Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.383/19 (LCS No.2984/18)
MHCC010009982019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.383 OF 2019
IN
LONG CAUSE SUIT No.2984/2018
Shri. Madan s/o. Shantaram Apte
& Anr. … Plaintiffs
Versus
M. C. G. M. ... Defendant
Appearance :
Mr. S. G. Shirsat, Advocate for plaintiffs.
Mrs. Mhatre, Advocate for defendant.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 24/03/2023.
O R D E R
. This suit is to challenge speaking order dated 4/8/2017
passed by defendant/Corporation under Section 55 of The Maharashtra
Regional and Town Planning Act (in short 'the M.R.T.P. Act'). The
plaintiffs have taken out present Notice of Motion for injunction
restraining defendant/Corporation from taking any action of demolition
without issuing fresh notice and fresh speaking order.
2] Brief facts of the plaintiffs' case are that their father had
purchased the plot of land bearing CTS No.624, 624/1 to 624/3 by a
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registered sale deed. The building knowing as 'Shreephal' having
ground plus first floor was in existence since prior to 1950. Suit
building has been assessed by the Corporation first time on 31/3/1961.
Thus notice structure is tolerated structure as same is in existence prior
to the datum line. However, the officer of defendant/Corporation issued
notice under Section 55 of the M.R.T.P. Act, alleging that the plaintiffs
have carried out unauthorized temporary development by erecting
unauthorized shed on the terrace using G/I sheet, M/S angle
admeasuring 11 X 9.5 Mtrs with height 2.5 Mtrs. thereby directing the
plaintiffs to demolish notice structure immediately.
3] It is further stated that it is further directed that if the
plaintiffs failed to comply notice they are liable to be prosecuted as per
the provisions of the M.R.T.P. Act. It is further stated that the officer of
defendant/Corporation has not complied the statutory provisions and
requirement before passing impugned speaking order. Defendant/
Corporation has not considered that notice structure is permanent in
nature and same is in existence since prior to the datum line, therefore,
notice as well as speaking order are nullity.
4] It is further stated after passing of speaking order period of
15 days is not given to the plaintiffs as such the speaking order is in
contravention of the provisions of the M.R.T.P. Act, therefore, the
plaintiff filed this suit. It is further stated that there is apprehension of
demolition of notice structure by defendant/Corporation during
pendency of suit. Therefore, interim injunction may kindly be granted.
5] It is further stated that the Corporation has not followed
and complied the provisions of law. During the pendency of suit on
21/4/2018 the Corporation demolished notice structure. Then on
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10/1/2019 officer Mr. Rajesh Kalgutkar threatened to demolish
permanent structure on the terrace without giving fresh notice and
speaking order. It is further stated that as per the speaking order dated
4/8/2017 the plaintiff demolished permanent shed on the terrace and
as such the Corporation cannot demolish again protected permanent
shed on the terrace.
6] The defendant/Corporation opposed Notice of Motion by
filing reply. At the outset, it is stated that the plaintiffs have not given
statutory notice as per the provisions of Section 527 of The Mumbai
Municipal Corporation Act (in short 'the M.M.C. Act'). Notice is
executive or administrative act and same is not open to challenge in the
Court of law. The plaint does not disclose cause of action. The plaintiff
has not given description of suit property, therefore, suit is liable to be
dismissed under OrderVII Rule3 of The Code of Civil Procedure (in
short 'the C.P.C.').
7] It is further stated that the plaintiffs have challenged notice
under Section 55 of the M.R.T.P. Act, however as per Section 149 of the
Act notice or order passed under the said Act cannot be challenged in
any Court of law. Therefore, this Court has no jurisdiction to try and
entertain present suit hence suit is liable to be dismissed.
8] It is further stated that defendant/Corporation received
complaint of unauthorized construction which is causing hurdle in the
right to assess. Then the officer of defendant/Corporation inspected suit
premises on 17/5/2017 and found that the plaintiffs have carried out
unauthorized construction as shown in the schedule. It is further stated
that thereafter notice under Section 55 of the M.R.T.P. Act was issued
to the plaintiffs to remove unauthorized development as mentioned in
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the schedule to notice within 15 days. Notice has duly been served upon
the plaintiffs on 20/5/2017. The plaintiffs have neither submitted any
documents proving authorization of notice structure or shown that
notice structure is in existence prior to the datum line. Therefore,
designated officer passed speaking order directing the plaintiffs to
remove notice structure immediately. It is further stated that
defendant/Corporation has followed due process of law. Notice
structure is without permission. It is further stated that the plaintiffs
requested that they have applied for permission and till decision of their
application no action to be taken against notice structure. It is further
stated that the plaintiffs submitted regularization application. This
clearly shows that notice structure is erected without permission and it
is illegal. On these grounds, defendant/Corporation prayed for dismissal
of Notice of Motion.
9] Points for determination alongwith findings thereon for the
reasons are as under :
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiffs have made out
prima facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiffs ? . . . No.
3) Whether plaintiffs would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
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:: R E A S O N S ::
AS TO POINTS No. 1 TO 3 :
10] The plaintiffs have taken out this Notice of Motion for
temporary injunction under OrderXXXIX Rule1 of the C.P.C. Plaintiffs
are seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
11] The plaintiffs have taken out this Notice of Motion for
temporary injunction. It is contention of the plaintiffs that their father
purchased the plot of land alongwith the building known as Shreephal
having ground and first floor and permanent shed on the terrace. It is
only contention of the plaintiffs that the building is in existence since
prior to 1950 and it is an old building. The notice structure has been
assessed for the first time on 31/3/1961. According to the plaintiffs,
assessment bill clearly shows that notice structure is in existence prior
to the datum line and it is a tolerated as per the policy of the M.C.G.M.
12] In support of the contention that notice structure is in
existence prior to the datum line, the plaintiffs relied on photocopy of a
sale deed dated 6/3/1987 executed by Shantaram Vasudev Apte.
However, in the said sale deed the description of the structure has not
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been given. It is merely stated that property bearing plot No.15, out of
survey No.163, Part1 together with structure 'Shreephal'. If the
structure ground plus first floor with terrace shed was in existence at
the time of sale deed, the plaintiff has not given reason for not giving
description of the property in the said sale deed. Thus, the sale deed
cannot be said to be a document proving description of the structure.
13] The plaintiffs have relied on assessment bill of the building
known as Shreephal. On perusal of said assessment bill it appears that
Shreephal building has been first time assessed on 31/3/1961. In the
assessment bill the description of the structure has not been given. As
such assessment bill is not sufficient to show existence of structure prior
to 1961. Defendant/Corporation contended that notice structure i.e.
unauthorized shed on the terrace using G/I sheet, M/S angle has been
constructed without permission of competent authority. Defendant/
Corporation has produced on record photocopy of application made by
the plaintiffs for issuance of permission for temporary shed. It is
contention of defendant/Corporation that after issuance of notice under
Section 55 of the M.R.T.P. Act on 18/5/2017 the plaintiffs filed
application for permission of temporary weather shed. Learned
advocate for defendant/Corporation submitted that if notice structure is
legal and authorized and same is in existence prior to the datum line,
then why the plaintiffs after issuance of notice have applied to the
Corporation, for permission of temporary shed. This clearly shows that
notice structure is illegal and unauthorised. The plaintiffs have not filed
rejoinder and denied contentions in reply affidavit.
14] On perusal of photocopy of the application, it appears that
the plaintiffs have filed application for permission of erection of
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temporary shed on the terrace. Had the notice structure been legal and
authorized the plaintiffs would not have made application for
permission of temporary shed. Moreover, it is contention of defendant/
Corporation that the Corporation has demolished unauthorised
temporary development. Defendant/Corporation has produced on
record photocopy of demolition expenses notice and photographs to
show that notice structure has been removed by defendant/
Corporation. The plaintiffs have not filed rejoinder and denied
contentions of demolition notice dated 18/5/2017 whereby the
Corporation has claimed amount of Rs.13,800/ towards the demolition
expenses. The plaintiffs themselves stated that the notice structure has
been demolished as per speaking order. This shows that the notice
structure is not in existence. In the circumstances, the plaintiff is not
entitled for temporary injunction as prayed.
15] Thus, it appears that notice structure has been demolished
by defendant/Corporation. The plaintiffs have not prima facie
established that notice structure is in existence prior to the datum line.
The plaintiffs have not produced any document, sanctioned plan or
permission of defendant/Corporation to show that notice structure has
been erected with prior approval of defendant/Corporation. On the
contrary, it appears that after issuance of notice by the M.C.G.M. under
Section 55 of the M.R.T.P. Act for demolition of notice structure, the
plaintiffs have applied to defendant/Corporation for permission of
temporary shed. This clearly shows that the plaintiffs have constructed
temporary shed on the terrace i.e. notice structure without permission
or approval of defendant/Corporation.
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16] The plaintiffs have challenged notice under Section 55 of
the M.R.T.P. Act on the sole ground that notice structure is of
permanent in nature and the provisions of Section 55 of the Act is not
applicable. However, as per the provisions of subsection (2) of Section
55 of the M.R.T.P. Act the decision of the Planning Authority is final
and said order cannot be challenged in the Court of law. It is further
contended by the plaintiffs that as per the M.R.T.P. Act the Corporation
ought to have given 15 days time after receipt of order and, as such,
there is no compliance of the provisions of the M.R.T.P. Act. However,
learned advocate for the plaintiffs have not shown under which
provision of the M.R.T.P. Act 15 days time is to be given after receipt of
order. The plaintiffs have not produced any document or permission of
competent authority to prove that notice structure is legal, authorized
and it is erected as per approval of defendant/ Corporation. It appears
that notice structure has been demolished by defendant/Corporation.
Thus, I hold that the plaintiffs have not made out prima facie case for
grant of temporary injunction. Balance of convenience does not tilt in
their favour. No irreparable loss or injury would be caused to the
plaintiffs by refusal temporary injunction. The points No.1 to 3 are,
therefore, answered in the negative and in answer to point No.4
following order is passed :
O R D E R
Notice of Motion No.383/2019 is dismissed.
Date : 24/03/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
06/04/2023 03:20 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 24/03/2023
ORDER Typed on 05/04/2023
ORDER signed by P.O. on 06/04/2023
ORDER uploaded on 06/04/2023
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