Created by Fuzzy Cloud

Bombay High Court

SHRI JAFFARALI FAZALALI SHAIKHversusTHE MUNICIPAL CORPORATION OF GREATER MUMBAI

Decided
Disposal
Disposed Off

Holding

The High Court stayed the impugned notice and order subject to the appellant depositing Rs. 50,000 per month until the appeal is decided.

Summary

The appellant, Jaffarali Fazalali Shaikh, sought a stay of a notice issued under Section 351 of the Mumbai Municipal Corporation Act, 1888 (dated 11 June 2008) and an order dated 26 September 2012 that ordered demolition of his 5,000 sq. ft. structure used for housing cattle. The trial court dismissed his challenge for lack of documentary proof that the structure was legal. On appeal, the High Court balanced the equities, noting the irreversible damage to the cattle operation if demolition proceeded, and stayed the notice and order subject to a monthly deposit of Rs. 50,000 by the appellant. The court directed the deposits to be placed in a fixed deposit until the appeal is decided, with default leading to vacating the interim relief. If the appeal is ultimately dismissed, the deposited amount (with interest) may be handed over to the corporation or a charitable cause. The civil application for stay was disposed of on these terms.

Issues considered

  • Whether the notice issued under Section 351 of the Mumbai Municipal Corporation Act, 1888 is valid and enforceable against the appellant.
  • Whether the trial court's dismissal of the appellant's challenge should be set aside.
  • Whether a stay of the notice and order should be granted pending the outcome of the appeal.

Legislation cited

Subjects

  • stay of execution
  • municipal law
  • Section 351
  • illegal structure
  • deposit condition
  • civil procedure

Judgment

                          HMK                                 1                      20. CAF-3946-2012.doc


                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             CIVIL APPELLATE JURISDICTION

                                            CIVIL APPLICATION NO. 3946 OF 2012
         Digitally
                                                            IN
SAYYED signed by
       SAYYED
SAEED SAEED ALI                               FIRST APPEAL NO. 1587 OF 2012
ALI    AHMED ALI
AHMED Date:
       2026.03.05
ALI    10:33:32
       +0530
                     Jaffarali Fazalali Shaikh                              ….Applicant/Appellant

                                 Versus

                     The Municipal Corporation Of Greater Mumbai .…Respondent
                     __________________________________________________________________

                     Mr. Janardan S. Yadav i/by Mr. B. P. Shukla for the Applicant/Appellant.
                     Ms. Pallavi Khale i/by Ms. Komal Punjabi for Respondent-MCGM.
                     __________________________________________________________________

                                                           CORAM : JITENDRA JAIN, J.
                                                           DATED : 04th MARCH 2026


                     P. C. :

                     1.         This application is taken out for stay of the impugned order dated
                     26th September, 2012 and notice under Section 351 of the Mumbai
                     Municipal Corporation Act, 1888 dated 11th June, 2008.

                     2.         The challenge to notice under Section 351 was dismissed on the
                     ground that the appellant did not produce any documents in support of his
                     plea that the structure was legal. The learned Trial Court has given detailed
                     reasons from paragraph 8 onwards for dismissing the suit.

                     3.         Admittedly, as of today, the order of the Trial Court after considering
                     the evidence, is against the appellant. The suit structure consist of
                     approximately 5,000 sq. ft. (as per the appellant) which is tabela at
                     Kandivali, Mumbai and the tabela houses various cattels which supplies
                     milk. If the suit structure is demolished and ultimately if the appeal is
     HMK                                2                       20. CAF-3946-2012.doc


allowed, then the damage caused will be irreversible. If ultimately the
appeal is dismissed, then the appellant would have used the illegal
structure from 11th June, 2008 though according to the appellant he has
been using much before that. Therefore, to balance the equity, impugned
notice under Section 351 of the Mumbai Municipal Corporation Act, 1888
and the impugned order dated 11 th June, 2008 of the learned Trial Court is
stayed, subject to following order :-


      (a)      Appellant to deposit Rs. 50,000/- per month from
               01st June, 2008 to 31st March, 2026 within twelve weeks
               from today with the Registry of this Court.

      (b)      Appellant to continue deposit of Rs. 50,000/- per month
               from 01st April, 2026 on or before 07 th of every month
               with the Registry of this Court till the disposal of the
               appeal.

      (c)      Registry to invest the above amounts in the fixed deposit
               and the said fixed deposit to be kept alive till the disposal
               of the appeal and the said fixed deposit will be the subject
               to the outcome of the appeal.

      (d)      If there is default of any deposit to be made under this
               order, then interim relief will stand vacated.

      (e)      Appellant will not be granted any extension of time at any
               cost for making of the above deposit

      (f)      Appellant to inform the concerned Ward Officer about the
               deposit within seven days of making the deposit.


4.         If the appeal is dismissed, then the Court will consider whether to
hand over the amount deposited along with interest to the Corporation or
for any charitable cause.
     HMK                                 3                       20. CAF-3946-2012.doc


5.         Civil application for stay is disposed of in above terms.



                                                        [ JITENDRA JAIN, J. ]


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.