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. ]
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