Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.64/20 (L.C.S. No.1923/21)
MHCC010001702020
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.64 OF 2020
IN
LONG CAUSE SUIT No.1923/2021
Mr. Chandrakant s/o. Ramji Kadam … Plaintiff
- Versus -
Municipal Corporation of
Greater Mumbai & 2 Ors. ... Defendants
Appearance :-
Mr. Mangesh Naik, Advocate for plaintiff.
Mrs. Jyoti Mhatre, Advocate for defendants No.1 and 2/M. C. G. M.
Mr. A. R. Mishra, Advocate for defendant No.3.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 10/05/2024.
O R D E R
. This is suit to challenge notice under Section 351 of The
Mumbai Municipal Corporation Act dated 26/11/2019 and Speaking
Order dated 23/12/2019 and for perpetual injunction. The plaintiff has
taken out this Notice of Motion for temporary injunction under Order-
XXXIX Rule-1 of The Code of Civil Procedure restraining defendant
B.M.C. from enforcing notice.
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2] In brief, facts of the plaintiff's case are that :-
Manukhlal Shah was the landlord of the plots bearing
No.3345 to 3357 and he had let out suit premises to the plaintiff's
father late Ramji Krishna Kadam in 1958. The plaintiff's parents were
staying together with uncle Dhondiba Krishna Kadam. Then, the land
has been purchased by M/s. Nishad Construction Co. and the plaintiff
was continuously paying rent to M/s. Nishad Construction Co. The suit
structure is B/M structure with A/C sheet roof admeasuring 1.06 M X
2.06 and the plaintiff is having ration card, passbook, birth certificate,
electricity connection etc. at the address of suit structure. The plaintiff is
a physically handicapped as he is paralyzed and Mr. Rajesh Shah is
aware of this fact and, therefore, he started harassing the plaintiff.
3] It is further stated that structure is in existence since 1958
and there was leakage and, therefore, the plaintiff carried out minor
repairs work. However, the officer of B. M. C. Mr. Nalwade threatened
the plaintiff to provide documents of prior to 1964 otherwise, suit
structure will be demolished. The plaintiff has replied show cause notice
however, the Corporation rejected reply submitted by the plaintiff and
passed Speaking Order to remove suit structure within 7 days. The
order is bad-in-law and illegal and, therefore, the plaintiff is entitled for
injunction.
4] Defendant B. M. C. opposed Notice of Motion by filing
reply-cum-Written Statement below exhibit-4. At the outset, it is stated
that suit is not maintainable for want of statutory notice under Section
527 of the M. M. C. Act. The plaint discloses no cause of action and,
therefore, suit is not maintainable. Further, the plaintiff has not given
details of immovable property to identify sufficiently hence suit is not
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maintainable under Order-VII Rule-3 of the C. P. C. As per amended
Section 515A of the M. M. C. Act this Court has no jurisdiction to try
and entertain present suit.
5] It is further stated that the Corporation has received
complaint from Prem Kutir C. H. S. regarding unauthorized construction
of shanty, bathroom and water closet. Accordingly, the officer of the
Corporation inspected suit premises and noticed unauthorized
construction of notice structure as per the Schedule annexed to notice.
The owner/occupier failed to prove legality of structure thereafter
impugned notice was issued directing the plaintiff to show sufficient
cause. After receipt of notice the plaintiff has replied show cause notice
on 28/11/2019. The Designated Officer has considered reply and
documents submitted by the plaintiff. The plaintiff has failed to produce
documents proving legality of notice structure. The plaintiff has failed
to prove that notice structure is legal and authorized. The Corporation
has followed due process of law. Therefore, the plaintiff is not entitled
for temporary injunction and prayed for dismissal of suit as well as
Notice of Motion.
6] The defendant No.3 has filed reply-cum-Written Statement.
It is contended that the defendant No.3 is a society registered under the
Cooperative Society's Act. The plaintiff has filed a false and frivolous
suit. There is no cause of action against this defendant. The plaintiff has
not approached this Court with clean hands hence suit is liable to be
dismissed. It is further stated that this defendant has made various
complaints to police and B.M.C. in respect of unauthorized construction.
Accordingly, the Corporation has issued impugned notice and the
plaintiff has challenged said notice by filing suit but without joining
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society. Hence defendant-society taken out Chamber Summons and
same has been allowed by the Court. It is further stated that notice
structure is not legal and authorized. The plaintiff has carried out
unauthorized construction. The Corporation has followed due process of
law. The plaintiff has not produced any document showing existence of
structure prior to the datum line, therefore, the plaintiff is not entitled
for injunction as prayed.
7] Points for determination alongwith findings thereon for the
reasons are as under :-
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out
prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ?
. . .
Notice of Motion is
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
8] Heard parties.
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9] Learned advocate for the plaintiff submitted that the
plaintiff has challenged notice under Section 351 of the M. M. C. Act.
The previous owner of the land Mr. Himmatlal Shah inducted father of
the plaintiff as a tenant in 1958 and since then the plaintiff and his
family is staying in suit structure. The notice structure is in existence
since prior to the datum line and it is a tolerated structure. The
structure is old and, therefore, the plaintiff has carried out repair works
as there was some leakage. However, Mr. Rajiv Shah started harassing
the plaintiff and the Corporation issued impugned notice. The plaintiff
has replied show cause notice but the Corporation has not considered
reply and documents submitted by the plaintiff. Learned advocate for
the plaintiff relied upon ration card and birth certificate of the plaintiff
to show that the plaintiff's family is residing in suit structure since 1966.
It is further submitted that the documents on record establishes
existence of structure prior to the datum line and, therefore, the
plaintiff is entitled for temporary injunction as prayed.
10] On the other hand, learned advocate for B. M. C. submitted
that the plaintiff has not produced a single document to show that the
notice structure is in existence prior to the datum line of 1964. It is
further submitted that defendant B. M. C. has called remarks from
Assessment Department in respect of notice structure and said
department by letter dated 12/4/2024 informed that notice structure
has been first time assessed on 26/11/2019. In her submission, this
clearly shows that notice structure has been constructed in 2019
without permission of B. M. C. The plaintiff has not produced
documents on record to show that notice structure is in existence prior
to the datum line. It is further submitted that the Corporation has
inspected suit site and noticed unauthorized construction. The
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inspecting officer prepared inspection report, took photographs. The
plaintiff has failed to prove the legality of structure. Therefore,
Designated Officer issued impugned notice. However, the plaintiff has
failed to prove legality of structure. The Corporation has followed due
process of law. Learned advocate for the defendant No.3 supports
submissions made by learned advocate for B. M. C. and submitted to
dismiss Notice of Motion.
11] The plaintiff has relied upon judgments
viz. a) Abdul Karim
Ahmed Mansoori v Municipal Corporation of Greater Mumbai and
another [2013 (6) ABR 141] and b) Municipal Corporation Of Greater
Mumbai v. Rajendra Phulchand Gupta and Ors (AIROnline 2022 Bom
1564) in support of submissions that there is no complete bar under
Section 515A of the M. M. C. Act for filing suit to challenge notice
under Sections 351 and 354A of the M. M. C. Act. if the Authority who
has passed order violated the principles of natural justice and order is
nullity. In the abovecited judgments the Hon'ble High Court laid down
proposition that there is no complete bar under Section 515A of the
M.M.C. Act to file suit challenging notice under Sections 351 and 354A
of the M. M. C. Act.
12] Learned advocate for B. M. C. relied on the judgment of the
Hon'ble High Court in Tushar Guru Salien Versus State of Maharashtra
and others (Public Interest Litigation No.67 Of 2017).
13] I have given careful considerations to the submissions made
by both sides and material on record.
14] The plaintiff has challenged notice under Section 351 of the
M. M. C. Act. As per the proviso to Section 351 of the M. M. C. Act the
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words “to show sufficient cause” would mean to prove that the work
mentioned in the notice is carried out as per the provisions of the
M.M.C. Act. Sub-section (2) of Section 351 of the M. M. C. Act
mandates that if a person fails to show sufficient cause to the
satisfaction of designated officer, then the designated officer may pass
order of removal of notice structure. Thus it is incumbent upon the
plaintiff to show that notice structure is constructed as per the
sanctioned plan of the B. M. C. or it is in existence prior to the datum
line of 1962.
15] Thus, as per the explanation to Section 351 of the M. M. C.
Act the burden lies upon the noticee to prove that work mentioned in
notice is carried out in accordance with the provisions of Sections 337,
342 and 347 of the M. M. C. For that purpose, the plaintiff has relied
upon the ration card in the name of plaintiff which has been issued in
1967 and birth certificate. As per said birth certificate address of the
plaintiff is shown as Prem Kutir, Kachrabhai Wadi, Ghatkopar. Thus, the
documents i.e. ration card and birth certificate show that the plaintiff
and his family are residing at the address mentioned therein since 1966.
Learned advocate for B. M. C. submitted that the plaintiff's family is
residing on the same address but in a different structure and the
plaintiff carried out construction of notice structure in 2019. It is
submitted that the documents submitted by the plaintiff are in respect
of the adjacent structure. It is pointed out by learned advocate for
B.M.C. that the plaintiff has carried out unauthorized construction in
2019. The Corporation has produced inspection report dated
23/11/2019 in support of contention that the plaintiff has carried out
unauthorized construction of room with the help of brick wall and A/C.
sheet. The inspection report has been prepared by a public servant
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while discharging his duty. It is not case of the plaintiff that the
inspecting officer has any enmity with him. As such, there is no reason
to discard inspection report. The plaintiff has produced on record letter
issued by B. M. C. informing that C/I shed for Mali bearing No.6761 (3)
has been assessed first time prior to 1961-62. However, notice has been
issued to structure made up with B/M wall and A/C sheet. The
description of structure assessed prior to 1961-62 and of notice
structure is totally different. Thus, said letter is not helpful to the
plaintiff to establish that notice structure has been assessed prior to the
datum line of 1961-62. The Corporation has produced on record letter
of Assistant Assessor, N/ward dated 16/4/2024 alongwith list below
exhibit-14. This letter clearly shows that notice structure has been
assessed for first time on 26/11/2019. The plaintiff has produced on
record a letter issued by Assistant Assessor to show that C/I shed for
Mali has been assessed first time in 1961-62. However, as earlier stated
notice has been issued to structure made up of B/M wall and A/C. sheet
and not to C/I shed. Thus, the description of notice structure and
structure assessed prior to 1961-62 is totally different. The plaintiff has
not produced on record that legitimate document to show that notice
structure i.e. structure made up of B/M wall and A/C sheet roof has
been assessed for the first time in 1961-62. As such, the documents
submitted by the plaintiff are not helpful to prove that notice structure
is in existence prior to the datum line. None of the documents relied by
the plaintiff prove the existence of structure prior to 1964. The Hon'ble
High Court in Tushar Guru Salien Versus State of Maharashtra and
others (Public Interest Litigation No.67 Of 2017) it is held that, “
Before
any protective orders are passed the Court must ascertain plaint
contains a specific statement that notice structure is authorized and
legal and it has been constructed as per permission or sanction from the
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B. M. C”. In the case on hand, the plaintiff has failed to establish
existence of structure prior to the datum line. Therefore, I hold that no
case made out to grant temporary injunction as prayed. Accordingly, I
answer points No.1 to 3 in the negative and in answer to point No.4
pass following order :-
O R D E R
Notice of Motion is dismissed.
Date : 10/05/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
07/06/2024 04:00 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 10/05/2024
ORDER Typed on 06/06/2024
ORDER signed by P.O. on 07/06/2024
ORDER uploaded on 07/06/2024
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