Allauddin Mohammed Hassan Ansari vs. Municipal Corporation Of Greater Mumbai And Another

1 of 7 7.AO.730.2026.DOC IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.730 OF 2026 WITH INTERIM APPLICATION NO.5600 OF 2026 Allauddin Mohammed Hassan Ansari, Age 52 years, Room No.14A, 32A and 50A, 4, Fatima Manzil Building, Musafir Khana Road, Fort, Mumbai-400001. Appellant/ (Original Plaintiff) versus 1. Municipal Corporation of Greater Mumbai, Mahapaika Marg, Fort, Mumbai-400001 through Assistant Commissioner, A Ward. 2. Maharashtra Housing and Area Development Authority, through Chief Officer and Executive Engineer of Mumbai Building Repair and Reconstruction Board, Mumbai. Respondent/ (Original Defendant) _______ Mr.Suresh Sabrad with Mr.Amey C.Sawant, Ms.Neha Parte, Mr.Pratik Sabrad, Ms.Eshwaree Kudalkar for Appellant (Original Plaintiff). Mr.Satyajeet P.Dighe for Respondent No.2 MHADA. Ms.Smita V.Tandwalkar for Respondent no.1 MCGM. _______ CORAM : AARTI SATHE, J. DATE : 24th August 2026 P.C. 1. This Appeal from Order under Order XLIII Rule 1(r) read with Section 104 of Code of Civil Procedure, 1908 (`CPC’) takes exception to the order dated 10th July 2026 (`impugned order’) passed by the learned Judge, Bombay City Civil Court (`Trial Court’) in Notice of Motion No.3444 of 2026 in L.C.Suit No.1486 of 2026. By way of the aforesaid impugned order, the Notice of Motion No.3444 M.S.Thatte MANISH SURESHRAO THATTE Digitally signed by MANISH SURESHRAO THATTE Date: 2026.08.29 10:25:18 +0530 2 of 7 7.AO.730.2026.DOC of 2026 filed by the Appellant was rejected whereby the Appellant had prayed for restraining the Respondents from taking any coercive action including demolition or removal of Room Nos. 14A, 32A and 50A situated on 3rd floor of Fatima Manzil Building (hereinafter referred to as “the suit structure”) and declaring the notice dated 10th April 2026 issued by the Designated Officer, A Ward, under Section 351 of the Mumbai Municipal Corporation Act (`MMC Act’) and the speaking order dated 22nd June 2026 as illegal, null and void. The principal objection of the learned counsel for the Appellant is that the Trial Court has failed to take into consideration that the suit structure was an existing structure from the datum line of 1960, and there was a sanctioned plan in respect thereof and permissions were taken for the erection/building thereof and there was no change or conversion of the suit structure from toilet to godown. 2. Briefly the facts are that the suit structure has been in existence prior to 1995. It is the Appellants contention that the suit structure is a part of an old cessed building protected under the Municipal laws. In 1985, the Appellant commenced use, occupation and possession of the suit structure as tenant and the landlord issued valid rent receipts in respect thereof. On 10th April 2026, the Respondent No.1-Municipal Corporation of Greater Mumbai Corporation (`Respondent-Corporation’ for short) issued notice under Section 351 of the MMC Act alleging unauthorized conversion of toilet blocks into commercial premises/godown. In response to the aforesaid notice, the Appellant through his advocate filed a detailed reply along with supporting documents i.e. rent receipts, electricity bills, GST certificates etc. M.S.Thatte 3 of 7 7.AO.730.2026.DOC 3. Thereafter on 22nd June 2026 the Respondent-Corporation passed a speaking order confirming the allegations as made in the notice dated 10th April 2026 under Section 351 of the MMC Act based on assessment remarks given by Assistant Assessor & Collector ‘A’-ward dated 11th June 2026, which claimed the first assessment date to be 1st May 2020. On 7th July 2026 the Trial Court granted ad-interim protection to the Appellant , however, by the impugned order dated 10th July 2026, the Trial Court rejected the Notice of Motion No.3444 of 2026 on the ground that the Appellant had not produced any sanctioned plan, though he had contended in paragraph 18 of the plaint that the structure was constructed as per approved plan. The Trial Court held that the Appellant had not produced such a plan and further there was no permission which had been placed on record for conversion/construction of the suit structure (toilets) into godown. The Trial Court, therefore, came to the conclusion that there was unauthorized conversion and hence rejected the Notice of Motion No. 3444 of 2026. 4. Mr. Suresh Sabrad along with Mr.Amey C.Sawant, Ms.Neha Parte, Mr.Pratik Sabrad instructed by Ms.Eshwaree Kudalkar appeared on behalf of the Appellant. Mr.Satyajeet P.Dighe appeared on behalf of Respondent No.2 MHADA. Ms.Smita V. Tandwalkar appeared on behalf of Respondent no.1 MCGM. 5. Learned counsel for the Appellant submitted that the Trial Court had not taken into consideration all the documents which were submitted and had without considering the same come to an erroneous prima facie view that the structure was unauthorized. During pendency of this appeal, learned counsel for M.S.Thatte 4 of 7 7.AO.730.2026.DOC the Appellant submitted that through a Right to Information (RTI) application dated 27th July 2026, he has acquired information which shows that repair permission to the existing suit structure, was given in the year 1960 which goes to establish that the suit structure was very much in existence prior to 1960 i.e. prior to the datum line. This Court by an order dated 24th July 2026 allowed the Appellant to file additional affidavit in order to produce the aforesaid documents to show the nature of suit structure. In pursuance to the aforesaid order, an additional affidavit of the Appellant has been placed on record annexing the aforesaid documents showing the nature of the suit structure. The relevant paragraphs of the additional affidavit filed by the Appellant are reproduced below:- “4. I say that at that time when matter was listed on 24.07.2026, Appellant could not produce the documentary evidence to show that the structure was prior to datum line. I say that thereafter certain old documents pertaining to the said premises were acquired. I say that after acquiring the tenancy in the year 1995, I have regularly being paying the Telephone Bills to Maharashtra Telephone Nigam LTD Mumbai of the said premises from the year 1995. Hereto marked and annexed Exhibit-"A" is a copy of the MTNL Bill dated 04.06.2003. 5. I say that the building being an old premises was regularly receiving Electricity Bills and before acquiring tenancy in 1995, Landlord and his cousin i.e. one Ms. Yasmin Lakha were receiving the Electricity Bills in their name. I say that BEST issued monthly Electricity Bills and the same were duly paid by me. I say that BEST bill dated 09.01.2006 being issued to the suit premises. Hereto marked and annexed Exhibit-"B" is a copy of the BEST Bill dated 09.01.2006. 6. I say that thereafter the Appellant on 27.07.2026 filed an Application under the Right to Information and personally visited the office of Respondent No. 1. I say that the said Application specifically seeks information on Sanctioned Plan/ OC Plan of the said premises from the period 1961 to 2026 and it is at present pending before the authorities. I say that the RTI Application has been acknowledged by the Respondent No. 2 and has claimed that further information shall be provided via call or speed post at the address of Appellant. Hereto marked and annexed Exhibit-"C" is a copy of the RTI Application dated 27.07.2026 before Respondent No. 1. 7. I say that Appellant also approached the office of Respondent No. 2 and made an RTI Application dated 27.07.2026 for documents pertaining to the structure and sanctioned plan of the structure prilır to datum line in order to place on record the documents establishing the existence of the structure prior to datum M.S.Thatte 5 of 7 7.AO.730.2026.DOC line i.e. before 01.04.1962. Hereto marked and annexed Exhibit."D" is a copy of the RTI Application made to Respondent No. 2 dated 27.07.2026. 8. I say that in furtherance of my efforts to obtain the official records pertaining to the existence and history of the said premises, I have made an RTI Apolication dated 13.08.2026 to the Public Information Officer/Assistant Public Information Officer, Brihanmumbai Electric Supply and Transport (BEST). Undertaking, seeking information and records relating to the electricity meter/account numbers of the said premises, including the first date of installation of the respective meters and the records pertaining thereto. I say that the said application is material for establishing the existence and use of the said premises from an earlier period and for bringing on record the official records maintained by BEST in respect thereof. Hereto annexed and marked as Exhibit-"E" is a copy of the RTI Application dated 13.08.2026. 9. I say that at present I have not received any reply to the Applications made before Respondents No. 2 and BEST. I say that on 12.08.2026, I have received certain documents in reply to my Application dated 27.07.2026 made before Respondent No. 1. From the said documents it can be seen that one Shri, Kamlesh Kothari Architect Engineer had made application to Executive Engineer A Ward MHADA, submitting certain documents in respect of repairs of Buidling in respect of 4/4D, in which the suit premises is situated. By the said letter the Architect had submitted set of Plans showing proposed repairs and photographs of building filed containing original approved plans and estimate. Hereto annexed and marked as Exhibit-"F" is a copy of the letter along with annexures dated 13.01.1999 received by Executive Engineer 23.02.1999. 10. I say that in furtherance of the above letter Assistant Engineer Building proposal issued a letter to Executive Engineer M.B. R & R Board, Bare perusal of the said letter would show that earlier applications seeking repairs was made and the same is already approved by the office of Assistant Engineer in the year 1960, after receiving NOC from M.B. R & R Board. In view of the above, a clarification was sought as to why the separate proposal was made in the year 1999.. Hereto annexed and marked as Exhibit-"G" is a copy of the letter issued bearing no. 2763 by Assistant Engineer to Executive Engineer M.B. R & R Board. 11. One of the document is dated 23.02.1999 issued by M.B.R & R. Board to Executive Engineer of, E Ward BMC, by the said letter plans showing the proposed structure or repairs were forwarded for suggestions and objections in respect of the same. Hereto annexed and marked as Exhibit-"H" is a copy of the Letter dated 23.02.1999 and Exhibit- "" is a copy of the Plans annexed to the aforesaid letter dated 23.02.1999. 12. The aforesaid document received under the Right to information act, would itself show that the repairs permission as granted why back in the year 1960. The said fact goes to show that the said building as it stands today is in existence prior to 1960 i.e. prior to the datum line. 13. The documents received under the Right to Information Act would go to show that the structure is in existence way prior. I say that at the time of filing of the suit, the said documents were not available and were received after filing of the RTI Applications. In view of the above, as the structure is in existence prior to the datum line as pleaded in the suit and as such the same shall be protected by this Hon' ble Court. Whatever stated by me hereinabove is true and correct to the best of my knowledge and belief and for which I sign hereunder.” M.S.Thatte 6 of 7 7.AO.730.2026.DOC 6. Per contra, learned counsel for the Respondent-Corporation vehemently opposed the reliefs as sought in the present Appeal from Order. She contended that a mere permission to carry out repair cannot be construed as a sanction/approval, as contemplated under Sections 342/347 of the MMC Act. It is further her contention that the first assessment of the original structure was carried out in the year 2020. She, therefore, submitted that the contention of the Appellant that the suit structure/notice structure existed prior to 1961, is an incorrect statement and further the notice dated 10th April 2026 and the speaking order dated 22nd April 2026 been passed taking into consideration the aforesaid facts. 7. I have heard learned counsel for the parties. On perusal of the impugned order passed by the Trial Court dated 10th July 2026, I am of the view that the Trial Court did not have the benefit of the repair permission obtained by RTI application dated 27th July 2026 which the Appellant seeks to place on record of this Court to contend that the suit structure was there prior to 1960. Further the Trial Court before passing the impugned order, had also not taken into consideration the contention of the Appellant that the suit structure indeed existed prior to 1960. Considering the aforesaid and since no prima facie view has been formed on these documents by the learned Trial Court and the same have been placed on record of this Court, I am of the view that the issue regarding unauthorized suit structure, has to be decided by the Trial Court after considering the documents which have been placed on record before this Court. After M.S.Thatte 7 of 7 7.AO.730.2026.DOC considering the aforesaid documents, the Trial Court would form a prima facie view and apply the settled principles of law i.e. balance of convenience, irreparable harm, loss and injury as postulated in Order XXXIX, Rule 1 before passing the reasoned order. 8. In view thereof, I pass the following order :