Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.400 of 2020
CNR:MHCC01-001013-2020
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.400 OF 2020
IN
L.C.SUIT NO.285 OF 2020
Mr. Shaikh Abdul Kased .. Plaintiff
V/s.
1. The Municipal Corporation of
Greater Mumbai & Anr. .. Defendants
Appearance:
Adv. A.R. Pandey for plaintiff.
Adv. Mr. Bibhishan Sutar for MCGM/ defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR.
BOMBAY
(C.R. NO.05).
DATE : 18.08.2022.
ORDER
1 The plaintiff has taken out this Notice of Motion for
grant of temporary injunction thereby restraining the defendants
from demolishing the suit building known as 'SNK Kolkatawala
Building' (formerly known as 'Prem Bhavan', 'Narayan Mansion',
'Parda House' and 'Hazra House') bearing building No.11 situated
at Phophalwadi, Kalbadevi Road, Bhuleshwar, Mumbai:400 002
and/or any portion thereof pursuant to the suit notice
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2 N.M.No.400 of 2020
dt.12/06/2015 U/s.354A of MMC Act and impugned order
dt.02/01/2020 till final disposal of the suit.
2 It is submitted by the advocate for the plaintiff that in
the impugned order dt.02/01/2020, the plaintiff is given 14 days
time for demolition of notice structure which expired on
dt.23/1/2020. The defendants have violated all the norms of
MMC Act. Notice is bad, illegal, null and void and
unconstitutional. If the notice action is not stopped by way of
interim injunction, great hardship and inconvenience would be
caused to the plaintiff and his tenants as there are several tenants
residing in this building alongwith their families and they will
became shelterless and come on road if demolition takes place.
Plaintiff has made out prima facie case and balance of convenience
in his favour. Hence, this Notice of Motion is taken out.
3 Elaborating the same line of action, it is stated in the
notice of motion that the plaintiff is owner and landlord of the
disputed building having the notice structure. Building is a
commercial building which comprises of ground plus four upper
floors occupied by 32 tenants. Building is old structure
constructed prior to the year 19611962. In or about July 2013, a
proposal was submitted by the Architect of the plaintiff for repairs
to the suit building and Municipal Commissioner gave approval on
dt.11/7/2013. IOD was issued by the office of defendant on
dt.2/9/2013 with sanction plan. No objection was issued by
M.B.R and R Board. Later on, certain amendments were made as
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3 N.M.No.400 of 2020
it was noticed that first portion of suit building is also in repairable
condition and subsequently, the Architect of the plaintiff by letter
dt.19/4/2014 sought permission of M.B.R and R Board to
demolish dilapidated portion and simultaneously obtained
approval from the defendant No.1 and by letter dt.20/4/2014,
submitted amended plan of suit building for scrutiny and
approval. The defendant No.1 by its letter dt.28/4/2015 approved
amended plan submitted by the Architect of the plaintiff on the
terms and conditions as mentioned therein alongwith sanction
plan dt.28/4/2015 under File No.EBP/6257/C/AR. Accordingly,
all the documents demonstrate that the suit building was repaired
by the Architect of the plaintiff with due sanction and approval of
concerned authorities. Even though the defendants have illegally
acted upon the professional complaints and issued impugned
notice of stop work to the plaintiff U/s.354A of MMC. Notice is
challenged on the ground that it is absolutely vague and no
particulars of alleged unauthorised work are mentioned in the suit
notice. It is issued without visiting the suit building. No show
cause notice has been issued by the defendants to the plaintiff
before issuing impugned notice. The construction over the suit site
is already over and no work was in progress at the time of issuance
of impugned notice. Reply given by the plaintiff to said notice has
not been considered by the defendants. Plaintiff has filed suit
bearing LCS No.1366 of 2015 and taken out Notice of Motion
No.2322 of 2015. The Court directed them to maintain status quo
and then directed the defendants to pass speaking order
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4 N.M.No.400 of 2020
considering the reply given by the plaintiff. Now the speaking
order is passed by the defendants. However, the reply given by
the plaintiff has not been properly considered by them. Principles
of natural justice are not followed by the defendants while
undertaking notice action. Plaintiff has filed rejoinder after receipt
of reply given by the defendants to this notice of motion and
elaborated how the construction is complete in authorised way.
4 With these submissions, plaintiff's advocate has stated
that the notice action is bad in law and taken out for the structure
which is already complete as per authorisation and sanction plan
of dt.28/4/2015. Hence, it is prayed that notice of Motion may be
made absolute as prima facie case and balance of convenience are
made out by the plaintiff.
5 Defendants have filed reply to the Notice of Motion
opposing the same. It is specifically contended that on
dt.13/05/2015, officers of defendant sent letter to Assistant
Engineer(Building Proposal CityIII) about several complaints
received regarding unauthorised work being carried at building
No.11, C.S.No.1678 i.e. suit site. After receipt of said complaints,
officers of defendants visited and inspected the suit site and found
that the owner/Architect has carried out unauthorised
reconstruction work under the guise of repair of work beyond
approved amended plan dt.28/04/2015 without endorsing the CC
and fulfilling the compliance of amended approval letter
dt.28/05/2015 sanctioned by office E.E.(B.P) CityIII. On site
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inquiry, they came to know that the work is being carried out
beyond approved plan dt.28/04/2015 and therefore, they asked
the owner/Architect/Supervisor at the suit site to produce the
permission for unauthorised reconstruction work under reference.
Said permission was not shown at the suit site. Inspection report
dt.12/06/2015 is produced on record. Construction work was not
as per sanction plan. Hence, notice U/s.354A of MMC Act was
issued and the same was acknowledged by one Bashir Shaikh on
behalf of the owner/Architect. Plaintiff was directed to stop
erection of said work forthwith and produce the permission
documents within 24 hours. Plaintiff has given reply by letter
dt.15/06/2015 through his advocate. However, said reply is not
satisfactory. Upon visit to the suit site, the officer of defendants
observed that i) the building under reference comprises of ground
plus 4th floor with R.s. Joists and ladi coba structure, ii) it is also
seen that the work was found complete except external plaster
tiling, finishing activities etc. Building is not found occupied by
the tenants, iii) as per the available record, the non talling portion
i.e. room No.17 and 20 on 4th floor are found partly demolished
which was not shown in latest amended plan approved on
28.04.2015, iv) as approved amended plan, v) width of staircase
on site was found inadequate and the width of staircase is not
mentioned in the latest approved amended plans. It is further
observed from the record that as per record S.R.D.P of ‘C’ ward
land bearing C.S.No.1678 of Bhuleshwar division is entirely
reserved for Municipal Maternity Home(M.H.) and is affected by
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6 N.M.No.400 of 2020
9.14 mt wide D.P. road. Said land under reference is situated in
residential zone. It is further stated that earlier plan was again
amended by Architect of plaintiff and the amended plan was
approved on 28/04/2015 subject to conditions mentioned in the
amended approval letter such as, demarcation of the setback line
from the office of A.E.(Survey)/A.E.(D.P.)A.E.(T&C), submission
of revised structural design as per amended plans etc. However,
width of staircase is not mentioned in the approved plans and also
system twin columns is not incorporated in the approval condition
and in the approval plans. The defendant/Corporation has given
details as to how the construction over the suit site was not as per
plan of dt.28/04/2015. It is further contended that as per
amended plans under No.EB/6257/C/AR dt.28.04.2015 wherein
twin columns were supposed to be provided as to hand over the
set back area. However, on site system of twin columns was not
observed. Width of staircase on site was observed inadequate and
the width of staircase is not mentioned in the approved amended
plan. They have considered the reply of plaintiff as per directions
given by the court in Suit No.1366 of 2015 and after considering
the said reply, speaking order came to be passed on dt.2/1/2020.
It is stated that plaintiff unauthorisedly reconstructed the notice
structure under the guise of repair permission of said structure.
Construction was going on at the time of inspection. Plaintiff
failed to produce any authenticate document in respect of
unauthorised construction of notice structure and therefore,
neither prima facie case lies in his favour nor balance of
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7 N.M.No.400 of 2020
convenience tilts in his favour. Hence, Notice of Motion is liable to
be dismissed with costs.
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
stands 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 advocate for the plaintiff and advocate for the
defendants at length. I have gone through the contents of motion
rejoinder, reply given by the defendants and affidavits sworn by
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8 N.M.No.400 of 2020
both the parties. I have also gone through the document produced
by both the sides as well as relevant circulars issued by
defendant/corporation and Government from time to time and the
authorities cited by the advocate for the plaintiff.
9 It is pertinent to note that in order to prove the
existence of prima facie case in the case regarding unathorised
construction, plaintiff has to prove legality of notice structure
either by way of producing permission documents or some
documents showing existence of notice structure prior to datum
line making it as tolerated structure. Here, in the present case,
notice under challenged is the notice issued by the defendants
U/s.354A of MMC Act. Notice U/s.354A of MMC Act is the notice
issued for stop work. It itself shows continuation of on going work
on the suit site. In order to disprove said notice, the plaintiff is
required to prove that either no work was at all commenced and
continued by him or work is already complete as per the sanction
plan. Here, plaintiff has come up with case that he has already
completed repair work of disputed suit as per amended sanctioned
plan of dt.28/4/2015. Construction was complete at the time of
issuance of notice as per sanction plan. Therefore, notice action is
bad in law, illegal, null and void.
10 In order to establish this line of pleading, the plaintiff
has produced certain documents on record such as photocopy of
electricity bills of the suit building, photocopy of IOD issued by
defendants dt.02/09/2013, duly sanctioned and approved plan
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9 N.M.No.400 of 2020
dt.2/9/2013, letter dt.4/10/2013 written by Deputy Chief
Engineer, ZoneI, of M.B.R. & R. Board, Mumbai, photocopy of the
commencement certificate dt.6/1/2014, photocopy of the letter
dt.5/4/2014 of the Deputy Chief Engineer, ZoneI, of M.B.R. & R.
Board, Mumbai, photocopy of the letter dt.19/04/2014, photocopy
of letter dt.20/4/2014, photocopy of letter dt.28/4/2015 of
Executive Engineer, Building Proposals with duly approved plan
dt.28/4/2015, copy of direction of the Executive Engineer
dt.18/5/2015, motion notice dt.12/06/2015, order dt.14/11/2019
passed in Notice of Motion No.2333 of 2015 in L.C.S Suit No.1366
of 2015, letter dt.9/1/2020 of plaintiff, impugned order
dt.2/1/2020, circular/guideline of defendant No.1 on notice
U/s.354A of MMC Act, judgment dt.2/12/2002 passed in Appeal |
From Order No.998 of 2002 and letter of plaintiff’s advocate
dt.13/1/2020.
11 In order to given counter blow to these documents,
the defendants have produced the copy of inspection with
photographs dt.09/06/2015, copy of motion notice dt.12/6/2015,
copy of reply of plaintiff dt.15/6/2015, copy of order dt.4/6/2015,
copy of speaking order dt.2/1/2020, copy of letter dt.22/8/2015
regarding notice U/s.52 r/w. 43 of MRTP Act, photographs
dt.26/12/2019 with photographs before passing the impugned
order are also placed on record showing that though court has
passed order of status quo, the work is in progress on
dt.26/12/2019. Along with this, the defendants have produced
circular dt.15/3/2012 which has been issued by the corporation
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superseding the instructions contained in circular dt.11/8/2000
and 29/4/2006.
12 Plaintiff has filed rejoinder to the reply given by the
defendants and placed reliance on following authorities.
1) Appeal from Order (ST) No.5261 of 2020,
Shaikh Abdul Kased V/s. Municipal Corporation of
Gr. Mumbai, dt.27th June, 2022.
2) Appeal from Order No.113 of 2006,
Yamunabai Mahadev Shinde V/s. Municipal
Corporation of Gr. Mumbai and Ors.,
dt.17/2/2006.
3 Appeal From Order No.534 of 2003 with Civil
application No.757 of 2003, Salim anwar
Mohammed Amin Siddique V/s. Municipal
Corporation of Gr. Bombay, dt.27th August, 2003.
4 Appeal From Order No.552 of 2002, Shree
Bharat Nagar Swetambar Murtipujak Jain Sangh
and Ors. V/s. Municipal Corporation of Gr.
Bombay, dt.19th June 2002.
5 Appeal From Order No.99 of 2013 with Civil
Application No.127 of 2013, M/s. Shah and
Company V/s. The Municipal Corporation of Gr.
Mumbai., dt.31st January 2013.
6 Appeal From Order No.257 of 1999,
Goverdhan Ramnaresh Singh v/s. The Municipal
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11 N.M.No.400 of 2020
Corporation of Gr. Mumbai, dt.15/4/1999.
7 Appeal From Order No.1906 of 2001, Civil
Application Stamp No.1907 of 2001 dt.17th
January 2o01.
8 Civil Appeal No.4964 of 2010 arising out of
SLP(Civil)No.27153 of 2008 East Cost railway and
Anr. v/s. Mahadev Appa Rao and Ors. dt.24th
October, 2019.
13 I have gone through all the authorities cited by the
plaintiff.
14 As stated above, in order to get relief at interim stage
to the execution of notice action U/s.354A of MMC act, plaintiff
has to establish prima facie that either there was no on going
construction at the suit site at the time of issuance of notice and
inspection of the suit site or work which was in progress was in
accordance with permission sanctioned by the competent
authority. According to the plaintiff, suit building is in existence
prior to datum line 19611962 and that he has carried out is the
100% repairs to the dilapidated service building as per sanction
plan of dt.28/4/2015. The record shows that plaintiff has
produced the copy of sanction plan dt.2/9/2013 as well as
28/4/2015. Copy of IOD dt.2/9/2013 is also produced. It is
necessary to note that sanction plan dt.2/9/2013 is not in
question now as according to the plaintiff himself after getting
sanction, he has amended the plan. Said amended plan has been
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approved by the Corporation i.e. Executive Engineer, Building
Proposals(City)III under file No.EB/6257/C/AR dt.28.04.2015.
So plan which is under consideration here is the plan of
dt.28/4/2015. Secondly, it is necessary to determine whether
construction was going on at the spot and whether language of
impugned notice and order is vague. Secondly, it is to be
considered whether the Corporation has followed due process of
law while issuing notice and impugned order and whether reply
given by the plaintiff has been considered by them while passing
the impugned speaking order.
15 On perusal of speaking order, it reveals that defendants
have considered the entire parawise reply given by the plaintiff to
the impugned notice U/s.354A of MMC Act and after elaborate
discussion of said reply, the speaking order came to be passed.
Therefore, prima facie, I hold that speaking order is passed by
following due process of law. Question of giving personal hearing
to the plaintiff does not arise as law does not mandate said
personal hearing before the competent authority in every case.
Personal hearing comprises of consideration of reply given by the
noticee and said reply is considered by the defendants while
passing the passing order. Therefore, I do not find any illegality in
the impugned speaking order dt.2/1/2020. Secondly, it reveals
that impugned notice has been issued on dt.12/6/2015 but the
impugned order came to be passed on dt.2/1/2020. It reflects
from the record that meantime, plaintiff has filed L.C.Suit No.1366
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of 2015 and the Notice of Motion No.2322 of 2015 and order of
status quo was passed by this court. Later on, said Notice of
Motion and Suit were disposed off with directions to consider the
reply given by the plaintiff before passing the speaking order and
accordingly, as per directions of court, after determination of
plaintiff’s reply, the speaking order came to be passed on
dt.2/1/2020. Said period cannot be considered as lacuna or the
part of non observation of due process of law by the defendants.
16 So far as issue regarding on going construction is
concerned, I have gone through record. Defendants have
contended that they found work in progress and plastering of walls
etc. remained only. Once such facts are brought in the notice,
plaintiff must prove prima facie that no such on going construction
was found at the time of inspection. On perusal of the documents
i.e. inspection report dt.9/6/2015 and dated photographs annexed
with said inspection report, it reveals that some sort of
construction was going on on the suit site at the time of inspection
of suit building. There are total 10 digital photographs produced
on record by the defendants and said photographs shows cement
and construction material as well as incomplete work on the suit
site. This fact and the photographs are not disputed by the
plaintiff and no sufficient justification came on record from their
side on this point. It reveals in the photographs that brick work is
complete and only finishing plastering and tiling work remained to
be done. According to the plaintiff, plastering and tiling work is
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tenantable repairs as per Section 342 of MMC Act. Here, this work
cannot be considered as on going unauthorised construction.
However, it is settled position that if a person is going to make
tenantable repairs of already existed work having the work of
tiling or plastering or colouring, then and then only separate
permission is not required. But if entire work is without
permission and it reaches upto level of plastering, colouring etc,
noticee cannot take benefit of provision U/s.342 of MMC Act to
save said work. It appears from the record that plastering and
colouring is not independent and sole work undertaken by the
plaintiff. Per contra, it reveals that plaintiff was carrying out work
of reconstruction and the entire work under plan was going on of
which coluring and plastering was part and parcel. Therefore, it
cannot be said that notice U/s.354 of MMC Act was not warranted
for remaining work of plastering etc. Secondly, defendants
themselves have come up with the defence that the plaintiff was
going work of unauthorised construction under the guise of
repairs as per sanctioned amended plan. They have given details
of said construction in their reply. It reveals that as per approved
plan under No. No.EB/6257/C/AR dt.28.04.2015 wherein twin
columns were supposed to be provided as to hand over the set
back area in future. However, on site, system of twin columns
was not observed. Width of staircase on site was observed
inadequate and the width of staircase is not mentioned in the
approved amended plan. I have gone through the amended plan
also. Advocate for the plaintiff failed to point out said portion of
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staircase in the sanction plan. Above all, in their reply to the
Corporation to the notice dt.15/6/2015, in para 7, plaintiff himself
as stated that he has applied for CC through advocate on
dt.16/5/2015 and CC is going to come within a couple of weeks.
This fact itself clarifies that notice structure was being constructed
without obtaining CC required for commencement of work.
Corporation also found that front portion of building was also
constructed with endorsing CC as per approved plan
dt.28/4/2015. Above all, it reflects from the reply given by the
Corporation that concerned Architect had partially removed non
talling portion of 4th Floor on dt.5/6/2015 and 6/6/2015. Above
all, photographs dt.26/12/2019 produced by the defendants show
that even after receipt of order of status quo by the court in
L.C.Suit No.1366 of 2015, construction/repair work was continued
on the suit site. All these facts make it clear that the plaintiff has
not come with clean hands before the court.
17 Above all, it reveals prima facie that on the date of
inspection of suit site, the construction was going on and
therefore, stop work notice U/s.354A of MMC Act was issued to
the plaintiff. Plaintiff miserably failed to satisfy the Court that no
such construction was going on and whatever was nature of
construction was authorised as per amended plan of
dt.28/4/2015. Hence, considering the observations made above, I
hold that there is no reason to make indulgence in the notice
action at this prima facie stage. Plaintiff failed to establish
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existence of prima facie case and balance of convenience in his
favour. Defendants have observed that building is, at present, not
occupied by the tenants. Therefore, there is no question of tenants
becoming shelterless. In such circumstances, question of
irreparable loss to the plaintiff or tenants does not arise. Hence, I
hold that all necessary ingredients required for grant of temporary
injunction are not satisfactorily established by the plaintiff.
Therefore, I have answered point Nos.1 to 3 in negative as ‘No.’
AS TO POINT NO.4.
18 In view of negative findings as to point Nos.1 to 3,
Notice of Motion deserves to be dismissed. Hence, following order
is passed.
ORDER
1 Notice of Motion No.400 of 2020 is dismissed.
2 Notice of Motion is disposed off.
Date:18/08/2022.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Gr.Mumbai.
Dictated on :18/08/2022.
Typed on :19/08/2022.
Signed on :23/08/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
26/08/2022 6.05 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
18/08/2022.
JUDGMENT/ORDER signed by
P.O.on
23/08/2022.
JUDGMENT/ORDER uploaded on 26/08/2022.
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