Asif Fazal Khan v. The Municipal Corporation of Greater Mumbai & Ors.

12) Why has the Petitioner and not the Charitable Trust filed this Petition is another question or another story – but let us also leave that for now. We understand that, one needs to have the courage and wherewithal not only to take up these issues against the law breakers, who in some cases may also be anti-social elements, but to continue following up the same till it meets with its logical conclusion, against all odds. Does the State want to continue to encourage the law abiders or the law breakers is a question that the State Government needs to answer. At this point, we find it otherwise.

13) The State Government must sensitise these thoroughly insensitive persons in charge of the Public Authorities. They are the ones who are solely responsible for the mushrooming illegalities and utter lawlessness. A lax attitude of the State Government in this regard would only lead law abiding citizens to draw an inference that persons abetting the law breakers/persons indulging in illegalities, enjoy the benefits of these illicit gains from these illegalities conducted by anti-social elements who care a tuppence for the law.

14) The events that transpired after filing of this Petition make a more telling story. It was only after the Court issued notices that the Respondent – BMC even moved. The BMC failed to file reply despite specific directions. Eventually, on 3rd February 2025 a Show Cause Notice under section 351(1A) of BMC Act, was followed by a speaking Order dated 12th February 2025. The Designated Officer had considered the reply of the Respondent No. 3 and consequently directed him to remove his structure finding it unauthorised and illegal. Co-incidentally, while the BMC’s Advocate sought time to file further Affidavit on 17th February 2025 in the High Court which led to the matter not being heard and consequently adjourned. On the same day i.e. on 17th February 2025, the Respondent No.3 filed a Suit in the City Civil Court, Dindoshi, Goregaon, Mumbai for permanent injunction and as an ad-interim relief, sought stay of the BMC’s Section 351 Notice dated 3rd February 2025.

15) Mr. Kaushar Khan who is instructing the BMC’s Advocate in the High Court and also in the City Civil Court does not inform their lawyer about the Division Bench of the High Court being seized of the matter regarding very same Notice dated 3rd February 2025. From the record before us, we found that he was present on both days 17th February 2025 in the High Court and subsequently on 18th February 2025 in the City Civil Court.

16) Pertinently, the Order passed by the learned Judge of City Civil Court directs maintaining a status quo amongst parties till 5th

16.1) The matter came up before this Court on 3rd March 2025 when we observed and expressed our utter displeasure about the conduct of the BMC’s Officers. The Officers instructing the BMC’s Advocate had failed to point out the provision under the BMC Act viz. Section 515-A that clearly bars Courts from entertaining Suits for stay of notices under Section 351 and 354 of the BMC Act. The BMC’s Advocate too failed to point out the judgement in the case of Abdul Razzaq Sunesra vs Municipal Corporation of Greater Mumbai and Others reported in 2013 SCC OnLine Bom 832: (2014) 1 Mah LJ 275 which upheld the constitutional validity of the said Section. It is in these circumstances, we called upon our registry to call for the original records of the said Suit from the City Civil Court.

17) Today i.e. on 12th March 2025 in furtherance of our directions, Ms. Sonawane, learned Advocate for the Respondent Corporation is personally present in Court. We put both Ms. Sonawane Advocate for BMC in City Civil Court and the Officer Mr. Kaushar Khan through an examination that was recorded in open Court.

18) On a question put by this Court, Ms. Sonawane answered that, the Notice of Motion No.754 of 2025 in L.C. Suit No.429 of 2025 was moved by Advocate Jayale on 18th February 2025 at 2.45 pm before Smt. V. D. Ingle, Judge, City Civil Court at Dindoshi, Borivali Division, Mumbai. That, till the ad-interim relief was passed by the trial Court on 18th February, 2025, Mr. Kaushar Khan Pathan, Sub-Engineer of BMC did not give her instructions or information regarding pendency of the present Petition dealing with the same issue pending before this Court. That instructions in writing were received from Mr. Kaushar Khan Pathan a week later intimating her that present Petition is pending before this Court.

19) At this stage, we also deem it appropriate to record statement of Mr. Kaushar Khan Pathan, Sub-Engineer of BMC. To the questions put by this Court, he answered following: Question: Whether you were present in this Court on 3rd February, 2025? Answer: I was present in the Court on 3rd February, 2025 and my appearance is recorded in the Farad Sheet. Question: Whether you were present in Court on 17th February, 2025? Answer: Yes, I was present in the Court on 17th February, 2025. That, I was also present on 3rd March 2025 in this Court. Question: Are you regularly following the proceedings of this Petition? Answer: I am regularly following this Petition and giving instructions to my Advocate. Question: When did you get the knowledge regarding filing of Petition for the first time? Answer: About the notice/knowledge of filing of present Petition somewhere on 20th September, 2024. Question: On 18th February, 2025 before 2.45 pm whether you had informed your Advocate on record before the trial Court that this Petition is pending? Answer: I had informed the Assistant law Officer, K/East Ward on 17th February, 2025 that pertaining to the same subject matter his office has initiated action as per this Court’s Order in Writ Petition No.3255 of 2023. The papers thereof were forwarded for filing Affidavit-in-Reply in the said Suit. He tendered across the Bar a photocopy of said communication dated 17th Court: We have noticed that neither the Assistant Law Officer nor Advocate Ms. Sonawane have endorsed their acknowledgment of receipt. That the said document was forwarded to Dispatch Clerk for its onward transmission to Assistant Law Officer. Court: We also do not find any acknowledgment from the Dispatch Clerk or any other authority on the said letter dated 17th February, 2025. The said fact is pointed out to Mr. Pathan in Court.

20) At this stage, Advocate Mr. Jayale interjected and submitted that a reply is not filed on record.

21) It appears to us that, Mr. Jayale is not aware of the fact that, we have already called for the original record from the City Civil Court. Perusal of original Affidavit-in-Reply to the Notice of Motion duly affirmed by Mr. Kaushar Khan Pathan is on record at page no.20. The said Reply is duly affirmed before Shri Rajkumar Mohite a Notary Public on 18th February, 2025. It has Register no.1, Sr. No.386 of page no.42 on 18th 21.1) The said original Reply was shown to Mr. Kaushar Khan Pathan in Court. After perusing the said Reply minutely, he admitted the fact that he has not stated the fact of pendency of present Petition before us in the said Affidavit-in-Reply.

21.2) We therefore independently draw a safe inference that, Mr. Kaushar Khan Pathan is making patently false statements before this Court solely to camouflage his misdeed in failing to perform his lawful duty and in not informing the trial Court regarding pendency of the present Petition.

22) At this stage, we sought Mr. Jayale’s say in the matter. Mr. Jayale submitted that on the basis of decision in the case of Abdul Karim Ahmed Mansoori Vs. Municipal Corporation of Greater Mumbai and Anr. reported in 2014 (1) Mh L.J. 227 which permits to file such a Suit, he filed the present Suit before trial Court.

22.1) To our query as to whether he read the judgment in the case of Abdul Razzaq Sunesra Vs. Municipal Corporation of Greater Mumbai and Others, 2013 SCC OnLine Bom 832: (2014) 1 Mah LJ 275: (2013) 5 AIR Bom R 343 in Writ Petition (L) No.1709 of 2013 decided on 17th July, 2013, which precedes the decision in the case of Abdul Karim Ahmed Mansoori (supra) which says that Suits are barred before trial Court upholding the constitutional validity of the said amendment? Mr. Jayale submitted that, he relied on a decision in the case of Abdul Karim for filing said Suit. He had read the judgment in the case of Abdul Razzaq Sunesra and despite the fact he advised his client to file the said Suit impugning notice issued under Section 351 of the BMC Act.

22.2) To our further query, whether he disclosed every fact before the trial Court, he submitted that, he had pointed out each and every document to the trial Court and also brought to the notice of the trial Court that the present Petition is pending before us. Despite the said fact the trial Court did not record the said submissions and only recorded that ‘Heard Advocates for both sides’. The trial Court thereafter directed both the parties to maintain status quo till passing of Order.

22.3) Mr. Jayale submitted that, even after bringing on record the said amendment to Section 515A numerous Suits have been filed and are being filed and entertained by the City Civil Court impugning/challenging notice under Section 351 and 354A of the Mumbai Municipal Corporation Act, 1888. He drew our attention to the LC Suit No.429 of 2025 filed in the Bombay City Civil Court, Borivali Sub Division, Dindoshi (Goregaon), Mumbai and particularly in paragraph nos. 18 and 19 that specifically mentions about pendency of this Petition.

22.4) He further submitted that, during the pendency of present Petition the Corporation issued notice under Section 351 which gave rise to a separate cause of action to file the said Suit.

22.5) Upon a query by this Court as to whether he did not deem it appropriate to bring the said fact to the notice of this Court i.e. issuance of notice under Section 351 of the said Act, he kept blissful silence.

23) We have collated all the record and the Affidavits filed by both the BMC’s officers and the Respondent No. 3. We have been informed about the application made by Respondent No. 3 to withdraw the Suit in the City Civil Court. Unconditional apology has been tendered by Ms Priyanka Sonawane, Advocate representing the BMC in the City Civil Court.

24) We are unable to accept excuses stated by the Additional Municipal Commissioner Western Suburbs from Mr. Vipin Sharma that, the Order dated 28th August, 2024 was not followed up on account of the staff that was on duty due to Ganpati festival and thereafter on Assembly Election duty and therefore the officers lost track of the matter. This kind of casual approach to the Order of the High Court is strictly deprecated. This inaction has protected and continued the existence of illegal structures.

25) We find Mr. Kaushar Khan has been attending the matter in the High Court since 3rd February 2025. He is clearly responsible for suppressing material information that High Court was seized of the very matter from the City Civil Court, leading to a status quo order being granted by the learned Judge of the City Civil Court. The status quo Order shielded the Respondent No. 3 from demolition of the patently illegal structure built without any lawful permissions of BMC. This in our view is clearly attempting to overreach this Court and thereby lowering its dignity. According to us Mr. Kaushar Khan Pathan’s conduct is deplorable and we deprecate it. He has clearly indulged into an act of suppression of facts from the trial Court, thereby helping the Respondent No.3 to get a favourable Order. According to us, the actions of Mr. Kaushar Khan Pathan have interfered with the judicial process. From Mr. Pathan’s overall conduct, it is apparent that, he was and is more interested in protecting the illegal structure of Respondent No.3 than to take action against it promptly.

26) We find that he has clearly helped Respondent No. 3 to protect his illegal structure and has deliberatedly supressed true and correct facts from the trial Court. According to us consequently he is unfit to be in public service. We therefore direct the Commissioner of BMC to conduct an indepth enquiry in accordance with the prevailing laws including Section 64C of the BMC Act against Mr. Kaushar Khan Pathan.

27) We having recorded Advocate Ms. Sonawane’s deposition in Court, find no fault with her for not having informed the trial Court about the pending Writ Petition. She was not expected to know. Mr. Pathan from BMC had to inform her but failed to do so, as noted above. She has thus performed her duty lawfully while representing BMC and no fault can be attributed to her.

28) We also are unable to accept the City Civil Court Judge’s lack of basic knowledge about Section 515-A of the BMC Act and the judgements of this Court in the case of Abdul Razzaq Sunesra (supra), Abdul Karim Ahmed Mansoori (supra) in and the judgement of Mr Yogesh Megaji Gada vs MCGM reported in (2016) 2 Mah L.J 420: 2015 SCC OnLine Bom 8351 on this issue.

29) Taking into consideration the vital law point that arises after amendment of Section 515-A of the M.M.C. Act, and the issue as to whether a Suit can be entertained by the trial Court i.e. the Court of competent jurisdiction, challenging a Notice or Final Order under Section 351 or 354A of the M.M.C. Act, we deem it appropriate to deal with it.

30) In the case of Abdul Razzaq Sunesra (supra), having considered the provisions of Section 351 and 354A coupled with Section 515A of the BMC Act, the Division Bench of this Court has upheld the constitutional validity of Section 515A barring the jurisdiction of the Civil Courts in entertaining Suits. It has held that Section 351 and Section 354A are within themselves the due process of law providing sufficient safeguards. This can be evinced in paragraph 12 reproduced herein for ready reference: “12. In the present case, there is an express bar on the jurisdiction of the Civil Court in section 515 A to entertain a suit calling into question any notice, order or direction issued under sections 351 and 354-A. Hence, in view of the law laid down in Dhulabhai (supra), an examination of the scheme of the Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is strictly speaking, not decisive. Be that as it may, under section 351, sufficient safeguards have been provided by the legislature to ensure that the determination by the authority is subject to the observance of statutory parameters. The statute incorporates requirements to ensure that the procedure is fair and that the outcome of the inquiry is based on objective considerations. The conditions which are imposed by the statute ensure firstly that before action is taken, a written notice must be issued to the person who is erecting a building or executing a work. Following the issuance of a notice, the statute secondly mandates that an opportunity to show sufficient cause must be granted in the form of a statement in writing. Thirdly the designated officer is empowered in an appropriate case to allow the person to whom the notice is issued, to show cause in person or through an agent. Fourthly, the designated officer is required to apply his mind whether the person to whom a notice was issued, has or has not failed to show sufficient cause to his satisfaction. The satisfaction of the designated officer is not a subjective satisfaction but is a satisfaction which has to be arrived at objectively after appreciating the contents of the defence and the cause which has been shown. The officer must, in particular, apply his mind whether work of the description which is mentioned in section 342 has been commenced contrary to the provisions of section 342 or section 347. The officer is thereupon vested with the discretion on whether or not to demolish the structure. This discretion is again a discretion which has to be exercised judiciously and not arbitrarily. Reasons must be recorded in the order of the designated officer. Reasons provide an assurance against an arbitrary exercise of power and allow the decision to be challenged and scrutinized under Article 226 of the Constitution.”

31) Thus an aggrieved party is also permitted to take recourse to remedy of a Petition under Article 226 of the Constitution of India for challenging the Order passed under Section 351 or 354A. The reasons for upholding the constitutional validity were elaborated in paragraphs 17 & 19 that are extracted hereinbelow for ready reference:

32) We are in agreement and conur with the view expressed and enumerated by the Division Bench in the case of Abdul Razzaq (supra) as it does not require further elaboration. It has binding effect on all the subsequent decisions of this Court.

33) In the case of Abdul Karim Ahmed Mansoori (supra), the Division Bench in paragraph 10 has clarified the duty of the Court which is quoted herein below for ready reference:

33.1) It may be noted here that, the apprehension expressed by the learned Senior Counsel for Corporation in Abdul Mansoori’s case is a practical reality of life even after a decade of Abdul Razzaq’s case. In our view, when a Civil Court receives a plaint and an application for interim relief, such as for a stay or for status quo Order, challenging Notices issued by the Municipal Corporation under Sections 351 or 354 of the BMC Act, or under (pari materia) provisions of the MMC Act, it must first determine whether the parties have exhausted the statutory remedies available to them under the said Sections. This includes pursuing the appropriate mechanisms under the said Act as enumerated in the case of Abdul Razzaq Sunesra’s case for grievance redressal before seeking judicial intervention.

33.2) The trial Court must also address the issue of jurisdiction by examining the averments in the plaint. If these do not warrant the application of the legal principles in question, then provisions of Section 515A of the BMC Act or Section 433A of the Maharashtra Municipal Corporations Act, 1949, must be considered. Importantly, the Civil Court is duty-bound to take cognizance of the statutory provisions and any legal bar—whether or not such an objection is raised by any party to the said Suit.

34) Finally, the Civil Court must keep in mind the principles of law enumerated by the Division Bench of this Court in the case of Abdul Razzaq Sunesra (supra).

35) With regard to Advocate Jagdish Narayan Jayale, we find that, he has clearly failed in his duty as an officer of the Court. He has misread and misinterpreted the Statute and the law to get a favourable Order from the trial Court. He has admitted that he filed a Suit as many others have been filing similar Suits. This is clearly a pernicious practice – which we do not appreciate. We are unable to accept a simple apology from Mr. Jayale and permit the misadventures of Respondent No.3 pass without a fitting order against them. We feel that, accepting a written apology by Court’s, usually is perceived as its weakness and emboldens the wrong doer and law breakers. However by showing magnanimity we acept his apology by giving him a caution.

36) In view of the above, we pass the following order:

(i) Petition is made absolute in terms of prayer clause

(a) which reads as under: “(a) that this Hon’ble Court be pleased to issue Writ of Mandamus or such other appropriate writ, order and direction in the nature of writ of Mandamus thereby directing the Respondent Nos.[1] and 2 and concerned officers to discharge their statutory duties under the provisions of Mumbai Municipal Corporation Act, 1888 and thereby demolish the illegal constructions carried out by respondent No.3.”

(ii) We direct the Respondent Nos.[1] and 2 to demolish the illegal construction erected on open space bearing CTS No.1054, next to Lotus Apartment and opposite Lokbharti Building, at Marol village, Andheri (East), Mumbai-400059 carried out by Respondent No.3 within a period of two weeks from the date of uploading of the present Judgment on the official website of the High Court of Bombay.

(iii) We call upon the Municipal Commissioner of BMC to take appropriate action against Mr. Kaushar Khan Pathan and other erring Officers who were responsible for permitting the unauthorised construction and continuance of the illegal structure after holding an enquiry in the matter. The Municipal Commissioner to file a compliance report in this Court within a period of six months from the date of uploading of the present Judgment on the official website of the High Court of Bombay.

(iv) The Petition is accordingly allowed in the above terms with no Order as to costs. (KAMAL KHATA, J) (A. S. GADKARI, J.)

37) After pronouncement of Judgment, upon query put up to Mr. Dilip Shinde, about the withdrawal of the Suit he submitted that, the 3rd Respondent has already filed an application for withdrawal of the Suit under Order XXIII Rule 1 (3)(b) of C.P.C. before the trial Court on 10th March, 2025. However, the original record of the Suit is with us as was called for by this Court. Therefore, the trial Court could not pass an order on the withdrawal application. As Respondent No.3 has already filed application for withdrawal of the Suit, we permit him to withdraw the Suit before us but unconditionally and dispose off the same by exercising our jurisdiction under Article 226 of the Constitution of India, to subserve the ends of justice. Respondent No.3 is directed to produce the present Order before the Registrar of the concerned Civil Court who in turn will place this Order before the learned Judge of the said Civil Court for noting in the register as ‘Suit disposed off’. (KAMAL KHATA, J) (A. S. GADKARI, J.)