Final Order 1

Order Details: Copy of Judgment
Pdf Text: CNR NO : MHCC010006602019. 1 L.C. Suit No. 222/2019
JUDGMENT.
Presented on : 17.01.2019
Registered on : 24.01.2019
Decided on : 03.03.2025
Duration : 6 Y, 1 M, 17 days.
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
LONG CAUSE SUIT NO. 222 OF 2019.
EXHIBIT NO. 45.
Prakash Raghunath Turde,
Aged: 39 Occupation : Service,
Residing at Subody Niwas Chawl,
Near Kedare Bhavan, Tembipada Road,
Bhandup (West), Mumbai-400 078.
]
]
]
]
] …..PLAINTIFF
: V E R S U S :
The Municipal Corporation of Gr.Mumbai,
Having its Office at Mahapalika Building
Mahapalika Marg, Fort, Mumbai-400 001.
]
]
] …..DEFENDANT.
APPEARANCES :
Mr. Rajnish Upadhyay, Ld. Advocate for the Plaintiff.
Mrs. Sheetal Metakari, Ld. Advocate for Defendant/MCGM.
**************
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO. 11.
DATED : 3rd March, 2025.
J U D G M E N T.
01. This is the suit for declaration that demolition of Shop No.
EX-1 admeasuring one sq.mtrs, situated at Manek Mehta Chawl, near
Nasrapur Hair cutting saloon, opposite LBS Marg, near Ghatkopar Bus
Depot, Ghatkopar (W), at CTS No.1463/1 (in short ‘the suit shop’) is
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JUDGMENT.
illegal and for mandatory injunction, directing the BMC to reconstruct
the suit shop in alternative permission to reconstruct it or in alternative
directing the defendant/BMC to provide alternative accommodation to
the plaintiff in lieu of the suit shop.
Facts of case can be summarized as below :-
02. It is stated that Shri. Shantaram Ambaji Shedge was
owner of the suit shop and was carrying on out the business of pan bidi.
The defendant/BMC has issued licenses under sec. 394 and 412-A of the
Mumbai Municipal Corporation Act, 1888, (‘the MMC Act’), for carrying
Pan-Bidi business.Shri. Shantaram Shedge transferred his right, title and
interest in respect of the suit shop and business carried therein in favour
of the plaintiff’s father Raghunath Lodu Turde, for consideration of
Rs.5000/- and executed the writing dtd. 01.01.1971. Thereafter, the
plaintiff’s father changed name of the shop as ‘Raghunath Pan House’
and also obtained Shops and Establishment certificate in his name.
Since the transfer, the plaintiff’s father was doing business of Pan-Bidi in
the suit shop. The plaintiff is having documents in that respect.
03. It is further stated that the plaintiff’s father was not
keeping good health, hence, he has given said business for conducting,
to Dharma Laxman Pujari in the year 1979, on monthly compensation
of Rs.275/-. Then, the plaintiff had filed suit No.1447/2009 against the
said Pujari, as he refused to vacate and handover the said Pan-Bidi shop
to the plaintiff, after death of his father. The said suit was compromised
and Consent Terms were filed. Thereby the plaintiff paid Rs. 45,000/- to
the said Pujari for surrendering and relinquishing his rights in respect of
suit shop. Accordingly, the said suit came to be disposed of in terms of
Consent Terms.
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04. It is further stated that the defendant/BMC threatened to
demolish the suit shop, hence, the plaintiff had filed Suit No.5829/1996
for perpetual injunction, restraining the BMC from demolishing the suit
shop, without following the due process of law. This Court by Order dtd.
17.09.1997, in Notice of Motion (NM) granted status-quo and the said
suit was disposed of as withdrawn.However, inspite of the above said
Order, Officer of the defendant, without following due process of law,
demolished the suit shop on 01.12.2010 and flouted the Order of this
Court. The defendant/BMC purposely demolished the suit shop, though,
the same is in existence since prior to year 1962.Thereafter, the plaintiff
approached to the Officer of ‘L’ Ward of the BMC, with request to
reconstruct the suit shop, but the Officers refused.Hence,the plaintiff
had filed Suit No.1667/2011, for declaration that demolition of suit
shop is illegal and for permission to reconstruct the same and for
mandatory injunction, directing the defendant/BMC to reconstruct the
suit shop. The Notice of Motion was served upon the defendant/BMC.
The defendant/BMC realized that it is guilty of contempt as it flouted
injunction Order in earlier suit No. 5829/1996. Ld. advocate for BMC
made the oral statement that if the plaintiff makes representation, it
will consider request of the plaintiff, but the said statement is not on
record. Thereafter, the plaintiff filed application in this Court that he
would make fresh application for reconstruction of the suit structure
and he withdrawn the said suit. Accordingly, suit No. 1667/2011,
disposed of as withdrawn with liberty to file fresh suit.
05. It is further stated that the thereafter, the plaintiff on
06.05.2014, submitted proposal for reconstruction along-with the
documents. However, the defendant/BMC by letter dtd. 12.08.2014,
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informed that the plaintiff has not produced the documents of his
possession of the suit shop in the year 2010 and refused the permission.
Again the plaintiff by letter dtd. 01.12.2014, submitted all the
documents, showing existence of the suit shop prior to 1962. The
defendant/BMC by letter dtd. 05.01.2017, denied permission to
reconstruct the structure on the ground that the plaintiff has not
produced documents showing existence of the suit shop in April, 1962,
inspite of producing documents prior to 1962. The defendant/BMC
failed and neglected to consider the said documents. Hence, the
plaintiff has approached to the Court and prayed for decree as prayed.
06. Inspite of sufficient opportunity, the defendant/BMC failed
to file Written statement (WS), hence in view of the roznama Order
dtd.30.01.2020, the suit proceeded without its written statement. Then,
in support of the claim, the plaintiff testified himself by filing affidavit
in lieu of examination-in-chief, at Exhibit 2 and also filed additional
affidavit in lieu of examination in chief below Exhibit-2/A. Apart from
the oral evidence the plaintiff relied on following documents :-
Sr.
No.
Particulars of documents Exhibit
Nos.
1 Roznama dtd. 06.05.2014 4
2 Order in Suit No. 5829/1996 5
3 Letters 6 to 17
4 Roznama in suit No. 1447/2009 18 colly.
5 Assessment bill 19
6 Letters 20 to 22
7 Sketch Plan 23
8 Letters 24 to 31
9 Order dtd. 06.05.2014 in Suit No. 1667/2011 32
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10 Pursis for withdrawal 33
11 License dtd. 06.04.1949 34 colly.
12 License dtd. 07.01.1981 35
13 Writing dtd. 01.01.1971 36
14 Extract dtd. 07.12.2009 37
15 License charges and Receipt 38 and 39
16 License No. 154400 40
17 Renewal License 41
07. On the basis of the plaint and evidence of the plaintiff,
following points are arises for determination, I have recorded my
findings thereon for reasons to follow :
Sr. No. POINTS FINDINGS
1. Does the plaintiff prove that suit shop was
in existence since prior to datum line of
01.04.1962 ?……………………………….. … In the negative.
2. Does the plaintiff prove that Officers of the
defendant/BMC on 01.12.2010,
demolished the suit structure without
following the due process of law ?……….. … In the negative.
3. Does the plaintiff is entitled for relief of
mandatory injunction, directing the
defendant/BMC to reconstruct the suit
shop or in alternative entitled for
permission to reconstruct the same?……… ... In the negative.
4. Does the plaintiff is entitled for alternative
accommodation in lieu of suit shop ?……. ... In the negative.
5. What Order and Decree ?…………………. ... Suit is dismissed
with costs.
AS TO POINT NO. 1 :
08. Prakash (PW-1), in his examination-in-chief reiterated
contentions in the plaint. It is the case of the plaintiff that his father late
Raghunath acquired right, title and interest in the suit shop from the
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JUDGMENT.
earlier owner Shantaram Shedge for consideration of Rs. 5,000/- as per
writing dtd. 01.01.1971. It is further case of the plaintiff that the said
Shantaram was carrying on the business of Pan-Bidi in the suit shop and
the BMC has issued necessary license under MMC Act on 25.01.1994. It
is further case of the plaintiff that the suit shop was in existence since
prior to datum line of 1962.
09. Ld. advocate for the plaintiff submitted that father of the
plaintiff- late Raghunath acquired the suit structure along-with business
of Pan-Bidi from the said Shantaram for consideration of Rs. 5,000/- as
per the writing executed. He further submitted that the said Shantaram
was carrying on business of Pan-Bidi and BMC had issued necessary
license. It is further submitted that the suit shop is in existence prior to
datum line and it is tolerated structure. While concluding the oral
submissions, the Ld. advocate filed written notes of arguments below
Exhibit 43.
10. Per contra, Ld. advocate for BMC submitted that plaintiff in
his cross-examination, clearly admitted that he has not produced any
document, showing the existence of the suit shop prior to 01.04.1962.
Further, he submitted that the plaintiff has relied upon various
documents i.e. Shop Act Licenses(Exhibit 34 and 35). However, all these
licenses are relating to Nasrapur Hair Saloon and not in respect of Pan
shop. He further submitted that the Shop Act License (Exhibit 38) is in
the name of said Shantram Shedge and same has been issued in the
year 1979. Thus, the documents relied by the plaintiff falls short to
prove existence of the structure prior to 1962. While concluding oral
submissions Ld. advocate filed written notes of arguments at Exhibit 44.
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11. I have given thoughtful consideration to submission made
by Ld. advocate of the parties. The plaintiff has filed present suit for
declaration that the demolition of the suit shop on 01.12.2010, by the
Officers of defendant/BMC is illegal and further prayed for mandatory
injunction and also prayed for alternative accommodation. It is the case
of the plaintiff that the suit shop was in existence since prior to datum
line of 01.04.1962. For that purpose, the plaintiff relied on Shop and
Establishment Certificate (Exhibit 34 and 35 colly). However, these
certificates are in respect of hair cutting saloon shop namely ‘Nasprapur
Hair Cutting Saloon’ issued in the name of Shantaram Shedge and Cycle
shop namely ‘Kohinoor Cycle Mart’. Thus, these shop and establishment
certificates are not helpful to the plaintiff to prove that the suit shop i.e.
Pan-Bidi shop was existed prior to 1962. The plaintiff further relied
upon the Shop and Establishment Certificate (Exhibit 38 and 39) in
respect of the Pan shop, in name of Shantaram Shedge. In the said
certificate name of Raghunath is written as ‘employer’. However, this
Shop and Establishment Certificate has been issued on 20.05.1978 for
the year 01.01.1979 to 31.12.1979 and for the year of 1975-1978
respectively. The plaintiff also relied on the license issued under Mah.
Prevention of Food and Adulteration Act, bearing No.154400, in respect
of said Pan shop in the name of Shantaram Shedage and
Raghunath.This certificate has been issued on 25.01.1994, situated near
Telephone Exchange, Ghatkopar(W).All these Establishment Certificates
(Exhibit 38 to 41) are subsequent to 1962. Thus, the document i.e.shop
and establishment certificate filed by the plaintiff falls short to prove
existence of the suit shop prior to datum line of 01.04.1962. Moreover,
Prakash (PW-1), in his cross-examination admitted that he has not
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produced any document to show that the suit shop was in existence
since prior to datum line. Thus, this unequivocal admission demolishes
the case of the plaintiff that the suit shop was existed prior to datum
line of 01.04.1962.Thus, I hold that the plaintiff has miserably failed to
prove the existence of suit shop prior to datum line of 01.04.1962.
Accordingly, I answer point No.1 in the negative.
AS TO POINT NO. 2 :
12. Prakash (PW-1) deposes that defendant/BMC threatened to
demolish the suit shop. Hence, he had filed LC No. 5829/1996 for the
permanent injunction, restraining the defendant/BMC from demolishing
the suit shop without following the due process of law. In that suit, the
plaintiff has taken out NM and this Court vide Order dtd. 19.10.1996,
directing the defendant/BMC not to demolish the suit shop, without
following due process of law. Thereafter, by Order dtd. 17.09.1997, the
suit came to be disposed of as withdrawn in view of the Order dtd.
19.10.1996, passed in NM No. 5343/1996. However, inspite of Order of
the Court dtd.01.12.2010, Officers of the BMC demolished the suit shop
without following the due process of law.
13. Ld. advocate for the plaintiff submitted that this Court by
Order dtd. 19.10.1996, passed in NM No. 5343/1996, restrained the
defendant/BMC from demolishing the suit shop without following the
due process of law. However, on 01.12.2010, the BMC demolished the
suit shop without following the due process of law. Thus,the demolition
is illegal and the BMC has flouted Order of this Court.
14. Per Contra, the Ld. advocate for defendant/BMC submitted
that the BMC has issued the notice in the year 2002, u/s. 314 of the
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MMC Act. The plaintiff has admitted in his cross-examination that the
defendant/BMC has issued the notice u/s. 314 of the MMC Act. In his
submission, this admission clearly shows that the suit shop has been
demolished by following the due process of law. In his submission, the
evidence on record falsifies the case of the plaintiff that the defendant
has demolished the suit shop without following the due process of law.
Ld. advocate for the BMC further submitted that pursuant to notice u/s.
314, the BMC has demolished the structure on 01.12.2010. Thus, the
BMC has followed the due process of law.
15. It is the case of the plaintiff that the defendant/BMC has
demolished the suit shop without following the due process of law.
However, the defendant/BMC denied illegal demolition of structure. It
is the case of the BMC that it has issued notice u/s. 314 of the MMC Act
on 08.04.2002 and thereafter, the suit shop has been demolished.
Admittedly, the BMC has not led evidence. However, Prakash (PW-1) in
his cross-examination, admitted that BMC has demolished the structure
in the year 2010, after issuing the notice u/s. 314 of the MMC Act. The
plaintiff has produced on record letter dtd. 05.01.2017, issued by the
Astt. Engineer, maintainance ‘N’ ward to the plaintiff, wherein it is
stated that BMC has demolished the suit shop on 01.12.2010, pursuant
to notice u/s. 314 of the MMC Act dtd. 08.04.2002. Thus, the evidence
on record establishes that the BMC has demolished the suit shop, after
issuing of the notice and followed the due process of law. In the
circumstances, I find no substance in the contention of the plaintiff that
the defendant has demolished the suit shop illegally and without
following the due process of law. Accordingly, I answer point No. 2 in
the negative.
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AS TO POINT NO. 3 :
16. The plaintiff is seeking the relief of mandatory injunction,
directing the defendant/BMC to reconstruct the suit shop or in alternate
prayer for re-construction of the suit shop. It is the case of the plaintiff
that the defendant/BMC has illegally demolished the suit shop without
following due process of law. Thereafter, the plaintiff has applied for
permission to reconstruct the suit shop. However, by letter dtd.
05.01.2017, the BMC refused permission to reconstruct the structure.
Hence, the plaintiff is seeking permission to reconstruct the suit shop.
However, it has came on record that the BMC had issued notice u/s. 314
of the MMC Act on 08.04.2002 and pursuant to said notice, demolished
the suit shop. The plaintiff is seeking relief of reconstruction of the
structure. Hence, it is useful to refer the judgment of Hon’ble Apex
Court in the matter of MCGM Vs. M/s. Sunbeam High Tech Developers,
in Civil Appeal No. 7627/2019, wherein the Hon’ble Apex Court
observed that it do not approve the action of the Municipal Corporation
or its Officials in demolishing the structures without following
procedure prescribed by law, but relief which has to be given must be in
accordance with law and not violative of the law. If the structure is an
illegal, eventhough, it has been demolished illegally, such 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 avoided. But
illegal structure cannot be permitted to be re-erected. In the case in
hand, the plaintiff has failed to prove the existence of structure prior to
datum line of 01.04.1962. Further, it has come on record that the
defendant/BMC has demolished the suit shop after giving notice to the
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plaintiff u/s. 314 of the MMC Act i.e. the BMC has demolished the
structure by following the due process of law. The plaintiff has not
produced permission or any document,showing legality of the structure.
Therefore, in view of facts of the case and observations of the Hon’ble
Apex Court, in above referred matter of M/s. Sunbeam High Tech, the
relief of reconstruction cannot be granted. Accordingly, I answer point
No. 3 in the negative.
AS TO POINT NO. 4 :
17. The plaintiff is seeking further relief of the alternative
accommodation in lieu of suit shop. It is the case of the plaintiff that the
notice structure is in existence since prior to 1962. However, defendant/
BMC demolished the suit shop without following the due process of
law. Therefore, the plaintiff is entitled for the alternate accommodation.
As earlier stated, the plaintiff has failed to prove existence of the suit
shop prior to datum line of 01.04.1962. The plaintiff is not established
that he is entitled for alternate accommodation in lieu of the suit shop.
There is no iota of evidence as to how the plaintiff is entitled for
permanent alternate accommodation in lieu of suit shop. Therefore, I
hold that the plaintiff failed to prove his entitlement for alternate
accommodation in lieu of suit shop. Hence, I answer point No. 4 in the
negative.
AS TO POINT NO. 5 :
18. The plaintiff has failed to prove the existence of structure
prior to datum line of 01.04.1962, and also failed to prove that the BMC
has demolished the structure illegally without following due process of
law and also failed his entitlement for alternate accommodation. Thus,
in view of my negative finding to point Nos. 1 to 4, the plaintiff is not
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entitled for the reliefs claimed and the suit is liable to be dismissed with
costs. Accordingly, I answer point No. 5 in the negative and pass the
following Order:
-: O R D E R :-
The suit is dismissed with costs.
(S.H. Salunkhe)
Mumbai. Ad-hoc Judge,
Dated : 03.03.2025. City Civil Court, Mumbai.
Directly typed on computer on :03.03.2025.
Draft given to HHJ on :11.03.2025.
Checked and Signed on :13.03.2025.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
on 15.03.2025 at 11.00 A.M.
Name of the Stenographer
Mrs. S.R.Mejari
Name of the Judge (with Court Room No.) HHJ Shri S.H. Salunkhe
(Court Room No.11).
Date of Pronouncement of Judgment/Order 03.03.2025
Judgment/Order signed by P.O. on 13.03.2025
Judgment/Order uploaded on 15.03.2025
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