Sea Face Park Chs Limited vs Designated Officer, Executive Engineer (Building and Factory) D-Ward and Another — Bombay HC (2025) — LawSathi Research

Sea Face Park Chs Limited vs Designated Officer, Executive Engineer (Building and Factory) D-Ward and Another — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Interim order: affidavit of the society dated 2nd May 2025 taken on record and its assurances accepted as undertakings; ten weeks granted to remove the toilet and kitchen platform construction described in the impugned notice; corporation directed to file the notice-issuing officer's affidavit within six weeks; subject to the society's compliance, no coercive action on the impugned notice and speaking order until further orders; society barred from further construction and from residential use of the offending structure; appeal listed for recording compliance and further hearing on 20th June 2025.

Issue for consideration

Whether the corporation followed its own guidelines (circular dated 4th June 2013) and took inspection of the sanctioned plan before issuing the Section 351 notice and passing the speaking order treating the structure as unauthorised construction / change of use. +1 more

Court's answer

Finding that neither the impugned notice nor the speaking order referred to any inspection of the sanctioned plan before arriving at a conclusion of unauthorised construction or change of use, and that counsel for the corporation had no instructions as to whether the corporation's circular dated 4th June 2013 was followed before issuing the Section 351 notice.

Ratio / Principle

The assurances recorded in the society's affidavit dated 2nd May 2025 were accepted by the court as undertakings on behalf of the society.

Key takeaways

The society was granted ten weeks' time to remove the construction of the toilet and kitchen platform as described in the impugned notice.ratio¶¶18
The corporation was directed to file, within six weeks (with advance copy to the appellant's advocate), the affidavit of the officer who issued the notice, explaining the manner in which the decision was taken to act upon the complaint and issue the Section 351 notice, and whether the officer had taken inspection of the record and the sanctioned plan before concluding there was unauthorised construction or unauthorised change in use.ratio¶¶23

Detailed headnote1 paragraphs

Bombay High Court (Gauri Godse, J.), interim order dated 2nd May 2025 in Appeal From Order No. 174 of 2024, Sea Face Park CHS Limited v. Designated Office, Executive Engineer (Building and Factory) D Ward and Another. The society tendered an affidavit dated 2nd May 2025 (with photographs and Managing Committee resolution) stating the structure was never used as a garage, premises 34/E7 being a separate garage, and undertaking removal of the toilet and kitchen platform construction within ten weeks; the affidavit was taken on record and its assurances accepted as undertakings, with ten weeks granted for removal. The court observed that the corporation issued the notice under Section 351 of The Mumbai Municipal Corporation Act, 1988 on a member's complaint (annexed at page 165), that neither the impugned notice nor the speaking order referred to any inspection of the sanctioned plan before concluding unauthorised construction or change of use, and that counsel for the corporation had no instructions whether the corporation's circular dated 4th June 2013 was followed. The corporation was directed to file the notice-issuing officer's affidavit within six weeks explaining the decision-making and any inspection of the record and sanctioned plan. Subject to the society's compliance, no coercive action was to be taken on the impugned notice and speaking order until further orders; the society was barred from further construction and from continuing residential use of the offending structure. Listing for compliance and further hearing on 20th June 2025.

18-AO-174-2024.docx

rrpillai

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.174 OF 2024 WITH

INTERIM APPLICATION NO. 1892 OF 2024

Sea Face Park CHS Limited

… Appellant

Vs.

Designated Office, Executive Engineer … Respondents (Building and Factory) D Ward and Another

Mr. Kaustubh Patil for the Appellant.

Mr. Som Sinha a/w/ Ms. Neeta Jadhav i/b. Ms. Komal Punjabi for Respondent-BMC.

CORAM : GAURI GODSE, J.

DATE : 2^nd MAY 2025

ORDER :

Digitally signed by RAJESHWARI RAJESHWARI RAMESH RAMESH PILLAI PILLAI Date: 2025.05.03 01:36:02 +0200

Learned counsel for the appellant has tendered an affidavit dated 2^nd May 2025 signed by the authorised representative of the society. Photographs of the offending structure and the resolution passed by the Managing Committee is annexed to the affidavit. The affidavit states that the existing structure described in the impugned order was never used as a garage and that the adjacent premises marked as 34/E7 is a separate garage. The affidavit further states that 1/3

18-AO-174-2024.docx

within a period of ten weeks the construction of the toilet and kitchen platform in the disputed room shall be removed by the society.

The copy of the affidavit dated 2^nd May 2025 is taken on record. The assurance recorded in the affidavit are accepted as undertakings on behalf of the society to this court. The society is granted ten weeks time to remove the construction of toilet and kitchen platform as described in the impugned notice.

This is yet again another case where the corporation has issued notice under Section 351 based on a complaint. Copy of the complaint by one of the member of the society is annexed at page 165 of the appeal compilation. Neither the impugned notice nor the speaking order refers to any inspection taken of the sanctioned plan before arriving at a conclusion that it is unauthorised construction or there is change in use. Learned counsel for the corporation has no instructions as to whether the guidelines framed by the corporation in the circular dated 4^th June 2013 is followed before issuing notice under Section 351 of The Mumbai Municipal Corporation Act, 1988.

The corporation shall therefore file affidavit of the officer who has

2/3

18-AO-174-2024.docx

issued the notice explaining the manner in which the decision was taken to act upon the complaint and issue notice under Section 351. The affidavit shall also explain whether the concerned officer had taken inspection of the record and the sanctioned plan before concluding that there is any unauthorised construction or unauthorised change in use. Necessary affidavit to be filed within six weeks with an advance copy to the learned advocate for the appellant.

Subject to the compliance of the affidavit filed on behalf of the society, no coercive action shall be taken to implement the impugned notice and the speaking order until further orders are passed by this court. It is clarified that the society shall not carry out any further construction or continue use of the offending structure as residence.

List the appeal for recording compliance and further hearing of the appeal on 20^th June 2025.

[GAURI GODSE, J.]

3/3