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. Sairaj 1 of 7 2026:BHC-AS:10196 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 6th 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 Sairaj 2 of 7 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 Sairaj 3 of 7 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 1st 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 Sairaj 4 of 7 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 Sairaj 5 of 7 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 Sairaj 6 of 7 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: O R D E R : (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.] Sairaj 7 of 7