Bombay High Court
JAGDISH PUKHRAJ SONIversusTHE MUMBAI MUNICIPAL COR. OF GREATER MUMBAI THR. DESIGNATED OFFICER AND ASST. ENGINEER(B AND F)
- Decided
- Disposal
- Disposed Off
- Bench
- SHARMILA U DESHMUKH
Holding
The Court held that the documented existence of the loft and toilet since at least 1992 established a prima facie case of long‑standing tolerance, rendering the 2018 notice under Section 351 unjustified and necessitating the quashing of the impugned order and grant of a temporary injunction.
Summary
The appellant, owner of Shop No.1 in Pearl Mansion, challenged a notice issued by the Mumbai Municipal Corporation (MMC) under Section 351 of the MMC Act alleging unauthorized construction of a toilet and full loft. The trial court rejected the appellant's notice of motion, finding insufficient proof that the structure existed before the corporation's datum line of 1 April 1962. On appeal, the High Court examined inspection extracts from 1995‑1996 and remarks indicating the loft and toilet were assessed as early as 1992, establishing their long‑standing existence. The Court held that this demonstrated a prima facie case of tolerance, making the 2018 notice unjustified. Consequently, the appellate court allowed the appeal, quashed the trial court’s order, and granted a temporary injunction restraining the MMC from acting on the notice, while disposing of the interim application.
Issues considered
- The validity of the notice issued under Section 351 of the Mumbai Municipal Corporation Act concerning alleged unauthorized construction.
- Whether the loft and toilet structure existed prior to the MMC's datum line of 1 April 1962, thereby negating the notice.
- Whether the appellant established a prima facie case sufficient to merit interim relief in the form of a temporary injunction.
Legislation cited
- Code of Civil Procedure — s. 151
- Mumbai Municipal Corporation Act — s. 351
Subjects
- unauthorised construction
- Mumbai Municipal Corporation
- Section 351
- temporary injunction
- prima facie case
- datum line
- property tax assessment
- interim relief
Judgment
Digitally signed
by SHAGUFTA
SHAGUFTA QUTBUDDIN
PATHAN
QUTBUDDIN
Date:
PATHAN 2026.06.29
18:51:33 63-AO-260-2024.doc
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.260 OF 2024
WITH
INTERIM APPLICATION NO.7218 OF 2024
IN
APPEAL FROM ORDER NO.260 OF 2024
Jagdish Pukhraj Soni
Aged 52 years, Occ: Business,
Owner and occupier of Shop No.1,
Pearl Mansion Co-operative Housing Society,
Acharya Dinde Marg, Parel,
Mumbai 400 012
And Residing at R.M. Bhatt, 3/32,
Palangwala Building, Gokhale Society Lane, …Appellant/
Parel, Mumbai 400 012 (Org. Plainti;)
Versus
The Mumbai Municipal Corporation of
Greater Mumbai
Through Designated O=cer And Assistant
Engineer (Building And Fact)-2,
The Mumbai Municipal Corporation of Greater
Mumbai, `F’ South Ward, Dr. B.A. Road, Parel Naka,
Parel, Mumbai-400 012
and head o=ce at Mahapalika Bhavan, ...Respondents
Mahapalika Marg, Mumbai-400 001 (Org.Defendant)
——————
Mr. Jash B Vyas (through VC) for the Appellant/Applicant
Mr. Sachin Vajale a/w Ms. Neeta Jadhav i/b Ms. Komal Punjabi for the
Respondent-MMC
——————
CORAM : SHARMILA U. DESHMUKH, J.
DATE : JUNE 25, 2026
SQ Pathan 1/7
63-AO-260-2024.doc
ORAL JUDGMENT :
1. Heard. Admit. With consent, taken up for Dnal disposal
forthwith.
2. The Appeal from Order has been preferred challenging the order
dated 7th March 2024 passed by the Trial Court in Notice of Motion No.
702 of 2019 in L.C. Suit No. 967 of 2019, rejecting the Notice of Motion.
3. L.C. Suit No. 967 of 2019 was Dled by the Plainti; challenging the
notice dated 24th September 2018 and the speaking order dated 23 rd
January 2019 issued under Section 351 of the Mumbai Municipal
Corporation Act (for short `MMC Act’), in respect of the unauthorized
construction of a toilet and full loft at toilet premises in Shop No. 1,
Pearl Mansion Co-operative Housing Society, Acharya Dinde Marg,
Parel, Mumbai-12, and for an order of permanent injunction restraining
the Defendant Corporation from taking any action in pursuance of the
notice issued under Section 351 of the MMC Act and the order passed
therein.
4. In these proceedings, an Interim Application came to be Dled
under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of
Civil Procedure seeking a temporary injunction restraining the
Defendant from implementing the notice issued under Section 351 of
the MMC Act in respect of the suit premises.
SQ Pathan 2/7
63-AO-260-2024.doc
5. The case of the Defendant was that the o=cer of the Defendant
had inspected the suit premises and detected unauthorized
construction of a toilet and full loft in respect of Shop No. 1, pursuant
to which an inspection report was prepared and the impugned notice
came to be issued. It was contended that an opportunity of hearing had
been given and that the Plainti; had failed to produce permission,
sanction map or approved plans in respect of the notice structure.
Pursuant thereto, the speaking order came to be passed.
6. The Trial Court noted that the building in question was
constructed in the year 1936 and the unauthorized construction
alleged was of a full loft and toilet. It noted that the Agreement for
Sale dated 11th March 2010 does not mention any unauthorized
construction. It also noted that the suit Shop No. 1 is assessed for tax
purposes in the year 1995-1996 and that the document mentions
about the loft, added-on room area approximately 10 sq. metres, to
use for godown and toilet block. The Trial Court held that the
document does not prove that the notice structure is tolerated or
existed prior to the datum line and accordingly rejected the Notice of
Motion.
7. Learned counsel appearing for the Appellant would point out the
notice issued under Section 351, which refers to the unauthorized
construction of a toilet and full loft at Shop No. 1. He would further
SQ Pathan 3/7
63-AO-260-2024.doc
point out the inspection extract of the year 1995-1996, which mentions
Shop No. 1 along with a loft and added-on room area used as a godown
and toilet block. He submits that the inspection extract would show
the existence of the loft and the toilet block prior to the datum line,
which has not been considered by the Trial Court. He would submit that
as the building in question was constructed in the year 1936 and the
inspection extract of the year 1995-1996 shows the existence of the
structure, the issuance of the notice under Section 351 in the year 2018
is without any justiDcation. He would further submit that even the
capital value calculation shows the existence of the loft.
8. Per contra, learned counsel for the Corporation would support
the impugned order. He submits that there is no document produced
on record to prove the authorization or existence of the loft and toilet
prior to the datum line. He would further submit that there is an
approved policy of the Corporation of the year 1997 and no application
has been made for regularization of the loft. He submits that the
inspection report of the year 2018 shows the alleged unauthorized
construction and, as no documents were produced, the speaking order
had been passed.
9. I have considered the submissions and perused the record. The
Plainti; seeks to rely on an inspection extract of the year 1995-1996 to
show the existence of the loft as well as the toilet block at least since
SQ Pathan 4/7
63-AO-260-2024.doc
the year 1995-1996. The notice in question has been issued in the year
2018 and, the existence of the scheduled construction being of the
year 1995-1996, there is no justiDcation for the issuance of the notice
in the year 2018. The speaking order dated 23 rd January 2019, while
referring to the assessment extract, records that the Assistant
Assessor and Collector, F/South Ward, has remarked that the toilet and
full loft is assessed on 1st April 1992, whereas the Register of
Inspection of Properties of the Assistant Assessor and Collector
mentions that the tenant of Shop No. 1 had added one room on the
backside of Shop No. 1 and was using it as a godown and toilet block,
which is assessed prior to 1st April 1992. Though it is an admitted
position that the datum line adopted by the Corporation for toleration
of commercial structures is 1st April 1962, the documents produced on
record demonstrate the existence of the notice structure at least since
the year 1992 as per the remarks of the Assistant Assessor and
Collector, F/South Ward.
10. The Plainti; has purchased the suit premises by registered
agreement for sale dated 11th March 2010. At the interim stage, what
is required to be seen is a prima facie case showing long standing
existence of the notice structure and after evidence is led, it can be
conclusively determined whether the structure is unauthorised. The
building in question has been constructed in the year 1936 and the
SQ Pathan 5/7
63-AO-260-2024.doc
documents on record demonstrate the existence of the notice
structure since the year 1992. Even if a document is not produced at
this stage to show the existence of the structure prior to the datum
line of 1st April 1962, the existence of the structure since 1992 cannot
be disputed. The Plainti; being subsequent purchaser, may not be in a
possession of the old documents pertaining to the suit premises. A
prima facie case is made out by the Plainti; for the suit to proceed to
trial. In the event the interim relief is rejected, the Plainti; will su;er
irreparable loss, as the entire suit will be rendered infructuous despite
the structure having been shown to be in existence since 1992. The
balance of convenience tilts in favour of the Plainti;, particularly
considering that the structure stands protected by the orders passed
by this Court.
11. In view thereof, the Appeal from Order is allowed in the above
terms.
12. The impugned order dated 7th March 2024 is hereby quashed and
set aside.
13. Notice of Motion No. 702 of 2019 is allowed in terms of prayer
clause (a), which reads thus :
“a) That pending the hearing and Dnal disposal of the suit the
Defendants, their servants, agents and their other o=cer be
restrained by a temporary order of injunction of this Hon'ble
Court from taking any action in pursuance to the notice u/s. 351
dated 24/09/2018 bearing NO.FS/D02FS/203/351-MMC
SQ Pathan 6/7
63-AO-260-2024.doc
ACT/FS394N01/27-08-2018, and further order dated 23/01/2019,
passed by the Defendants in respect of the Unauthorized
Construction of toilet and full loft at toilet premises in
Shop.No.1, Pearl Mansion, Acharya Dinde Marg, Parel, Mumbai:
400 012, or any part thereof in any manner whatsoever.”
14. Needless to clarify that the observations in this order are prima
facie observations and the Trial Court to decide the suit on its own
merits uninOuenced by the observations herein.
15. The Interim Application does not survive for consideration and
the same is disposed of.
[SHARMILA U. DESHMUKH, J.]
SQ Pathan 7/7
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