The main legal point established in the judgment is the requirement for proving the legality of a structure and the consequences of failing to do so in seeking relief against a Municipal Corporation's order.

1. Heard learned counsel for the parties.

2. Admit.

3. With the consent of learned counsel for both the parties, the appeal is heard finally at the stage of admission.

4. This appeal takes an exception to the order dated 21st September, 2016, passed by the City Civil Court Mumbai, in Draft Notice of Motion in L.C. Suit No.2166, thereby refusing ad-interim relief of injunction, restraining Municipal Corporation from taken any action in pursuance of Notice dated 19.7.2016, issued under Section 351 of the Mumbai Municipal Corporation Act, 1988 (for short called as, “MMC” Act”), and the order dated 02.09.2016, passed by the Assistant Commissioner of Municipal Corporation directing the appellant to remove unauthorized structure within 7 days.

5. It is the case of the appellant that suit structure is used for imparting education and offering Namaz for Muslim community since 1972. It is in existence since prior to 1962 and therefore is a protected structure. In the suit bearing No.941 of 2007, in respect of the disputes amongst the landlords, Court Receiver was appointed and at present entire Kantharia Mahal, of which suit property is a part, is in possession of the Court Receiver.

6. In the backdrop of these facts, on 24.4.1990, Municipal Corporation issued notice under Section 351 of the Mumbai Municipal Corporation Act, calling upon the appellant to show cause as to why said structure should not be demolished. After the appellant filed reply to the said notice and on being satisfied with the said reply, the said notice and the action there under were dropped. Thereafter again on 2.12.2013, another notice under Section 354-A of the MMC Act, was issued calling upon the appellant to stop construction. However, no action was taken in pursuance of the said notice also which shows that said notice was also dropped.

7. It is urged that, again on 19.7.2016, fresh notice came to be issued under Section 351 of the MMC Act, calling upon the appellant to show cause as to why the suit structure should not be pulled down. The description of the structure was mentioned in the schedule and it is submitted that it is more or less, same description, which was mentioned in the earlier notice. The appellants have replied the said notice on 27.7.2016 and thereafter the said order came to be passed respondent corporation on 2.9.2016, calling upon appellant to demolish the said structure on the count that it is illegal and unauthorized.

8. The appellant, therefore, approached the trial court for relief of interim injunction restraining the respondent Municipal Corporation from taking any action in pursuance of the said order. It is submitted by learned counsel for appellant that trial court has, however, rejected interim relief by simpliciter observing that the documents produced on record do not show that the structure was in existence prior to 1972 or it is protected structure. The documents also do not indicate that the alleged structure is constructed with permission of the Municipal Corporation, hence, the trial Court rejected ad-interim relief directing respondent Municipal Corporation to file reply to the Notice of Motion till next date.

9. The submission of learned counsel for appellant is that the very issuance of two earlier Notices in the year 1999 and 2013, more than prima facie establish the existence of the said structure at least since year 1999, though according to appellant it is in existence prior to 1972. Therefore, according to him, at this stage at least, interim relief needs to be granted till respondent corporation files reply to the Notice of Motion and challenges the existence of the said structure. Learned counsel for appellant has also placed on record the policy of the Government and the resolution passed by the Government on 18th November, 2015 protecting religious structures which were in existence since prior to 29.9.2009. In view thereof, it is urged that on the basis of Government Resolution and the policy, which is fo