Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.286/2018 ..1.. In L.C. Suit No.2708/2017
CNR NO.MHCC010011542018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 286 OF 2018
IN
L.C. SUIT NO. 2708 OF 2017
Mr. Madhukar Vyankatrao Kharatmol,
Aged : 51 Years,
Residing At : Gala No. B1,
Saileela Housing Society,
Opp. Jivan Sangram Society,
Shiv Shakti Nagar, Opp. L & T,
Gate No. 7, S. V. Road,
Tunga Village, Mumbai 400 072. ...Plaintiff
Versus
The Municipal Corporation of
Gr. Mumbai,
Having their Head Officer At :
Mahapalika Bhavan,
Mahapalika Marg,
Mumbai 400 001. ...Defendant
Appearance :
Ms. Kothari I/b. N. N. Vaishnawa & Co., Advocate for Plaintiff.
Ms. Mhatre, Advocate for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI A. N. MARE (C.R.No.11)
DATE : 02ND NOVEMBER, 2019.
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Notice of Motion No.286/2018 ..2.. In L.C. Suit No.2708/2017
O R A L O R D E R
The plaintiff is seeking temporary injunction to restrain the
defendant from enforcing a notice under Section 351 of Mumbai
Municipal Corporation Act, 1888 (hereinafter referred as the MMC Act)
and the order dated 30.10.2017 passed in pursuance of said notice.
2. In brief the plaintiffs case is that, he is in occupation and
possession of Shop No. B1 also known as Shop No.9 admeasuring 10 x
50 ft made up of B. M. Walls and A.C. Sheet Roof, at CTS No. 94/C,
New CTS no. 94C/1A, Survery No. 45, Village Tunga at Saileela Co.op.
Hsg. Society, Opp. Jivan Sangram Society, Shiv Shakti Nagar, Opp. L &
T Gate No. 7, S. V. Road, Tunga Village, Mumbai 400 072 (hereinafter
referred as the suit premises). The suit premises is very old and is
acquired by the plaintiff in the year 1998. Plaintiff acquired it from Mr.
Maruti Rama Katke vide an agreement dated 16.07.1998. He has
various documents revealing his occupation in the suit premises. The
suit premises is situated on private land. Some person who is not in
good terms with the plaintiff, in collusion with the Builder, has lodged
complaint with the defendant. The builder intends to develope the plot
and is using the defendant to settle the private dispute. The defendant
has issued a notice dated 13.05.2017 under Section 351 of MMC Act
alleging unauthorised construction of ground floor. The plaintiff
replied said notice vide reply dated 22.05.2017. However, without
verification of facts and documents defendant has passed an order
dated 30.10.2017. The defendant threatened to demolish the suit
premises. The impugned notice and order are illegal and are at the
instance of the builder. The impugned notice is vague and
discreminatory. It is time bared. It is issued in the name of Mr.
Digambar Kharatmol who has nothing to do with the suit premises. The
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Notice of Motion No.286/2018 ..3.. In L.C. Suit No.2708/2017
suit premises exist on private land and the defendant has no authority
to act against it. It exists in deemed slum area and as per plaintiff's
knowledge said area is declared as slum. If the defendant demolishes
the suit premises the plaintiff will suffer irreparable loss.
3. The defendant has opposed the notice of motion
contending that it's office received a complaint alleging unauthorised
construction of Shop No. 9. On inspection of site it was found that
unauthorised construction of ground floor structure on open land with
brick mansonary wall, M.S. angles and A.C. Sheet Roof has been carried
out. On inquiry, it came to know that it is owned and occupied by one
Shri Digambar Khatatmol. On inquiry with the occupant he failed to
produce permission or sanctioned plan. Hence, the inspection report
was prepared and with it rough sketch, photographs were forwarded to
designated officer who has issued notice under Section 351 of MMC
Act. It was served upon the plaintiff. The plaintiff replied said notice
alongwith certain documents. After considering the documents and
reply the designated officer concluded that the authorisation of notice
structure was not proved and hence a speaking order is passed directing
the plaintiff to remove the suit premises. Said speaking order is duly
served upon the plaintiff. The plaintiff has suppressed material facts
and claimed that the speaking order has not been served. The
defendant has followed due process of law.
4. The Plaintiff has filed rejoinder claiming that if the builder
intends to evict the plaintiff he shall adopt due process of law. The
defendant's action is not in good faith. The builder has settled dispute
with other tenants and has instigated defendant to issue notice to
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plaintiff and 8 others. Defendant has not initiated action against those
tenants who have settled dispute with the builder.
5. Following points arise for determination against which
findings are recorded for the reasons to follow:
Sr. No. POINTS FINDINGS
1. Whether the plaintiff has made out
a primafacie case? In the Negative.
2. Whether the balance of
convenience lies in plaintiff’s
favour?
In the Negative.
3. Whether the plaintiff will suffer
irreparable loss if injunction as
sought is refused?
In the Negative.
4. What Order ? Notice of motion is
dismissed with costs.
REASONS
AS TO POINTS NO.1 TO 4.
6. The plaintiff is challenging a notice under Section 351 of
MMC Act. On receipt of such notice the person receiving such notice
has to show sufficient cause why such building or work i.e. the notice
structure shall not be removed or pulled down. The explanation to sub
Section 1A of Section 351 of MMC Act provides that to show sufficient
cause shall mean to prove that the work mentioned in the said notice is
carried out in accodance with the provisions of Section 337, 342 and
Section 347 of the Act.
7. The plaintiff has claimed that the suit premises exist in
delcared slum area. However, no document is produced to support
such contention. Hence, said contention is not acceptable.
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8. In this case the plaintiff has not pleaded that the suit
premises is constructed in accodance with the permission or the plan
sanctioned by the Competent Authority. In absence of such statement
in the plaint, even at this stage it can safely be concluded that the suit
premises is not constructed in accordance with the provisions of the
M.M.C. Act. A bare perusal of the plaint further reveals that the
plaintiff has not claimed that the suit premises is constructed prior to
the datumline fixed for the commercial structures i.e. prior to
01.04.1962.
9. However, the plaintiff has produced on record various
documents. Before reaching any primafacie conclusion about the
nature of suit premises being authorised or unauthorised, the
documents on record need a scrutiny.
10. Plaintiff has produced an agreement for sale. It is dated
16.07.1998. The affidavit of Mr. Maruti Rama Katke, who has executed
agreement in plaintiff's favour, is undated. The N.A. order relied upon
by the plaintiff is dated 28.06.2006. It mentions that the plaintiff is
using the agricultural land unauthorisedly for non agricultural purpose
since the year 2001. Said order specifically states that building plan
was not approved by the defendant before starting the construction and
plaintiff is relying on said order. Thus, it is clear that the suit premises
is not constructed as per sanctioned plan.
11. The plaintiff has produced on record a Receipt dated
20.06.2006, copy of Driving Liscence issued on 02.09.1993, Electricity
Bill dated 13.05.2005 and 01.04.2001 and a photograph. All the
documents ranging from the agreement of sale till the photograph
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nowhere even primafacie indicate that the suit premises is constructed
prior to the datumline for commercial structure i.e. prior to
01.04.1962. Thus, the suit premises is primafacie unauthorised and
non tolerable structure.
12. The main contention of the Advocate for plaintiff is that the
action on the part of the defendant is at the instigation of a builder who
intends to get the land vacated. He submitted that the plaintiff has
already filed a suit No. 1837/2018 wherein the defendants therein are
restrained from evicting the plaintiff from the suit premises without
following due process of law. He submitted that the defendant can not
act as a tool in the hands of builder and thus can not act against the suit
premises. For this purpose he also relied upon the statement in the
rejoinder and the copy of Power of Attorney attached to it.
13. Here it needs to be mentioned that defendant Corporation
can not detect or find out each and every unauthorised construction. In
most of the cases one or the other person lodges a complaint with the
defendant alleging unauthorised construction and then on inspection of
such premises the defendant initiates the action on the complaint.
Therefore, if in such scenario the defendant acts upon a complaint and
after finding that the premises is unauthorised, initiates an action, its
such action can not be considered as malafide. It is the duty of the
defendant to act against the illegal construction either on its own or on
a complaint lodged before it. Therefore, when there is nothing on
record to indicate that the suit premises is authorised or tolerable,
merely on the ground that the defendant has acted on a complaint,
plaintiff can not seek equitable and discretionary relief. Plaintiff can
not make out a primafacie case in his favour pointing out the defects or
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alleged malafide in the action by defendant. A person seeking equitable
relief of injunction has to prove his bonafides first and can not rely upon
the conduct of the defendant to establish a case for himself.
14. In above circumstances, therefore, the contention by the
plaintiff that, defendant's action is malafide and so an injunction be
granted, is not acceptable.
15. Advocate for plaintiff further submitted that the speaking
order is providing a period of 7 days to the plaintiff to remove the suit
premises. According to him this is contrary to the guidlines issued by
the Hon'ble Bombay High Court in the case of Sopan M. Thopate and
Another V/s. The Pune Municipal Corporation, A.I.R. 1996 Bom.
304.
16. Perusal of proceeding reveals that the speaking order is
signed by the designated officer on 07.11.2017. No action is taken by
the defendant till filing of the suit i.e. till 04.12.2017. The period is
more i.e. 15 days thus, defendant has not taken in action within the
period of 15 days from the date of order. Hence, by mere mention of 7
days in the speaking order no prejudice is caused to the plaintiff.
Consequently, the speaking order is not rendered bad as alleged by
Advocate for plaintiff.
17. Plaintiff has stated that the defendant is discreminating
between the plaintiff and other tenants who have settled their dispute
with the builder. However, there is nothing on record, except bare
statement, to indicate that there is any kind of settlment between other
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tenants and the builder. Even the names of such tenants who have
allegedly settled dispute with the builder are not disclosed.
18. In the result, I hold that the plaintiff has failed to make out
a primafacie case in his favour. In such circumstances, an order passed
in Suit No. 1837/2018 against another defendants will not be of any
help to the plaintiff. Hence, I answer point No. 1 in the negative.
19. Advocate for plaintiff submitted that the speaking order
was not served on the plaintiff. It needs to be mentioned that the
documents filed by the defendant with its reply to notice of motion
clearly reveal that the speaking order is served on the occupier of the
premises. In such circumstances, said contention is not acceptable.
20. Since, it is primafacie concluded that the suit premises is
constructed illegally the balance of convenience can never lie in favour
of the plaintiff. A person who has raised construction against the
provisions of law can not have the balance of convenience in his favour.
For the same reason he can not plead a case of irreparable loss in case
of refusal of injunction. Hence, I answer points No. 2 and 3 also in the
negative and in response to point No. 4, pass following order.
ORDER
Notice of Motion No. 286/2018 is dimissed with costs.
(A. N. MARE)
Judge,
Date : 02.11.2019 City Civil Court, Gr. Mumbai.
Dictated On : 02.11.2019
Transcribed on : 04.11.2019
HHJ Signed on : 08.11.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
11.11.2019 3.57 p.m. Mahendrasing D. Patil (H.G. Steno)
Name of the Judge H.H.J. SHRI. A. N. MARE
(Court Room No. 11)
Date of pronouncement of Order 02.11.2019
Order signed by P.O. on 08.11.2019
Order uploaded on 11.11.2019
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