Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 464/20 (LCS 188/20)
MHCC010011342020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.464 OF 2020
IN
LONG CAUSE SUIT No.188/2020
Mrs. Surjit Kaur Sodhi … Plaintiff
Versus
Designated Officer/Ex. Engineer
& Anr. ... Defendants
Appearance :
Mr. Palhade with Mr. Lulla, Advocates for plaintiff.
Mrs. Tondwalkar with Mr. Suryavanshi, Advocates for defendants.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 24/02/2023.
O R D E R
. This is suit to challenge notice issued by the defendant/
Corporation under Section 55 of The Maharashtra Regional And Town
Planning Act (in short the M.R.T.P. Act) in respect of structure shown in
the Schedule attached to notice i.e. 'unauthorized temporary covering of
canopy/sheet and glass approximately dimensions length 3m X 3m
width X 2.5 height.
2] Brief facts of the plaintiff's case are that since 2005 the
plaintiff is residing in flat after its purchase from the erstwhile owner in
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2010. It is further stated that initially, the plaintiff was residing in the
flat as a licensee. Even prior to purchase of flat by the plaintiff it has a
small private open to sky attached terrace which was only accessible to
the plaintiff and it was in exclusive use of the plaintiff's family without
any intervention and objection of anybody.
3] It is further stated that the society had issued notices dated
4/11/2009 and 16/11/2019 for removal of temporary weather shed
over the open terrace. It is further stated that the plaintiff replied said
notices on 11/11/2019, 15/11/2019, 26/11/2019, 4/12/2019 and
23/12/2019. It is further stated that thereafter the society not
responded the letters and refused to grant hearing to the plaintiff. Then,
the plaintiff received notice under challenge on 17/12/2019, alleging
that the plaintiff has carried out unauthorized temporary development.
4] It is further stated that two residents of the society are
indirectly and behind the scene of action taken by the defendant/
Corporation. It is further stated that notice is not supported by any
document and no copy of report of development of temporary nature.
The sketch is patently incorrect. It is further stated the plaintiff drawn
attention of defendant/Corporation towards the circular and requested
to withdraw said notice. It is further stated that defendant has removed
temporary open to sky weather shed and with wire mesh protection. It
is further stated that the temporary unauthorized structure, as alleged
by the defendant/Corporation is part of hall and very small part of otla
which is a temple and Gurudwara and the same is used since last 15
years. The flat of the plaintiff is located on the 1st floor which is easily
accessible and as such for the purpose of protection it has been
constructed. Therefore, the plaintiff is entitled for temporary injunction
as prayed.
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5] Defendant/Corporation resisted Notice of Motion by filing
replycumWritten Statement. At the outset, it is stated that the suit is
liable to be dismissed for want of statutory notice under Section 527 of
The Mumbai Municipal Corporation Act (in short the M.M.C. Act). The
plaint discloses no cause of action. The plaintiff failed to give
description of the property, therefore, suit is liable to be dismissed
under OrderVII Rule3 of The Code of Civil Procedure (in short the
C.P.C.).
6] It is further stated that defendant/Corporation has received
various complaints from R. N. A. Park CHSL regarding unauthorized
construction in Flats No.A/102 and A/103, therefore, the officer of the
Corporation inspected the suit site on 13/12/2019 and noticed
unauthorized construction as per the Schedule. The plaintiff failed to
show any permission, therefore, the officer prepared Inspection Report
and issued notice to the plaintiff. The plaintiff has replied said notice
and the officer of the Corporation considered reply and documents
submitted by the plaintiff and passed Speaking Order. The plaintiff has
not submitted any approval of Competent Authority, nor submitted
documentary evidence to show that notice structure is in existence prior
to the datum line. The Corporation has followed due process of law.
The plaintiff has not shown any document to show that notice structure
is constructed as per sanctioned plan. In the circumstances, the plaintiff
is not entitled for equitable relief of temporary injunction.
7] It is further stated that the plaintiff has filed suit to
challenge notice issued by the Corporation under Section 55 of the
M.R.T.P. Act, however in view of Section 149 of the Act jurisdiction of
Civil Court is barred. The plaintiff has not shown as to how notice under
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challenge is nullity and, therefore, suit is not maintainable. On these
grounds, the defendant/Corporation prayed for dismissal of Notice of
Motion.
8] Heard learned advocates for both sides. Perused Notice of
Motion, affidavit in support thereto and Record and Proceeding. The
plaintiff filed Written Submissions below exhibit7.
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 plaintiff has made out prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
:: R E A S O N S ::
AS TO POINTS No. 1 TO 3 :
10] The plaintiff filed documents viz. notices, replies and
correspondence with society and defendant/Corporation, photographs,
circulars, map etc.
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11] Learned advocate for the plaintiff submitted that building
has been constructed as per the sanctioned plan and this fact is not
disputed. The Corporation has alleged that the plaintiff has carried out
unauthorized development i.e. unauthorized construction of temporary
covering over terrace and issued notice under Section 55 of the
M.R.T.P. Act. Learned advocate for the plaintiff further submitted that
the plaintiff has submitted regularization proposal alongwith documents
for regularization through architect, however the defendant/
Corporation has not informed the plaintiff about authorization of
proposal. The plaintiff has produced on record copy of regularization
application alongwith acknowledgment of Assistant Commissioner, M
East Ward, Mumbai. It is further submitted that the Corporation has not
considered the documents supplied by the plaintiff or not informed its
decision.
12] On the other hand, learned advocate for the defendant/
Corporation submitted that unauthorized development carried out by
the plaintiff is on the open terrace and the same cannot be regularized.
Learned advocate for the Corporation further submitted that as the
circular dated 25/8/1967 covering of terrace will be permitted if there
are and/or more floors above and road shall have a height of at least
exceeding 7 feet, no side enclosures whatsoever shall be permitted. The
responsibility for keeping the roof over such a terrace in a clean
condition will be that of the person to whom the permission is granted
and the covering shall be liable to be removed at verification of any
bonafide complaint from the occupants of upper floors about nuisance
cleared from refuse allowed to accumulate over such a roof. The
permission shall be renewable every year on payment of annual fees
that may be decided upon and also a standing deposit of Rs.100/ per
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100 square feet of the area covered or a fraction thereof shall be
payable by the occupier as a security for his observing the conditions of
the permit. However in the case on hand, the terrace is open and said
permission is renewable every year on payment of necessary charges.
Learned advocate for the Corporation further submitted that the
plaintiff has closed side of the terrace which is not permissible and not
produced permission of the Corporation for carry the terrace.
13] The plaintiff has taken out this Notice of Motion for
temporary injunction under OrderXXXIX Rule1 of the C.P.C. Plaintiff is
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.
14] So far as regularization is concerned, there are no
pleadings of the plaintiff that the plaintiff has submitted proposal in the
prescribed form. Learned advocate for the Corporation submitted that
regularization proposal is to be submitted OnLine and it should be in
required format and all documents should be annexed. There is no
material on record to show that the plaintiff has submitted
regularization proposal in appropriate form and submitted necessary
documents. It is well settled that a person is not entitled to get benefit
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of deeming permission unless it is shown that application for
regularization was submitted in appropriate form alongwith necessary
documents. In the case on hand, the plaintiff has not produced any
material on record to show that the plaintiff has submitted
regularization proposal in appropriate form and submitted necessary
documents. The plaintiff has contended that regularization proposal of
the notice structure has been submitted to the defendant/Corporation.
This fact clearly shows that notice structure is not legal and authorized.
There is nothing on record to show that the notice structure is legal and
authorized.
15] The plaintiff has challenged notice under Section 55 of the
M.R.T.P. Act. Learned advocate for the Corporation submitted that as
per Section 149 of the M.R.T.P. Act order passed by Authority under the
M.R.T.P. Act are final and cannot be questioned in any civil suit. It is
further submitted that the plaintiff cannot invoke jurisdiction of this
Court to challenge notice unless there is pleading that the action is
nullity on account of there being an error of jurisdiction, however there
is no pleading that the order under challenge is nullity on account of
there being error of jurisdiction, therefore, this Court has no
jurisdiction. On perusal of the plaint it appears that there is no pleading
that notice under challenge is nullity on account of there being error of
jurisdiction. There is no any ground to substantiate that notice under
challenge is nullity.
16] Learned advocate for the Corporation relied on the
judgment of the Hon'ble Bombay High Court in the case of Mrs. Sarina
Esmeralda Lopez versus Mr. Vijay Goverdhandas Kalantri & Anr.
(Civil Revision Application No.448 Of 2013) in which it is held that,
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“The only exception to entertain a suit is on the basis of the order being a
nullity as suffering from a jurisdictional error, the said ground must be so
overwhelming so as to superimpose itself on the bar. The ground of nullity
must be such that it is exfacie borne out from the facts and cannot be
arrived at by a convoluted process”.
17] The plaintiff has not produced sanctioned plan to show that
notice structure is legal and authorized. On the contrary, it is submitted
by learned advocate for the plaintiff that the plaintiff had submitted
regularization proposal. This clearly shows that notice structure is not
authorized. The plaintiff has failed to show that notice structure is
constructed as per sanctioned plan. There is no pleading that notice is
nullity on account of there being an error of jurisdiction. The plaintiff
has not made prima facie case. Balance of convenience not tilts in
favour of the plaintiff. Therefore, considering the facts and
circumstances of the case and in view of judgment relied by learned
advocate for the Corporation in the case of Mrs. Sarina Esmeralda Lopez
versus Mr. Vijay Goverdhandas Kalantri & Anr. (supra) I find substance
in the submission of learned advocate for the Corporation that prima
facie this Court has no jurisdiction to try and entertain suit. Points No.1
to 3 are answered in the negative and in answer to point No.4 following
order is passed :
O R D E R
Notice of Motion No.464/2020 is dismissed.
Date : 24/02/2023. ( 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.”
04/03/2023 11:15 a.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 24/02/2023
ORDER Typed on 02/03/2023
ORDER signed by P.O. on 03/03/2023
ORDER uploaded on 04/03/2023
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