JUDGMENT :

1. The Mumbai Municipal Corporation (defendant no.1) and M/s. Chhaya Construction Company (defendant no.4) in the Long Cause Suit No.770/2021 then, instituted by respondents no.1 and 2 herein, have challenged order dated 29th July, 2021 passed in Motion No.944/2021 by which Learned Judge, City Civil Court, restrained the Corporation from demolishing or pulling down the suit structure, till the disposal of the suit.

Factual matrix :

2. The Mumbai Municipal Corporation issued a notice dated 26th October, 2020 under Section 351 of the Mumbai Municipal Corporation Act (“M.M.C. Act” for short) to the respondents-plaintiffs, to show sufficient cause as to why the alleged unauthorised construction, should not be removed or pulled down. The notice was responded by the plaintiffs on 2nd November, 2020 whereby they placed on record, certain documents, for the consideration of Designated Officer, of the Corporation. The Officer, in turn, vide speaking order dated 12th March 2021, held that, documents produced by the plaintiffs did not prove, that the notice structure was in existence prior to 1st April, 1962- a datum line fixed for tolerable commercial structure. Whereafter, the plaintiff instituted the suit and challenged the impugned notice dated 26th October, 2020 issued under Section 351 and the speaking order dated 12th March, 2021 passed by the Designated Officer.

3. Vide order dated 29th July, learned trial Court injuncted the Corporation, from demolishing suit structure. That order is under challenge is these, two Appeals from Order, fled under Order 43 Rule (1) read with Section 104 of the Code of Civil Procedure.

4. Mr. A.Y. Sakhare, learned Senior Counsel appearing on behalf of the appellant-Corporation, in essence, contended that, the trial Court ought not to have entertained the suit itself, in view of the provisions of Section 515A of the M.M.C. Act, by which, remedy of fling a civil suit to challenge the order passed by the Designated Officer under Section 354-A of the Act has been taken away. Mr. Sakhare, supplementing the point of maintainability of the suit, contended that in, Affidavit-in-reply, Corporation had raised the issue of jurisdiction in terms of Section 515A, yet the trial Court, instead of deciding jurisdiction as preliminary issue, granted the interim relief and therefore according to Mr. Sakhare, impugned order needs to be set aside. To put it differently, Mr. Sakhare, would argue when issue of jurisdiction was raised, trial Court could not have granted interim relief, but at the most, could have granted ad-interim relief, pending decision on preliminary issue. Thus, Mr. Sakhare argued that, the parties be relegated to the trial Court, with further directions to the trial Court to decide the issue of jurisdiction, as a preliminary issue. Mr. Sakhare, in support of the submission, relied on the judgment of this Court in the case of Yogesh Meghaji Gada V.s. NCT (Writ Petition No.2243/2013). In the said case, the petitioners had challenged the action taken by the Municipal Corporation in respect of their structures by issuing notices under Section 351 and 354 of the M.M.C. Act. The Court, while examining the scope of writ jurisdiction while considering challenge to action of Corporation, has held that by newly introduced Section 515A, the remedy of fling civil suit to challenge the order and directions passed by the Designated Officer under Section 351 and 354A has been taken away; However, held that, even if jurisdiction of civil court has been excluded by section 515A, it is still open, if the petitioners show, that there is jurisdictional error on the part of the authority issuing order or direction under Section 351 or 354A of the M.M.C. Act Mr. Sakhare, learned Senior Counsel, would rely on para-22 of the judgment in Yogesh Gada (supra), to contend that Section 515A of the M.M.C. Act, has narrowed down the scope to challenge notice issued under Section 351 and there is no unlimited scope to challen