Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 119-20 in Suit No. 26-2020
CNR NO.MHCC01-000302-20
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 119 OF 2020
IN
L.C. SUIT NO. 26 OF 2020
Mohammed Tariq Ilyas …...Plaintiff
Versus
The Municipal Corporation for Gr. Mumbai & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 25th February, 2020.
Appearance:
Ld. Adv. Mr. A. R. Pande for plaintiff.
Ld. Adv. Mr. Nandanwar for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks injunction
restraining the defendant corporation from acting upon the Notice
issued under Section 351 of the Mumbai Municipal Corporation Act,
1888 (hereinafter referred to as 'the MMC Act') dated 07.12.2019 and
the Order dated 21.12.2019.
2. Heard Learned Advocate for the plaintiff and learned
Advocate for the defendant corporation.
3. The Schedule of the Notice dated 07.12.2019 reads as
under:
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2 NM 119-20 in Suit No. 26-2020
‘’Unauthorized construction of rooms with attach toilet by
using siporex/brick walls adm. 3.9m x 2.7m x 3m (ht)(7 nos.), 2.2m x
2.3m x 3m (ht)(1 nos.), pantry 2.3m x 1.3m x 3m (ht), common tiolet
1m x 2.2m x 3m (ht) at M/s Hotel Blue Bell, 27, Cresent House, 2nd
Floor, Opp. Bank of Badoda, Near Regal cinema, Colaba, Mumbai-05 as
shown in the sketch.’’
4. The learned Advocate for the plaintiff argued that plaintiffs
are the tenants of the premises of M/s. Hotel Blue Bell. It is the case of
the plaintiff that they are tenants on the basis of agreement dated
29.01.2019. It is stated that the plaintiff had not carried out any
construction. It is contended that Designated Officer has no jurisdiction
to issue the notice and question. It is stated that there is no violation of
Section 351 of the MMC Act. It is contended that fifteen days time is
required, is not given. It is contended that the directions in case of Shri.
Sopan Maruti Thopte & Anr. V/s. Pune Municipal Corporation and Anr
are not considered. The fifteen days time is not given.
5. The learned Advocate for the defendant corporation argued
that the plaintiff had submitted only four documents. They are as
follows:
i) Photocopy of agreement between 1) Khozema Tayebhoy S. Doctor 2)
Mariya Tayebhoy and Mr. Mohammed Tariq Ilyas dtd. 29.01.2019.
ii) Photocopy of electricity bill issued by BEST for the month of Oct-
2019.
iii) Photocopy of rent receipt issued by Cresent House in the name of
Khozema Tayebhoy and Ors. for the month of November 2019.
iv) Photocopy of water bill issued by MCGM for the period of
12.07.2019 to 14.10.2019 in the name of Khogama Taybhoy, M/s
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3 NM 119-20 in Suit No. 26-2020
Famma Investment N Capital Pvt. Ltd. Cresent House 2nd floor 27, S.
B. Singh Road, Mumbai-39.
6 (i) It is stated that there is no evidence to show the existence
of the notice structure prior to 1962. It is contended that fifteen days
time is required, is not given. It is contended that the directions in case
of Shri. Sopan Maruti Thopte & Anr. V/s. Pune Municipal Corporation
and Anr are not considered. The fifteen days time is not given. In
paragraph No. 19 it is observed as follows:
‘’19. Hence, on the basis of he law as discussed above, it is
directed that after 1st May, 1996 the Bombay Municipal
corporation or the Municipal Corporations constituted under the
B.P.M.C. Act would follow the following procedure before taking
action under section 351 of the BMC Act or under sec. 260 of the
BPMC Act.
i) In every case where a notice under section 351 of the
BMC Act/under sec. 260 of BPMC Act is issued to a party 15 days
time shall be given for submitting the reply. In case the party to
whom notice issued sends the reply with the documents, and
shows cause, the Municipal commissioner or Deputy Municipal
Commissioner shall consider the reply and if not sufficient cause is
shown, give short reasons for not accepting the contention of the
affected party.
ii) It would be open to the commissioner to demolish the
offending structure 15 days after the order of the
commissioner/Deputy municipal commissioner is communicated to
the affected person.
iii) In case the staff of the corporation detects the building
which is in the process of being constructed and/or reconstructed
and/or extended without valid permission from the corporation, it
would be open to the commissioner to demolish the same by
giving a short notice of 24 hours after drawing a panchnama at the
site and also by taking photographs of such structure and/or
extension. The photographs should indicate the date when the
same were taken.
iv) In case where the Municipal corporation has followed
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4 NM 119-20 in Suit No. 26-2020
due process of law and demolished the unauthorized structure
and/or extension, if the same is reconstructed without valid
permission within a period of one year, it would also be open to
the corporation to demolish the same by giving a short notice of 24
hours.
v) If the offending structure and/or extension which is
assessed by the corporation for two years, notice shall provided for
15 days time to show cause. If the Deputy Municipal Commissioner
comes to the conclusion that he requires assistance of the party, he
may give an oral hearing if he deems fit and proper before passing
the order. It is made clear that oral hearing is not at all compulsory
but it is at the discretion of the authority.
vi) In any other case the corporation is directed to issue a show
cause notice in case of any structure and or extension other than
those mentioned in clauses (i) to (iv) above. The corporation shall
provide for 7 days time to show cause in such a case.’’
6 (ii) The time is provided to the plaintiff to remove the
structure. The order is passed on 21.12.2019. The plaintiff had filed
Suit on 03.01.2020. It needs to be mentioned that the judgment of
Hon'ble High Court in case of Shri. Sopan Maruti Thopte & Anr. V/s.
Pune Municipal Corporation and Anr., it points out that the
Commissioner can demolish the structure 15 days of the order. For
fifteen days the Commissioner cannot take action on the speaking order.
There is nothing to indicate in the suit that the defendant corporation
had attempted the demolition of the notice structure within 15 days of
the order.
7. The plaintiff had not filed any document on record showing
the permission nor had produced any document showing the existence
of the notice structure from datum line.
The plaintiff had not produced any assessment record showing
the existence of the notice structure prior to the datum line. The
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plaintiff was also expected to show that the construction carried out
was with permission. The plaintiff had only tried to assert his right on
the basis of electricity bill, rent bill, water taxes. It was for the plaintiff
to show that he had permission to construct the structure.
The documents referred cannot lead to any inference that the
plaintiff was permitted to carry out the construction. It is also not the
case of the plaintiff that the structure is in existence prior to the datum
line. The plaintiff is the tenant of the premises since 20.01.2019. The
plaintiff cannot justify the construction such a large structure
mentioned in the notice. The plaintiff had failed to justify the
construction mentioned in the notice.
The plaintiff has failed to make out the prima-facie case in
his favour. The balance of convenience does not lies in favour of the
plaintiff. The plaintiff would not be put to irreparable loss, if the
injunction is refused. In the result, following order is passed.
ORDER
The Notice of Motion No. 119/2020 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 25.02.2020 City Civil Court, Mumbai.
Dictated on : 25.02.2020
Transcribed on : 02.03.2020
Signed by HHJ on : 11.03.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 11.03.2020 at 5.40 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
25.02.2020
JUDGMENT/ORDER signed by
P.O. on
11.03.2020
JUDGMENT/ORDER uploaded on 11.03.2020
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