised various
contentions on merits as also on the nature of proceedings under
Section 314 of the MMC Act. I do not propose to give any findings on
the same since on the jurisdictional aspect itself, the notice under
Section 314 of the MMC Act dated 28 April 2008 cannot be sustained.
11. The appellant has also taken out an application for admission of
additional evidence to produce the property card on record. However,
since I have held the notice itself to be without jurisdiction, no finding is
given on the said application.
12. In view of above, the impugned order dated 23 February 2011 is
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quashed and set aside.
13. Appeal is allowed in the above terms. However, this would not
preclude the respondent to issue fresh notice in accordance with law.
14. Since the impugned order is quashed and set aside , the suit is
decreed in terms of prayer clauses (a) and (b) by holding that the
impugned notice is bad in law.
[ JITENDRA JAIN, J. ]
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