Interim Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.2986 OF 2021
(CNR No. MHCC01-009757-2021)
IN
L.C.SUIT NO. 38 OF 2019
Mohammed Naushad Sainul Shaikh …. Plaintiff
V/s.
The Municipal Corporation of
Gr.Mumbai. ...Defendants
CORAM: HIS HONOUR JUDGE
SHRI. R. B. PARVEKAR
CITY CIVIL COURT
GR. MUMBAI
DATE : 31/07/2023
Adv. Mr. J.B. Mishra for the plaintiff.
Adv. Ms.Deepali Patil for the defendants/BMC.
ORAL ORDER
1. This notice of motion is taken out by the plaintiff
under order XXXIV Rule 1, 2 r/w section 151 of the Code of
Civil Procedure for restraining defendants/BMC from
implementing notice under section 351 of the MMC Act and
speaking order dated 20.12.2018 in respect of the suit premises
till disposal of the suit.
For the sake of convenience, I would like to
reproduce alleged unauthorized construction well mentioned in
schedule of notice under section 351 of the MMC Act dated
11.09.2018 as below:-
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“ unauthorized construction of first and second
floor admeasuring 12.00m X 4.36m by using side brick walls,
MS Angles and ladicoba slab, G.I.sheet roof having height
admeasuring 1.84m X 2.13 m at M/s. F.B. Fashion Bags, Unit
No.84G, Bharat Bazar, Worli, Mumbai”.
(hereinafter called as notice structure)
Case of Plaintiff
2. It is the case of the plaintiff that he is doing business
of manufacturer and sell of bags style as F.B.Fashion Bags at suit
premises i.e. Unit No.84G, admeasuring 500 sq.ft.with ground
plus mezzanine floor situated at Worli , Mumbai.
3. Suit premises assessed to Municipal Record on
01.01.1968. It was constructed much prior to datum line. Suit
premises is a tolerable structure. Defendant/BMC issued special
notice under section 162(2) of the MMC Act dated 24.12.2012.
Plaintiff pay monthly rent in respect of the suit premises to
defendant/BMC. Shop and Establishment License, Electricity
Meter is standing in the name of the plaintiff. Plaintiff replied
notice dated 11.09.2018 vide reply dated 17.09.2018. Plaintiff
take efforts to collect sanction map of the suit premises by filing
application under RTI Act with defendant/BMC. But, till date
defendant/BMC does not provide the copies. Without giving
personal hearing defendant/BMC passed speaking order dated
20.12.2018. Notice is not in respect of ground floor of the suit
premises. If protection is not granted, plaintiff will suffer
irreparable loss. Hence, this notice of motion.
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Case of defendant/BMC
4. On the basis of complaint dated 30.06.2018 officer of
defendant/BMC inspected the suit premises and found alleged
unauthorized vertical extension to the existing ground floor
structure i.e unauthorized construction of first and second floor
well mentioned in the notice structure. Defendant/BMC
prepared inspection report with sketch dated 07.09.2018 and
issued impugned notice. Plaintiff carried out construction
without permission and contrary to the sections 342 and 347 of
the MMC Act. Plaintiff fails to produce permission, sanction and
approved map in respect of the notice structure. After providing
opportunity speaking order is passed. Rest of the averments in
plaint are denied by the defendant/BMC in toto.
5. From the rival pleadings following points arise for my
determination to which I have recorded my findings for the
reasons stated hereinbelow:-
Sr.
No.
Points Findings
1 Whether the plaintiff has prima-
facie case?
Negative.
2 Whether balance of convenience
lies in favour of plaintiff.?
Negative
3 Whether plaintiff will suffer
irreparable loss if injunction is not
granted?
Negative
4 What order ? As per final
order
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REASON'S
6. Read Notice of motion, reply filed by the
defendants/BMC. Both the parties consented to decide Notice of
motion finally, accordingly advance arguments.
As to Point Nos.1 to 3
7. Point nos. 1 to 3 are interlinked with each other
hence, grouped together for discussions. First and foremost
requirement for grant of temporary injunction is that the party
seeking such relief must establish prima-facie case in his favour.
To make out prima-facie case a party is not required to establish
his title. It is enough if he can show that he has fair question to
raise as to the existence of alleged rights and the property in
the meantime should be preserved.
8. It is the contention of the plaintiff that suit premises
is consisting of ground plus mezzanine floor. It is a tolerable
structure. On the contrary, defendants/BMC come with the case
that plaintiff is carried out alleged illegal construction well
mentioned in the notice without prior permission, sanction from
Competent Authority.
9. In support of contention, plaintiff placed reliance on
extract of Description and Detail of Capital Value Calculation
Annexure -A. At serial No.3 it is mentioned as ground floor and
mezzanine floor and age of building is 42 years. But, the said
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document does not bears specific date on which such entries
were made in the register. On perusal of photocopy of Property
Tax Bill, it appears that on 01.10.1968 for the first time suit
premises was assessed for the Property Tax. The said Property
Tax bill in column of address merely mentioned Gala No. 84/G.
There is no mentioned of mezzanine floor. On perusal of
inspection report dated 07.09.2018 it appears that officer of
defendants/BMC visited the suit premises and found alleged
illegal construction well mentioned in the notice structure.
Colour photographs placed on record, clearly shows that the
suit premises is ground +first floor +second floor. Therefore, it
is clear from the inspection report and colour photographs
placed by the plaintiff on record that suit premises is consisting
of ground + first floor and second floor. Plaintiff has not placed
a single document to prima-facie establish that suit premises
exists prior to datum line. Now it is up to the plaintiff to show
permission, sanction and approved map in respect of alleged
notice structure as contemplated under section 337 or 342 and
section 347 of the MMC Act. But, plaintiff has not filed a single
document to prima facie established legality of the notice
structure.
10. Plaintiff has not placed the copy of application which
was filed for seeking permission of construction and sought
under RTI Act. Therefore,contention of the plaintiff that
defendant till date has not supplied approved map under RTI
Act is not acceptable.
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11. At this juncture, it is submitted on behalf of the
plaintiff that he is paying all necessary charges, including rent.
He is tenant of the defendant/BMC. Therefore, it is upto
defendants/BMC to show and prima-facie establish that suit
premises including notice structure is illegal. Because
documents in respect of legality of structure are in the custody
of the defendants/BMC. Plaintiff has placed his reliance on the
following citations:-
(1) Vadilal Maganlal Trevadia Vs. Bombay Municipal
Corporation and others (2021(1) Mh.L.J.157).
(2) Sherkhan Tajuddin Khan Vs. The Brihanmumbai
Mumbai Corporation of Greater Mumbai reported in
Appeal From Order No. 1277 of 2012 decided by the
Honourable High Court on 14.12.2012.
(3) Sherkhan Tajuddin Khan Vs. The Brihanmumbai
Mumbai Corporation of Greater Mumbai reported in
Appeal From Order No. 1277 of 2012 decided by the
Honourable High Court on 18.12.2012.
12. On the other hand, it is the contention of the
defendant/BMC that notice issued by the defendants/BMC is a
show cause notice. Therefore, initial burden is on the plaintiff
to show the legality of the structure. Defendants/BMC placed
reliance on the case of Tushar Guru Salien V/s. State of
Maharashtra and others reported in Public Interest Litigation
No. 67 of 2017 decided on 28.08.2019 .
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13. On going through the rival submissions and the case
laws relied by both the parties, it appears that plaintiff disputed
notice under section 351 of the MMC Act issued by the
defendants/BMC. There is no specific pleading or averment in
the plaint about the legality of the notice structure. Apart from
this, as per averments in the plaint, plaintiff come with the case
that the alleged unauthorized construction is a mezzanine
floor. But, as per photographs placed on record by the plaintiff
and inspection report, it is prima-facie clear that suit premises
is comprising of ground + first floor + second floor. The
mezzanine floor is within the room or not outside the premises.
The notice is in respect of the alleged illegal construction of
first floor + second floor without disputing the existence of the
ground floor. Therefore, circumstances and facts mentioned in
the case laws relied by the plaintiff are not attracted in the
present case. Hence, submissions raised on behalf of the
plaintiff are not acceptable one.
14. After receipt of notice, plaintiff submitted reply
dated 17t h September,2018 with defendants/BMC. After
considering the reply filed by the plaintiff defendant,
Designated officer passed speaking order dated 20.12.2018.
From these facts , it is clear that due process of law as
contemplated under Act is followed by the defendants/BMC.
15. In the present case, within a stipulated period of
time, or even after passing of speaking order, plaintiff has not
shown sufficient cause to prima-facie establish that the said
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notice structure is constructed in accordance with provisions of
sections 337 or 342 and 347 of the Act. As plaintiff fails to show
permission, sanction or approved map in respect of the alleged
illegal construction, hence, not having sufficient reason or cause
to raise fair question as to the existence of the alleged rights.
Plaintiff will not suffer relative inconvenience by refusal of
prohibitory relief. There are no equities in favour of plaintiff. If
discretionary relief of temporary injunction is refused, plaintiff
will not suffer irreparable loss. Accordingly, I answer all point
in the negative and proceed to pass following order.
ORDER
1.Notice of motion No. 2986 of 2021 is rejected.
2.Earlier ad-interim protection stands vacated.
3. Both the parties to take note of this order.
4.Cost in cause.
5.Notice of motion No.2986 of 2021 is disposed off.
Date -31/07/2023 (R. B. Parvekar)
Ad-hoc Judge, City Civil Court
Gr. Mumbai
D i c t a t e d o n : 3 1 / 0 7 / 2 0 2 3
Ty p e d o n : 3 1 / 0 7 / 2 0 2 3
s i g n e d o n :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
01-08-2023 03.10 p.m. ( Mayuresh
P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R. B. Parvekar (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
31/07/2023
JUDGMENT/ORDER signed by
P.O.on
01/08/2023
JUDGMENT/ORDER uploaded on 01/08/2023
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