Interim Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM....2018 : 1 : SU.No.133/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION....2018.
IN
L.C. SUIT NO. 133 OF 2018
ZAHIR ZENUDDIN MERCHANT.. .. Plaintiff.
Versus.
1. Designated Officer2
Asst. Engineer (B & F)
Municipal Corporation of Greater
Mumbai"G/South Ward
Municipal Office, N.M.Joshi Marg,
Lower Parel, Mumbai400013 & Ors.. .. Defendants.
Ld. Advocate Mr. P.D.Gandhy for the Plaintiff.
Ld. Advocate Mr. Atif Shaikh for the Defendant/BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 20thth JANUARY, 2018.
(Court Room No.06)
O R D E R
1. This notice of motion has taken out by plaintiff for temporary
restraining the defendants its servants, agents, representative or any
other person on behalf of it from taking any action pursuant to notice
bearing No.ACGS/806/SR/BF dated 04/01/2018.
2. According to the plaintiff, plaintiff is in possession of the suit
property situated at 11/12 Ground floor, Raghuvanshi Mill Compound,
Senapati Bapat Marg, Lower Parel, Mumbai i.e. in the premises of
Raghuvanshi Mills Ltd. Defendant No.1 is the Designated Officer of
defendant No. 2 Municipal Corporation of Greater Mumbai, defendant
Nos. 3 and 4 redeveloped the structures of property. In terms of the
order of the AAIFR dated 19th November, 2001 and joint venture
agreement dated 24th May, 2001 an agreement arrived between
defendant Nos. 3,4 and plaintiff. Thus, plaintiff is in possession of the
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suit property.
3. According to plaintiff incident occurred at Kamala Mills
Compound and defendant Nos.1 and 2 have issued random notices to
the other premises holders in the vicinity including plaintiff without
any documents and accordingly, the notice in question is issued to the
plaintiff. Plaintiff contended that notice does not give any particulars
or description of alleged irregularities. The notice is not issued under
any provisions of MMC Act. Plaintiff had given reply to the defendant
No. 1 and 2. However, defendant threatened to remove the
irregularities if any within 15 days. Hence, this notice of motion.
4. I have heard Mr. P.D.Gandhy advocate for plaintiff and Mr. Atif
Shaikh, advocate for defendant Nos. 1 and 2. Mr. P.D.Gandhy advocate
for plaintiff has submitted that the random notices are given to the
occupiers in the vicinity. In fact, plaintiff runs Show room. Plaintiff
has not committed any illegality. A notice is issued without giving
hearing to the plaintiff. He further submitted that defendant No. 1 and
2 violated the principles of natural justice. The notice is not U/sec.351
or 354 of MMC Act. Therefore, the notice is illegal. According to him,
defendant suddenly called out plaintiff to remove the irregularities if
any. Thus, this is against provisions of law. In support of his contention,
he relied on following citations :
(1) Uma Nath Pandey and Ors. V/s. State of U.P. and Anr.
Cri. Appeal No.471 of 2009 (Arising out of SLP (Cri.)
No. 6382 of 2007) decided on 16/03/2009 reported in
MANU/SC/0401/2009.
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(2) Sopan Maruti Thopte and another etc. etc.
V/s.
Pune Municipal Corporation and another
and
Shaikh Abdul Aziz and others.
V/s.
Bombay Municipal Corporation and others.
Writ Petns. Nos. 4765 to 4767 of 1995 and
A.O.No. 477 of 1994 reported in
MANU/MH/0053/1996.
(3) Muni SuvratSwami Jain S.M.P...
V/s.
Arun Nathuram Gaikwad & Ors. SLP (civil) 9049
of 2006 Supreme Court of India decided on
11/10/2006.
(4) Ramesh Hargovinddas Divecha
V/s.
The Municipal Corporation of Gr. Bombay & Ors.
In the High Court of Judicature at Bombay
Ordinary Original Civil Jurisdiction Writ Petition
No. 715 of 1999 dated 12th July, 1999.
(5) Abdul Razzaq Sunesra
V/s.
Municipal Corporation of Gr. Mumbai
In the High Court of Judicature at Bombay
Ordinary Original Civil Jurisdiction Writ Petition
(L) No. 1709 of 2013 dated 17th July, 2013.
(6) Suresh Estates Pvt. Ltd. and ors.
V/s.
Municipal Corporation of Greater Mumbai and
Ors. Appeal No. 5948 of 2007 (Arising out of SLP
(C) No.14578 of 2007) decided on 14/12/2007
reported in MANU/SC/0232/2008.
(7) Salim Babu Khan & Others.
V/s.
The Bombay Municipal Corporation
In the High Court of Judicature at Bombay
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Ordinary Original Civil Jurisdiction Writ Petition (L)
No. 1830 of 2008 with Chamber Summons No. 265 of
2008 decided on 30th September, 2008.
5. As against this, Mr. Atif Shaikh advocate for defendant Nos. 1
and 2 has submitted that the incident occurred in Kamala Mills
Compound on 29/12/2017 and due to this, 14 people lost their lives.
Therefore, due to the public safety, as per the direction of
Commissioner, Municipal Corporation, the notices issued to the
occupiers in the vicinity. He further submitted that notice only directs
to remove the irregularities if any. There is no mention of
unauthorised construction in the said notice therefore, according to
him, the notice is for issued public safety and hence, he prayed to reject
the application.
6. Plaintiff runs Show room in Raghuvanshi Mill Compound at
11/12 Senapati Bapat Marg, Mumbai. It is to be noted that on
29/12/2017 unfortunate massive fire incident occurred in Kamala Mill
Compound at Hotel "Mojo Bistro" and "1 Above". Therefore, as per
the directions of the Municipal Commissioner Designated officer2
issued notice in question to the plaintiff to remove irregularity if any
and restored the structure as per the latest approved plan issued by
Competent Authority i.e. Executive Engineer within 15 days. It is
further mentioned that failing which (irregularities) will be demolished
by the Municipal Corporation.
7. The notice is not issued alone to the plaintiff. The notice is issued
to the people in the vicinity to remove irregularities. The notice is not
U/sec.351, 354 of the MMC Act. Plaintiff has given reply to the
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defendants and denied the contentions in the notice. In Ramesh
Hargovinddas Divecha V/s. The Municipal Corporation of Greater
Bombay & ors. Hon'ble Hon'ble High Court held that the plan
sanctioned must be available with Municipal Corporation of Greater
Mumbai. In Muni Suvrat Swami Jain S.M.P. V/s. Arun Nathuram
Gaikwad & Ors. Hon'ble Supreme Court held that issuance of show
cause notices U/sec.351 of MMC Act is necessary for demolish of
unauthorized structure. In Sopan Maruti Thopte and another etc.
etc. V/s. Pune Municipal Corporation Hon'ble High Court ruled that
in every case where a notice U/sec.351 of BMC Act/ U/sec.260 of
B.P.M.C.Act is issued to a party 15 days' time shall be given for
submitting the reply. In Uma Nath Pandey and Ors. V/s. State of
U.P. and Anr. Hon'ble Supreme Court held that :
(6) Natural justice is another name for
commonsense justice. Rules of natural justice
are not codified canons. But they are
principles ingrained into the conscience of
man. Natural justice is the administration of
justice in a commonsense liberal way. Justice
is based substantially on natural ideals and
human values. The administration of justice is
to be freed from the narrow and restricted
considerations which are usually associated
with a formulated law involving linguistic
technicalities and grammatical niceties. It is
the substance of justice which has to
determine its form.
(7) The expressions "natural justice" and
"legal justice" do not present a watertight
classification. It is the substance of justice
which is to be secured by both, and whenever
legal justice fails to achieve this solemn
purpose, natural justice is called in aid of
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legal justice. Natural justice relieves legal
justice from unnecessary technicality,
grammatical pedantry or logical prevarication.
It supplies the omissions of a formulated law.
As Lord Buckmaster said, no form or
procedure should ever by permitted to exclude
the presentation of a litigants' defence.
8. Reverting to the factual score of the present case, it is to be noted
that the Corporation has not issued notice either U/sec.351 or 354 of
the BMC Act. As discussed in supra the said notices are issued to the
people in the vicinity to remove the irregularities if any and to restore a
structure as per the latest approved plan issued by Competent
Authority. Thus, all the notices are issued for the safety of the people.
According to the plaintiff, there is no irregularities. Therefore, I find
that if adinterim injunction as refused, no prejudice will be caused to
the plaintiff. Hence, such a circumstances, I find that plaintiff is not
entitled for interim injunction. Hence, the order :
O r d e r
1. Adinteriminjunction is refused.
2. Leave is granted to register the Notice of
Motion.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 20.01.2018
Typed on : 20.01.2018
Signed by HHJ. : 20.01.2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
22.01.2018 /11.30 a.m. Mr. S.D.Nalawade
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with
Court Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
20.01.2018
JUDGEMENT/ORDER signed
by P.O. on
20.01.2018
JUDGEMENT/ORDER
uploaded on
22.01.2018
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