Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.08/2020 L.C. Stamp No.14375/2019
CNR NO.MHCC01-000025-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.08 OF 2020
IN
L.C. STAMP NO. 14375 OF 2019
Mr. Dhanji Daya Purabiya )
Adult Occ : Retired, Room No.B-3 )
King George V Memorial, Dr. E. Moses )
Road, Bombay - 400 011. )…Plaintif
Vs.
Mumbai Municipal Corporation of )
Greater Mumbai through Designated )
Officer/AsAssistant Engineer, B & ) - ff )
G/AsSouth Ward, Mumbai N.M. Joshi )
Marg, Elphinstone, Mumbai - 400 013 )...Defendant
APPEARANCE:-
Ld. Adv. Mr. Manoj Jaiswal for the plaintif.
Ld. Adv. Mr. Kumawat for the defendant/AsMCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 31st JANUARY, 2020.
O R D E R
This notice of motion is moved by plaintif under
Order 39 Rule 1 of Code of Civil Procedure praying for
restraining defendant from taking any action pursuant to
notice u/Assec.351 of Mumbai Municipal Corporation Act dated
23.09.2019 and speaking order dated 09.12.2019.
The case of plaintif in brief is as follows :
2. The plaintif is residing in suit premises along with
his family. Suit premises was taken on rent by Shri. Dahya fcha
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Purabiya, Late father of plaintif from landlord King George V
Memorial Trust. The defendant is corporation established
under MMC Act of 1998. Shri. Dahya fcha Purabiya was
employed from 01.10.1953 till 31.12.1986 and thereafter
plaintif with landlord trust. Landlord trust had created
tenancy in respect of suit premises towards their lifetime
services. Landlord trust realized that they have no ground to
secure the possession under the Rent Act therefore they
started harrasing the plaintif & other tenants in various
activities. Landlord started blocking entry of plaintif and
others in the premises. Landlord also fled false complaint on
ground that plaintif has carried out unauthorized & illegal
construction in suit premises to pressurize plaintif to vacate
suit premises. Defendant has issued show cause notice
u/Assec.351 of MMC Act on 23.09.2019 which is served upon
plaintif on 27.09.2019. Plaintif has replied said notice on
03.10.2019. Defendant issued letter to plaintif on 15.10.2019
fxing personal hearing on 18.10.2019. Hoowever, his advocate
was busy on 18.10.2019, therefore he submitted request
letter to defendant on 17.10.2019. The personal hearing was
adjourned on 26.11.2019 by letter of defendant dated
20.11.2019. On assurance of local MLA to look into matter, he
informed defendant on 25.11.2019 to adjourn the personal
hearing. Defendant however passed arbitrary order dated
09.12.2019 without giving any personal hearing to plaintif.
Notice is issued by defendant without inspection of suit
premises. No inspection report is prepared. Plaintif has not
carried out any unauthorized construction in suit premises. All
the documents of construction, plan will be in possession of
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landlord. Therefore, notice should have been issued to
landlord trust. Their structure i.e. suit premises is protected.
Notice & speaking order is illegal & bad in law. Defendant will
demolish suit premises under the guise of notice & speaking
order. Therefore, plaintif has fled the suit & present notice of
motion.
3. Defendant has resisted the suit & notice of motion
by fling reply/Aswritten statement. Defendant has specifcally
denied all the averments in notice of motion except those
which are specifcally admitted by him. According to them,
suit is bad for want of statutory notice u/Assec.527 of the MMC
Act. Suit notice is executive or administrative act or order of
defendant. Therefore, same are not open to challenge in the
court of law. Plaintif further failed to disclose cause of action.
As per Government Regulation dated 13.03.2012 as published
in Maharashtra Government Gazette on 13.03.2012 inserting
Section 515-A of Mumbai Municipal Corporation Act, 1888,
this court will have no jurisdiction to try and entertain the
present suit as the same is fled for challenging the notice
dated 23.09.2019 issued u/Ass.351 of the MMC Act, 1888.
Plaintif failed to array original landlord as party in the suit.
Therefore, suit is bad on the principle of non-joinder of
necessary party. Notice of motion is not tenable as defendant
has followed due process of law & issued notice u/Assec.351 of
MMC Act dated 23.09.2019 after inspection of suit premises &
giving opportunity to plaintif to prove the authorization of
notice structure. The defendant had received complaint dated
08.07.2019 from landlord with respect to unauthorized
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additions & alteration in suit premises by plaintif. The suit
premises was inspected by Shri. Rohan Vishwasrao Kumawat,
Jr. Engineer B& Dept, G-South ward on 17.09.2019. Hoe found
unauthorized horizontal extension of room admeasuring 3.25
mtr. X 2.0 mtr. having height 2.2 mtr. by using brick masonary
walls & A.C. sheet roof on north side of existing structure 2)
unauthorized horizontal extension of room admeasuring 3.25
mtr. X 1.2 mtr. & 3.25 mtr. X 2.0 mtr. having height 2.2 mtr.
by using brick masonary walls & A.C. sheet roof on south side
of existing structure at B-3 & B-4 which is used for residential
purpose by plaintif. Plaintif failed to produce authentic
evidence to show authorization & plan/Aspermission granted in
his favour. Therefore, fnspecting Officer took measurement,
drawn sketch, took photographs & prepared inspection report
on 17.09.2019. The fnspecting Officer put all aforesaid
documents before Designated Officer i.e. Executive Engineer
B & ) G/AsSouth ward, who than after verifying concluded that
structure is unauthorized. Hoe then issued notice u/Assec.351 of
MMC Act to plaintif which was served on 27.09.2019. Plaintif
gave reply on 03.10.2019 however failed to produce authentic
documents to show authorization of notice structure prior
datum line for tolerating the notice structure. Plaintif was
given opportunity of personal hearing on 18.10.2019 &
26.11.2019. Hoowever, plaintif failed to avail the opportunity.
The Designated Officer after going through the reply along
with documents of plaintif, Tikka Sheet & all other documents
concluded that plaintif failed to prove authorization of notice
structure & passed speaking order of demolition on
09.12.2019 which is duly served on plaintif. Sufficient time
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and personal hearing was given to plaintif. Therefore, the
notice dated 23.09.2019 and order passed on 09.12.2019 are
legal & valid, passed after following due process of law.
Plaintif has no primafacie case. Notice of Motion therefore,
deserves to be dismissed with heavy costs.
4. Hoeard, Ld. Advocate Mr. Manoj Jaiswal for Plaintif,
Ld. Advocate Mr. Kumawat for defendant corporation. On
hearing the parties and on going through entire record of the
case, following points arise for my determination with its
fndings and for reasons to follow :
S.N. POINTS FINDINGS
1 Whether plaintif proves that prima
facie case lies in his favour ? fn Affirmative.
2 Whether plaintif proves that balance
of convenience lies in his favour ? fn Affirmative.
3 Whether plaintif proves that
irreparable loss will be caused to
him, if the application is not
allowed ?
fn Affirmative.
4 What order ? As per fnal
order.
R E A S O N S
AS TO POINTS NO.1 TO 3
As all the points are interlinked with each other,
they are discussed together.
5. Ld Advocate for plaintif and Defendant argued in
lines of pleadings in Notice of motion and reply fled to it. Ld.
Advocate for plaintif further relied upon observations in -
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1. Lilly P. Pandit V/s.MMC and ors 2014 (2) Mh.LJ
657.
"Mumbai Municipal Corporation Act, 1888,
Sections 354A, 475A and 515A.
Opportunity of hearing was required to be given
as the order of authorities fnally decides the
rights of petitioner."
2. Quality Printing press V/s. Municipal
Corporation of Greater Mumbai in 2006 3) All MR 138 in
which it is observed that,
"Bombay Municipal Corporation Act, 1888,
Section 527-
No prescribed proforma of notice is given under the
said provision. Petitioner clearly making his intention
to fle suit known to the Corporation in his
correspondence with corporation is compliance to the
requirement under section 527 of the BMC Act."
3. Ashraf Ahmed S/o. Aziz Ahmed Siddiqui V/s.
Municipal Corporation of Greater Bombay 1999 (3)
Mh.L.J 183
“ft is held that there is subtle distinction
between the jurisdiction of the Court and non-
maintainability of claim.”
4. Motilal Mahadev Sharma and others V/s
Municipal Corporation of Greater Bombay 2005 (3)
ALL.M.R 869
“When the plaintif wants to seek immediate relfef
from the court in the form of injunction, it is not
necessary for him to issue statutory notice or wait till the
statutory notice is served and the period of prescribed
under Section 527 of the Act is over.”
5. Abdul Karim Ahmed Mansoori V/s. The
Municipal Corporation of Grater Mumbai and Another
2013 (6) AIR Bom R 141 in which it is observed that,
"Civil Court's power to take on fle a Civil Suit in as
much as scrutinise and verify the plaint, register it, is not
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taken away by such a bar. The clause outsting the
jurisdiction of the Civil Court may be in the terms noted
above but, for that bar to apply the Civil Court is obliged
to consider the facts and circumstances in each suit and
then apply section 515A of the Mumbai Municipal
Corporation Act, 1888. Unless the plea of ouster of
jurisdiction based on this section is considered in each
case, the Civil Court's jurisdiction cannot be said to be
outsted."
6. Yogesh Meghaji Gada Ors V/s. The Municipal
Corporation of Greater Mumbai as
MANU/MH/0465/2014.
“The apex Court laid down that a suit can be
maintainable if a court is prima facie of the opinion that
the order is nullity in the eyes of law or there is an
jurisdictional error in exercise of a power by the
commissioner or that the order is outside the scope of the
Act.”
“A review of the relevant authorities on
the point leads to the following
conclusions;
1) An exclusionary Clause using the formula 'an order of
the tribunal under this Act shall not be called in question
in any Court' is inefective to prevent the calling in
question of an order of the tribunal if the order is really
not an order under the Act but a nullity.
2) Cases of nullity may arise when there is lack of
jurisdiction at the stage of commencement of enquiry
e.g., when a) authority is assumed under an ultra vires
statute ; b) the tribunal is not properly constituted, or is
disqualifed to act; c) the subject-matter or the parties
are such over which the tribunal has no authority to
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inquire; and d) there is want of essential preliminaries
prescribed by the law for commencement of the inquiry.
3) Cases of nullity may also arise during the course of
or at the conclusion of the inquiry, These cases are also
cases of want of jurisdiction if the word 'jurisdiction' is
understood in a wide sense. Some examples of these
cases are a) when the tribunal has wrongly determined a
jurisdictional question of fact or law; b) when it has failed
to follow the fundamental principles of judicial procedure,
e.g. has passed the order without giving an opportunity of
hearing to the party afected; c) when it has violated the
fundamental provisions of the Act, e.g., when it fails to
take into account matters which it is required to take into
account or when it takes into account extraneous and
irrelevant matters; d) when it has acted in bad faith; and
e) when it grants a relief or makes an order which it has
no authority to grant or make; "as also f) when by
misapplication of the law it has asked itself the wrong
question.”
7. Arvind Pradhanbhai Dama V/s. Municipal
Corporation of Grater Mumbai 2013 (5) Mh.L.J 914
"Mumbai Municipal Corporation Act, 1888 Section 351
- Demolition of unauthorised structure -where the tenant is in
occupation -ft is necessary to give show cause notice to
tenant and his landlord and opportunity of personal hearing
before passing order of demolition."
8. Maneklal N. Shah @ Kothari V/s. Municipal
Corporation of Grater Mumbai 2014 1) ALL MR 194
“if tenant is able to show long standing existence of
suit premises prior to pre-datum line to be in accordance with
policy decision and circulars of Municipal Corporation,
decision making authority is required to pass reasoned order
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as to whether structure described is capable of being
regularised - Thus, order removing unauthorized construction
held to be not proper."
6. f have given anxious consideration to arguments of
both the learned advocates, so also the observations relied
upon by Ld. advocate for plaintif.
7. fn light of aforesaid legal position, it needs to be
seen as to whether plaintif makes out primafacie case.
Because plaintif is challenging notice u/Assec. 351 of the Act,
plaintif has to primafacie show that his/Asher possession in suit
premises is prior datum line or there is any sanctioned
plan/Asletter or permission letter from CA and that prima facie
the order u/Assec.351 & speaking order needs interception at
the hands of this court.
8. The photocopies of Election f.D card, Ration card,
Electricity bills, Salary slips issued by landlord, Aadhar card of
plaintif & his mother, substantiate the possession of plaintif
primafacie in suit premises since 01.07.1950 i.e. prior to
datum line 17.04.1964.
9. ft is important to note that landlord tenant has not
issued notice or fled eviction suit against present plaintif
that present plaintif has made unauthorized construction in
suit premises. ft is important to note that on complaint of
landlord King George V Memorial, the defendant BMC had
inspected the spot. This fact therefore throws doubt in
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complaint of landlord King George V Memorial. The
photograph upon which defendant BMC has relied upon is not
showing primafacie such unauthorized construction which
defendant BMC has shown in the inspection report & notice
u/Assec.351 of the Act. Plaintif is denying to have made such
construction.
10. ft cannot be lost sight of the fact that present
plaintif is tenant in suit premises. King George V Memorial is
the landlord. Therefore, documents of authorization of suit
premises cannot be with plaintif. Though it was argued that
defendant BMC has also issued notice to owner of suit
premises, same is not refecting on record. The notice issued
u/Assec.351 dated 23.09.2019 shows to be addressed to only
plaintif & not to the owner. Therefore, arguments of Ld.
advocate for defendant cannot be countenanced on this point
also.
11. ft is also important to note that besides tenant,
landlord is the only best person who can state as to what
premises was given to tenant. ff landlord is silent on
construction of unauthorized structure, prima-facie at this
stage plaintif has to be suited. As discussed above, the
complaint is lodged by landlord King George V Memorial who
has not issued any such notice or fled eviction suit against
plaintif. The possession of plaintif in suit premises is long
standing. Whether as is case of plaintif, they have not raised
such unauthorized construction or whether as is defence of
defendant BMC, there is unauthorized construction which is
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raised by plaintif can be decided when both parties lead
evidence at the time of fnal hearing. inal hearing will take its
own time.
12. No doubt after plaintif fled reply on 03.10.2019 to
notice of defendant BMC u/Assec.351, defendant BMC had given
opportunity of personal hearing on 18.10.2019 & 26.11.2019
to plaintif. But plaintif by his letter dated 17.10.2019 &
25.11.2019 sought adjournments to personal hearing.
Request of plaintif vide letter dated 17.10.2019 was
considered. Hoowever, request vide letter dated 25.11.2019
was not considered. Defendant BMC instead of informing that
request of plaintif is rejected directly passed speaking order
on 09.12.2019. Therefore, opportunity of personal hearing
was denied to plaintif prima-facie appears on record. f do not
dispute the legal position that personal hearing is not must in
every case, however when case appears to be falling within
Sec.351 1) b) of the Act, the Designated Officer can give
personal hearing to plaintif which is his discretionary right. fn
present case, the Designated Officer had chosen to give
personal hearing however later on denied & without
intimation of rejection of request of plaintif, has abruptly
passed speaking order. Primafacie it appears that, there is
violation of rules of natural justice. ft appears primafacie that,
defendant BMC has violated the fundamental principles of
judicial procedure. Therefore, in light of observations in all
citations relied upon by Ld. Advocate for plaintif, it can be
concluded that plaintif has made out primafacie case. There
is triable issue can be concluded.
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13. Considering aforesaid discussion, if application of
plaintif is rejected & in mean time the defendant BMC
executes the action as per notice dated 23.09.2019 &
speaking order dated 09.12.2019 respectively, the whole
purpose of fling of this suit and notice of motion shall
frustrate. ff this notice of motion is rejected and if plaintif
succeeds in his suit at the time of fnal hearing, it will be
plaintif who will sufer heavy irreparable loss which cannot be
compensated in terms of money. On the contrary, allowing
present notice of motion will not put defendant BMC to any
irreparable loss as compared to plaintif. Therefore, both
factors of irreparable loss and balance of convenience are
also in favour of plaintif rather than defendant. Therefore, f
answer point No.1 to 3 in affirmative.
14. As point No.1 to 3 are answered in affirmative,
notice of motion of plaintif deserves to be allowed. fn result, f
proceed to answer point No.4 by following order-
ORDER
1. Notice of Motion No.08/As2020 is hereby allowed.
2. Defendant BMC through its servants, agents or any
other person claiming through them are hereby
restrained by order of temporary injunction from
initiating any action or proceeding further or taking any
steps pursuant to notice u/Assec.351 of Mumbai Municipal
Corporation Act and order dated 09.12.2019 till fnal
decision of suit.
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3. Costs in cause.
4. Notice of Motion No.08/As2020 is accordingly disposed of.
(C.P. Jain)
Ad-hoc Judge, C.R.No.06)
Date : 31.01.2020 City Civil Court, Gr. Bombay
Dictated on :31.01.2020.
Transcribed on :01.02.2020. & 03.02.2020.
Signed on :10.02.2020.
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“CERTf fED TO BE TRUE AND CORRECT COPY O THoE
ORfGfNAL SfGNED JUDGMENT/AsORDER.”
UPLOAD DATE AND TfME : 11.02.2020, 02.48 pm.
NAME O STENOGRAPHoER : Mr. Hoarshal D. Jagtap
Name of the Judge With Court
Room No.)
HoHoJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/AsORDER
31.01.2020
JUDGMENT/AsORDER signed by
P.O. on
10.01.2020
JUDGMENT/AsORDER uploaded on 11.01.2020
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