Bombay High Court
MR. KULDEEP SINGH SARDUL SINGH BAIDWAN AND OTHERSversusMUNICIPAL CORPORATION OF GREATER MUMBAI
- Decided
- Disposal
- Disposed Off
- Bench
- SHARMILA U DESHMUKH
Holding
The appeal is allowed; the trial court’s order dismissing the injunction is quashed and the draft notice of motion is allowed.
Summary
The appellants, three brothers, appealed against the Municipal Corporation of Greater Mumbai (MCGM) which had issued a notice under Section 351 of the Bombay Municipal Corporation Act, 1888, alleging unauthorised vertical extension of their premises at Room No.2, Shakil Niwas CHS Ltd. The trial court dismissed their motion for a temporary injunction, holding that the upper floor was unauthorised and that the datum line of 17 April 1964 applied despite the property being in a slum zone. The appellants contended that the structure in question was an attic floor existing since before the 1995 slum datum line and that documents such as maintenance bills, assessment extracts, and inspection reports proved its existence and protected status. The High Court examined these documents and found that the trial court had not properly considered the evidence showing the attic floor’s existence and the inapplicability of the 1964 datum line to slum structures. Concluding that the appellants had made out a prima facie case for injunction and that demolition would cause irreparable injury, the Court allowed the appeal, quashed the trial court’s order, and granted the draft notice of motion for injunction.
Issues considered
- Whether the vertical extension alleged in the notice under Section 351 MMC Act is an unauthorised upper floor or a protected attic floor existing prior to the slum datum line.
- Whether the datum line of 17 April 1964 applies to a structure situated in a declared slum area.
- Whether the appellants are entitled to a temporary/permanent injunction restraining demolition of the structure.
Legislation cited
Subjects
- injunction
- unauthorised construction
- Section 351
- Bombay Municipal Corporation Act
- slum datum line
- protected structure
- municipal corporation
- balance of convenience
- vertical extension
- attic floor
Judgment
2026:BHC-AS:10196
AO-195-2024 (final).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 195 OF 2024
1. Mr. Kuldeep Singh Sardul Singh Baidwan, ]
Age 54 Years, Occupation : Service ]
2. Mr. Jasbir Singh Sardul Singh Baidwan, ]
Age 52 Years, Occupation : Service, ]
3. Mr. Bhupinder Singh Sardul Singh Baidwan, ]
Age 50 Years, Occupation ; Business, ]
All Indian Inhabitants, residing at Room No. ]
]
2, Shakil Niwas C.H.S. Ltd., Near Satya Sai
]
Baba Mandir, Mahakali Caves Road, ]
Andheri East, Mumbai – 400 093. ] ...Appellants
Versus
Municipal Corporation of Greater Mumbai, ]
a Statutory Corporate Body incorporated under ]
the provisions of the Bombay Municipal ]
]
Corporation Act, 1888, and having its Registered
]
Office at Mahapalika Bhavan, Mahapalika Marg, ]
Fort, Mumbai – 400 001. ] ...Respondents
——————
Mr. Jagdish Jayale for Appellant.
——————
Coram : Sharmila U. Deshmukh, J.
Reserved on : 22nd June, 2026.
Pronounced on : 25th June, 2026.
Judgment :
1. Heard.
2. Admit. With consent, taken up for final disposal forthwith.
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AO-195-2024 (final).doc
3. The Appeal is at the instance of the original Plaintiffs being
aggrieved by the order dated 9th February, 2024 passed by the City Civil
Court at Dindoshi (Borivali Division) in L.C. Suit No. 128 of 2024 by
which the Notice of Motion filed by the Plaintiffs came to be dismissed.
4. L.C. Suit No. 128 of 2024 was filed challenging the notice dated
24th August, 2022 issued by the Municipal Corporation of Greater
Mumbai [for short, “MCGM”] under Section 351 of the Mumbai
Municipal Corporation Act, 1888 [for short, “MMC Act”] and for an
order of permanent injunction from demolishing the suit premises. The
suit premises was described as Room No. 2, Shakil Niwas CHS Ltd., Near
Satya Sai Baba Mandir, Mahakali Caves Road, Andheri (East), Mumbai
comprising of ground + attic floor admeasuring about 327 sq. ft., made
of B. M. walls and ladi coba slab, etc. It was pleaded that the Plaintiff
had purchased the suit premises from one M/s. Mondkar Management
Systems Private Limited vide registered Sale Deed dated 6 th November,
2018. The Plaintiff’s case is that the suit premises is in existence since
the year 1995 and various documents were produced to show
existence of suit premises. It was contended that the structure existed
on CTS No. 530/31 of village Kondivita which has been declared as slum
and in view of that, datum line is fixed prior to January, 1995 and later
on to April, 2000 and thereafter, to April, 2011. It was pleaded that all
relevant documents to demonstrate existence of suit premises prior to
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AO-195-2024 (final).doc
1995 were produced in reply to show-cause notice issued by the
Corporation.
5. By way of Notice of Motion, interim relief was sought for an
order of temporary injunction restraining the MCGM from acting upon
the notice issued under Section 351 of MMC Act.
6. The Defendant-MCGM opposed the Notice of Motion contending
that there is no document produced to show that the notice structure
i.e. upper floor is authorized and constructed prior to datum line.
7. The Trial Court considered the documents produced on record to
hold that the documents makes no mention of upper floor and show
existence of attic floor. It further noted the photographs taken during
the inspection which show that the Plaintiff has constructed an upper
floor and is not an attic floor. It further held that though the suit
premises is situated in the slum zone, the Plaintiffs cannot make any
addition, alteration or extension to the existing structure without
approval of competent authority and rejected the interim relief.
8. Learned counsel appearing for the Appellants submits that the
Plaintiffs had purchased the suit premises by registered Sale Deed in
the year 2018 and documents were produced to show the existence of
the suit structure prior to 1995. He has taken this Court through the
documents produced before the Trial Court and would contend that
the Trial Court failed to appreciate that as the datum line in respect of
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AO-195-2024 (final).doc
the slum was fixed earlier to January, 1995 which was extended from
time to time till April, 2011, the datum line of 1 st April, 1964 of the
Corporation will not apply. He submits that the Trial Court failed to
notice that the attic floor is part and parcel of the suit premises and is
in existence by pointing out the assessment bill referring to the attic
floor. He would further point out the inspection extract of the property
dated 24th September, 2003 which makes a reference to the office area
of Room No. 2 at 31.23 sq. meter and attic floor at 30.77 sq. meters. He
would further point out the documents which were submitted by the
Plaintiffs to the MCGM to contend that the documents show the
existence of the attic floor and would contend that the same have not
been considered by the Corporation while passing the speaking order.
9. I have considered the submissions and perused the record.
10. The notice issued under Section 351 of MMC Act refers to the
notice structure as under :
“Unauthorized vertical extension to the existing
ground floor structure with the help of ladi coba slab,
AC sheet roof and BM wall admeasuring 9.12m X
3.25m X 2.7m height without taking any permission
from the competent authority.”
11. The sketch which is annexed to the notice of Corporation shows
vertical construction to the existing ground floor. The Plaintiff has
produced the chain of title documents and the earliest sale transaction
is of the year 1982 in respect of Room No 2. The Plaintiff has also
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AO-195-2024 (final).doc
produced the maintenance bill issued by Shakil Niwas Co-operative
Housing Society Ltd which shows the area of Room No. 2 as 667/670
square feet which would include the area of attic floor. The inspection
extract of 24th September, 2003 and the capital value calculation of
MCGM of May, 2022 makes reference to attic floor of Room No 2. The
assessment extracts for the year 1996-1997 shows assessment of
Room No 2 and the attic floor.
12. The documents showing existence of attic floor were produced
by the Plaintiff in response to the show cause notice and the speaking
order discards the documents with the standard common remark that
the document does not prove the authorisation of existing structure
prior to 17th April, 1964. The Plaintiff has produced the slum
notification on record, which would protect the structure in existence
prior to the year 1995, which was thereafter extended from time to
time till the year 2011. The assessment extract on record shows the
existence of the attic floor in the year 1996-1997. There is no
discussion on these documents in the speaking order and the
Corporation has applied the datum line of 17th April, 1964 to hold that
the structure is unauthorised. The datum line of Corporation would not
apply to slum structure.
13. The Trial Court has held that the documents does not show
existence of upper floor without noticing that the sketch appended to
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AO-195-2024 (final).doc
Section 351 notice shows the attic floor as unauthorised construction.
In event, the unauthorised construction was a construction above the
ground floor, the sketch would have reflected the attic floor. Prima
facie, the notice structure as per the sketch is the attic floor as the
sketch does not reflect the attic floor of Room No 2. The parties will
therefore have to lead evidence to show that there is separate attic
floor and what is unauthorised is an upper floor separate from the attic
floor. Prima facie, the sketch does not demonstrate the construction of
an unauthorised upper floor independent of the attic floor.
14. The Trial Court has considered the photographs taken at the time
of inspection, which photographs are not part of the Appeal memo,
and has held that the photographs demonstrate that the Plaintiff has
constructed the upper floor and it is not an attic floor. The Trial Court,
failed to note that the documents produced on record shows existence
of attic floor and the photographs had to be considered accordingly.
There is no finding that the photographs reflects an upper floor apart
from the attic floor. The Trial Court has characterised the construction,
which prima facie appears to be an attic floor as upper floor.
15. Prima facie, the documents produced by the Plaintiff on record
shows the existence of attic floor atleast since the year 1996-1997 and
being situated in the slum would be protected structure. As to whether
the notice structure is attic floor or altogether separate upper floor is a
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AO-195-2024 (final).doc
matter of evidence and prima facie appears to be an attic floor as the
room is situated in a chawl.
16. The Trial Court has failed to consider the documents produced
on record in the correct perspective. In light of the discussion above,
the Plaintiff has therefore made out prima facie case for grant of
injunction. As the attic floor is in existence since the year 1996-1997,
the balance of convenience is in favour of the Plaintiff. In event, the
notice structure is demolished, irreparable injury will be caused to the
Plaintiff. Hence the following order is passed:
ORDER:
(a) The Appeal from Order is allowed.
(b) The impugned order dated 9th February, 2024 passed in
Draft Notice of Motion in L.C Suit No. 128 of 2024 is hereby
quashed and set aside.
(c) The draft Notice of Motion is allowed in terms of prayer
clause (a)
17. In view of above, nothing survives for consideration in pending
applications, if any, and the same stand disposed of. It is clarified that
the observations herein are prima facie observations and Trial Court to
decide the suit on its own merits uninfluenced by the observations
herein.
[Sharmila U. Deshmukh, J.]
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