Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 369 OF 2019
IN
L.C. SUIT NO. 153 OF 2019
CNR NO. MHCC010007212019
Mohd. Ismail Abdul Majid Ansari .. Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 29th January, 2019
Mr. B.P. Shukla , ld. adv. for plaintiff
Mrs. Hajare, ld. adv. for defendant /BMC.
O R D E R
1. This N/m is taken out by plaintiff Mohd. Ismail Abdul
Majid Ansari for temporary injunction restraining defendant/BMC from
further demolition of suit premises i.e. structure admeasuring 15.19
mtrs x 12.19 mtrs consisting of ground plus two floors made of BM
walls, AC sheet roof, part and parcel of house no. 212, situated at CTS
No. 283, Sayyed Plumber Chawl, behind Kurla Police Station, Kurla
West Mumbai in pursuance of notice dated 17.01.2019 issued under
sec. 354A of MMC Act and speaking order dated 19.01.2019 passed by
DO of BMC. Plaintiff has also prayed for mandatory direction to BMC
to restore/ reconstruct above referred suit premises in the pendency of
suit.
2. Plaintiff has filed his affidavit in support of Nm contending
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that he has filed the suit against defendant/BMC for declaration and
injunction. On 19.01.2019 plaintiff was served with cryptic speaking
order passed by Designated Officer and in said order only 24 hours time
was given to plaintiff. It is contended that plaintiff had filed detailed
reply to the notice alongwith documents. However defendant officer
passed cryptic, non reasoned order holding that plaintiff failed to file
reply and documents of authorisation of notice structure. It is alleged
that on 21.01.2019 BMC officer namely Mr. Salunkhe the Jr Engineer
came to the suit premises alongwith demolition squad and police
protection. Said officer started to demolish suit premises. Family
members of plaintiff were present at suit premises and they requested
said officer not to demolish suit premises as plaintiff was in Court and
plaintiff was to serve copy of plaint and proceeding upon defendant
shortly showing that the disputed notice and speaking order were
challenged before Court. Thereafter above referred officer of BMC has
removed second floor terrace/ slab, damaged outer wall of second floor
by either puncturing or by removing the part of wall.
3. It is alleged that after damaging second floor of suit
premises the officer of defendant threatened plaintiff's family member
to remove remaining portion of suit premises and therefore plaintiff has
strong apprehension that remaining part of suit premises will be
demolished by officer of defendant illegally without considering reply
filed by plaintiff. It is alleged that demolition of suit premises carried
out by officer of defendant is malafide and illegal. Therefore plaintiff
has requested the Court to declare said demolition as illegal. Further
according to plaintiff this court is required to direct defendant's officer
to reconstruct the demolished portion of suit premises and to restore
the suit premises to its original position. Plaintiff has also prayed for
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temporary injunction restraining defendant's officer making demolition
of remaining portion of suit premises.
4. Defendant's officer Mr. Rameshwar Wakle has filed his
affidavit in reply and resisted the Nm contending that plaintiff has not
given detailed description of suit premises in the plaint. Further it is
contended that on usual round of inspection at Sayyed Plumber chawl,
Sub Engineer Mr. Rameshwar Wakle inspected suit site on 17.01.2019
and at that time he has noticed that there was unauthorised
construction of G+2 structure constructed by using M S I section,
siporex wall, ladi coba ladi slab admeasuring 15.19 mt x 12.19 mt
having approximate height of 2.74 mtrs. At the time of said inspection,
said construction work was found in progress hence officer of defendant
inquired and he found that said construction work was being done by
the owner without taking permission from competent authority.
Therefore said officer prepared inspection report, took photographs of
suit premises on 17.01.2019. It is contended that plaintiff failed to
produce construction permission in respect of notice structure and
further plaintiff has failed to produce documents of authorisation of
notice structure therefore disputed notice under sec. 354A of MMC Act
bearing No. L/DO4L/168/354AMMC Act/L37N01 dated 17.01.2019
was issued. Plaintiff was directed to produce the construction
permission of notice structure and documents of authorisation of said
structure within 24 hours. However plaintiff failed to give reply to said
notice and plaintiff has not produced construction permission for
unauthorised work within stipulated time period therefore on
19.01.2019 again suit site was inspected by concerned officer Mr.
Wakle and it was noticed that plaintiff was carrying out further
construction work inspite of stop work notice.
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5. It is alleged that plaintiff failed to stop further unauthorised
construction work. Hence the speaking order dated 19.01.2019 came
to be passed and plaintiff was directed to remove notice structure
within 24 hours. Said order is accepted by Mr. Javed Pefla on behalf of
plaintiff. It is contended that after issuing of stop work notice plaintiff
has not stopped further construction hence on 21.01.2019 defendant
demolished first and second floor slab of notice structure. Thereafter
plaintiff moved before this Court for ad interim relief on 22.01.2019 by
suppressing material facts from the Court. It is alleged that plaintiff
failed to show authorisation of notice structure and its existence since
prior to datum line. It is contended that notice under sec. 354A of
MMC Act was issued, reasoned final order was passed and therefore
defendant has taken the action of demolition by following due process
of law. Therefore according to defendant's officer Nm is necessary to
be dismissed.
6. It is further contended that plaintiff has annexed all
documents pertaining to house no. 212 and plaintiff has failed to
produce the documents of authorisation of said property. Therefore
according to defendant plaintiff is not entitled to the relief as prayed
for.
7. I have heard advocate Mr. Shukla and defendant's advocate
Mrs. Hajare at length. Admittedly on 21.01.2019 slab of second floor
and first floor of suit premises is demolished. The photographs filed by
plaintiff on record show that slabs of first and second floor are
demolished and in said photographs the iron angles of second floor are
visible. The photographs filed by defendant on record shows that on
19.01.2019 the slab of second floor of suit premises was remained to be
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constructed and walls of second floor also were half way constructed.
Thus it becomes clear that on 19.01.2019 second floor of suit premises
was not completely constructed and it seems that said construction is
completed on 21.01.2019. Even the walls of second floor were not
constructed on 19.01.2019 hence those walls were also constructed on
21.01.2019. Plaintiff has not filed construction permission of suit
premises and it becomes clear from the photographs dated 19.01.2019
that after receiving disputed notice plaintiff has continued the
construction of second floor of suit premises. There is no document on
record to show authorisation of construction of suit premises in such
circumstances even the walls of second floor of suit premises cannot be
protected because after receiving stop work notice plaintiff has
continued construction of second floor and completed construction of
second floor. Therefore at least injunction for protection of second floor
of suit premises cannot be granted. Disputed notice was issued in this
case on 17.01.2019. Said notice was accepted by one Mr. Javed Pefla
on behalf of plaintiff on 17.01.2019. Said notice shows that plaintiff
was directed to produce documents of authorisation of notice structure
within 24 hours. However reply of said notice which is filed on record
shows that said reply was filed by plaintiff on 19.01.2019. thus it
becomes clear that said reply was not filed within 24 hours stipulated
time given in disputed notice dated 17.01.2019. The speaking order
filed on record shows that said order was passed on 19.01.2019. There
is no record before the Court to ascertain the fact that whether said
order was passed prior to receiving the reply of notice or whether said
order is passed after receiving said reply because the reply and order
both they are having same date. Neither timing is mentioned on reply
in respect of submitting it nor the timing is mentioned on speaking
order in respect of passing said order. Therefore it is possible that the
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reply could not be reached to Designated Officer while passing speaking
order. However the reply dated 19.01.2019 was filed and thereafter
alleged demolition action of suit premises was carried out. I have
already come to conclusion that at least 2nd floor of suit premises
cannot be protected. However as the speaking order came to be passed
without considering the reply, I find that till passing speaking order
after considering the reply to notice filed by plaintiff, only the ground
and first floor of suit premises can be protected so that in future
plaintiff will not have opportunity to allege that without considering his
reply the action was carried out by BMC.
8. Plaintiff in this N/m has prayed for direction to BMC to
reconstruct demolished second floor and demolished slab of first floor.
Such a directions cannot be given at this primary stage of the suit. Yet
plaintiff has to prove on merits the authorisation of suit premises
further yet plaintiff has to prove the fact that disputed notice is illegal.
In such circumstances this Court cannot direct BMC at this stage to
reconstruct demolished portion of suit premises. However this Court
can protect the ground floor plus walls of first floor of suit premises till
passing speaking order by Designated Officer of BMC by considering the
reply dated 19.01.2019 filed by plaintiff. Hence I proceed to pass
following order.
O R D E R
1. N/m No. 369/2019 is partly allowed.
2. Defendant is temporarily restrained till passing reasoned
order by considering reply dated 19.01.2019 filed by
plaintiff in response to disputed notice from demolishing
the ground floor of suit premises and the walls of first floor
of suit premises.
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3. This temporary injunction is granted technically because
reply dated 19.01.2019 filed by plaintiff seems to be not
considered while passing speaking order. However it is
made clear that by this injunction order, Court has not
permitted plaintiff to make construction of slab of first floor
or to make construction of second floor. Therefore
plaintiff is directed to give undertaking to this Court that he
will not construct slab of first floor of suit premises and he
will not make any construction on second floor of suit
premises.
4. As this Court has already come to conclusion that even the
walls of second floor of suit premises cannot be protected
plaintiff himself should get removed those walls and if he
will fail to remove those walls defendant may take action as
permitted by law.
5. Defendant is directed that after passing fresh speaking
order, said speaking order should be produced before the
court and thereafter only further action, if any, required
should be carried out so that plaintiff can get opportunity
to challenge said order.
(K.P.Nandedkar)
Judge,
City Civil Court,
29/01/2019 Gr.Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
31/01/2019 Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 29/01/2019
Judgment/order signed by P.O on 31/01/2019
Judgment/order uploaded on 31/01/2019
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