Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.373/2020 ..1.. L.C. Suit No.182/2020
MHCC010008442020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 373 OF 2020
(CNR NO. : MHCC010008442020)
IN
L.C. SUIT NO. 182 OF 2020
Abdul Hameed Peerbhai Jiwani )
Age : 74 years of Mumbai, Adult Indian )
Inhabitant carrying on business at )
Shop No.3, 81B81C, Morland Road, )
Madanpura, Mumbai – 400 008. )...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 alongwith affidavit and documents filed by defendant BMC. Heard
both the learned advocates.
-- 1 of 8 --
NM No.373/2020 .. 2 .. L.C. Suit No.182/2020
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 12.12.2019 and speaking order dated
10.01.2020 with respect to suit premises.
Description of Suit Premises
3. Shop No. 3, 8181C, Morland Road, Madanpura, Mumbai –
400 008 consisting of B.M. Walls on the three sides and shutter at front
with A.C. Sheet roof above admeasuring 436 sq.feet with mezzanine
floor admeasuring about 325 sq.feet on ground floor.
Description of notice structure as described in impugned notice
4. Unauthorised construction or Mezzanine floor adm.
11.90m X 3.30m and height of 2.50m from Ground using M.S. I
Section and Ladi Slab at Shop No.03, 81B81C, Morland 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
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
-- 2 of 8 --
NM No.373/2020 .. 3 .. L.C. Suit No.182/2020
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 either of following
points
1) At the stage of commencement of enquiry, viz. Authority has
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.
the tribunal has wrongly determined a jurisdictional question of fact or
-- 3 of 8 --
NM No.373/2020 .. 4 .. L.C. Suit No.182/2020
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. 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 Municipal Taxes prior to 19611962.
9. 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 addition with
effect from 01.04.2005. These recitals therefore are primafacie not
helpful to plaintiff at this stage.
10. The assessment extract issued by Assessment and
Collection Department upon which plaintiff has placed reliance further
primafacie shows that the Shop No.3 has mezzanine floor of carpet
-- 4 of 8 --
NM No.373/2020 .. 5 .. L.C. Suit No.182/2020
area of 30.02 sq.mtrs. This extract further shows that the age of the
building is 55 years as on 01.04.2015. 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.
11. It is pertinent to note that this extract shows the existence
of mezzanine floor of carpet area 30.02 sq.mtrs (i.e. 325 sq.feet
approx). The notice structure is with respect to mezzanine floor
admeasuring 11.90m X 3.30m (i.e. 427.65 sq.feet). It therefore prima
facie appears that measurement of mezzanine floor in this extract does
not tally with the description of the mezzanine floor described in the
notice structure. The age of the building is 55 years on 01.04.2015. The
age of mezzanine floor is also shown as 55 years as on 01.04.2015.
Though the last column of this extract is showing that this is addition,
since when this was addition is not reflecting on record. Defendants
BMC has not adduced any evidence on this point. When the extract is
showing the existence of mezzanine floor since last 55 years as on
01.04.2015, it means that the mezzanine floor is in existence since
1960. As Primafacie evidence is tendered on record to show that the
mezzanine floor of area described in plaint is in existence, and there
being nothing on record to show that though this is addition as per
defence of defendants, since when the reassessment is done and the
reassessment is on account of addition is not substantiated on record,
why plaintiff should be disbelieved at this stage. Defendants do not
take any pains to go through their own records. It is expected from
defendant to also verify their own records as is observed in the case of
Kamlabai Pandurang Sonawane (deceased) Thr Lrs Ranjana
Bhagwan Lahane & Anr V/s. Municipal Corporation of Greater
-- 5 of 8 --
NM No.373/2020 .. 6 .. L.C. Suit No.182/2020
Mumbai & Anr in Appeal from Order (St) No.18179 of 2017 decided
on 11.07.2017..
12. The existence of mezzanine floor is since prior 1961 as per
the extract of assessment and collection department. When defendant
has not taken pains to show by primafacie evidence that there was no
mezzanine floor as shown in the assessment extract, why plaintiff
should be disbelieved primafacie at this stage.
13. Because there is primafacie evidence on record on the
factum of existence of mezzanine floor prior 1960 in Shop No.3, the
discrepancy with respect to the measurement of mezzanine floor as
described by plaintiff and defendant BMC can be resolved only when
both the parties will lead evidence which can be done only at the time
of final hearing. Therefore, I accede with the arguments of learned
advocate for plaintiff that plaintiff has made out primafacie case.
14. The photographs tendered by defendant BMC primafacie
reflect the existence of mezzanine floor. The measurements of
mezzanine floor cannot be primafacie concluded on the basis of these
photographs which primafacie at this stage appear to be only dispute
in between plaintiff and defendant and which as discussed above, can
be resolved only when both parties will lead evidence at the time of
final hearing. Therefore, these photographs will not help defendant
primafacie at this stage.
15. As plaintiff has made out primafacie case, doubt is created
by plaintiff in the speaking order passed by defendant BMC. Therefore,
-- 6 of 8 --
NM No.373/2020 .. 7 .. L.C. Suit No.182/2020
I accede with the arguments of learned advocate for plaintiff as against
the arguments of learned advocate for defendant BMC. The notice of
motion of plaintiff deserves to be allowed. Consequently, I proceed to
pass following order
ORDER
1. Notice of Motion No.373/2020 is hereby allowed.
2. Defendant, its servants, agents or any other person claiming
through them is hereby restrained by order of temporary
injunction from implementing, enforcing the impugned notice
dated 12.12.2019 and order dated 10.01.2020 till final decision
of this suit.
3. Notice of Motion No.373/2020 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 & 10.03.2021.
Signed on :15.03.2021.
-- 7 of 8 --
NM No.373/2020 .. 8 .. L.C. Suit No.182/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 16.03.2021, 11.51 am.
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
15.03.2021
JUDGMENT/ORDER uploaded on 16.03.2021
-- 8 of 8 --