Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.135/2020 L.C. Stamp No.13010/2019
CNR NO.MHCC010003462020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 135 OF 2020
IN
L.C. STAMP NO. 13010 OF 2019
M.A. Darvesh & Ors. )
Through its authorized representatives )
Mr. Altaf Memon )
Age 50 years Occ : Business )
Having its office at 85A, Victoria Road, )
Sant Savta Marg, Mustaffa Bazar )
Mazgaon, Mumbai 400 010 )…Plaintiff
Vs.
1. The Assistant Engineer )
(Building and Factory) )
E Ward, Sankli Street, Mumbai 400 008 )
2. Mumbai Municipal Corporation Gr. )
Mumbai having its office at Mahapalika )
Bhavan, Mahapalika Marg, )
Fort, Mumbai 400 001 )...Defendants
APPEARANCE:
Ld. Adv. Mr. Akshay Kapadia for the plaintiff.
Ld. Counsel Mr. Soham Sinha for the defendant/MCGM.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED :20th JANUARY, 2020.
O R D E R
This notice of motion is taken out by plaintiff praying for
order of temporary injunction against defendants from demolishing,
pulling down or removing the suit premises i.e. 85A, Victoria Road,
Sant Savta Marg, Mustaffa Bazar, Mazgaon, Mumbai 400 010 in
pursuance to notice dated 08.06.2019 and speaking order dated
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22.11.2019 passed by defendant No.1.
The case of plaintiff in brief is as follows :
2. The plaintiff is registered under the Public Trust Act, 1950
engaged in the business of saw mills, teak wood and other related to
wooden articles in aforesaid suit premises. In June 2019 on account of
natural calamity, the area admeasuring 200 sq.ft. of suit premises was
affected due to which the whole structure of plaintiff in the entire area
of 1,000 sq.ft could not be used. Plaintiff carried out some repair works.
However, while carrying out repair work, the whole structure of the
plaintiff is got damaged. Plaintiff is earning bread and butter from the
commercial structure in suit premises. Left with no alternative, to
control the damage of the structure as well as business loss, plaintiff
started construction without taking appropriate permission from the
defendant No.2. On 08.06.2019, defendant No.1 issued notice u/sec.
351 (1) of Mumbai Municipal Corporation Act 1881 ("hereinafter
referred as MMC Act") and as per the Notification dated 04.04.2013
under No.DMC/RE/010 to stop the work of construction. Pursuant to
said notice, plaintiff had furnished the reply along with documents
through its architect Mr.I.A. Parekh. Plaintiff also made application for
regularization of this structure. Defendant No.1 than passed speaking
order on 22.11.2019 u/sec. 354(A) of the MMC Act thereby directing
the plaintiff to stop the construction immediately and demolish the part
construction immediately. Due to unavoidable reasons and
circumstances, plaintiff was not in position to get the permission for
repairs and reconstruction of suit premises. The notice dated
21.11.2019 therefore deserves to be quashed and set aside. Plaintiff will
suffer irreparable loss. Plaintiff started construction after following due
process of law. Therefore, he is constrained to file this suit and present
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notice of motion.
3. Defendant corporation has resisted the aforesaid notice of
motion by filing their reply/written statement at Exh.2. According to
them, the suit as well as notice of motion is not tenable for want of
notice u/sec.527 of MMC Act, so also this court has no jurisdiction to try
and entertain the suit u/sec.515 A of the Act . Defendants had received
complaints in E ward in respect of ongoing unauthorized construction at
C.S. No.10/542, 11/542, Sant Savata Marg, Mustafa Bazar, Mazgaon,
Mumbai400 010. Therefore, the concerned officer and his staff visited
the suit site on 29.05.2019 at C.S. No.10/542 & 11/542 of Mazgaon
Division at Sant Savata Marg. They observed that ongoing work was
beyond permission granted by EEBP City under No.EEBP/5126/E/A
dated 03.06.2010. The work of erection of channels/I sections, footings
for the column sections, construction of wall and roof etc was in
progress. Upon demand of permission for the aforesaid work, plaintiff
as owner/occupier/user failed to produce permission from the
competent authority. Therefore, the concern officer had taken the
photographs, prepared the panchanama and inspection report on same
day. Thereafter, the designated officer upon perusing the entire file had
issued notice u/sec. 354(A) of MMC Act dated 08.06.2019 to plaintiff
for carrying out unauthorised construction in violation of permission
granted by EEBP City under No.EEBP/5126/E/A dated 03.06.2010.
Upon plaintiff furnishing the reply along with documents, they were not
satisfied that the construction in progress was as per the permission.
Thereafter the Assistant Engineer (B&F) E Ward had send letter to
Assistant Engineer Building Proposal City on 05.07.2019 and requested
to inspect the site and inform as to whether the notice work was as per
the permission granted by them. They have received letter from EEBP
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City under No.EE(BP) City dated 17.07.2019 informing them that the
notice work carried out is beyond approval plan and requested for
necessary action. The Designated Officer by letter 26.07.2019 to E.E.
(B.P.) City informed to cancel IOD and C.C. Therefore, the notice issued
by them is legal and valid. Plaintiff do not have primafacie case. No
authentic documentary evidence is tendered by plaintiff to show that
the notice structure is authorized. Therefore, defendant prayed for
dismissing the notice of motion.
4. Heard, Ld. Advocate Mr. Akshay Kapadia for Plaintiff,
Ld. Counsel Mr. Soham Sinha for defendant corporation. On hearing
the parties and on going through entire record of the case, following
points arise for my determination with its findings and for reasons to
follow :
S.N. POINTS FINDINGS
1 Whether plaintiff proves that primafacie
case lies in his favour ? In Negative.
2 Whether plaintiff proves that balance of
convenience lies in his favour ? In Negative.
3 Whether plaintiff proves that irreparable
loss will be caused to him, if the
application is not allowed ?
In Negative.
4 What order ? As per final order.
R E A S O N S
AS TO POINTS NO.1 TO 3
As all the points are interlinked with each other, they are
discussed together.
5. Ld. advocate for plaintiff vehemently argued that plaintiff
has sanctioned IOD and C.C. which is valid till 10.11.2019. His
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application for revalidation dated 30.08.2019 is pending for orders.
Instead of passing any orders on his revalidation application,
defendants have issued notice u/sec. 354(A) dated 08.06.2019 which is
not valid. Plaintiff has replied on 10.06.2019. Despite documents of
payments being made by plaintiff as well as the documents of IOD and
CC (Commencement Certificate) tendered along with their reply, the
defendant corporation has passed speaking order dated 22.11.2019
which is not proper. The proposal of plaintiff for revalidation is
pending. Therefore on this ground also the action taken by the
defendant corporation is not correct.
6. Per contra, Ld Counsel for defendant has vehemently
submitted that the proposal of revalidation of CC and IOD is for
carrying out repairs to the existing structure and not for raising
construction. He has relied upon all the documents filed along with
their reply including the photographs, the panchanama, all the
correspondence between plaintiff and defendants with respect to
revalidation of CC and IOD as well as correspondence between various
departments of defendant corporation.
7. On perusal of all the aforesaid documents relied upon by
both the plaintiff and defendants, primafacie it appears that plaintiff
had applied for the carrying out repairs to his existing structure. The
Commencement Certificate and IOD dated 03.06.2010 and 12.11.2010
respectively primafacie substantiate this fact. It further primafacie
reflects from the letters of revalidation of CC and IOD so also the
receipts tendered on record with respect to payments made by plaintiff
from time to time that plaintiff had sought revalidation of CC and IOD
and had accordingly paid the amount to defendant. Further, the
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application of plaintiff with respect to revalidation of IOD and CC is
pending with defendant corporation is also reflecting.
8. It is pertinent to note that all the aforesaid documents
substantiate the arguments of Ld advocate for plaintiff that the proposal
of revalidation is pending and plaintiff is granted permission for
proposed repairs to the existing structure on his premises. But these
documents primafacie are with respect to proposed repairs to the
existing structure of plaintiff. Nowhere these documents primafacie
substantiate that plaintiff was granted permission to carry out
construction on his suit premises. The photographs dated 08.06.2019
tendered by defendants on record primafacie reflect that plaintiff is
raising construction. The aforesaid photographs nowhere reflect that
plaintiff is carrying out repairs to his suit premises. In rebuttal to
photographs which are tendered on record by defendants, plaintiff has
not tendered any photographs on record to show that the photographs
filed by defendants are not depicting the correct position. It is important
to note that plaintiff himself in Paragraph5 and 10 of plaint and in
Paragraph 4 of affidavit in support of notice of motion has clearly
pleaded that in June2019 due to natural calamity the area
admeasuring 200 sq.ft. of suit premises was affected. Therefore
plaintiff was unable to use the whole structure on the entire
premises admeasuring 1,000 sq.ft. Therefore, plaintiff carried out
some repairs work. While carrying out repair work the whole
structure of plaintiff got damaged. As the suit premises is source of
earning bread and butter for plaintiff, in order to control the
damage of structure as well as the business loss, Plaintiff started
construction without taking appropriate permission from defendant
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No.2 .
9. In view of aforesaid pleadings, plaintiff himself has
admitted that he has started construction in his suit premises without
taking appropriate permission from defendant No.2. In such
circumstance, what lies in the mouth of plaintiff to say that the notice
issued by defendant regarding unauthorized construction to be invalid.
Primafacie at this stage when plaintiff himself admits that he is raising
construction without appropriate permission from defendant and when
the photographs primafacie reveal that plaintiff is carrying out
construction, the arguments of Ld. counsel for defendants has
substance. As discussed above, photographs primafacie do not reflect
that plaintiff is carrying out repairs in suit premises. The documents
relied upon by plaintiff are with respect to revalidation of CC and IOD
for carrying out repairs on existing structure of plaintiff and not with
respect to construction. Plaintiff has not tendered any document on
record to substantiate primafacie that whatever construction is raised
in suit premises is authorized and after obtaining permission from
defendant.
10. It is further pertinent to note that defendant corporation
after inspecting the suit premises on 29.05.2019, had carried out
panchanama dated 08.06.2019, snapped photographs dated 08.06.2019
and thereafter issued notice u/sec. 354(A) of MMC Act to plaintiff.
Plaintiff has given reply on 10.06.2019 and had tendered the
documents i.e. IOD and CC and receipts. As no document was annexed
to show authorization of the construction, reply of plaintiff was not
considered. The documents of defendants further reveal that on
05.07.2019 Assistant Engineer (B &F) E Ward had send letter to
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Assistant Engineer building proposal city requesting to inspect the site
and inform as to whether the notice work is as per the permission
granted by them. In reply of EEBP City under No.EE(BP) City dated
17.07.2019, it was informed that the notice work carried out by plaintiff
was beyond approval plan and further requested for necessary action. It
further reflects that the cancellation of IOD and CC of plaintiff was also
requested vide letter dated 26.07.2019.
11. All aforesaid documents reveal that defendant has not
abruptly passed order against plaintiff. Defendant has verified and
thereafter passed speaking order on 22.11.2019. Primafacie it appears
that the speaking order dated 22.11.2019 is passed after due
consideration of reply of plaintiff and the documents relied upon by the
plaintiff so also the documents of their department and after due
verification. Therefore, primafacie it cannot be concluded that the
notice issued by defendant u/sec.351 of MMC Act, so also speaking
order dated 22.11.2019 passed by defendant is not proper or invalid. As
plaintiff primafacie failed to show that the construction raised by him
in the suit premises is authorized by competent authority, it cannot be
concluded that plaintiff has made out primafacie case. As plaintiff has
not made out primafacie case, both the other factors i.e irrepairable
loss and balance of convenience does not lie in favour of plaintiff.
Therefore, I answer point No.1 to 3 in negative.
12. As point Nos.1 to 3 are answered in negative, the notice of
motion of plaintiff deserves to be dismissed. Accordingly, I proceed to
answer Point No.4 by following order;
ORDER
1. Notice of Motion No.135/2020 is hereby dismissed.
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2. Costs in cause.
3. Notice of Motion No.135/2020 is accordingly disposed of.
(C.P. Jain)
Adhoc Judge, (C.R.No.06)
Date : 20.01.2020 City Civil Court, Gr. Bombay
Dictated on :20.01.2020.
Transcribed on :21.01.2020.
Signed on :23.01.2020.
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No.13010/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 23.01.2020, 5.12 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
20.01.2020
JUDGMENT/ORDER signed by
P.O. on
23.01.2020
JUDGMENT/ORDER uploaded on 23.01.2020
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