Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.142/18 (LCS No.2451/17)
MHCC010004622018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.142 OF 2018
IN
LONG CAUSE SUIT No.2451/2017
Janaki Jagannath Shetty … Plaintiff
Versus
Municipal Corporation of
Greater Mumbai. ... Defendant
Appearance :
Ms. Noella Misquitta h/f. Mr. Pankaj Dwivedi, Advocates for plaintiff.
Mrs. Mhatre, Advocate for defendant.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 23/03/2023.
O R D E R
. This is suit for declaration that notice issued by defendant/
Corporation under Section 351 of The Mumbai Municipal Corporation
Act (in short “the M.M.C. Act”) in respect of structure shown in the
schedule to the notice be declared as null, void, bad in law and for
permanent injunction and the plaintiff taken out present Notice of
Motion directing defendant/Corporation to reerect alleged extended
portion of Santosh Bar & Restaurant, Kherwala Building, shops No.1
and 2, Ghatkopar, Mumbai (in short “suit premises”).
-- 1 of 11 --
2 N/M No.142/18 (LCS No.2451/17)
2] In short, the plaintiff's case is that the plaintiff is running
business of bar and restaurant in suit premises having area 261.52 Sq.
Mtrs. The said business was conducted by husband of the plaintiff Mr.
Jagannath Shetty during his lifetime. Mr. Jagannath Shetty expired 8
years back. The plaintiff is a tenant of suit premises. It is further stated
that Mr. Russi D. Kerawalla and Mr. Soli D. Kerawalla were the
landlords of suit premises. In 1987 the husband of plaintiff extended
suit premises with permission of the previous landlords. The extended
portion was assessed by defendant/B.M.C. for payment of municipal
taxes. In 2004 Liberty Investment Pvt. Ltd. has acquired suit property
from the previous landlords. The landlord Liberty Investment Pvt. Ltd.
after acquiring right, title and interest filed various suits against the
tenants. The Liberty Investment Pvt. Ltd. filed R. A. E. Suit No.
113/2006 against the plaintiff. It is further stated that Liberty
Investment Pvt. Ltd. has taken the help of defendant to cause damage to
suit premises.
3] It is further stated that defendant/Corporation is misusing
their machinery with a view to oblige Liberty Investment Pvt. Ltd. It is
further stated that defendant issued notice under Section 488 of the
M.M.C. Act for taking measurements of suit premises and, accordingly,
the officer of defendant/Corporation visited suit premises on
27/10/2017 and took measurements. Thereafter defendant/
Corporation issued notice calling upon the plaintiff to show cause as to
why alleged extension in suit premises should not be demolished. It is
further stated that notice was handed over to a waiter working in bar,
who kept it in drawer of manager and it was not handed over to
advocate of plaintiff. Therefore, reply could not be filed within 7 days.
-- 2 of 11 --
3 N/M No.142/18 (LCS No.2451/17)
4] It is further stated that on 3/11/2017 defendant/
Corporation passed speaking order. Then the plaintiff replied show
cause notice through advocate and denied the allegations in notice. It is
further stated that extension was made with permission of the previous
landlord. The notice has not been given to the landlord and, therefore,
notice is bad in law.
5] It is further stated that the plaintiff submitted reply on
7/11/2017 to the B.M.C. but the officer informed that structure will be
demolished on 13th or 14th November 2014. Thereafter the plaintiff filed
Long Cause Suit No.2499/2017. Then on 13/11/2017 the officer of
defendant/Corporation served speaking order. It is further stated that
said order is stereotype and passed without application of mind.
Therefore, the plaintiff filed suit for declaration and injunction.
6] It is further stated that defendant/Corporation filed
affidavit and Written Statement and suit was adjourned to 18/12/2017.
The plaintiff requested for protection to suit premises. This Court
verified from Assistant Engineer where there is any programme of
demolition of suit premises. The officer answered in the negative. Hence
the Court inclined to grant protection. However, on 30/12/2017
defendant/Corporation demolished suit premises illegally and
highhandedly and when the matter was pending before the Court.
Therefore, the plaintiff taken out present Notice of Motion for directions
to defendant/Corporation to reerect structure or in the alternatively
permission to reerect alleged extension.
7] Defendant/Corporation opposed Notice of Motion by filing
reply cum Written Statement at Exh.3. At the outset, it is stated that the
plaintiff has not given statutory notice under Section 527 of the M.M.C.
-- 3 of 11 --
4 N/M No.142/18 (LCS No.2451/17)
Act. It is further stated that notice is executive or administrative act or
order and same is not open to challenge in the Court of law, therefore,
Notice of Motion as well as suit are liable to be dismissed. The plaint
discloses no cause of action. This Court has no jurisdiction to try and
entertain present suit in view of amended Section 515A of the M.M.C.
Act.
8] It is further stated that defendant received complaint from
Senior Inspector of Police, Ghatkopar police station regarding
unauthorized construction alleging that the owner of bar has changed
the structure and made unauthorized construction. It is further stated
that thereafter defendant/Corporation issued notice under Section 488
of the M.M.C. Act and visited suit site. It is further stated that on
25/10/2017 the officer of defendant/Corporation took measurements
and photographs of unauthorized work. The officer of defendant/
Corporation noticed unauthorized horizontal extension in open space at
the backside of bar with the help of brick masonry wall, RCC slab,
tarpaulin and Bamboo admeasuring 5.9 Mtrs. X 6.3 Mtrs X 3 Mtrs, 9
Mtrs. X 6.1 Mtr. X 3.8 Mtrs. in height and 5.8 Mtrs. X 2 X 3.8 Mtrs. in
height. The Inspecting Officer asked for documentary evidence showing
authorization of notice structure or to produce plan or permission for
construction. However, the occupier failed to produce documentary
evidence to prove authorization of structure. It is further stated that the
officer of defendant/Corporation forwarded documents to superior
officer.
9] It is further stated that designated officer N Ward after
going through documents issued notice under Section 351 of the
M.M.C. Act calling upon the occupier to submit documents to prove
-- 4 of 11 --
5 N/M No.142/18 (LCS No.2451/17)
authorization of notice structure. However, the occupier failed to
produce documentary evidence or permission/sanction for construction
of notice structure. Therefore, designated officer passed speaking order.
The plaintiff replied said notice but failed to prove authorization of
notice structure. It is further stated that the plaintiff failed to prove
authorization of structure or not produced permission for erection of
notice structure. Defendant/ Corporation has followed due process of
law. Defendant/ Corporation has considered reply filed by the plaintiff
through advocate dated 7/11/2017.
10] It is further stated that the plaintiff filed this suit and
mislead the Court. The plaintiff has relied on letter dated 2/8/2002 and
on the basis of that the Court asked query and clarification about said
letter. Defendant/Corporation took search of said letter but the said
letter is not in the register of the Corporation. It is further stated that
letter dated 2/8/2002 is a false and bogus and prepared by the plaintiff
to mislead the Court and the plaintiff played fraud. In the
circumstances, the plaintiff is not entitled for equitable relief of
injunction.
11] 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.
-- 5 of 11 --
6 N/M No.142/18 (LCS No.2451/17)
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 :
12] Learned advocate for the plaintiff submitted that the
plaintiff is a tenant of shops No.1 and 2 and running hotel business. It is
further submitted that Liberty Investment Pvt. Ltd. has acquired right,
title and interest over suit shops and with intend to develop said
property and it is using machinery of defendant/Corporation to vacate
the plaintiff. It is further submitted that notice structure is old and in
existence since long and it has been assessed to the property taxes.
However, on the basis of false complaint defendant/Corporation issued
notice.
13] Learned advocate for the plaintiff further submitted that
after filing of suit the plaintiff taken out Notice of Motion No.
2541/2017 for injunction and during the pendency of said Notice of
Motion defendant/Corporation unauthorizedly demolished notice
structure. It is further submitted that the matter was subjudice before
the Court for interim hearing. However, the officer of defendant/
Corporation highhandedly demolished notice structure. It is further
submitted that the action of demolition is illegal and, therefore,
defendant/Corporation be directed to reerect notice structure or in the
alternate the plaintiff be permitted to reconstruct or reerect notice
structure.
-- 6 of 11 --
7 N/M No.142/18 (LCS No.2451/17)
14] Learned advocate for defendant/Corporation submitted
that the plaintiff has carried out unauthorized construction as shown in
the schedule to notice without sanction/permission of defendant/
Corporation. It is further submitted that the plaintiff has carried out
unauthorized extension on an open space. Show cause notice was
issued to the plaintiff to submit documents or showing authorization of
notice structure or sanctioned plan or permission, however the plaintiff
failed to submit documents showing authorization of notice structure. It
is further submitted that defendant/Corporation has followed due
process of law. There was no interim protection to notice structure. It is
further submitted that the plaintiff filed a false affidavit and thereby
misleading the Court about letter dated 2/8/2002, however there is no
such letter issued by defendant/Corporation.
15] Learned advocate for defendant/Corporation further
submitted that structure has been assessed by Corporation for property
taxes does not mean to say that same is authorized. In support of
submission she relied on judgment of the Hon'ble Bombay High Court in
the case of Shri. Sidharam M. Yanagandul & Anr. Vs. State of
Maharashtra & Anr. [2007 (2) ALL MR 317] in which it is held that
any structure whether authorised or unauthorised constructed on a
property within the limits of a Municipal Corporation can be assessed to
Municipal taxes. Mere fact that structure which is erected without
permission of Planning Authority and unauthorisedly is subsequently
assessed to the property tax by Municipal Corporation would not
change the unauthorised character of the structure nor would make the
structure authorised from the date of assessment.
-- 7 of 11 --
8 N/M No.142/18 (LCS No.2451/17)
16] The plaintiff has taken out this Notice of Motion for
temporary injunction under OrderXXXIX Rule1 of the C.P.C. Plaintiff is
seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
17] It is contention of the plaintiff that she is a tenant of shops
No.1 and 2 and running a hotel. It is further contention of the plaintiff
that in 1987 husband of the plaintiff extended suit premises in order to
store certain eatables and other materials with permission of the then
landlords. It is further case of the plaintiff that extended portion was
assessed by defendant/Corporation for municipal taxes. However, the
Hon'ble Bombay High Court in Shri. Sidharam M. Yanagandul & Anr.
Vs. State of Maharashtra & Anr. (supra) held that merely Corporation
has assessed structure for property tax does not change nature of
unauthorized structure and would not make structure authorized. The
plaintiff has produced on record licence issued by Police, State Excise
Department, shop and establishment licence, receipt of Challan made to
the Corporation, rent receipt etc. However, none of the documents
produced by the plaintiff prove authorization of notice structure. On the
contrary, the plaintiff herself pleaded that the plaintiff has carried out
certain extensions. There is nothing on record to show that the plaintiff
-- 8 of 11 --
9 N/M No.142/18 (LCS No.2451/17)
has obtained permission of defendant/Corporation under Sections 342
and 347 of the M.M.C. Act for carrying out construction of notice
structure. Section 342 of the M.M.C. Act provides that a person who
intends to make any addition to building or change in user or want to
make any alterations or repairs to a building shall give notice to the
Corporation. However, the plaintiff has not produced any document on
record showing to have given notice under Section 342 of the M.M.C.
Act or obtained permission of the Corporation for erecting notice
structure. Thus, I hold that the plaintiff has failed to show that notice
structure is legal or authorized.
18] The plaintiff has taken out present Notice of Motion
directing the Corporation to reerect notice structure or in the
alternatively seeking permission to reerect alleged extension of suit
premises.
19] The Hon'ble Apex Court in the case of Municipal
Corporation of Greater Mumbai & Ors. Versus M/s Sunbeam High
Tech Developers Private Ltd. (Civil Appeal No.7627 of 2019) in
which the Hon'ble Apex Court in paragraph No.16 held as below :
“16. We make it clear that we do not approve the action of the
Municipal Corporation or its officials in demolishing the structures
without following the procedure prescribed by law, but the relief which
has to be given must be in accordance with law and not violative of the
law. If a structure is an illegal structure, even though it has been
demolished illegally, such a structure should not be permitted to come
up again. If the Municipal Corporation violates the procedure while
demolishing the building but the structure is totally illegal, some
compensation can be awarded and, in all cases where such compensation
is awarded the same should invariably be recovered from the officers
who have acted in violation of law. However, we again reiterate that the
illegal structure cannot be permitted to be re−erected.”
-- 9 of 11 --
10 N/M No.142/18 (LCS No.2451/17)
20] It is contended on behalf of the plaintiff that the
defendant/Corporation be directed to reconstruct the structure or he
may be permitted to reconstruct it, however the Hon'ble Apex Court in
Municipal Corporation of Greater Mumbai & Ors. Versus M/s Sunbeam
High Tech Developers Private Ltd. (supra) observed that though the
officer of the Corporation demolished the structures without following
the procedure prescribed by law, but the relief of reconstruction of the
structure cannot be granted if the structure is illegal even though it has
been demolished illegally such structure should not be permitted to
come up again. Therefore, before seeking permission to reconstruct the
plaintiff has to show that structure is legal and authorized. He has to
prove that the suit premises is protected or legal or authorized. He has
to show dimensions of structure, covering area, which part of the plot it
was covering, material used for structure, its height etc.
21] The plaintiff has miserably failed to prove authorization of
notice structure. Therefore, in view of the judgment of the Hon'ble Apex
Court in the case of Municipal Corporation of Greater Mumbai & Ors.
Versus M/s Sunbeam High Tech Developers Private Ltd. (supra) the
plaintiff is not entitled for relief of temporary mandatory injunction as
prayed. Accordingly, I answer points No.1 to 3 in the negative and in
answer to point No.4 following order is passed :
O R D E R
Notice of Motion No.142/2018 is dismissed.
Date : 23/03/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
-- 10 of 11 --
11 N/M No.142/18 (LCS No.2451/17)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
05/04/2023 11:25 a.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 23/03/2023
ORDER Typed on 01/04/2023
ORDER signed by P.O. on 03/04/2023
ORDER uploaded on 05/04/2023
-- 11 of 11 --