Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.14/2019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 14 OF 2019
CNR NO:- MHCC01-000046-2019
in
L.C. SUIT NO. 485 OF 2019
Mohd. Idris Iliyas Ansari ]...Plaintiff.
Versus
MCGM ]..Defendants.
Appearance:
Ld Advocate Dalal for the Plaintiff.
Ld Advocate Rawde for defendant (MCGM).
CORAM : S.C. Pathare, Judge
(Court Room no.5)
DATED : 24th March, 2021.
ORAL ORDER
1) Plaintiff/s took out this notice of motion against the notice
issued u/s. 488 of the MMC Act against MCGM. The defendant by
submitting reply strongly opposed the relief of temporary injunction.
2) Plaintiff/s resides at “Zohra Manzil”, SVP Road, Dongri,
Mumbai. According to plaintiff the said premises is the suit premises.
3) Plaintiff/s acquired tenancy rights in the suit premises &
such rent receipts are being issued accordingly in that regard. Plaintiff is
paying monthly rent to the landlord regularly till date.
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4) On 1/11/2018 plaintiff/s received impugned demolition
notice u/s. 488 of the MMC Act. In the notice it was mentioned that staff
of MCGM would come on 3/11/2018 to demolish suit premises on the
basis of previous notice u/s. 351 of the Act dated 4/11/2008 & notice
dated 22/2/2018.
5) Plaintiff had also received similar notice of demolition dated
18/8/2018 u/s. 488 of the Act by saying that defendant will come on
21/8/2018 etc for demolition of the suit premises pursuant to show
cause notice u/s. 351 of the Act dated 4/11/2008 & dated 22/2/2018.
6) After receipt of notice dated 18/8/2018 plaintiff made
application to BMC for cancellation/withdrawal of the said notice dated
18/8/2018, 22/2/2018 & 4/11/2008, but in vain.
7) According to plaintiff/s the suit premises is in existence
since prior to the datum line. Further, the assessment bill of 2008-09
shows that the first date of assessment of said premises is prior to 1961-
62.
8) Plaintiff/s got electricity connection & paying such bills
regularly. Plaintiff/s totally denied the alleged alterations or repairs etc
to the suit premises. According to plaintiff said structure is not
unauthorized. According to plaintiff said structure is protected one
because it came into existence prior to the datum line.
9) According to plaintiff/s the same acquired rights in respect
of suit premises by executing documents with landlord & they are
getting such rent receipts.
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10) After receipt of notice dated 4/11/2008 plaintiff/s
approached the landlord who informed that he did not receive such
notice. Landlord assured plaintiff/s that he will take care of the said
action & plantiff should not bother, therefore plaintiff/s did not reply to
the notice of MCGM. Plaintiff/s also did not challenge the said notice.
There are many tenants, but some tenants not even received notice u/s.
351 of the Act.
11) The other tenant/s received notice u/s. 351 in 2008 &
secured interim orders. The most of those suits were dismissed for non
prosecution, therefore those interim reliefs had got vacated. Said suits
are L.C.S. No. 2941/08, 2949/08, 2971/08, 2978/08, 2977/08 &
2979/08.
12) Plaintiff/s & other tenants received notices u/s. 488 on
18/8/2018 i.e. after lapse of 10 years.
13) The legal heirs in L.C.S. No.2941/08 then filed NM for
restoration of the suit & obtained status quo.
14) One tenant who acquired her tenancy in 2014 i.e.
Zaibunnisa filed WP before Hon’ble High Court & challenged notice u/s.
488 of the Act.
15) Once again plaintiff/s received demolition notice dated
1/11/2018 u/s. 488 of the Act. One Mr. Zoheb Husain contractor
obtained interim relief & the same continue to apply in this suit. Suit
premises are located in the same building, hence plaintiff is also entitled
to relief of injunction.
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16) The plaintiff is not challenging notice u/s. 351 nor earlier
notice dtd. 22/2/2018 & 18/8/2018. Plaintiff is only challenging now
the fresh notice issued u/s. 488 dtd. 3/11/2018, on the basis of fresh
cause of action.
17) Plaintiff & other tenants of the building filed proceedings
challenging notice issued u/s. 351 of the Act in respect of the suit
premises. In earlier suit another earlier notice u/s. 488 is also
challenged. However, no suit has been filed challenging the present
notice received u/s. 488 of the Act. Hence, provisions of Order 9 Rule 9
would not apply to the present suit which is having fresh & independent
cause of action. Earlier suits got dismissed in default, hence there is no
question of res judicata.
18) Plaintiff/s had filed WP (L) No.3224/18 before Hon’ble
High Court. On 19/9/2018 Hon’ble High Court allowed to withdraw said
writ & permitted plaintiff to approach this trial court.
19) According to plaintiff/s said structure is in existence since
prior to the datum line. There is no any unauthorized construction.
20) MCGM submitted reply. The above action taken by BMC &
the said correspondence is not disputed. However, the rest of the adverse
allegations are denied in the reply.
21) In reply it is contended that plaintiff/s filed present suit for
declaration & perpetual injunction to prevent from demolition the suit
premises in pursuance of first notice dtd. 18/8/2018 u/s. 488 of the Act,
notice u/s. 351 dtd. 4/11/2008 & 22/2/2018.
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22) MCGM further contended that various complaints are
received against the said unauthorized structure. Then by visiting site
inspection was made on 4/11/2018. Necessary inspection report was
prepared. Thereafter, notice dtd. 18/8/2018 was issued.
23) Notice u/s. 351 of the Act was issued on 24/11/2008. It was
challenged in L.C.S. No. 2941/08, 2971/08, 2977/08, 2979/08. Those
suits got dismissed.
24) After receipt of the complaint, during visit it was found that
plaintiff/s carried out unauthorized work without any sanction.
Therefore, fresh notice u/s. 488 of the Act was issued. Plaintiff failed to
produce documents showing said structure existed prior to the datum
line. Defendant again issued notice u/s. 488 on 22/2/2018. Plaintiff/s
neither replied said notice nor produced documents of authorization of
the structure. Defendant had fixed demolition on 3/11/2018, but due to
obstruction of local people it could not be completed.
25) In reply it is contended that BMC is having cadestral survey
sheet wherein notice structure is not shown. It is an open place behind
existing building. Plaintiff/s challenged present notice claiming
themselves as tenants of the suit building. Hence, it is prayed to reject
the NM.
26) I have heard arguments advanced by both the Ld Counsels,
perused documents produced by both the parties. Ld Advocate of
plaintiff argued that plaintiff is having tenancy rights in the suit premises
& they are having such rent receipts in that regard. Advocate of plaintiff
argued that the action taken by MCGM is completely unlawful, hence he
prayed to protect the plaintiff/s. On the other hand Ld advocate of
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MCGM argued that plaintiff/s are having unauthorized structure &
plaintiff/s cannot be protected, particularly when MCGM since long
followed due process.
27) Plaintiff submitted the following documents:-
1 Exh.A – Notice dtd. 1/11/2018.
2 Exh.B – Notice dtd. 18/8/2018.
3 Exh.C – Notice dtd. 22/2/2018.
4 Exh.D – Assessment bill of the year 2008-09.
5 Exh.E – Copy of order dtd. 23/2/2018.
28) Defendant (MCGM) submitted the following documents:-
1 Survey report/cadestral survey sheet.
2 Notice u/s. 488 of MMC Act.
3 Speaking order dtd. 25/5/2018.
4 Copies of photographs/ report.
5 Complaint copy dtd.22/01/2021 & 15/7/2019.
6 Notice u/s.351 of MMC Act dtd.4/11/2008.
7 Speaking order dtd. 24/11/2008.
29) Plaintiff has made it clear that the same is not challenging
the notice u/s. 351 nor earlier notices dtd. 22/2/2018 & 18/8/2018.
Plaintiff is only challenging notice u/s.488 of the Act dtd. 3/11/2018
(1/11/2018). Perusal of Sec.488 shows that it is regarding,
“commissioner, etc. may enter any premises for purposes of inspection,
survey or execution of necessary work, subject to proviso provided
thereunder”. Perusal of notice annexed with plaint dtd.1/11/2018 it
shows that it is issued by MCGM u/s. 488 of the Act. In this notice it was
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informed that on 3/11/2018 or thereafter at about 11 a.m. designated
officer etc. shall enter in the suit premises in order to demolish their
unauthorized structure as per notice u/s.351 of the Act dtd. 4/11/2008
& short order dtd. 25/5/2018. Perusal of this notice dtd.1/11/2018
regarding proposed action dtd. 3/11/2018 reveals that it is not a fresh
notice, but it is supplementary notice in continuation with said earlier
show cause notice & short order, for compliance. When notice
dtd.1/11/2018 is not fresh notice in that event the same cannot be
called as a fresh notice. It is continuation of said earlier notice & order
issued to the owner/occupier. Therefore, it is crystal clear that said
notice dtd.1/11/2018 cannot be treated as fresh notice & ultimately it
cannot be said that on that basis plaintiff got fresh cause of action to file
this suit in the manner mentioned in the suit.
30) Plaintiff has not produced documents of title of own
landlord regarding the specific notice structure. Plaintiff also failed to
keep on the record the “rent” receipts whether notice structure is
specifically mentioned therein. Plaintiff also has not given specific
length, width, size, area & four boundaries etc of notice structure in suit/
NM, these vital aspects cannot be ignored casually.
31) Plaintiff heavily relied on photo copy of assessment bill for
the year 2008-09. Perusal of the same it shows that the date of the first
assessment is mentioned therein prior to 1961-62. The said extract is
appearing on the name of H A G H Oomerkoor Zohr. The address of
assessment appears to have been mentioned as B 2918/195-213 Sirdar
V.P. Road House with shops & hostel. In the suit plaintiff has not given
four boundaries of the structure in which the same resides. Therefore, it
is difficult to believe that whether this extract is pertaining to the
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disputed structure or not. Apart from that when assessment tax is paid in
the year 2008-09 then it cannot be said that the disputed specific
structure was existing prior to 1961-62. Plaintiff has not produced detail
remarks of assessment. In this matter plaintiff has not sought injunction
against the basic notice issued u/s. 351 of the Act dtd. 4/11/2008 &
short order dtd. 22/2/2018 in that event stay cannot be given merely to
the notice u/s. 488 of the Act dtd. 1/11/2018. In such matters generally
litigants produced copy of light bill/gas bill/ telephone bill/ration card.
However, as per the settled position of law such bills are not treated as
documents of ownership or documents of sanction given by competent
authority of MCGM to the disputed notice structure.
32) Plaintiff produced copy of order (roznama) dtd.23/2/2018
passed by City Civil Court, CRN 5. In suit No.2942/08 there was order of
status quo, but NM and suit was dismissed in default, alongwith the suit.
Therefore, in the meantime order of status quo was granted therein. It is
to be noted that if in that suit order of status quo is granted that does
not mean that in rest of the suits parties are entitled to the similar relief
automatically. Such reliefs are to be given after satisfying about a prima
facie case or balance of convenience or if relief is not given then the
plaintiff can suffer irreparable loss. Unless said three vital points are
fulfilled such discretionary interim relief cannot be granted.
In L.C.Suit No.479/19 plaintiff party produced copy of order
passed in the case of Zohaib Hasan vs. MCGM dtd. 19/9/2018 in WP
No.3224/18 in which Hon’ble High Court gave liberty to said petitioner
to withdraw the petition with liberty to resort to alternate remedy as
permissible in law, keeping all issues on merits open. It means for the
purpose of this application court has to consider requirements needed
under Order 39 Rule 1 & 2 of the CPC. In the said suit plaintiff also
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produced copies of rent receipts those are regarding room No.8 on the
ground floor in Zohra Manzil. However, in the suit it is mentioned as
plaintiff resides at Zohra Manzil. It means said details mentioned in rent
receipts are not given specifically in para No.1 of the plaint. Further,
from rent receipt dtd. 19/3/2012, 4/8/2014, 10/6/2008, 13/10/2013,
11/10/2013, 1/5/2013, 12/11/2012 & 5/9/2012 it cannot be concluded
that notice structure was existing prior to the datum line or the same has
been authorized or sanctioned by the competent authority.
33) Defendant produced cadestral survey sheet of survey
No.1550 for showing that specific notice structure is not mentioned
therein. Defendant through this map shown that notice structure is an
open place behind existing building. When disputed notice structure is
not shown in CS sheet in that event said structure cannot be called as
authorized. Plaintiff instituted this suit without producing show cause
notice u/s.351 of the Act. On the other hand said copy is produced by
defendant in L.C.S.No.358/19 wherein said notice schedule is mentioned
as unauthorized construction of room at ground floor in RSJ & Ladi coba
Ladi as shown in the sketch appended to the notice. Defendant produced
final/speaking order dtd. 24/11/2008. The designated officer found that
the concern noticee was having unauthorized structure. Hence, said
speaking order was passed against the notice structure. It means
regarding Sec.351 of the Act due process was followed. Therefore, now
present plaintiff cannot take benefit of said action in the present suit.
34) Defendant produced speaking order dtd.25/5/2018
alongwith photocopies of photographs, thereby direction was given to
owner/occupiers to remove unauthorized structure. Defendant also
placed on the record copy of complaint which was received to MCGM
against the unauthorized structure. On 15/6/2019 there was
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correspondence from MCGM to said complainant. Thus, documents
produced by defendant are appearing in consonance with their reply.
35) If said unauthorized structure is not removed, then, the
same may in future invite any untoward incident/accident, this aspect
also cannot be casually ignored.
36) In view of above discussion vide Sec.56 & 57 of the Indian
Evidence Act, I am inclined to take guidance from the case of Shantilal
Chhogalalji Doshi Versus M.C.G.M. (Appeal From Order No. 8/2021
dated 3/2/2021) wherein Honourable High Court observed that, “
No
sympathy can be shown to an unauthorized structure as by showing the
same, would tantamount to perpetuating illegality, which may cause
danger to the lives of adjacent dwellers”. Therefore, I am not inclined to
protect the said unauthorized structure.
37) In view of above thorough discussion in my humble view
plaintiff party is not having a prima facie case or balance of convenience
in favour of the same. Further, if Notice of Motion is rejected in that
event plaintiff will not suffer any irreparable loss which cannot be
compensated in terms of money.
38) Considering peculiar facts, circumstances & documents etc, I
proceed to pass the following order in the interest of justice:
ORDER
1) Notice of Motion No. 14/2019 stands
dismissed with costs.
2) Said Notice of Motion stands disposed of.
3) Keep suit for WS, if any.
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4) Authenticated copy of this roznama be
given to parties, if requested.
(S.C. Pathare)
Date:24/03/2021. Ad-hoc Judge
City Civil Court
Dictated & directly typed on dais computer : 24/03/2021.
Checked by PO : 24/03/2021.
Signed by HHJ on : 24/03/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26/03/2021. Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI S.C. Pathare (Court Room No.05)
Date of Pronouncement of JUDGMENT/
ORDER
24/03/2021.
JUDGMENT/ORDER signed by P.O. on 24/03/2021.
JUDGMENT/ORDER uploaded on 26/03/2021.
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