Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.309 of 2019
CNR:MHCC010007542019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.309 OF 2019
IN
L.C.SUIT NO.187 of 2019
Mr. Sohrab Turab Khan .. Plaintiff
V/s
1 Municipal Corporation of Greater
Bombay & Anr. .. Defendants
Appearances:
Adv. Asad Bukhari for plaintiff.
Adv. Smt. Vidya Vyavahare for MCGM/ defendants.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR.
BOMBAY
(C.R. NO.05).
DATE : 14/10/2022.
ORAL ORDER
1 Plaintiff has taken out this Notice of Motion for grant
of temporary injunction thereby restraining the defendants from
taking any action pursuant to the impugned notice bearing
No.E/DO2E/211/351MMC ACT/E275NO1/13102018 and the
final speaking order dt.21/12/2018 by the Asstt. Commissioner, 'E'
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Ward in respect of notice structure as described in the suit, till
final disposal of the suit.
2 In the Notice of Motion, the plaintiff made submission
that he is residing in Room No.41, 2nd Floor, Aishabai Chambers,
Sofia Zubair Road, Byculla(W), Mumbai :400 008. The tenancy of
said premises was created by the landlord Bai Aishabai D/o Haji
Mohammed Kassam Charitable Trust and since inception, the
situation, condition and position of the tenanted premises of the
plaintiff is same as on today. The plaintiff has challenged the
impugned notice in which it has been alleged that he made illegal
construction of Kitchen of wooden partition and ladi coba slab in
common passage besides Room No.41 on 2nd Floor and
unauthorised window opening in the slopping roof in R.No.41 on
2nd Floor of said building. The notice has been challenged on the
ground that it is malafide and dehorse the provision of MMC Act
1888 in colourable exercise and abuse of the powers conferred
upon the defendants under said Act. The plaintiff through his
advocate's reply dt.22/10/2018 requested the office of defendant
No.2 to supply the sanctioned documents/approved plan and also
disclosed that he is entitled to respond said notice, hence
opportunity of hearing be granted to him. However, without
giving any opportunity to the plaintiff of being heard, the
defendant No.2 passed the order dt.21/12/2018. The notice has
been issued without visiting the notice structure for measurement
of suit site and it has been issued without following due process of
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law. The impugned notice sent by the defendant No.2 did not
contain approved plan/sketch of the alleged addition or alteration
allegedly carried out by the plaintiff. In absence of approved
plan/sketch of the alleged unauthorised additions or alterations,
the impugned notice is bad in law and null and void. The plan
issued by MHADA clearly shows the existence of suit structure. The
plan shows existence of window to the attic which is identical at
all the corners of the suit building and therefore, the contentions
raised in the impugned notice regarding illegal unauthorised
construction of window opening in the slopping roof in Room
No.41 is totally false.
3 The building is cessed building and the structure is
tolerated one. The assessment is done by the concerned
department. In said circumstances, the notice action is bad in law.
The defendants have threatened him of demolition of notice
structure and therefore, he is having reasonable apprehension of
demolition of notice structure by the defendants without following
due process of law. Hence, having established the prima facie case,
the plaintiff is entitled for grant of temporary injunction against
the impugned notice and speaking order.
4 Defendants have filed reply to the Notice of Motion
stating that a complaint dt.1/8/2018 was received from
Chaudhary Infra Real Estate and Developer Pvt. Ltd. against
unauthorised construction in the open space of gallery portion
besides Room No.41 on 2nd Floor of the building. Accordingly, the
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concerned officer of the defendant visited the suit site and found
unauthorised construction of kitchen of wooden partition and ladi
coba slab in the common passage besides Room No.41 and also the
unauthorised window opening in the slopping roof in Room No.41
as described in the impugned notice. The concerned officer
prepared panchanama and inspection report of said structure with
photographs. The documents regarding permission of the
construction or sanctioned plan were not shown to the officer
during said inspection. After carefully going through the inspection
report, panchanama etc., the Asstt. Commissioner, 'E' Ward
concluded that the owner/occupier has carried out unauthorised
construction as mentioned above and hence, issued the impugned
notice U/s.351 of MMC Act. The alleged construction is indicated
in the sketch shown overleaf mentioned in the schedule. Due
process of law has been followed by them. The plaintiff supplied
reply through advocate on dt.22/10/2018 but did not submit
documents to show authenticity of notice structure. Hence, the
detailed and reasoned speaking order came to be passed by the
Asstt. Commissioner, E Ward on dt.13/10/2018.
5 The plaintiff miserably failed to prove the authenticity
of notice structure by submitting authentic documents, approved
plan/permission in respect of notice structure, though it is
mandatory for him to prove the same. The plaintiff has not
produced a single document showing legality of structure or its
existence prior to 196264 i.e. datum line. Hence, plaintiff is not
entitled for grant of temporary injunction as prayed.
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6 From the facts and circumstances of the case, and
material placed on record, following points arose for my
determination and I have given my findings thereon with reasons
as below.
Sr.
No.
POINTS FINDINGS.
1 Whether prima facie case lies
in favour of plaintiff ?
No
2
Whether balance of
convenience lies in favour of
plaintiff ?
No
3
Whether plaintiff will suffer
irreparable loss, if Notice of
Motion is not allowed ?
No
4 What Order ? Notice of Motion is
dismissed.
REASONS
AS TO POINT NOS.1 TO 3.
7 All these points are interlinked with each other, hence,
for the sake of convenience and to avoid repetition of certain
points, all are discussed simultaneously.
8 Heard Adv. for plaintiff and Adv. for defendants at
length. Perused the Notice of Motion, affidavit in support of
Noticed of Motion, plaint and the documents annexed to the
plaint, compilation of documents of plaintiffs, reply of defendants
and the documents filed by them.
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9 In the present suit, as per explanation 'sufficient cause'
in Section 351 of MMC Act, it is the duty of plaintiff to prima facie
prove that the notice structure is constructed in accordance with
the provisions of Section 337 or 342 and 347 of MMC Act.
Otherwise, it is necessary for the plaintiff to prima facie show that
the notice structure as it exists today on site was in existence prior
to datum line.
10 In the present suit, the plaintiff's advocate has
advanced arguments that since from the inception of his tenancy,
the plaintiff has not made any addition or alteration to the notice
structure, so it is a tolerated structure. He is tenant for Room
No.41 of said building and the alleged construction exists in said
premises since that time. The Adv. for plaintiff has further argued
that the building cessed building showing oldness of construction.
It is assessed by the concerned department of defendant/
Corporation and the existence of the same can be very well
presumed from the correspondences between the owner of the
building and plaintiff. Moreso, the repair plan issued by MHADA is
a sufficient proof showing existence of notice structure. The
impugned notice does not contain the approved plan/sketch of
notice structure and therefore, the defendant's notice action is bad
in law as they miserably failed to establish as to how the notice
structure is deviated from the authorised original structure.
11 In support of said contention, the Adv. for plaintiff
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placed reliance on the authority in the case of Vadilal Maganlal
Trevadia V/s. Bombay Municipal Corporation and Ors. 2020(3)
Bom. C.R. 45. In said authority, while assessing the validity of
demolition of structure, Hon'ble High Court has held that “it is trite
that if a person or an authority alleges that a structure is
unauthorised one, must first be placed on record. Thereafter, it
has to be shown as to how the structure has deviated from the
authorisation or permission. Obviously, the initial burden would
be on the person or the authority who alleges that the structure is
unauthorised.”
12 Relying upon this authority, it has been argued that the
impugned notice do not contain said authorisation document and
therefore, the authority itself failed to discharge the initial burden
of proving deviation of structure from the original authorised
structure. In said circumstances, notice action is bad in law and
null and void.
13 Apart from this, the plaintiff has produced certain
documents on record including the rent receipts, electricity bills,
impugned notice, their reply, the correspondence by Bai Aishabai
D/o Haji Mohammed Kassam Charitable Trust dt.26/05/1990,
correspondence made by the plaintiff with the defendants, the
repair plans issued by MHADA authority, the tenant list of suit
building and the photographs etc.
14 I have perused all these documents and also gone
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through the documents produced by the defendants and the
contentions raised by them. As discussed earlier, the defendants
have come up with the case that the plaintiff is the tenant of Room
No.41 and the alleged construction is made in the common
passage not belonging to him. It is argued by Adv. for defendants
that there is FSI violation regarding said structure and the
structure is nowhere shown in the documents produced by the
plaintiff. The plaintiff is possessing Room No.41 only, then he
cannot use the common passage for his personal use. This
unauthorised structure is bad for fire purpose also as plaintiff is
using the same as his kitchen. The documents produced by the
plaintiff are not sufficient to establish legality of notice structure.
They have annexed sketch of notice structure with the impugned
notice and they have considered plaintiff's reply while passing the
speaking order. In absence of construction authorised documents,
the notice action cannot be challenged as illegal.
15 In support of said contention, the defendants have
produced the complaints received against the notice structure
dt.1/8/2018, 14/9/2018 and 18/9/2018, notice U/s.488 of MMC
Act, sketch and inspection report, impugned notice, plaintiff's reply
dt.22/10/2018 as well as 26/12/2018 and speaking order
dt.21/12/2018 with photographs.
16 Upon consideration of rival pleadings of the parties,
first of all it has been noticed that except the repairs plan received
from MHADA authority, the plaintiff has not produced any other
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documents to show the authorisation of notice structure. It is a
clear position of law that only sanctioned or approved plan by
defendant's competent authority is the document regarding
authenticate nature of construction. MHADA prepared plan is only
the plan for repairs of structure and the certificate attached to said
plan make it clear that said plan is only a provision for repairs
shown in the structure on the tentative basis and visual inspection
and assumption of the notice structure to the extent to repairs
which are likely to change during execution as per the decision of
authority. It means that such plans are being prepared tentatively
on the basis of visual inspection of the existing structure. It does
not show the actual and original authorisation of the existing
structure. Furthermore, said plan is not issued by the planning
authority of defendant. Therefore, said plans cannot be
considered as a sanctioned plan prepared by the competent
authority. Hence, same cannot be considered as a authenticate
document to establish existence of legal structure on the suit site.
17 It reveals that the plaintiff has produced the letter
issued by the erstwhile owner to him on dt.26/5/1990 having
reference of a room on the extreme end of the common passage
between Room No.41 and 51 in possession of plaintiff. However,
this is a document of the year 1990. So the same is not sufficient
to establish existence of said notice structure prior to datum line.
Secondly, the author of said document is the owner of notice
structure and not the competent authority. So even if the owner
referred said structure in the letter, the reference itself cannot be
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presumed to be the authentication of notice structure. Therefore, I
hold that prima facie said document is not sufficient to prove the
tolerated nature of notice structure.
18 The tenant list produced by the plaintiff shows that it is
the tenant list prepared for estimate purpose only. I would like to
mention that in general a specific purpose exists behind
preparation or execution of any specific document and except for
said purpose, the document cannot be used for other purpose,
unless specified in the document itself. The tenant list has been
prepared for estimate purpose and the repair plan has been
prepared for repair purpose. Therefore, those documents, even if
produced, cannot be considered as the documents proving
authorisation of notice structure.
19 So far as the applicability of the authority cited supra
to the present suit is concerned, I have gone through the above
authority and humbly opined that the same is not applicable here.
The record shows that undisputedly defendants have not tendered
sanctioned plan of the suit building alongwith the notice.
However, they have annexed the sketch of suit building and notice
structure overleaf the impugned notice. It shows the fair play on
the part of defendants and definitely release the burden of prima
facie case of unauthorised construction.
20 Secondly, I would like to state here that ownership
over the notice structure can never be the matter in issue in the
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suit regarding unauthorised construction. However, in the present
suit, it reveals that the plaintiff is the tenant for Room No.41 only.
It is undisputed that the alleged notice structure is made in the
common passage. Common passage cannot be occupied by the
adjoining room occupier for personal use. He cannot be supposed
to encroach upon the common passage. The plaintiff miserably
failed to plead and prove that the common passage where
structure is made is a part and parcel of Room No.41 but
continued with the pleading about lawful tenancy over Room
No.41 which is not disputed in the present suit. All the documents
relates to Room No.41 and not to the structure in the common
passage. As cited in the authority, the Corporation has to show the
deviation from original structure prima facie but at the same time,
the plaintiff is not excused from establishing prima facie case
showing his legitimate claim for coming over to the Court. “Who
seeks equity must do equity” and “Who seeks equity must come
with clean hands” are the settled principles of law. Here it is not
the case of the plaintiff that alleged construction is part and parcel
of Room No.41. Who made the construction is not the issue but
whether the construction is illegal is the issue. It is settled fact
that nobody can erect anything in the common passage belonging
to all occupants. If such construction is there, the same cannot be
sustained or asked to be protected. The conduct of the plaintiff is
immensely important while exercising discretionary justification
for grant of injunction. Here, the plaintiff failed to satisfy in which
capacity he is trying to protect the illegal structure without having
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lawful authority to occupy the same. He is using the premises i.e.
common passage without having any lawful document from the
owner and expecting observance of due process of law and law
abiding conduct from others, when his own conduct is blemish
one. Hence, on this alone ground of blemish conduct, I hold that
the plaintiff is not entitled to seek the equitable relief of injunction
from the Court and the facts in the authority cited supra are
altogether different from the facts of this suit. Hence, I hold that
the authority cited supra have no bearing on the present suit.
21 Moreso, none of the documents produced by the
plaintiff is sufficient to establish existence of notice structure prior
to datum line. Therefore, considering the aforesaid discussion, I
have arrived at the conclusion that the plaintiff failed to establish
existence of prima facie case in his favour. Prima facie the
impugned notice appears lawful and issued by following due
process of law and the impugned speaking order was passed
considering the reply given by the plaintiff. Hence, I hold that the
plaintiff miserably failed to establish existence of prima facie case
and balance of convenience in his favour. So the question of
irreparable loss do not arise. Hence, I have answered point Nos.1
to 3 in negative as 'No'.
AS TO POINT NO.4:-
22 In view of negative findings as to point Nos.1 to 3, I
hold that the Notice of Motion is liable to be dismissed. Hence,
following order is passed.
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ORDER
1 Notice of Motion No.309 of 2019 is dismissed.
2 Notice of Motion is disposed off.
(A.H.KASHIKAR)
Dt.14/10/2022. ADHOC Judge, City Civil Court,
Gr.Mumbai.
Dictated on :14/10/2022.
Typed on :14/10/2022.
Signed on :14/10/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
15/10/2022 01.27 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
14/10/2022.
JUDGMENT/ORDER signed by
P.O.on
14/10/2022.
JUDGMENT/ORDER uploaded on 15/10/2022.
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