Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 290/18 in Suit No. 1819/18. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 290 OF 2018
(CNR NO. MHCC010011962018)
IN
LONG CAUSE SUIT NO. 1819 OF 2018
(CNR NO. MHCC010118812017)
Savitri Anantprasad Mishra ...Plaintiff
Versus
Municipal Corporation Of Greater Mumbai ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 29th JANUARY, 2020.
Mr. Tiwari, Advocate for Plaintiff.
Mr. Vikrant Parshurame, Advocate for Defendant / MCGM.
ORDER
This is a motion taken out by plaintiff to challenge legality
of notice issued under Section 351 of MMC Act dated 04/08/2015 and
speaking orders dated 16/06/2016 and 09/11/2017.
2. Shop No.33, Panchubai Chawl, Ganesh Marg, Hariyali
Village, Vikhroli (East) is hereinafter referred as 'suit premises'. It
consists of ground floor with brick masonary walls and A.C. Sheet roof.
Plaintiff runs a shop named and styled as 'Bombay Book Depot'.
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N/m No. 290/18 in Suit No. 1819/18. 2 Order.
3. It consists of two premises, which are adjoining to each
other. It bear Hut Card bearing No. 6482/4C and 648 3/4C,
respectively owned by the Predecessor of plaintiff namely Mohd. Abdul
Aziz and Smt. Haunsabai Gangurde. Plaintiff has narrated in detail the
receipt of title and all documents executed by the Predecessor of
plaintiff.
4. Ld. advocate Tiwari for plaintiff submits that plaintiff has
filed a complaint against the neighbour, in respect of his unauthorized
construction, which was demolished by the defendant MCGM. For
impugned activity plaintiff has received a letter from MCGM and
directed to deposit Rs.1,500/. Plaintiff has deposited the charges
Rs.1,500/ on 28/08/1998. As a counterblast, his neighbour Sajid
Qureshi submitted a report against plaintiff. However, there is no
additional construction or extension done by plaintiff in last 25 years.
The reply submitted by plaintiff was considered by the MCGM after the
order in AFO 433/2016 issued by the Hon'ble High Court on
04/05/2016. It is requested to peruse photopass No. 120421 and
120422. It is submitted that no coercive action be obtained in view of
aforesaid notice and speaking order.
5. Ld. advocate Vikrant Parshurame for MCGM submits that
entire structure of plaintiff is illegal, one portion was destroyed. As per
order in Civil Suit No. 1409/2016, MCGM was directed to consider
reply of plaintiff. After first speaking order, defendant issued a letter to
the Deputy Collector, in respect to said letter, the Deputy Collector on
23/02/2016 informed the MCGM that both photopasses referred by
plaintiff are not issued by the office of Deputy Collector and no record is
forthcoming. It is added that C.T.S.No. 211 and C.S.No. 113 do not fall
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N/m No. 290/18 in Suit No. 1819/18. 3 Order.
under SRA scheme. In both photopasses there is no description of
property nor any document has been filed by plaintiff to describe
exceeded structure of plaintiff. It is requested to reject the motion.
6. In view of aforesaid rival contentions of both sides,
following points arise for determination and my findings thereon with
reasons are recorded as follows :
SR.NO. POINTS FINDINGS
1. Does plaintiff prove a prima facie case ? In the
Affirmative.
2. Whether balance of convenience lies in
favour of plaintiff ? Will he sustain
irreparable loss, if temporary injunction is
not granted as prayed ?
In the
Affirmative.
3. What order ? N/m is made
absolute.
REASONS FOR ORDER
7. At the outset it is necessary to mention admitted facts :
A) There is a chequered history of plaintiff Savitri Mishra
submitted report against her neighbour who purchased the
premises and started construction.
B) As per report of plaintiff dated 13/07/1998 (in Hindi at
Page No.44) defendant MCGM has obtained action against
Mr. Sajid Qureshi. After removal of illegal construction of
Mr. Sajid Qureshi, the required charges of Rs.1,500/ were
deposited by the plaintiff to the office of MCGM on
28/08/1998.
C) There are in total two speaking/final orders issued by the
designated officer dated 16/06/2016 and 09/11/2017.
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N/m No. 290/18 in Suit No. 1819/18. 4 Order.
D) All documents submitted by plaintiff alongwith plaint were
annexed by him even prior to first speaking order dated
16/06/2016.
E) At the time of first speaking order, no reference was moved
by the MCGM to the Deputy Collector to challenge validity
of both photopasses.
F) There is no reply issued by Deputy Collector that photo
passes No.120421 and 120422 were issued in the name of
which person; on the contrary no record was found with
concerned office.
8. It is to note that in notice dated 04/08/2015, the
description of entire illegal construction was 3.410 x 1.90 st. mtrs. plus
10.6 x 2.220 sq.mtrs. However in final order dated 16/06/2016 it is
observed that only 2.22 x 5.58 = 12.38 sq.mtrs. was illegal. According
to MCGM, in view of order issued by Assistant Commissioner dated
09/11/2017, the first speaking order came to be reviewed.
9. On perusal of entire documents submitted by plaintiff, she
has narrated description of both premises and their genesis that how
the plaintiff has received the title. It is described in following tables :
TABLE A
Photopass No. Sale Deed Date Owner
120421 Original Owner Mohd. Abdul Aziz.
14/09/1987 Asha Gupta.
19/11/1990 Panchdev Mishra.
10/10/1995 Plaintiff.
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N/m No. 290/18 in Suit No. 1819/18. 5 Order.
TABLE B
Photopass No. Sale Deed Date Owner
120422 Original Owner Haunsabai.
01/04/1987 Asha Gupta.
19/11/1990 Panchdev Mishra.
10/10/1995 Plaintiff.
10. As mentioned above, there is a chequered history between
plaintiff and her adjacent owner. The genesis of enemical terms
between them appear to be first complaint filed by plaintiff against her
neighbour on 13/07/1998. It appear from said complaint vide Exh.44
in Hindi that her neighbour namely Sajid Qureshi has installed sewage
pipe on the roof of the plaintiff, therefore she had filed a complaint. As
mentioned in aforesaid table, it is crystal clear that plaintiff is
possessing the suit premises from 1995. However prior to her, names of
her predecessor namely Panchdev Mishra and Asha Gupta are
mentioned in photopass No. 120421 and 120422. It is shown, plaintiff
is possessing the suit premises and running a shop since 1995 and the
previous history of around 10 to 20 years prior to 1995 is given by the
plaintiff. It also appear from the complaint dated 13/07/1998 filed by
the plaintiff, Mr. Sajid Qureshi had recently purchased a shop near to
suit premises in the year 199798.
11. In view of abovementioned notice, there is one office order
of BMC dated 19/09/2017. In Para 2, it reflect illegal construction of
Mr. Sajid Qureshi, which was partly demolished. It is reproduced as
follows :
"Initially, Savitri Mishra complained against U/A
construction of shri Sajid Qureshi vide letter dt.
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N/m No. 290/18 in Suit No. 1819/18. 6 Order.
14/05/2012, 18/5/12, 4/6/12, 20/7/12
(pg.no.09 to 26) and 'S' ward partly demolished
the structure on 18/07/12, as per the report of
page 27, it is observed that, the said structure is
not demolished completely and said structure of G
+ 2, is in partly demolished state which needs to
be demolished fully as per notice to avoid any
accident to the passers by."
12. In Para 3 of aforesaid order it appear that subsequently Mr.
Sajid Qureshi lodged a report against plaintiff. During said order it is
made clear that both photopasses as mentioned above were referred by
MGCM and it was considered in speaking order. Para No.3 for ready
reference is reproduced as follows :
"Subsequently shri Qureshi Sajid Mohhamad
complained against the structure of Rajesh Mishra
(Bombay Book depot) vide letter dt. 29/05/12
(mentioning encroachment on open land and
blocking of passage), on the basis of complaint A E B
& F issued notice U/S 351 to the entire structured
measuring 2.22m x 10.60m & 1.90m x 3.41m and
on submission of documents of photopasses
1) Photopass No. 648 2/4C (copy at 85) for area
7.05m x 1.95m = 13.74sqm.
2) Photopass no.C48 3/4C per area 2.10 x 1.5m =
3.15m (copy o 97)
considering their photopasses as valid
documents, passed final order on 16/06/16 (copy at
141) directed to remove extension of 2.22 X 5.58 =
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N/m No. 290/18 in Suit No. 1819/18. 7 Order.
12.38 sq.m."
13. According to defendant MCGM, the aforesaid speaking
order came to be reviewed as per order of Assistant Commissioner
dated 09/11/2017. However no reasons are given by the defendant
MCGM for review of first speaking order. Ld. advocate Parshurame for
defendant MCGM submits that in view of letter of Deputy Collector
dated 23/02/2016, both photopasses were not issued by their office.
However, it is added that remark that "the record of old photopasses is
not available in their office". It appear that as record was not found, it
is opined by the Deputy Collector that both photopasses were not
issued by their office. It is amazing to note that at the time of first
speaking order dated 16/06/2016, both photopasses were relied by the
MCGM. There is no reply given by the Deputy Collector that if photo
passes no. 120421 and 120422 were not issued by the Deputy Collector
in the name of plaintiff or its predecessor, then impugned photopasses
were issued in whose name ? It appear to be reasonable expectation to
explain by the Deputy Collector that photopasses no. 120421 and
120422 were issued by their office in the name of the person, other
than plaintiff.
14. On cumulative reading of notice dated 04/08/2015, all
documents in respect of title received to plaintiff, first speaking order
dated 16/06/2016 and various licences (Shop Act, Electricity Bill etc.),
it shows existence of suit structure and possession of plaintiff over suit
premises. Therefore, it is concluded that plaintiff holds a strong prima
facie case. Point No.1 is replied in affirmative.
15. In respect of Point No.2 and in continuation of aforesaid
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N/m No. 290/18 in Suit No. 1819/18. 8 Order.
discussion, following points are important to note :
A) As per order of MCGM dated 19/09/2017, Mr. Sajid
Qureshi has moved complaint against plaintiff. He failed to
explain from whom, he purchased the property and what
was his area.
B) There are no reasons given by MCGM to review its first
speaking order.
C) According to first speaking order, only 12.38 sq.mtr. was
illegal. However in second speaking order, it is observed
that entire structure is illegal.
D) No explanation has been given by the MCGM for aforesaid
two contradictory conclusions.
E) In view of complaint submitted by plaintiff against Mr.
Sajid Qureshi, illegal construction of Mr. Qureshi came to
be reviewed and charges of Rs.1,500/ were recovered from
plaintiff on 28/08/1998.
F) At the relevant time both photopasses were considered by
the MCGM.
16. As observed in Lily Pandit V/s. MCGM [2014(2) Mh.L.J.
657] it is observed that mere issuing show cause notice is not sufficient,
the concerned officer must apply his mind to the documents and reply
submitted by the parties, by giving all reasonable opportunities to the
parties. It was expected to have hearing by the quasi judicial authority.
17. In the present case, at the time of both speaking orders,
there appear to be no opportunity of hearing given by the MCGM.
Therefore there are grounds to believe that no fair opportunity was
provided to the plaintiff. Therefore, balance of convenience lies in
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N/m No. 290/18 in Suit No. 1819/18. 9 Order.
favour of plaintiff. It will cause irreparable loss to the plaintiff, if
injunction is rejected as if plaintiff is enjoying the possession since
1995. Hence Point No.2 is replied in affirmative.
18. In view of aforesaid discussion, the motion deserves to be
allowed. Hence the order :
ORDER
1. Notice of Motion No. 290/2018 is made absolute in view
of prayer clause (a) and (b).
2. MCGM is temporarily restrained from taking coercive
action against plaintiff in view of notice dated 04/08/2015
and both speaking orders issued by the designated officer
in response to aforesaid notice.
3. Parties may insist for expedite hearing of the suit. Both
side may file draft issues.
4. N/m No. 290/18 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 29/01/2020. Mumbai.
1. Dictated on : 27 & 28/01/2020.
2. Transcribed on : 28 & 29/01/2020.
3. Signed on : 30/01/2020.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 290/18 in Suit No. 1819/18. 10 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01/02/2020. 4.02 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 29/01/2020.
Judgment/Order signed by P.O. on 30/01/2020.
Judgment/Order uploaded on 01/02/2020.
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