SURESH DATTU MORE THR CA ZAHEER USMAN WADIAversusTHE. MUNICIPAL CORPORATION OF GREATER MUMBAI AND ANOTHER

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION
                     APPEAL FROM ORDER NO. 720 OF 2026

Suresh Dattu More Thr CA
Zaheer Usman Wadia                                                           Appellant

          Versus

The. Municipal Corporation Of
Greater Mumbai and Another                                                Respondents

                                    WITH
                     INTERIM APPLICATION NO. 5554 OF 2026

Suresh Dattu More                                                            Applicant

          Versus

The. Municipal Corporation Of
Greater Mumbai and Another                                         Respondents
                                  _______
Mr. A. Y. Sakhare, Senior Advocate a/w Mr. Shobhit Shukla, Advocate for the
Appellant.
Ms. Smita Tondwalkar, Advocate for the Respondent/BMC.
                                      _______

                            CORAM:         AARTI SATHE, J.

                            DATE:          17th AUGUST 2026.

P.C.


1.            Heard learned counsel for Appellant (Original Plaintiff) and learned

Counsel for Respondents (Original Defendant). This Appeal from Order under Order

XLIII Rule 1 read with Section 104 of the Code of Civil Procedure, 1908 (“CPC”) takes

exception to the order dated 15 th July 2026 passed by the Learned Judge, City Civil

Court, Bombay (“Trial Court”) in Notice of Motion No. 3046 of 2026 in L.C. Suit No.



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1247 of 2026, whereby the Trial Court has dismissed the Notice of Motion No. 3046

of 2026 filed by the Appellant (Original Plaintiff).

2.         Mr. A. Y. Sakhare, Senior Advocate along with Mr. Shobhit Shukla appears

on behalf of the Appellant (Original Plaintiff) and Ms. Smita Tondwalkar appears on

behalf of the Respondents (Original Defendant).

3.          Briefly the facts are as follows:

i.          The Appellant (Original Plaintiff) is the owner in respect of building no.

38-40, V. V. Chandan Street, CTS No. 739 of Mandvi Division, Mumbai - 400003

(hereinafter referred to as “the structure”). It is the Appellant’s (Original Plaintiff’s)

contention that the said V. V. Chandan street was earlier known as D'Souza street and

the said street was renamed as Vitthaldas Chandan street commonly known as V. V.

Chandan street and the said renaming was done sometime around the year 1960. On

24th May 2024, the Respondents (Original Defendant) issued notice under Section

353B of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as “the

Act”) and directed the owner to submit the structural audit report.

ii.          The Appellant (Original Plaintiff) being the owner of the aforesaid

structure through the License Surveyor carried out the structural audit of the building

and in the said audit report it was concluded that minor repairs were required for the

structure and the said structure was categorized as C-3 i.e. “No Eviction - needs minor

repairs”. On 24th March 2025 the Administrative Officer of the Building and Proposal

Department, in response to the Appellant’s (Original Plaintiff’s) representative who had

filed an RTI application on 11 th February 2024 to seek certain documents, informed the

Appellant (Original Plaintiff) that the documents containing to file No. EB/1419/B of



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1968 were available in the aforesaid office and could be obtained upon payment of the

requisite charges.

iii.        On 31st July 2025, Respondents (Original Defendant) issued notice under

Section 354A of the Act stating that “unauthorized structural repair to back side

portion of building without permission from the competent authority of the BMC” had

been undertaken by the Appellant (Original Plaintiff), and sought to demolish the

aforesaid alleged unauthorized structural repair. Thereafter on 4 th August 2025, the

Respondents (Original Defendant) once again issued a notice exercising powers under

Sections 351, 352, 352A and 354A of the Act directing that the Appellant (Original

Plaintiff) stop the erection of the said building / execution of the said work and

forthwith submit the permission granted by a competent authority in favour of the

Appellant (Original Plaintiff) for the erection of the said building and for execution of

the work within 24 hours to the office of the Respondents (Original Defendant). By

way of aforesaid notice, it was also informed to the Appellant (Original Plaintiff) that if

the erection of the building or the execution of the work of the building is not stopped

forthwith or permission/approval of the competent authority in favour of the erection

of the said building or execution of the work is not produced within 24 hours from the

service of the said notice, the said building/work would be removed or pulled down and

all the material, machinery, equipment, devices or articles used for the process of

erection of the said building or execution of the said work would be removed from the

sight at the risk and cost of the Appellant (Original Plaintiff).

iv.          Thereafter on 14th August 2025, the Respondents (Original Defendant)

issued a notice directing the Appellant (Original Plaintiff) to remove the existing work



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within 15 days of receipt of the said notice failing which the alleged unauthorized work

would be demolished by the Respondents (Original Defendant) at the risk, cost and

consequence of the Appellant (Original Plaintiff).

v.          On 2nd December 2025, the Appellant (Original Plaintiff) through their

Advocate submitted a detailed reply along with the documents available with the

Appellant (Original Plaintiff) denying the allegations in the said notice and stated that

the work of repair to the building was completed even before the notice dated 31 st July

2025. The Appellant (Original Plaintiff) submitted documents received under RTI and

entire file of CS No. 793 for addition/alteration filed by the earlier owner for

Intimation of Disapproval (“IOD”) dated 16th May 1969 and commencement

certificate dated 16th May 1969 and plans attached with the file in addition/alteration.

vi.          Thereafter on 16th April 2026, the Respondents (Original Defendant)

passed a speaking order and held that the documents submitted by the Appellant

(Original Plaintiff) did not go to prove that any permission from any competent

authority for ongoing work had been submitted by the Appellant (Original Plaintiff)

and therefore directed the Appellant (Original Plaintiff) to discontinue the use of notice

structure and remove or restore the unauthorized work mentioned in the referred

notice immediately from the receipt of the said notice failing which the same would be

demolished by the Respondents (Original Defendant) entirely at risk and cost of the

Appellant (Original Plaintiff).

vii.       Thereafter the Appellant (Original Plaintiff) moved the learned City Civil

Court by filing L.C. Suit No. 1247 of 2026 and also filed Notice of Motion No. 3046

of 26 seeking a temporary injunction restraining the Respondents (Original



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Defendant), their officers, servants, agents and all persons claiming through them from

taking any coercive action in respect of the said structure.

viii.      On 15th June 2026, the Respondents (Original Defendant) filed a detailed

reply and relied upon documents i.e. Preliminary Inspection Report dated 22 nd July

2025, photographs and sanctioned issued notices. On 15 th July 2026, by way of the

impugned order, the learned Trial Judge was pleased to dismiss the Notice of Motion

filed by the Appellant (Original Plaintiff) against which the present Appeal from Order

has been preferred.

viii.       The case of the Appellant (Original Plaintiff) before the Trial Court was

primarily to the effect that the action on the part of Respondents (Original Defendant)

was incorrect and the structural audit of the building was conducted on 13 th January

2025 which clearly showed that the building was categorized in C-3 category i.e. “No

Eviction, need minor repairs”. The Appellant (Original Plaintiff) therefore contended

that the said minor repairs and tenantable repairs as mentioned in the structural audit

report requires no separate permission from the Building and Proposal Department and

hence, the repair works were carried out by the Appellant (Original Plaintiff). It was

also submitted that on 2nd September 1968 the earlier trust who was owner of the said

building appointed architect and submitted proposal under Section 342 of the Act for

repairs of the building and submitted plans which clearly showed the existence of the

building comprising the Ground Floor, Mezzanine Floor, and First to Eighth floor. It

was further contended that on 16 th May 1969, the Executive Engineer, Building and

Proposal Department issued IOD and also issued a commencement certificate for the

said building. It was further contended on behalf of the Appellant (Original Plaintiff)



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that notice under Section 354A of the Act could be issued only when work is in

progress, and considering that the building was in existence and tenantable repairs had

been carried out much prior to the issuance of notice, the said notice dated 31 st July

2025 itself could not be issued. The Appellant (Original Plaintiff) submitted that the

said notice also was a vague notice which did not clarify what is structural repair and

what are the exact measurements which the Respondents (Original Defendant) seeks to

classify as unauthorized structures and repairs to that unauthorized structure, which

vitiates the entire notice itself. Further, learned counsel on behalf of the Appellant

(Original Plaintiff) submitted that the impugned order dated 15 th July 2026 had

nowhere dealt with the aforesaid contention of the Appellant (Original Plaintiff) that

the notice dated 31st July 2025 was a vague notice not specifying any details. Learned

counsel for the Appellant (Original Plaintiff) also submitted that the speaking order

dated 16th April 2026 had discarded the documents submitted by the Appellant

(Original Plaintiff) and therefore, could not be relied upon. He therefore submitted that

no prima facie view was formed by the Trial Court on appreciation of facts and record

before dismissing the Notice of Motion. He further sought to place reliance on the

decision of this Court in the case of Goverdhan Ramnaresh Singh Vs. The Municipal

Corporation of Greater Mumbai1, to submit that if by the time the notice under Section

354A of the Act has been issued, the work/repairs have been completed, then the said

notice could not be issued.

ix.           Ms. Smita Tondwalkar, learned Advocate for the Respondents (Original

Defendant) opposes the present Appeal primarily on the ground that no permission


1 Order dated 15th April 1999 in Appeal from Order no. 257 of 1999


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had been granted to the Appellant (Original Plaintiff) prior to carrying out the repairs

to the said building/structure. She therefore submitted that the notice dated 31 st July

2025 under Section 354A of the Act was correctly issued and further sought to place

reliance on the Inspection Report dated 22 nd June 2025 and the photographs which

according to her proved, that unauthorized structural repair to the back side portion of

the building/structure without permission from competent authority of the Respondent

Corporation was sought to be made by the Appellant (Original Plaintiff).

4.          I have considered rival submissions and perused the record. On perusal of

the documents and the impugned order, it is quite clear that the impugned order does

not record any finding with respect to the documents submitted by the Appellant

(Original Plaintiff) i.e. the permissions taken by the earlier owner i.e. the Trust in

respect of repairs to be carried out to the said Structure. The Trial Court has also not

rendered any finding in respect of the structural audit report dated 13 January 2025,

which categorically came to the conclusion that the said building is a C-3 structure i.e.

“No Eviction - needs minor repairs” which showed that the building required minor

repairs. The Trial Court further failed to consider the Appellant’s (Original Plaintiff’s)

contention that the notice dated 31st July 2025 issued under Section 354A of the Act

did not give the exact details, measurements and/or specifications of the unauthorized

structural repair and only a vague and omnibus statement regarding the unauthorized

structure has been made in the notice.

5.          The Trial Court has also failed to consider that when the notice was issued

under Section 354A of the Act, there was no work in progress i.e. repairs which were

being carried out by the Appellant (Original Plaintiff). I am further of the view that the



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reliance placed by learned counsel on behalf of the Appellant (Original Plaintiff) on the

decision of Goverdhan Ramnaresh Singh (Supra) is apposite to the facts of the present

case inasmuch as even in the present case, the repairs to the building have concluded

prior to the issuance of the notice under Section 354A of the Act. The relevant

paragraph of the aforesaid decision is reproduced below: -

          “5.      A perusal of sub section (1) shows that if the unauthorized construction had
          been commenced or is being unlawfully carried upon any premises, the
          Commissioner or for that purpose the person authorized by him may require the
          person carrying out such unauthorized construction or executing the unauthorized
          work stop; such construction or work within time specified in the notice. Sub
          section (2) of section 354A provides the remedy to the Commissioner to remove
          such unauthorized construction if the erection of the building or execution of the
          work is not stopped by the person within the period specified in the notice given
          under sub section (1). The condition precedent for invocation of power under sub
          section (2) of section 354A is non-compliance of the notice by the noticee given
          under sub section (1) of section 354A. In the present case on the face of the notice
          itself it is clear that by the time notice under section 354A was issued and even to
          the notice construction was complete and was in occupation. If a 354A(1) was
          issued, the remedy to the Corporation is under section 351 of the BMC Act and not
          under section 354A. The trial court has also observed "here one fact is clear so far as
          such stop work notice is even though styled, no record is coming before the court
          that really the work was in progress and the stages of progress of the construction is
          recorded by the office of the defendants. If the Corporation had no material in its
          possession at the time of issuance of the notice under section 354A that the activity
          of construction was going on, obviously notice under section 354A could not have
          been issued. In this background the order of the trial court cannot be sustained since
          admittedly no notice under section 351 was given by the Corporation to the original
          plaintiff and since section 354A of the BMC Act was not attracted the removal of
          the so called unauthorized construction in implementation of, the notice under
          section 354A prima facie cannot be said to be justified.”
                                                                            (emphasis supplied)



6.               Therefore, the Trial Court without forming a prima facie view on the

documents has merely sought to dismiss the Notice of Motion and has not recorded any

finding in respect of the same. The Trial Court while exercising jurisdiction under

Order XXXIX Rule 1 and 2 of the CPC, was required to come to prima facie view and

as per the settled principles of law regarding balance of convenience and irreparable loss

also needed to be taken into consideration before exercising the aforesaid jurisdiction.



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In my considered view, the Trial Court has failed to apply the aforesaid principles

before passing the impugned order. I am further of the view that the Trial Court has

also not verified whether the alleged unauthorized repair to the structure/building was

actually being carried out on the date of issuance of notice dated 31 st July 2025 under

Section 354A of the Act. I am therefore of the considered view that the Trial Court has

not passed the impugned order which is supported by material on record and the

discretion exercised by the Trial Court is arbitrary, perverse and contrary to settled

principles. In these circumstances, interference in the Trial Court’s impugned order is

warranted.

7.            In the present case, the Trial Court by not rendering a finding or forming a

prima facie view on the submissions made by the Appellant (Original Plaintiff) has

erred in exercising its discretion in dismissing the Notice of Motion filed by the

Appellant (Original Plaintiff). Further, the Trial Court has also not given a finding as to

how the tenantable repairs require permission under Section 342 of the Act and has

proceeded on the basis of the vague notice dated 31st July 2025 issued under Section

354A of the Act which does not specify any details of the unauthorized repairs carried

out to the said building. In my view, therefore the refusal of injunction would cause

irreparable injury and harm to the Appellant (Original Plaintiff) and if the injunction is

granted, the Respondents (Original Defendant) would suffer no comparable prejudice.

The balance of the convenience lies in favour of the Appellant (Original Plaintiff). In

my view therefore, the impugned order cannot be sustained and accordingly the Appeal

is allowed.




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                                         ORDER

i.         The Appeal from Order is allowed in the following terms:

ii.        The impugned order dated 15 July 2026 passed by the Trial Court in the

Notice of Motion No. 3046 of 2026 in LC Suit No. 1247 of 2026 is hereby set aside.

iii.       The Respondents (Original Defendant), its servant, agents and persons are

hereby restrained from acting upon the notice dated 31st July 2025 under Section 354A

of the Act pending herein and final disposal of the suit. It will be open to the

Respondent (Original Defendant) to issue fresh notice to the concerned

person/Appellant (Original Plaintiff) in respect of any other unauthorized structure

other than that covered in the notice dated 31 st July 2025 in accordance with law for

the removal of unauthorized construction if any. The learned Trial Court shall dispose

of the pending suit as expeditiously as possible.

iv.        Appeal is disposed of in the aforesaid terms. In view of the disposal of the

above Appeal, pending Interim Application, if any, also stands disposed of.



                                                                (AARTI SATHE, J.)




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