63-AO-260-2024.doc 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, Parel, Mumbai 400 012 …Appellant/ (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, Mahapalika Marg, Mumbai-400 001 ...Respondents (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 SHAGUFTA QUTBUDDIN PATHAN Digitally signed by SHAGUFTA QUTBUDDIN PATHAN Date: 2026.06.29 18:51:33 +0530 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 23rd 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 23rd 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