Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 189/19 in Suit No. 660/19. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 189 OF 2019
(CNR NO. MHCC010005212019)
IN
L. C. SUIT NO. 660 OF 2019
(CNR NO. MHCC010147532018)
Mansoor Ali (Salim) Maqsood Ali ...Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai
and another ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 20th DECEMBER, 2019.
Mr. Pratap Singh / Mr. Mooman, Advocate for Plaintiff.
Mr. Giri, Advocate for Defendants / MCGM.
ORDER
This is a motion taken out by plaintiff for temporary
injunction to restrain the defendant from taking action in view of notice
dated 01/11/2018 issued under Section 354A of MMC Act and speaking
order issued on 30/11/2018.
2. Perused affidavit in replycumwritten statement submitted
by defendant vide Exh.3 and 9.
-- 1 of 26 --
N/m No. 189/19 in Suit No. 660/19. 2 Order.
Plaintiff's case is narrated as follows :
3. Plaintiff is possessor of a plot alongwith structure named as
"Maulana Building" situated at Survey No.275, Hissa No.4, Village
Kurla. It consists of ground plus three floors constructed by Mohamed
Wali Mohamed Hussain, father of plaintiff. It was a plot leased to
plaintiff by original lessee M/s. A.H.Wadia Trust. It bear Assessment
No. L743(7) 46 P. Plaintiff has annexed rough sketch plan of the suit
premises as AnnexureA on Page No.26 with plaint.
4. According to plaintiff, building structure is in existence
prior to the datum line i.e. 01/01/1962. Plaintiff has carried out minor
essential repairs. Plaintiff has received one notice of MCGM on
11/06/2013, which was replied by plaintiff through advocate Tariq
Khan on 12/05/2015. According to plaintiff, defendant has mentioned
wrong description of suit premises in misconception that Sayyad Master
Chawl came to be demolished and ten pillars has been erected. On the
contrary, plaintiff has carried out minor repairs on existing Maulana
Chawl consists of ground plus three floors. In view of reply submitted
by plaintiff, the speaking order dated 30/11/2018 is also challenged by
the plaintiff. It is claimed for temporary injunction.
5. Defendant has strongly resisted the suit by filing affidavit
inreply of defendant at Exh.3 and 9, submits that in routine inspection
it was found that the Sayyad Chawl, near Maulana Building has been
demolished and there was erection of ten pillars on basement came to
be noticed on first inspection dated 29/10/2018. The construction
work was found in progress, therefore first notice under Section 354A
of MMC Act was issued on 01/11/2018. In view of reply submitted by
plaintiff, a final order has been issued by the designated officer of
-- 2 of 26 --
N/m No. 189/19 in Suit No. 660/19. 3 Order.
MCGM on 30/11/2018. The impugned building was placed under
supervision. It was noticed that on 21/12/2018 the construction was
ground plus two floors measuring 70 x 22 x 30 in height was going on.
On 04/02/2019 it was noticed that plaintiff has constructed upto
ground plus four storey. On every visit the officer of MCGM has
obtained the photographs and submitted the report to the higher
authority. Plaintiff has submitted documents of Maulana Building
bearing Assessment No. L743(7) 46 P , however started the
construction of Sayyad Master Chawl @ Akhtari Begam's Chawl bearing
Assessment No. L743/11A/46/PA . In the speaking order it is observed
that all the documents produced by plaintiff were not related to the
construction over impugned site known as 'Sayyad Master Chawl @
Akhtari Begam's Chawl.'
6. In additional reply vide Exh.9 it is mentioned that the
speaking order dated 30/11/2018 has been tampered by the plaintiff.
In the speaking order (Page 70A with plaint), 'Sayyad Master Chawl' is
erased by whitener and mentioned the word 'Maulana Building' in its
place. It is added that plaintiff has forged the order. According to
defendant, both structures i.e. Maulana Building and Sayyad Master
Chawl are different structures. It is prayed that notice of motion be
rejected with cost.
7. In view of aforesaid rival contention, following points arise
for determination and findings thereon are narrated as follows :
SR.NO. POINTS FINDINGS
1. Is there overwriting and fabrication in
speaking order dated 30/11/2018 issued
by designated officer of MCGM ?
There is prima
facie substance to
believe.
-- 3 of 26 --
N/m No. 189/19 in Suit No. 660/19. 4 Order.
2. Whether plaintiff prove that he
submitted the documents of constructed
structure marked in Assessment List L
743(11A)/46/ PA and it is the same
building called as 'Maulana Building'?
In Negative.
3. Whether plaintiff prove a prima facie
case ?
No.
4. Whether balance of convenience lies in
favour of plaintiff ?
No.
5. Whether it will cause irreparable loss to
plaintiff, if injunction as claimed is
refused ?
No.
6. What order ? Dismissed with
cost of
Rs.40,000/.
ARGUMENTS
8. It is to note that in one sitting ld. advocate Pratap Singh for
plaintiff has argued, thereafter in different two sitting it was argued by
ld. advocate Mooman for plaintiff. It is alleged by ld. advocate Giri for
MCGM that initially on 03/12/2018, without reply of MCGM, plaintiff
has obtained adinterim relief against defendant for not to take any
coercive action. Thereafter in view of photograph 'X' produced by
defendant, plaintiff has obtained statusquo order. In said photograph,
different two buildings are shown by defendant MCGM. One new
constructed building marked as 'XA' bear Assessment No. L743(11A)/
46/PA called as 'Sayyad Master Chawl @ Akhtari Begam's Chawl' and
another building named as 'Maulana Building' bear Assessment List No.
L743(7)/46/P.
-- 4 of 26 --
N/m No. 189/19 in Suit No. 660/19. 5 Order.
9. It is alleged by MCGM that documents of Maulana Building
were submitted but the construction of Sayyad Master Chawl was
completed by the plaintiff. Upon first round of arguments, plaintiff has
engaged advocate Mooman as counsel and he completed the
arguments. There is specific allegation of defendant that there is over
writing in speaking order dated 30/11/2018 and in first para line no.3
and 4 is erased and the wording 'Maulana Building" came to be written
on behalf of plaintiff. Considering aforesaid controversy, Point No.1
and 2 are specifically framed by this Court.
ARGUMENTS OF ADVOCATE PRATAP SINGH FOR PLAINTIFF :
10. Ld. advocate Pratap Singh for plaintiff requested to peruse
initial notice of MCGM dated 11/06/2013, which was replied by
plaintiff on 12/05/2015. Thereafter another notice under Section 354A
of MMC Act came to be issued by the MCGM wherein plaintiff has
informed at Page No.3 that impugned structure is known as 'Maulana
Chawl' and its Assessment Number is L743(7) 46 P. It is added that
impugned structure is a slum area as per notification. The copy of
speaking order as received to plaintiff is annexed by him and there is no
question of overwriting by the plaintiff. Plaintiff is no way concerned
with a building named and styled as 'Sayyad Master Chawl @ Akhtari
Begam's Chawl'.
ARGUMENTS OF ADVOCATE MOOMAN FOR PLAINTIFF :
11. Ld. advocate Mooman for plaintiff submits that plaintiff is
concerned only with Maulana Building and defendant may demolish the
building if it is called as 'Sayyad Master Chawl'. The argument is
narrated in following points :
A) The structure of plaintiff is in existence prior to 1962.
-- 5 of 26 --
N/m No. 189/19 in Suit No. 660/19. 6 Order.
B) It was a land belong to Wadia Trust.
C) The notice dated 11/06/2013 was addressed to Mr. Sabiha
Mohd. Wali Khan, address Maulana Building, behind taxi
stand.
D) In view of letter dated 21/07/2011 plaintiff has claimed for
renovation, there appear to be deemed permission by
MCGM.
E) Plaintiff has replied the notice dated 03/11/2018, wherein,
he mentioned it alongwith enclosures. (Defendant alleges
that no enclosures were annexed by plaintiff.)
F) Considering aforesaid dispute, plaintiff was directed to
produce photograph of suit structure, which is marked as
'Y', appear a photograph of Sayyad Master Chawl @ Akhtari
Begam's Chawl. (wherein, he has not shown another part of
building which is shown as Maulana Building by defendant
in photograph 'X'.)
G) Therefore, this Court has directed to produce unscaled
map, which has been filed by plaintiff vide Exh.11,
wherein, he has shown both buildings alongwith three feet
space in between both titled as "Maulana Building".
(H) In another sitting of arguments he added that despite there
is six feet distance in both buildings, they are inter
connected and both buildings be called as 'Maulana
Building'.
I) If impugned construction is completed, then no powers are
vested with MCGM except to take action under Section 351
of MMC Act.
-- 6 of 26 --
N/m No. 189/19 in Suit No. 660/19. 7 Order.
ARGUMENTS ON BEHALF OF MCGM :
12. A) Ld. advocate Giri submits that this is a best example of
abuse of process of law and mislead the MCGM by filing
documents of one building and sought injunction on
another building.
B) It is prayed for initiation of criminal action against plaintiff
for fabrication in speaking order of the designated officer
dated 30/11/2018.
C) Plaintiff has applied whitener in address column, in first
para he has erased the wording 'Sayyad Master Chawl' and
written 'Maulana Building' in own handwriting.
D) After issuance of first notice, the building was kept in
supervision and there are various photographs shows
that from basement upto 4th floor the construction was
completed by the plaintiff.
E) Despite regular visit and notice by officer of MCGM, it is
made clear that construction upto 4th floor was completed
by the plaintiff.
F) It is contention of defendant that both buildings are
different and in unscaled map defendant has clarified that
Maulana Building is one structure and there is lane/street
in between and Sayyad Chawl is different structure.
G) Defendant has clarified in photograph 'X' that both
buildings are different and their assessment number is
different.
H) Plaintiff has violated order of this Court of statusquo and
after aforesaid order he continued the construction.
-- 7 of 26 --
N/m No. 189/19 in Suit No. 660/19. 8 Order.
REASONS FOR ORDER
AS TO POINT NO.1 :
13. On perusal of copy of speaking order annexed by plaintiff
alongwith plaint Exh.K1 at Page No.70A, it is coloured photocopy of
speaking order dated 30/11/2018. There appear to be application of
whitener in address column and erased line no.4 in first para and
written the words 'Maulana Building' in the handwriting. Defendant
has produced list of documents vide Exh.4, wherein, at Sr.No.2 Page
No.17 is a photocopy of the speaking order dated 30/11/2018, which
shows address Sayyad Master Chawl. In Para 1 it contains "demolishing
existing structure 'Sayyad Master Chawl' and there is erection of ten
columns", it is submitted with affidavit of two engineers of MCGM
namely N.B.Torne and Mr. Amol Koli.
14. In Para No.6 from the affidavit of Mr. Amol Koli, it is
clearly mentioned that there is a tampering of speaking order issued by
MCGM and produced before the Court. The relevant para is reproduced
as follows :
"6. I say that after considering the reply of the
plaintiff this defendant has passed the speaking
order on 30.11.2018. I say that after persuing the
document i.e. order produce by the plaintiff it
reveals that plaintiff knowingly and intentionally
has tampered the order. I say that plaintiff by this
act dishonestly, fraudulently prepared a false
document / tampered the Notice and order issued
by this defendant. I say that plaintiff forged the
order to be served by a public servant in his official
capacity of cofess judgment in favour of him. I say
-- 8 of 26 --
N/m No. 189/19 in Suit No. 660/19. 9 Order.
that plaintiff forges the notice and order which
perpossed to be valuable security. I say that
plaintiff commit forgery intending that the notice
and order shall be used for cheating. I say that
plaintiff fraudulently and dishonestly uses the
above forged order is as a genuine and produced
before this Hon'ble Court and filed false affidavit
before this Hon'ble Court to belive a genuine. I say
that the act of the plaintiff leads to the criminal
enquiry. I say that a separate application to that is
filed by this defendant which is pending."
15. Para No.6 in affidavit of Mr. Sagar Karpe has again clarified
the above fact about tampering the record. It is reproduced as follows :
"6. I say that after considering the reply of the
plaintiff this defendant has passed the speaking
order on 30112018. I say that plaintiff has taken
out the draft chamber summons along with the
order dated 30112018. I say that after perusing
the document i.e. order along with the draft
chamber summons it reveals that plaintiff
knowingly and intentionly has tampered has again
stuck down the address by erasing the sayyed
master chawl, Near from the order."
16. In view of office record of MCGM, notice was addressed to
Sayyad Master Chawl. It is clearly shown in photograph 'X' that both
structures are different structures. However, the impugned correction
was not done in the Court record, but it was done prior to filing before
-- 9 of 26 --
N/m No. 189/19 in Suit No. 660/19. 10 Order.
the Court. The copy produced by the plaintiff at Page No.70A vide
Exh.K1 is a different copy alongwith tampered material on comparison
with record of MCGM. Therefore, there is prima facie material to
conclude that there is tampering of speaking order. However it was not
done by the concerned in Court proceeding. It appear to be done prior
to submission before this Court. Therefore, defendant MCGM is at
liberty to initiate proper action by following due process of law. Hence
Point No.1 is replied accordingly.
AS TO POINT NO.2 :
17. Perused assessment list submitted by plaintiff on Page
No.27 Exh.B with plaint. According to ld. advocate Pratap Singh and
Mooman for plaintiff, the assessment of suit structure i.e. Maulana
Building is L743(7) 46 P, Kasaiwada.
18. It is clarified by ld. advocate Giri for MCGM that since
inception from filing reply, it is harped by the defendant that defendant
is not alleging anything against Maulana Building having Assessment
List No. L743(7) 46 P. To further clarify he attracted attention of the
Court to the photo filed at Exh.X, wherein, both structures are shown
alongwith the assessment list. For further clarification, the case brought
by MCGM is narrated in following table :
Sr.No. Name of Building Assessment No.
1. Maulana Building L743(7) 46 P
2. Sayyad Master Chawl @ Akhtari
Begam's Chawl
L743(11A) 46/PA
19. It is contended by ld. advocate Mooman for plaintiff that
plaintiff do not have any concern with Sayyad Master Chawl but MCGM
-- 10 of 26 --
N/m No. 189/19 in Suit No. 660/19. 11 Order.
shall not disturb possession of plaintiff on Maulana Building. However,
in reply advocate Pratap Singh has filed photograph 'Y', wherein, only
newly constructed ground plus four structure is shown as 'Maulana
Building'.
20. To the extent of assessment list, Designated Officer, A.E.
(B&F) of 'L' Ward has raised some query to the concerned department
on 14/02/2019. It is reproduced as follows :
"With reference to above subject, this office
issued a notice as per MMC ACT 1888 under section
354A MMC act u/no. L/DO4L/171/354AMMC
ACT/L1156N01/01112018 for Unauthorized
excavation and erection of columns (10 numbers)
by demolishing existing Sayyad Master Chawl at
Sayyad Master Chawl, Near Maulana Building, Taxi
Stand, Qureshinagar, Kasaiwada, Kurla (East),
Mumbai 400 070.
For the above notice the noticee has replied
with documents having assessment bill showing of
prior 17.04.1964 for said structure of Property No.
L020207002, Sayyad Master Chawl, Near
Maulana Building, Taxi Stand, Qureshinagar,
Kasaiwada, Kurla (East), Mumbai 400 070."
21. It is replied by concerned department on 21/02/2019 as
follows :
"With referance to above this is to state that, copy
of assessment bill submitted by A.E.(B&F)/L4
Ward doesnot pertain to the notice structure as
-- 11 of 26 --
N/m No. 189/19 in Suit No. 660/19. 12 Order.
shown by the representative of A.E.(B&F)/L4 and
hence the information in respect of sr.no. 2 to 9
cannot be furnished.
However information in respect of Sac No.
LC0202070020000 is furnished as under :
1) As per the office record the property is assessed
in the name of Lessor The Trustees of Kurla Estate
Lessee Shri Syed Hasan Sayed Mohamed,
2) The structure under reference is House having
10 rooms on gr.floor, 8 rooms on 1st floor and 9
rooms on 2nd floor used for residential purpose,
3) The said property is not migrated in CV system."
22. It is further clarified in written statementcumreply
submitted by MCGM vide Exh.3 alongwith affidavit of Junior Engineer
Mr. N.B.Torne that both structures are different and assessment number
of both structure are different. The relevant material from Para 10 is
reproduced as follows :
"I say that the assessment bill annexed with the
Plaint is verified with the Assessment Dept of the
defendants and the A.A. & C Assessment dept has
given remarks that the said assessment bill L
743(7) 46 P bearing SAC NO. L020207002 does
not pertains to the notice structure."
23. In view of aforesaid discussion, it is crystal clear that both
buildings are different, their assessment list are different. There is a
chamber summons pending submitted by representative of Wadia Trust
in respect of Sayyad Master Chawl. Plaintiff have no documents in
-- 12 of 26 --
N/m No. 189/19 in Suit No. 660/19. 13 Order.
respect of Sayyad Master Chawl @ Akhtari Begam's Chawl having
Assessment Bill L743(11A)/46/PA. Therefore, it appear that
documents of Maulana Building came to be submitted for protection of
ground plus four storied construction done at the premises of Wadia
Trust, which was known as Sayyad Master Chawl @ Akhtari Begam's
Chawl. There is sufficient material to conclude that to protect the
unauthorized construction of ground plus four structure, plaintiff has
submitted various documents of Maulana Building which is
independent structure and separate assessment number. Hence Point
No.2 is replied in negative.
AS TO POINT NO.3 :
24. This is a unique case wherein plaintiff has intentionally
avoided to describe the suit property in plaint and failed to narrate the
structure in length, width and height (LWH). The structure of Maulana
Building shown on Page No.26 (Exh.A) with plaint bear no length and
width nor area but it has only shown location of Maulana Building. The
figure drawn by plaintiff vide Exh.A is tried to reproduce as follows :
Cem
enta
ry
Road
Maulana
Bldg.
Taxi
Stand
Towards Chistiya Masjid
-- 13 of 26 --
N/m No. 189/19 in Suit No. 660/19. 14 Order.
25. Defendant has clarified in numerous documents that how
the work of construction was initiated by erecting 10 pillars. It was
kept in supervision after issuance of notice. During period of notice and
after order of statusquo, it appear that plaintiff has completed
construction of 4th floor. The first inspection report dated 30/10/2018
clearly shows that work status as going on. Column no.5, 12, 18, 24, 27
and 31 are reproduced as follows :
"Inspection Report :
5) Work Status : Ongoing
12) Location : Sayyad Master Chawl, Near Maulana
Building, Taxi Stand, Qureshinagar, Kasaiwada, Kurla
(East), Mumbai 400 070
18) Whether any permission for Construction was
shown on site : No
24) Name(s) & Address(es) of the owner (s) Of the
structure :
Sr.No. Type Name Address
1 Occupier Shri Manzoor Ali
(Salim)
Sayyad Master Chawl,
Near Maulana Building,
Taxi Stand, Qureshinagar,
Kasaiwada, Kurla (East),
Mumbai 400 070
27) Description of Structure : Unauthorized excavation
and erection of columns ( 10 numbers) by demolishing
existing Sayyad Master Chawl at the above mentioned
address.
31) Area of constructed structure (meter) :
Unauthorized excavation and erection of columns ( 10
numbers) by demolishing existing Sayyad Master Chawl
at the above mentioned address."
-- 14 of 26 --
N/m No. 189/19 in Suit No. 660/19. 15 Order.
26. Inspection report is supported with unscaled document of
location of illegal construction as shown by defendant with signature of
engineer Mr. Torne dated 30/10/2018. It is tried to reproduce as
possible :
27. Thereafter defendant has filed a photograph 'X', wherein,
he clarified the position by showing different two buildings with
different two assessment. Even then, it was submission of ld. advocate
Mooman for plaintiff that he is concerned only with Maulana Building.
Therefore he was asked to file the photograph which is marked at
"Exh.Y". In photograph Exh.Y he has filed a photo of Sayyad Master
Chawl @ Akhtari Begam's Chawl, wherein, in white colour four storied
building is shown. Therefore he was asked to file unscaled map which
is submitted at Exh.11. The said figure is tried to reproduce as follows :
3rd floor
3rd floor
3 feet
Lane
2nd floor
2nd floor 1st floor
1st floor Gr. floor
Gr. floor HILL
→ Main Rd. (Chistiya Masjid Road) →
Exh.11 Map as filed by plaintiff.
Towards Chistiya Masjid
Maulana
Bldg.
Sayyad Master
Chawl
H.K.
Ali Rd.
Chunabhatti
-- 15 of 26 --
N/m No. 189/19 in Suit No. 660/19. 16 Order.
28. On perusal of progress of the work as shown in various
photograph dated 29/10/2018, it was beginning of erection of pillars.
The impugned building was kept in supervision, thereon in photograph
dated 07/01/2019 and 04/02/2019, the construction was continued.
Therefore there is sufficient ground to conclude that despite stop work
notice issued to plaintiff, he completed construction upto 4th floor.
29. Thereafter on next date Smt. Sabiha Maqsood Ali submitted
affidavit wherein, she has mentioned that map vide Exh.11 submitted
by her lawyer was prepared in hurry, therefore she has produced
another map wherein both buildings are shown and it has two feet lane
in between both buildings. It is reproduced as follows :
"I further say and submit that on my direction
my Advocate had prepared rough sketch plan of the
suit premises which is not upto the mark because it
was made hurriedly. I further say and submit that I
had made the exact rough sketch plan of the suit
premises. Hereto annexed and marked as Exhibit
"A" is the copy of Rough Sketch plan of the suit
premises."
"I further say that the Chamber Summons
taken out by the said Mr. Mohammed Salim Abdul
Salam Qureshi came to be dismissed by this
Hon'ble Court and inspite of the same, he is
instigating corporation and without any authority
corporation is determining my building being
Maulana Building to be Sayyed Master Chawl,
without having any documents, papers as well as
any record thereof."
-- 16 of 26 --
N/m No. 189/19 in Suit No. 660/19. 17 Order.
30. There is affidavit of engineer Mr. N.B.Torne that despite
order of statusquo issued by this Court, the construction work was
continued and it was reached upto 4th floor. Para 2 and 3 of affidavit
dated 03/07/2019 are reproduced as follows :
"2. I say and submit that, on 26.06.2019, the
Hon'ble Court was directed to parties to maintain
status quo and adjourn the matter for filing
rejoinder of the plaintiff, if any. However, after
obtaining the order of the statusquo, the plaintiff
continued to unauthorised construction without
any permission of the MCGM, which amount to
contempt of the order of the Hon'ble Court. I
reserve my right to file contempt proceeding
against the plaintiff.
3. I say and submit that officers of these Defendants
had inspected the suit premises on 27/06/2019,
28/06/2019, 30/06/2019 and 1/07/2019 and
found that the Plaintiff was carrying out the
unauthorised construction. I crave leave to and
refer to the photographs dated 27/06/2019,
28/06/2019, 30/06/2019 and 1/07/2019 as and
when produced."
31. If the factual aspect as brought by engineer Mr. Torne is
correct, it is a unique case wherein plaintiff has violated the order of
this Court and by restraining defendant, he has completed the
construction under the garb of order of statusquo.
32. The aforesaid fact is fortified by documents filed by
-- 17 of 26 --
N/m No. 189/19 in Suit No. 660/19. 18 Order.
applicant namely Abdul Rauf and Mohd. Salim under a letter dated
27/12/2018 addressed to MCGM and Sr.P.I. of Chunabhatti Police
Station. They have clarified the aforesaid fact, which was clearly
indicated in photograph, i.e. documents of one building, construction of
another building and illegal construction continued by misrepresenting
MCGM. The relevant para 1 and 2 are reproduced as follows :
"1. On 25.10.2018, we lodged complaint against
Mansoor Ali (Salim) Maqsood for illegal
construction work on our above property bearing
Survey No. 275, Hissa No.4 (Part), CTS No.260
and 260/1 to 17 Village Kurla, Taluka Kurla,
Mumbai Suburban District Kasaiwada, Quresh
Nagar, Kurla (E), Mumbai 400 070. On our
complaint, BMC had issued notice under section
354A of the BMC Act, bearing Notice No.
L/DO4L/171/354AMMCACT/L1156N01/0111
2018 to stop the unauthorized construction. The
above persons filed L.C. Suit(ST) No.15704 of
2018 before Hon'ble Bombay City Civil Court and
made false claim. By misleading the Hon'ble City
civil Court, the above person obtained adinterim
relief from Ld. City Civil Court. In said matter we
have filed our chamber summon, which is pending.
2. On 25.12.2018, we visited to see our chawl,
when we noticed that, the above persons have
again continued their illegal construction work on
our property and this time they erected the R.C.C.
columns. We immediately took the photographs of
said unauthorized construction on 25.12.2018
-- 18 of 26 --
N/m No. 189/19 in Suit No. 660/19. 19 Order.
copies whereof are EXHIBIT"A".
Accordingly F.I.R. came to be registered bearing No. 89560 on
19/01/2019.
33. On perusal of reply submitted by advocate Tariq Khan on
behalf of plaintiff to the MCGM dated 12/05/2015 and 21/07/2011, it
is silent in respect of description of suit property. In Para 10 of the
plaint, it is in respect of repairs and plastering of the pillars. In Para 12
of the plaint, it is mentioned that on wrong description the notice came
to be issued by the defendant. In last unscaled map submitted by
plaintiff, he shows that there is seven feet lane in between both
buildings. The compilation filed by plaintiff is marked as Exh.12. No
doubt, length of both buildings is 85 ft. Building 'XA' as shown is 20.9
in width, however building 'XB' named as 'Maulana Building' in
photograph 'X' is in width 35.6. However, in rough sketch map after
visit of advocate Pratap Singh on the spot, submitted alongwith
signature of plaintiff's mother, she has shown both buildings as
'Maulana Building'.
3.5 3.5
Lane
Rooms Rooms
Toilet
Shop
CD Lane 7 feet.
AB= EF = 85 feet.
Both building are shown as Maulana Bldg. in map vide Exh.12 by plaintiff.
A F
B C	35.6 D E
20.9
7 feet
-- 19 of 26 --
N/m No. 189/19 in Suit No. 660/19. 20 Order.
34. It is to note that there is no description of suit property as
required under Order 7 Rule 3 of CPC. It is the duty of plaintiff to
describe the suit property properly for appropriate identification. Order
7 Rule 3 of CPC is reproduced as follows :
"3. Where the subjectmatter of the suit is immovable
property.Where the subjectmatter of the suit is
immovable property, the plaint shall contain a
description of the property sufficient to identify it,
and, in case such property can be identified by
boundaries or numbers in a record of settlement or
survey, the plaint shall specify such boundaries or
numbers. In case of encroachment a sketch
showing as approximately as possible the location
and extent of encroachment shall also be filed
alongwith the plaint."
35. In Zarif Ahmad V/s. Farooq (A.I.R. 2015 S.C. 1236), it is
held that, the object of Order 7 Rule 3 is that the description of the
property must be sufficient to identify it. The property can be
identifiable by boundaries, or by number in a public record of
settlement or survey. Even by plaint map showing the location of the
disputed immovable property, it can be described.
36. This is a case wherein plaintiff has intentionally avoided to
describe the suit property. Plaintiff has also avoided to file unscaled
map with entire measurement of length, width and height. Plaintiff has
also avoided to file photograph of existing structure. Even after
photograph 'X' submitted by MCGM, plaintiff has not filed photograph
of suit property. During course of arguments, plaintiff has changed his
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N/m No. 189/19 in Suit No. 660/19. 21 Order.
version and submitted unscaled map and photographs as per his
convenience. Therefore, I have no hesitation to conclude that there is
clear abuse of process of law and after issuance of statusquo order,
plaintiff has continued the work. Therefore, there is no prima facie case
in favour of plaintiff. Hence Point No.3 is replied in negative.
37. Ld. advocate for plaintiff relied on
1. Shri Ramawatar Babulal Jajodia V/s. Municipal Corporation of
Greater Mumbai (2014(2) ALL MR 303),
2. Mushtaq A. Shah V/s. Municipal Corporation of Greater Mumbai
(2014(3) Bom.C.R. 188),
3. Mrs. Lilly P. Pandit V/s. Mumbai Municipal Corporation of
Greater Mumbai and others (Writ Petition (L) No. 88/2014 dated
16/01/2014),
4. Abdul Hasan Shaikh Mansuri V/s. Municipal Corporation of
Mumbai & Ors. (2007(4) ALL MR 97),
5. Mohammad Salim Mohd. Yusuf Qureshi V/s. The Municipal
Corporation of Greater Mumbai & Anr. (Appeal From Order (St.)
No. 26811/2017 with Civil Application No. 26812/2017 dated
29/09/2017),
6. Sopan Maruti Thopte and another V/s. Pune Municipal
Corporation and another (AIR 1996 BOMBAY 304).
38. It is well settled that the discretionary powers has to be
used judiciously. The discretion of the court is exercised to grant a
temporary injunction only when the following requirements are made
out by the plaintiff :
(i) existence of a prima facaie case as pleaded, necessitating
protection of plaintiff's rights by issue of a temporary
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N/m No. 189/19 in Suit No. 660/19. 22 Order.
injunction;
(ii) when the need for protection of plaintiff's rights is
compared with or weighed against the need for protection
of defendant's rights or likely infringement of defendant's
rights, the balance of convenience tilting in favour of
plaintiff; and
(iii) clear possibility of irreparable injury being caused to
plaintiff if the temporary injunction is not granted. In
addition, temporary injunction being an equitable relief,
the discretion to grant such relief will be exercised only
when the plaintiff's conduct is free from blame and he
approaches the court with clean hands.
39. In Seema Arshad Zaheer & Ors. V/s. Municipal
Corporation of Greater Mumbai & Ors. (Special Leave Petition
(civil) No. 9479 of 2005 dated 05/05/2006), in Para 30, it is
observed as follows :
"It is true that in cases relating to orders for
demolition of buildings, irreparable loss may occur
if the structure is demolished even before trial, and
an opportunity to establish by evidence that the
structure was authorized and not illegal. In such
cases, where prima facie case is made out, the
balance of convenience automatically tilts in
favour of plaintiff and a temporary injunction will
be issued to preserve status quo. But where the
plaintiffs do not make out a prima facie case for
grant of an injunction and the documents
produced clearly show that the structures are
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N/m No. 189/19 in Suit No. 660/19. 23 Order.
unauthorized, the court may not grant a temporary
injunction merely on the ground of sympathy or
hardship. To grant a temporary injunction, where
the structure is clearly unauthorized and the final
order passed by the Commissioner (of the
Corporation) after considering the entire material
directing demolition, is not shown to suffer from
any infirmity, would be to encourage and
perpetuate an illegality. We may refer to the
following observations of this Court in M.I.
Builders Pvt. Ltd. v. Radhey Shyam Sahu [1999(6)
SCC 464] made in a different context :
"This Court in numerous decisions has held that no
consideration should be shown to the builder or
any other person where construction is
unauthorized. This dicta is now almost bordering
the rule of law. Stress was laid by the appellant
and the prospective allottees of the shops to
exercise judicial discretion in moulding the relief.
Such a discretion cannot be exercised which
encourages illegality or perpetuates an illegality.
Unauthorised construction, if it is illegal and
cannot be compounded, has to be demolished.
There is no way out. Judicial discretion cannot be
guided by expediency. Courts are not free from
statutory fetters. Justice is to be rendered in
accordance with law. Judges are not entitled to
exercise discretion wearing the robes of judicial
discretion and pass orders based solely on their
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personal predilections and peculiar dispositions.
Judicial discretion wherever it is requires to be
exercised has to be in accordance with law and set
legal principles."
40. Considering aforesaid discussion, there is no balance of
convenience lies in favour of plaintiff. Plaintiff has abused the process
of law. There is material to believe about tampering of the documents.
There are sufficient grounds to believe that document of Maulana
Building has been filed to save the structure erected at "Sayyad Master
Chawl @ Akhtari Begam's Chawl". Hence Point No.4 and 5 are replied
in negative.
41. In view of aforesaid discussion, this is a unique case to
impose exemplary cost on plaintiff, at the stage of temporary injunction.
Hence, I find it appropriate to impose exemplary cost of Rs.40,000/
(Rupees Forty Thousand Only) be paid to MCGM. The reasons for
imposing aforesaid cost are as follows :
a) There is prima facie ground to believe that documents of
one building are filed to protect unauthorized construction
of another building.
b) Intentional and skillful drafting of plaint to avoid exact
identification of suit premises.
c) Change in the version of the plaintiff in different sitting of
arguments.
d) There is substance to believe that construction came to be
completed despite order of statusquo.
e) Lengthy arguments in different sessions which resulted in
consumption of judicial hours which could have used in
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N/m No. 189/19 in Suit No. 660/19. 25 Order.
appropriate litigation to serve needy people.
f) The aforesaid time could have utilized in proper litigation
and needy people; which may reduce pendency of the
Court.
g) Ultimately such litigation has increased the burden of Court
and heavy pendency.
h) On perusal of rough sketch map with plaint, Exh.11 and
Exh.12, plaintiff has changed the version and description of
suit property.
i) In plaint there is no description that both buildings are one
structure and called as 'Maulana Building'.
42. In view of aforesaid discussion, the notice of motion
deserves to be dismissed with cost of Rs.40,000/ (Rupees Forty
Thousand Only). Plaintiff to deposit said cost to the office of MCGM
within one month from the order of this Court. Hence the order :
ORDER
1. Notice of Motion No. 189/2019 stands dismissed.
2. Plaintiff to pay cost of Rs.40,000/ (Rupees Forty
Thousand Only) to MCGM within a month from the date of
order.
3. N/m No. 189/19 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 20/12/2019. Mumbai.
1. Dictated on : 19 & 20/12/2019.
2. Transcribed on : 20, 21 & 23/12/2019.
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N/m No. 189/19 in Suit No. 660/19. 26 Order.
3. Signed on : 27/12/2019.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
27/12/2019. 3.55 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 20/12/2019.
Judgment/Order signed by P.O. on 27/12/2019.
Judgment/Order uploaded on 27/12/2019.
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