Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 73/18 in L.C.SUIT no.539/15
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 73 OF 2018
(CNR no. MHCC010001852018)
IN
L.C. SUIT NO. 539 OF 2015
(CNR no. MHCC010019902015)
Mr. Deepak Nagoji Rane ]..Plaintiff
Versus
1. The Mumbai Municipal Corporation & anr. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 05th September, 2018.
Mr. Sudhan Amare, advocate for plaintiff.
Ms. Patil, advocate for defendants.
ORDER
1. In a suit for declaration and perpetual injunction, by this
motion, the plaintiff is seeking relief of interim mandatory injunction to
direct the defendants to reconstruct / restore the shop no. 1 (suit
premises) located on the ground floor of Burjorji Building (suit
building), Wadia street, Tardeo, Mumbai to its original position. In the
alternative, the plaintiff seeks leave to reconstruct the suit premises,
according to him which has been demolished illegally by the
defendants. The plaintiff is also seeking direction to the defendants to
pay interim compensation for loss of business at the rate of Rs.1500/
-- 1 of 6 --
2 NM no. 73/18 in L.C.SUIT no.539/15
per month from 16.06.2016, the date of demolition.
2. The learned advocate for the plaintiff submitted that the suit
premises exist since prior to 1960 as a tenanted premises. The plaintiff
is tenant in the suit premises since 1988 and paying rent to the landlord
Jogeshwari Estate Private Ltd. In September 1988, plaintiff applied for
renovation of the suit premises. The plaintiff was running business of
copying, television and radio repairing as well as STD booth and tea
shop in the suit premises. In 2014, the plaintiff changed his business to
repairing of mobiles and continued with the business of tea shop. The
plaintiff holds various licenses issued by the defendant Corporation for
running the business and paying taxes, electricity and telephone bills.
3. He further submitted that the suit premises being very old,
the wooden loft decayed and therefore, the plaintiff repaired it and in
July 2014 he applied for regularization of the loft. During that period
some redevelopment process was going on at the building where the
plaintiff resides in Chikhalwadi area and one Mr. Rokade complained
false with the defendant against the plaintiff.
4. The defendant issued notice under Section 351 of the
Mumbai Municipal Corporation Act (“MMC Act”) alleging that the
plaintiff carried out unauthorized construction of brick masonry walls
and divided the suit premises by demolishing existing wall and also put
rolling shutters and constructed loft with ladi coba ladi and changed
user from residential to commercial etc. The learned advocate further
submitted that the defendants ignored the reply and the document
submitted by the plaintiff and passed an order on 09.02.2015 directing
-- 2 of 6 --
3 NM no. 73/18 in L.C.SUIT no.539/15
the plaintiff to remove the construction of notice structure or to face an
action for its demolition, which resulted into institution of the present
suit. However, adinterim relief was rejected and the defendant without
considering the assessment record and existence of the suit premises
prior to 1961, illegally demolished the suit premises. It resulted into loss
of business and income, and plaintiff is suffering heavy losses.
5. The learned advocate for defendants submitted that on
complaint of Mr. Rokade dated 15.05.2014, the officers of the
defendants inspected the suit site and detected unauthorized
construction and therefore, issued the impugned notice and thereafter,
by considering the reply and the documents passed order for demolition
of notice structure by following due process of law. According to her,
the plaintiff preferred an appeal from order against the rejection of ad
interim relief. However, the same was dismissed on 06.06.2016. She
further submitted that the documents placed on record by the plaintiff
would not aid the plaintiff, as they do not relate to additions /
alterations carried out by the plaintiff illegally to original structure. She
further submitted that the first assessment done in 1961 relates to the
original structure of the suit building and not to the additions /
alterations carried out subsequently.
6. It is prima facie undisputed that after dismissal of the
appeal on 06.06.2016, the defendant Corporation demolished the
notice structure on 16.07.2016. So far as, the submission made by the
learned advocate for plaintiff relating to non consideration of the
assessment records by the officers of the defendant etc. is concerned,
the copies of assessment record filed by the plaintiff prima facie show
-- 3 of 6 --
4 NM no. 73/18 in L.C.SUIT no.539/15
existence of shop namely Music Master (Room no. 1) at the ground
floor of the suit building. However, none of the inspection extracts
prima facie shows the existence of notice structure i.e. the loft
constructed in ladi coba ladi, by using I Sections, rolling shutters etc.
Though the inspection report for 1993 shows existence of loft prima
facie, it does not show the nature of material used for the same.
Moreover, the plaintiff has put forth a case that he renovated the suit
premises by removing decayed wooden loft and applied for
regularization of the law. Therefore, existence of loft in the present
form prior to datum line is not prima facie shown by the plaintiff. The
plaintiff has suitably amended the plaint by making averments about
alleged illegal demolition of the suit premises by the officers of the
defendant. The plaintiff has also sought same final reliefs for
reconstruction / restoration of the suit premises and compensation etc.
7. Under such circumstances, it is necessary to allow the
respective parties to lead evidence, and the matter should be decided on
merits whether the notice structure as well as the suit premises were in
existence prior to datum line and whether the action taken by the
defendants is illegal. Thus, the final reliefs claimed by the plaintiff by
way of amendment of the plaint can not be granted at interim level
merely on the basis of the affidavits filed by the parties. Moreover, the
Hon'ble Supreme Court, time and again has expressed displeasure and
deprecated granting final relief at interim stage as held in the case of
Assistant Collector vs. Dunlop India Ltd. reported in A.I.R. 1985
Supreme Court 230. The Hon'ble Supreme Court also made exception
to the aforesaid rule in case where granting such interim relief is
required considering the public interest, balance of convenience and
-- 4 of 6 --
5 NM no. 73/18 in L.C.SUIT no.539/15
host of others considerations. Though the plaintiff may be suffering
inconvenience and losses, it is well settled position of law that merely
on the basis of the contention that the plaintiff is facing an
inconvenience, an illegal structure can not be protected. It would
include that an alleged illegal structure can not be restored at interim
stage, and that too, when prima facie no material is placed on record to
show the legality of notice structure. Therefore, the points of balance of
convenience and hardship do not lie in favour of the plaintiff. Prima
facie the plaintiff has not produced any material for quantification of
the losses he is suffering for alleged loss of business. Therefore, the
plaintiff would not be entitled to reliefs claimed in the motion. At the
most hearing of the suit can be expedited. Thus, the following order is
passed:
ORDER
1. The Notice of Motion no. 73 of 2018 is dismissed.
2. Parties to bear their own costs of the motion.
3. The defendants are directed to file written statement on or before
03.10.2018. The hearing of the suit is expedited.
sd/
(M. S. Deshpande)
AdHoc Judge,
Date : 05.09.2018 City Civil Court, Mumbai.
Directly typed on dias computer : 05.09.2018
Checked by HHJ on : 06.09.2018
Signed by HHJ on : 06.09.2018
-- 5 of 6 --
6 NM no. 73/18 in L.C.SUIT no.539/15
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 06.09.2018 at 10.57 a.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
05/09/2018
JUDGMENT/ORDER signed by
P.O. on
06/09/2018
JUDGMENT/ORDER uploaded
on
06/09/2018
-- 6 of 6 --