Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.372/2020 ..1.. L.C. Suit No.100/2020
MHCC010008432020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 372 OF 2020
(CNR NO. : MHCC010008432020)
IN
L.C. SUIT NO. 100 OF 2020
Abdul Baasit Abdul Rauf Momin )
Adult Age : 31 years, Indian )
Inhabitant residing at flat No.D302, )
Rizwan Apartment, Aqsa Masjid Road, )
Near 24 Karat, Jogeshwari (W), )
Mumbai – 400 102 )...Plaintiff
Versus
The Municipal Corporation of Greater )
Mumbai, a Statutory Body established )
under the provisions of Mumbai Municipal )
Corporation Act, 1888, having their Head )
Office at Mahapalika Building, Mahapalika )
Marg, Fort, Mumbai – 400 001 )
Through the Assistant Municipal )
Commissioner, 'E' Ward Office )....Defendant
APPEARANCE:
Ld. Adv. Megha Shigavan for the plaintiff.
Ld. Adv. Vidya Vyavahare for the defendant/MCGM.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 8th MARCH, 2021.
O R D E R
Read the plaint, Notice of Motion, affidavit filed by plaintiff
in support of notice of motion, documents filed along with plaint, reply
filed along with affidavit and documents filed by defendant BMC. Heard
both the learned advocates.
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2. The plaintiff vide this notice of motion is praying to
restrain defendant from executing, implementing the impugned notice
u/sec.351 of BMC Act dated 02.12.2019 and speaking order dated
31.12.2019 with respect to suit premises.
Description of Suit Premises
3. Gala No.144 to 147 situate at Lohe Ki Chawl Workshop in
Land bearing Survey No.3558, 1A/3562, 1B/3564 and 1A/3564 situate
at Maulana Azad Road, Byculla (West), Mumbai – 400 008.
Description of notice structure as described in impugned notice
4. Unauthorised increase in plinth height of gala adm 15.00m
X 8.70m by 0.60m from ground level 2) Unauthorised construction of
mezzanine floor adm. 15.00m X 8.70m and height of 2.70m from
plinth level using M.S. ISection and Ladi Slab. 3) Unauthorised vertical
extension to the existing structure by 1.00m using Brick Masonry Walls
4) Unauthorised construction of 03 nos. of partition walls adm 8.70m
and avg. height of 6.00m using Brick Masonry walls at Gala No.144,
145, 146 & 147, 216/218 Lohe Ki Chawl, Maulana Azad Road,
Madanpura, Mumbai, Maharashtra – 400 008, India.
5. As plaintiff has challenged the impugned notice u/sec.351
of MMC Act and the speaking order, it is for plaintiff to primafacie
show that order is really not an order under the Act but a nullity.
6. The observations in Yogesh Meghaji Gada Ors V/s. The
Municipal Corporation of Greater Mumbai as
MANU/MH/0465/2014 throw light as to when order of the tribunal
will be nullity. The relevant observations in citation are quoted as
under
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A review of the relevant authorities on the point leads to the
following conclusions;
(1) An exclusionary Clause using the formula 'an order of
the tribunal under this Act shall not be called in question in
any Court' is ineffective to prevent the calling in question of
an order of the tribunal if the order is really not an order
under the Act but a nullity.
(2) Cases of nullity may arise when there is lack of
jurisdiction at the stage of commencement of enquiry e.g.,
when (a) authority is assumed under an ultra vires statute ;
(b) the tribunal is not properly constituted, or is disqualified
to act; (c) the subjectmatter or the parties are such over
which the tribunal has no authority to inquire; and (d) there
is want of essential preliminaries prescribed by the law for
commencement of the inquiry.
(3) Cases of nullity may also arise during the course of or
at the conclusion of the inquiry, These cases are also cases of
want of jurisdiction if the word 'jurisdiction' is understood in
a wide sense. Some examples of these cases are (a) when the
tribunal has wrongly determined a jurisdictional question of
fact or law; (b) when it has failed to follow the fundamental
principles of judicial procedure, e.g. has passed the order
without giving an opportunity of hearing to the party
affected; (c) when it has violated the fundamental provisions
of the Act, e.g., when it fails to take into account matters
which it is required to take into account or when it takes into
account extraneous and irrelevant matters; (d) when it has
acted in bad faith; and (e) when it grants a relief or makes
an order which it has no authority to grant or make; "as also
(f) when by misapplication of the law it has asked itself the
wrong question.
7. In view of Sec.515 A of MMC Act, this court lacks
jurisdiction to decide any suit in which the notice u/sec.354 A and 351
is impugned except when the case is made out as is observed in
aforesaid citation. Therefore, plaintiff has to show that either of
following points
1) At the stage of commencement of enquiry viz. Authority is
assumed under an ultra vires statute or that the tribunal is not properly
constituted, or is disqualified to act or that the subjectmatter or the
parties are such over which the tribunal has no authority to inquire or
that there is want of essential preliminaries prescribed by the law for
commencement of the inquiry.
2) During the course of or at the conclusion of the inquiry viz.
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the tribunal has wrongly determined a jurisdictional question of fact or
law or that it has failed to follow the fundamental principles of judicial
procedure, e.g. has passed the order without giving an opportunity of
hearing to the party affected or that it has violated the fundamental
provisions of the Act, e.g., when it fails to take into account matters
which it is required to take into account or when it takes into account
extraneous and irrelevant matters or that it has acted in bad faith or
that it grants a relief or makes an order which it has no authority to
grant or make or that by misapplication of the law it has asked itself
the wrong question.
8. In present case, it is not case of plaintiff that rules of
natural justice are violated. The impugned notice u/sec.351 is issued
which was replied by plaintiff and thereafter impugned speaking order
is passed by the defendant BMC.
9. Learned advocate for plaintiff pointed out that the letter of
Assistant Assessor & Collector E Ward showing the first date of
assessment with respect to suit premises has recitals of the property
being assessed to Municipal Taxes prior to 19611962.
10. No doubt the aforesaid letter is having recitals that the
property is assessed to Municipal Taxes since prior to 19611962.
However, the same is with respect to entire property and not with
respect to notice structure. In order to get benefit of this letter, plaintiff
has to primafacie show that the notice structure existed in year 1961
1962. It is further pertinent to note that this letter has primafacie
recitals that there is revision of assessment on account of alteration,
renovation and addition taking effect from 01.04.1996. These recitals
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therefore, primafacie are fatal to plaintiff.
11. The assessment extract issued by Assessment and
Collection Department upon which plaintiff has placed reliance further
primafacie shows that the gala Nos. 144 and 145 have mezzanine floor
of built up area of 62.40 sq.mtrs. Similarly, the gala Nos. 146 and 147
has mezzanine floor of built up carpet area admeasuring 62.40 sq.mtrs.
This extract further shows that the age of the building is 49 years as on
01.10.2010. In the column of penalty no penalty charges are levied.
Therefore, according to learned advocate for plaintiff, this extract helps
plaintiff to show primafacie case.
12. It is pertinent to note that though this extract shows the
existence of mezzanine floor of carpet area 62.40 sq.mtrs, the notice
structure is with respect to 15.00m X 8.70m. Therefore, measurements
in this extract does not tally with the description of the mezzanine floor
described in the notice structure. Furthermore, this extract does not
show the existence of item No.1,3,4. Therefore, authorization of all
items at Sr No.1 to 4 of notice structure is not depicting in this extract.
The age of the building may be 49 years on 01.04.2010 but whether all
the notice structure was existing since prior to 19611962 cannot be
concluded on the basis of this document.
13. Furthermore, as is observed in case of Sidharam M.
Yanagandul V/s. State of Maharashtra 2007 (2) ALL MR 317
decided on 26.09.2006 BMC assess both authorized and unauthorized
structure. Only because the structure is assessed cannot prove the
authorization of notice structure. On this count also the arguments of
learned advocate for plaintiff cannot be accepted.
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14. Learned advocate for plaintiff had also relied upon the the
photocopy of DCPR2034 wherein it is said that the height of plinth
shall be not less than 30cms., the height of the Assembly halls,
residential hotels of all types, institutional, educational, industrial,
hazardous or storage occupancies, departmental stores, malls, entrance
halls and lobbies to departmental stores and assembly, Data Centre,
Data Ware house, Large/Big Box Retailors is permissible upto
maximum 6 mtrs in height. It was argued that in present case it was
alleged by defendant BMC that the height of the gala is increased by
0.60m. Therefore, according to her, it will be 6.45cms which is
permissible as per DCPR Rules.
15. It is pertinent to note that though the increase in height is
permissible under DCPR Rule and cannot be less than 30cms as is
argued by learned advocate for plaintiff, the question is not of height
but of taking permission of defendant BMC. The DCPR Rules nowhere
says that the construction of plinth will be without permission. Plaintiff
arguing in this fashion implies that she is admitting to have increased
the height of plinth by 0.60m as is alleged in notice structure but
further failed to show the requisite permission or authorization.
Therefore, this argument of plaintiff will also not favour plaintiff.
16. The photographs tendered by defendant BMC primafacie
reflect that the unauthorized construction is done by plaintiff. These
photographs are not rebutted by plaintiff by tendering any counter
photographs to show that there was no such unauthorized construction.
The photographs primafacie reflect the notice structure. Therefore, on
this count also the arguments of learned advocate for plaintiff cannot
be accepted.
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17. Much hue and cry was made with respect to the fact that
the notice structure described in the notice issued u/sec.354A dated
11.09.2019 and the speaking order dated 25.10.2019 being removed
and therefore the suit was disposed of on 18.11.2019 and was further
argued that the description given in the speaking order dated
25.10.2019 and the impugned notice dated 02.12.2019 are not
consistent.
18. It is important to note that the earlier notice dated
11.09.2019 was issued u/sec.354A of MMC Act. Therefore, at that time
there was ongoing construction alleged by defendant BMC. On
25.10.2019 the speaking order did not restrict to the items suggested in
the impugned notice but there were addition of items. Thereafter, on
18.11.2019 as plaintiff had removed notice structure which were
rolling shutters as per notice dated 11.09.2019, the L.C. Suit and notice
of motion were disposed of with respect to notice dated 11.09.2019
and liberty was given to defendant BMC to initiate action if any, as per
the speaking order dated 25.10.2019. Accordingly, the impugned
notice in this suit u/sec.351 was issued.
19. Even if there is inconsistency in the speaking order dated
25.10.2019 and the impugned notice on some items appearing prima
facie, same cannot be ground to make out primafacie case in favour of
plaintiff. Plaintiff has to first show that the notice structure in the
impugned notice existed prior datum line by primafacie evidence on
record and thereafter can point out the deficiencies in the notice and
speaking order. As discussed above, learned advocate for plaintiff did
not primafacie substantiate on record that all item No. 1 to 4 in notice
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structure existed prior datum line. Therefore, merely pointing out
deficiencies in the notice and speaking order will not help plaintiff. The
observations in the case of Mohamed Hussain Gulam Ali Shariffi V/s.
Municipal Corporation of Greater Bombay & Ors 2017 (1) Civil
Court Cases 709 (S.C.) decided on 09.12.2016 will squarely apply to
present case.
20. Plaintiff had replied to the impugned notice however there
are no documents on record to primafacie show the existence of item
No.1 to 4 in the notice structure. Therefore, vague reply without there
being document in support will not help plaintiff. As no jurisdictional
error is pointed out no fault can be primafacie found in the speaking
order passed by defendant BMC. Therefore, I cannot accede with the
arguments of learned advocate for plaintiff. I accede with the
arguments of learned advocate for defendant BMC. The notice of
motion of plaintiff deserves to be dismissed. Consequently, I proceed to
pass following order
ORDER
1. Notice of Motion No.372/2020 is hereby dismissed.
2. Costs in cause
3. Notice of Motion No.372/2020 is accordingly disposed of.
(SMT C.P. Jain)
Adhoc Judge, (C.R.No.06)
Date : 08.03.2021 City Civil Court, Gr. Bombay
Directly Dictated on Com :08.03.2021.
Checked on :09.03.2021.
Signed on :10.03.2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 12.03.2021, 03.49 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
08.03.2021
JUDGMENT/ORDER signed by
P.O. on
10.03.2021
JUDGMENT/ORDER uploaded on 12.03.2021
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