Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.59 of 2018
CNR:MHCC01-000156-2018
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.59 OF 2018
IN
L.C.SUIT NO.2317 OF 2017
1 Smt. Ashadevi Subhash Jaiswal & Anr. .. Plaintiffs
V/s.
1 Municipal Corporation of Brihan Mumbai
& Ors. .. Defendants
Appearance:-
Adv. Rehan a/w Adv. Chitnis for plaintiffs.
Adv. Vidya Vyavahare for defendant No.1 and 2/MCGM.
None for defendant No.3.
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 01/11/2023.
ORDER
This notice of Motion is taken out by the plaintiffs for
temporary injunction restraining defendant No.1 and 2 from
implementing and/or executing and/or proceeding further with and/or
taking any steps in pursuance of the notice dt. 07/07/2015 and
impugned order dt. 31/10/2017 and/or taking any steps for
disconnecting the drainage line from the sewerage line of Kashinath
Mhatre Marg to the suit premises.
2 It is the case of the plaintiffs that they are the tenants of
Bombay Port Trust(hereinafter referred to as (MbPT) in respect of the
plot No.102 and 103 with two structures/godown situated thereon as
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described in para.1 of the plaint (hereinafter referred to as the suit
premises). Initially M/s. Vaziralli Ltd was the tenant of the suit
premises who transferred tenancy of the suit premises in favour of Smt.
Harbans Kaur, Shri. Rajavar Vasudev Rao, Shri. Jotinder Singh and
Niranjan Vasudev Rao with the consent of MbPT and these occupants
were carrying on the business as joint tenants as Hind Enamel Works.
By executing a lease deed dt. 23/10/1964, M/s. Vaziralli Ltd had
transferred the tenancy of the suit premises in favour of the aforesaid
persons. Thereafter, late Harbans Kaur and others who were the joint
tenants of MbPT in respect of the structures being C.S. No. 6/630 made
construction of these plots. MbPT issued rent receipts dt. 1/6/1964
bearing 23542 towards plot No.103 in the name of M/s. Vaziralli Ltd.
MbPT also issued bill No. 31743 and 31744 dt. 01/09/1964 in respect
of the aforesaid plots. After payment of rent of these plots and buildings
thereon, MbPT issued rent receipts to M/s. Vaziralli Ltd towards the
payment of rent. Said payment of rent was made by M/s. Vaziralli Ltd
by cheque dt. 07/09/1964 and 10/09/1964 respectively.
3 Plaintiffs have acquired right, title and interest in the suit
premises through Harbans Kaur and others and they are imparting
religious education to the children belonging to the Muslim Community
by conducting Madrasa/Islamic School. The defendant No.3 on other
side of the road is carrying on unlawful business of scrap from his
residential premises and started pressurizing and coercing the plaintiffs
to leave the suit premises and also willing to take forcible possession of
the same. The defendant No.3 is illegally and unauthorizedly blocking
the storm water drainage/drainage of the plaintiffs’ suit premises which
is the municipal drainage is in existence since last more than 50 years,
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through which the plaintiffs’ drainage water is passing to the main
drainage of MCGM. Due to accumulation of water, it is causing health
hazard to the students who are taking education in the said institution.
Plaintiffs also issued several letters requesting defendant No.1 to take
steps against defendant No.3 for unlawful blocking of storm water
drainage and also filed police complaint in Byculla Police Station. Prior
to filing of this suit, defendant No.2 also issued notice dt. 07/07/2015
by wrongly contending that no drainage connection is provided to the
suit premises. Thereafter, the defendants passed stereotype order dt.
31/10/2017 without considering the reply dt. 12/09/2017 and
documents produced by the plaintiffs. The defendants issued threats to
dismantle the said drainage. The plaintiffs, therefore, prayed for the
interim reliefs.
4 The defendant No.1 and 2 resisted the Notice of Motion
mainly on the ground that the complaint of unauthorized drainage
connection in respect of the suit premises was received by AE(SWM), E
Ward. Therefore, officer of the defendants visited the suit site and found
that the drainage line from the toilet is connected to the main sewerage
line at Kashinath Mhatre Marg. Therefore, notice dt. 07/07/2015 was
issued to Mr. Abdul Hakim Mohd. Mumtaj Baig by AE(SWM), E Ward
calling upon him to submit the necessary papers. Said notice was duly
replied by Mr. Abdul Hakim Mohd. Mumtaj Baig. The defendants also
received notice dt. 08/09/2017 issued by the advocate for the plaintiffs
in respect of the said drainage connection alongwith photographs and
copy of NC against the defendant No.3. However, no any copy of
permission from the competent authority to connect the drainage line
from toilet of the main sewerage line was filed by the plaintiffs. After
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considering the reply submitted by the plaintiffs AE(SWM), E Ward
came to the conclusion that not a single document showing permission
of the competent authority is filed by the plaintiffs. Therefore, plaintiffs
were directed to discontinue the unauthorized sewerage connection
within seven days from the receipt of the letter. The plaintiffs also filed
L.C. Suit No. 2047 of 2010 for restraining the MCGM from demolishing
the notice structure pursuant to the notice dt. 22/06/2010 under
Section 354-A of the MMC Act. In the said suit, notice of motion taken
out by the plaintiffs came to be rejected by an order dt. 07/08/2012.
5 On usual round of inspection dt.28/06/2010, officer of
defendant inspected the suit site and found unauthorized construction
of 19 sheds admeasuring 100 sq. ft. made up of G.I. sheet and iron
angle work in progress. Accordingly, panchanama was prepared by
taking photographs of said ongoing work. Thereafter, notice dt.
28/06/2010 was issued to the plaintiff under Section 354-A to stop said
unauthorized work and plaintiffs were called upon to submit
documentary evidence to show the permission granted by the
competent authority. After considering the reply of the plaintiffs and
the documents, Assistant Municipal Commissioner, E Ward passed a
reasoned order on 07/08/2010. Assistant Municipal Commissioner
came to the conclusion that the plaintiffs have not submitted valid
permission towards the said ongoing construction, therefore, plaintiffs
were directed to remove the notice structure. The documents produced
by the plaintiffs do not prove that the plaintiffs are having any
permission of the competent authority to connect the drainage line from
the toilet to the main sewerage line. Rest of the averments are denied
in toto. It is thus contended that the Notice of Motion is liable to be
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dismissed.
6 Considering the rival submissions, following points arise
for my determination. My findings are recorded thereon with reasons
enumerated therein, as under.
Sr. No. POINTS FINDINGS.
1 Whether the plaintiffs have made
out a prima facie case?
Affirmative
2
Whether balance of convenience
lies in favour of the plaintiffs?
Affirmative
3
Whether the plaintiffs will suffer
irreparable loss, if interim relief
is not granted, as prayed for?
Affirmative
4 What Order ? As per final order
REASONS
AS TO POINTS NO.1 TO 3.
7 At the outset, the learned advocate for the plaintiffs
submitted that the interim relief has been sought mainly for restraining
the defendants from the disconnecting the drainage of the plaintiff’s
premises who are tenants of MbPT. The learned advocate for the
plaintiff emphasized mainly on the receipts and bills issued by MbPT
which pertaining to the year 1964. Apart from receipts, learned
advocate for the plaintiffs also emphasized on the copies of bills and
property tax issued by the MbPT. He submitted that in tax receipts, it is
specifically mentioned that the taxes are paid for the use of drainage
since 1963-1964. It is, therefore, vehemently submitted that it is
necessary to restrain the defendant No.1 and 2 from disconnecting the
drainage of the suit premises pending hearing and decision of the suit.
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8 On the other hand, learned advocate for the defendant No.
1 and 2 submitted that earlier notice was issued by the BMC under
Section 354-A towards unauthorized ongoing construction the said
lands. The said notice has been challenged vide L.C. Suit No.204 of
2010 which is still sub judice. The learned advocate for the defendant
No.1 and 2 also submitted that the notice of motion taken out in that
suit has been dismissed by the Court. He submitted that there is nothing
on record to show that the drainage in the suit premises connected with
the main drainage of BMC has been constructed by taking permission
from the competent authority. It is, therefore, vehemently submitted
that the notice of motion is liable to be dismissed.
9 In the light of respective submissions, I have carefully gone
through the respective pleadings and copies of documents on record.
The plaintiffs are claiming to be tenants of MbPT in respect of the suit
premises. Though there is nothing on record to show that the plaintiffs
have acquired the suit premises through Smt. Harbans Kaur and others,
in the affidavit in reply and written statement of the defendant No.1
and 2, it is specifically contended that after receipt of the complaint
about unauthorized connection of drainage in respect of plot No.102/
103 i.e. in respect of the suit premises, notice dt. 07/07/2015 was
issued to Mr. Abdul Hakim Mohd. Mumtaj Baig, who is the plaintiff
No.2 by the Assistant Engineer (SWM), E Ward asking him to submit
the papers of drainage connection. The defendant No.2 also contended
that the plaintiff No.2 had also submitted his reply dt. 08/09/2017
through advocate Shri. Chiparikar alongwith photographs and copy of
NC lodged against the defendant No.3. All these circumstances clearly
indicate that the plaintiffs are in occupation and possession of the suit
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premises. The defendant No.1 and 2 have also specifically contended
that on 28/06/2010, notice was also issued under Section 354-A
against Subhash Jaiswal and Mr. Abdul Hakim Mohd. Mumtaj Baig by
way of stop work notice towards the unauthorized construction in the
lands and these occupants have also filed L.C. Suit No.2047 of 2010
challenging the said notice dt. 28/06/2010. These circumstances
further indicate that even assuming that the plaintiffs have erected
some sort of unauthorzed construction in the said lands, at this
juncture, copies of property tax receipts appear to be found significant
while considering the interim reliefs in this notice of motion.
10 After careful perusal of the copies of rent receipts and tax
receipts, it can be seen that the suit premises was earlier occupied by
M/s. Vaziralli Ltd since 1963-1964. The Estate Manager, Bombay Port
Trust used to recover Halalkhore Tax in addition to the general tax and
water tax in respect of the suit premises. In this context, it is pertinent
to note that Halalkhore Tax refers to the tax collected by Municipal
Corporation in lieu of providing sewerage facilities to City dwellers. It
reveals that the an amendment was made in the year 1973 to the
Municipal Law and the term Halalkhore Tax has been replaced by the
‘Sewerage Tax’. Therefore, considering these circumstances, in my view,
question as to whether the drainage in the suit premises which has been
connected with the main sewerage line at Kashinath Mhatre Marg has
been constructed with the permission of the competent authority or not
will be required to be determined at the time of conclusion of the trial.
At this juncture, in the light of property tax receipts of the year 1963-
1964, it reveals that MbPT who is the original owner of the suit
premises was collecting Halalkhore Tax from the earlier occupants of
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the suit premises since prior to datum line. Therefore, at this juncture,
it can be inferred that the drainage line of the suit premises is in
existence since prior to the datum line. In these circumstances, it is
necessary to restrain defendant No.1 and 2 from taking any steps for
disconnecting drainage line of the suit premises from the main
sewerage line at Kashinath Mhatre Marg pending hearing and final
decision of the suit. If the defendants are not restrained from doing so,
it will cause great hardship to the plaintiffs. Therefore, in view of these
reasons, points No.1 to 3 are answered in the affirmative.
AS TO POINT NO.4.
11 In view of aforesaid findings on the point Nos.1 to 3,
following order is passed.
ORDER
1 Notice of Motion No.59 of 2018 is allowed in terms of
prayer clause (a).
2 While granting the interim relief towards disconnecting the
drainage line of the suit premises from the main sewerage, the plaintiffs
are also directed to take necessary precautions that the drainage line of
the suit premises should not cause any health hazard or any unhygienic
atmosphere in the said area.
3 Costs in cause.
4 Notice of Motion stands disposed off accordingly.
Date:01/11/2023. (R. M. Mishra )
Dictated on :01/11/2023. Judge, City Civil Court,
Typed on :08/11/2023. Gr. Mumbai.
Signed on :08/11/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
08/11/2023 03.10 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
01/11/2023.
JUDGMENT/ORDER signed by P.O.on 08/11/2023.
JUDGMENT/ORDER uploaded on 08/11/2023.
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