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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI

AD-INTERIM ORDER
IN
NOTICE OF MOTION NO. 844 OF 2025
CNR NO. MHCC01-002190-2025
IN
L.C. SUIT NO.5202 OF 2024

Ashok Sohanlal Jain. ….Plaintiff.

V/s.
1. Municipal Corporation
of Greater Mumbai and Anr.. ..Defendants.
Appearance :
Adv. Arshil Ajay Shah for the plaintiff.
Adv. Amar Patil for the defendant/BMC.

CORAM : HIS HONOUR JUDGE

SHRI. V. S. KHOT
(C.R.NO.06)
DATE : 14th February, 2025.

ORAL ORDER

1. The plaintiff has filed this notice of motion for grant of

injunction restraining the defendants from taking any action in
furtherance of speaking order dated 03.02.2025 passed u/s. 351 of the
MMC Act, 1888.

2. The plaintiff contended that he is a sole occupant and in

peaceful possession of the land and structure standing on F. P. No.1049
adm. 600 sq.ft, TPS-4, Mahim Division, Mumbai. The abovementioned
land and structure vide Unit Nos.3, 4 and 5 is subject matter of the suit
and shall be referred as “ suit property” hereinafter.
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3. The plaintiff has received one notice from the BMC on

23.08.2023 u/s. 351(IA) of the MMC Act, 1888. The plaintiff has been
asked to demolish the notice structure by the defendants. The plaintiff
has already denied all the allegations. The plaintiff contended that there
are no alterations and additions in the building. The plaintiff submitted
that all the work alleged as unauthorized construction is nothing but
minor repairy and maintenance work without use of mortar or bricks.
The notice is wrong and cannot be sustained. After receiving the notice,
the plaintiff filed Writ Petition and the Hon’ble Bombay High Court has
granted stay. Now, the stay is vacated. The plaintiff after getting the
notice approached to the BMC and submitted the documents. The
defendants/BMC without considering the documents, passed the
speaking order after 18 months. The speaking order is wrong and bad at
law. There is a mistake in the speaking order. In the speaking order, the
notice issued in the year 2021 has been referred. The final order must
be in view of show cause notice. The final order in this case is not as per
the show cause issued to the plaintiff. The defendants have consumed
too much time for passing the final order and the final order is faulty.

4. As already contended there is a defect in final order. The

final order cannot be sustained and no action can be taken against the
plaintiff on the basis of such faulty order. The operation of the
impugned order needs to be stayed in respect of Unit Nos.3 to 5. The
plaintiff, therefore, filed this notice of motion and prayed for injunction.

5. Say of the other side came to be invited. The defendants

have filed the say. The defendants/BMC has submitted that the pre-suit
notice is not issued. The speaking order is passed in respect of Unit Nos.
3 to 5 on the basis of reference No.174484. The speaking order came to
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be passed after site inspection and after giving opportunity to the

plaintiff to prove the authorization of the notice structure. The speaking
order is binding on the plaintiff. The prayer for regularization of notice
structure itself shows that the suit structure is illegal and unauthorized.
There is unauthorized structure in Unit Nos.3 to 5 as mentioned in the
speaking order. The plaintiff has not proved any authorization in respect
of the notice structure. The notice structure is liable to be dismantled. It
is also submitted by the defendants that there is a simple typing mistake
in the speaking order and notice dated 01.04.2021 was mentioned
mistakenly. The unauthorized construction or other facts are mentioned
as per the notice dated 23.08.2023 vide reference Nos.174484. The
prayer for injunction is untenable and liable to be rejected.

6. The plaintiff is claiming ad-interim injunction, the

following points arise for my determination and I have recorded my
findings subject to the reasons as mentioned hereinafter.

Sr. No. POINTS FINDINGS

1. Whether the plaintiff is having prima-
In the affirmative.
facie case, the balance of convenience
and irreparable loss in his favour?

2. Whether the plaintiff is entitled for The plaintiff is entitled to

getting the ad-interim injunction in the protection till passing
his favour? of fresh speaking order.

3. What order? As per the final order

REASONS
AS TO POINT Nos.1 to 3.
7. This case is instituted by the plaintiff alongwith notice of
motion against the defendants/BMC. The prayer is made to restrain the
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Municipal Corporation and its officers to proceed further in pursuance

to the notice u/s. 351 of the MMC Act, 1888. The plaintiff came with
the case that he is an occupier of the suit property. The suit property is
owned by the defendants/BMC. The defendants/BMC has issued one
notice to him u/s. 351 of the MMC Act in the year 2021. Thereafter
again the defendants/BMC has issued one another notice in the year
2023 which resulted into passing of the speaking order. The speaking
order was passed against the plaintiff in respect of the construction
carried out in the unit Nos.3 to 5. It is stated in the notice that the
plaintiff to remove the unauthorized construction carried out in the Unit
Nos.3 to 5 within 15 days. The speaking order is bad at law. The
speaking order is passed on the basis of notice u/s. 351 of MMC Act
given in the year 2021 and said notice issued against the plaintiff in the
year 2021 does not contain the unauthorized construction mentioned
in the speaking order. There are lapses in the speaking order and it
implies that the speaking order is passed without application of mind.
The speaking order is bad at law and cannot be acted upon. The
plaintiff is seriously prejudiced due to such faulty speaking order. The
plaintiff is, entitled for injunction and also pressing for ad-interim
injunction. The learned counsel for the defendants/BMC vehemently
opposed the notice of motion on the ground that pre-suit notice is not
issued and the suit is bad in view of section 515A of the MMC Act. The
plaintiff has raised the unauthorized construction without any
authorization. The plaintiff failed to show any authorization to the
BMC. The notice has been rightly issued. The speaking order is also
proper. There is some typing mistake in reference colomn but contents
mentioned in the notice dated 23.08.2023 are reproduced in the
speaking order and the speaking order has been passed on the basis of
the notice issued in the year 2023. Even though, there is some
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typographical mistake but speaking order is valid and binding upon the
plaintiff. The defendants/BMC prayed for the rejection of the notice of
motion.

8. Perused all the documents. Heard both the sides. The

plaintiff has taken out this notice of motion against the defendants and
prayed for ad-interim injunction. At the outset, the plaintiff assailed the
speaking order on the ground that the time schedule prescribed by the
MMC Act has not been observed while passing the speaking order. The
plaintiff has filed one tabular chart showing the time limit for the
different actions. It is his contention that the BMC should pass the
speaking order after 7 days from the date of issuance of the notice. In
this case, it is apparent that the defendants/BMC has not followed the
time line for passing the speaking order. It appears that the defendants/
BMC has violated the time schedule mentioned in the manual of
Municipal Corporation. So, there are some lapses as far as observance of
the manual is concerned. There is no explanation by the defendants on
this behalf. It is neither contended by the BMC that they have observed
the time limit mentioned in the manual. This aspects goes against the
defendants/BMC that they have not followed the time limit in passing
the speaking order.

9. The plaintiff’s next contention is that the BMC has

committed several procedural lapses while passing the speaking order.
The learned counsel for the plaintiff invited attention of the court
towards the speaking order dated 03.02.2025 and argued that it is
passed on reference No.174484 but in the body of the speaking order
the reference is made to the notice issued dated 01.04.2021. The BMC
has issued the speaking order on the basis of notice dated 01.04.2021.
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The notice is faulty. On the contrary, the counsel for the BMC contended
that the speaking order is properly passed though there is some
typographical error but, unauthorized construction is mentioned in the
speaking order. So the speaking order is valid and binding upon the
plaintiff.

10. The perusal of the notices issued by the BMC and speaking
order dated 03.02.2025 show that the speaking order is subject to the
procedural lapses. The speaking order is passed in reference to the
notice issued in the year 2023. The body of the speaking order shows
that the reference clause bears the note regarding the notice issued on
01.04.2021. The notice mentioned in the reference clause does not
point out the unauthorized construction mentioned in the speaking
order. The last paragraph of the speaking order speaks about the
unauthorized construction which is not mentioned in the notice dated
01.04.2021. It appears that the speaking order at some place referred
the notice issued in the year 2021 and at some place the notice issued in
the year 2023. At the last, the Designated Officer directed to remove the
unauthorized construction finds place in the unit Nos.3 to 5 but the said
construction does not finds place in the notice issued in the year 2021.
The speaking order refers the notice issued in the year 2023 and at
some place points out notice issued in the year 2021. The speaking
order is faulty to some extent.

11. At the time of passing the speaking order the designated

officer is expected to apply the mind and passed the speaking order. But
the speaking order itself show that there is non application of mind to
some extent. In such circumstances, the plaintiff appears to be
prejudiced to some extent. The speaking order is faulty.
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12. The plaintiff is pressing for ad-interim injunction on the

basis of lapses committed by the Designated Officer in passing the
speaking order and in observing the time schedule. Now, the question
arises whether the plaintiff is entitled to the protection of the court/
interim injunction on the basis of, violation of time schedule and some
procedural lapses in the speaking order. The counsel for the plaintiff
contended that the plaintiff is entitled to the ad-interim protection of
the court. He invited the attention of the court to the citation of Lilly P.
Pandit (Mrs.) Vs. Municipal Corporation of Greater Mumbai and Ors.
( 2014 (2) Mh. L. J. 657) wherein Hon’ble Bombay High Court, held
that the officer concerned must apply his mind to the documents and
the reply submitted by the party. The rules of natural justice should be
followed. In the citation of Satellite Engineering Ltd.and Ors Vs. Union
of India and Ors. ( 1988 (19) ECR 33 (Bombay), the Hon’ble Bombay
High Court held that the collector has to pass the speaking order. The
speaking order must show that he has applied his mind to all the
relevant aspects of the controversy before him. Next citation relied by
the learned counsel for the plaintiff is Parle International Limited vs.
Union of India and others ( Writ Petition No. 12904 of 2019), wherein
the Hon’ble Bombay High Court observed that the matter when the
commencement of adjudication is delayed and there is delay of 30
years. Such a delayed adjudication would seriously affect the rights of
the parties. Lastly, learned counsel relied the citation of Shiv Kalpesh
Tandel vs. State of Maharashtra (Writ Petiton (L) No. 19798 of 2024) ,
wherein the Hon’ble Bombay High Court observed that unless and until
there is a clear violation of some statutory rules or legal principles, the
High Court should not ordinarily interfere with the functioning and
order of education institution particularly at the interim stage.
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13. The learned counsel for the defendants/BMC in equal

vehemence argued that in such contingency the plaintiff is not entitled
for any ad-interim relief. He has relied upon the citation of Sopan
Maruti Thopte and Anr. Vs. Pune Municipal Corporation ( AIR 1996
Bom 304), wherein the Hon’ble Bombay High Court observed that the
procedural lapses, intentional or unintentional which do not seriously
affect the substantive right of a person can not result in ad-interim
order which protect illegality having already been committed by the
plaintiff. The ad-interim injunction would have effect of continuing such
violation. The learned counsel for the BMC submitted that the plaintiff
is not entitled for any injunction as he failed to show the legality of the
construction raised by him. He payed for the rejection of the ad-interim
injunction in favour of plaintiff.

14. The above mentioned discussions, contentions and counter

contentions of the parties show that the Municipal Corporation has
issued speaking order which is faulty to some extent. It is also apparent
that the BMC has violated the time limit provided under the Manual. It
is apparent that speaking order has not been passed within the time
schedule. The speaking order is required to be passed within 7 days, but
the Municipal Corporation has passed it after the four years if the notice
given in the year 2021 is concerned and 1 to 2 years if the notice in the
year 2023 is taken into consideration. Now the question arises whether
the ad-interim relief can be granted to the plaintiff or not. It is apparent
that that the plaintiff’s construction is directed to be removed by the
Municipal corporation. The Municipal Corporation has violated the time
schedule and there are lapses in the speaking order as mentioned
above. In such circumstances, it is apparent that the plaintiff is
prejudiced to some extent. The citations of Lilly Pandit and Satallite
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Engineer (mentioned supra) shows that the officer must apply his mind.
But in this case, it is apparent that there is no application of mind or of
proper mind because speaking order is subject to the lapses. The BMC
has violated the statutory as well as procedural mandates. In such
circumstances, the plaintiff is entitled to the protection of law. It is
mandate of the citation of Sopan Maruti Thopate (mentioned supra)
that law breaker should not get any benefit from the lapses committed
by the authority. But, in the said citation, the Hon’ble Bombay High
Court has made it clear that the procedural lapses, intentional or
unintentional which do not seriously affect the substantive rights of the
person should/cannot to result in ad-interim order. In case in hand, it
cannot be said that the lapses did not affect the substantive rights of the
plaintiff. Some rights of the plaintiff are definitely affected because the
plaintiff may have misconception in his mind as regard to the speaking
order. It is possible that he could not take the proper procedure/step
after getting the speaking order. In such circumstances, there is some
adverse effect to the rights of the plaintiff for which he is entitled to the
protection of the court. The plaintiff has definitely entitled to the
protection. But the protection should be of limited in nature. The BMC
or Designated Officer can reconsider the claim of the plaintiff and can
pass the fresh speaking order and till then the plaintiff can be granted
with the protection. It is necessary to balance the case of plaintiff as
well as defendants and in my opinion, directing the defendant to pass
the fresh speaking order would serve the ends of justice. In this case,
there are lapses which affect the rights of plaintiff, therefore, the
plaintiff is having prima-facie case in his favour.

15. As far as the balance of convenience and irreparable loss is

concerned both co-exist and arise in favour of the plaintiff.
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Abovemetioned discussions show that the plaintiff is having prima-facie

case. If the construction is dismantled then the plaintiff would be
prejudiced. The procedure taken by the defendants was faulty. So the
balance of convenience arises in favour of the plaintiff. As far as
irreparable loss is concerned, it also arises in favour of the plaintiff
because the plaintiff would have monetary loss if his construction is
removed under the patronage of faulty speaking order. In this case, the
action is wrong to some extent as it is taken on the basis of defective
speaking order. Therefore, the prima-facie case, the balance of
convenience and irreparable loss arise in favour of the plaintiff.

16. In this case, there is a defect in the speaking order. In such

circumstances, the fresh speaking order can be passed by the defendants
after considering the reply of the plaintiff or additional reply of the
plaintiff if any. The plaintiff is at liberty to file the additional reply. The
defendants to consider the reply or additional reply and pass the fresh
speaking order within one month from today. The plaintiff to file
additional reply if any within 15 days from today. The defendant can
consider the reply and pass the speaking order in view of the reply and
circumstances of the case. The plaintiff has prayed for ad-interim
injunction but the Court is sending the matter for fresh speaking order.
Therefore, this Notice of motion would not survive. Hence, I am
inclined to pass the following order after recording my answer
affirmatively to point Nos.1 and 2.
ORDER
1. Notice of Motion No.844 of 2025 stands allowed and is hereby
made absolute in view of above said observations.
2. The defendant shall pass the fresh speaking order after
considering the reply or additional reply of the plaintiff, if any.
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The plaintiff is at liberty to file the additional reply within 15

days from today and defendant to pass the appropriate speaking
order within one month from today.
3. The defendant shall not take any action on the basis of speaking
order dated 03.02.2025.
4. Notice of motion stands disposed of in view of abovementioned
order.
(V. S. KHOT)
Judge,
City Civil Court,
Date: 14.02.2025 Gr. Bombay.

Dictated on : 14.02.2025
Transcribed on : 14.02.2025
Signed on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL

SIGNED JUDGMENT/ORDER.”

15/02/2025 At 05.40 P.M. Mayuresh P. Tathe

UPLOAD DATE AND TIME NAME OF STENOGRAPHER

Name of the Judge (With Court Room HHJ SHRI. V. S. KHOT

Number) (C.R.NO.06)

Date of pronouncement of Judgment/ 14.02.2025

Order

Judgment/Order signed by P.O. on 21.02.2025

Judgment/Order uploaded on 21.02.2025