Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.303/18 (LCS No.
MHCC010012272018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.303 OF 2018
IN
LONG CAUSE SUIT No.129/2018
Mr. Manjeet Singh Keer … Plaintiff
- Versus -
Municipal Corporation of
Greater Mumbai ... Defendant
Appearance :-
Ms. Pawar with Mr. Kudalkar, Advocates for plaintiff.
Mrs. Mhatre, Advocate for defendant.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 18/07/2023.
O R D E R
. This is suit to challenge notice issued by defendant/B.M.C.
under Section 354A of The Mumbai Municipal Corporation Act (in short
the M.M.C. Act) and the plaintiff has taken out present Notice of Motion
for temporary injunction restraining defendant/B.M.C. from
demolishing or removing the notice structure in pursuant to speaking
order dated 13/1/2018.
-- 1 of 8 --
2 N/M. No.303/18 (LCS No.129/18)
2] Brief facts of the plaintiff's case are as under :-
The premises bearing shop No.63/A, Hindustan Chowk,
Guru Govind Singh Road, Mulund, Mumbai (in short suit premises) was
acquired by one Mr. Rochiram Goplani from Rehabilitation Department
of Mahrashtra as migrated person to India during partition of the India.
Mr. Rochiram Goplani assigned suit premises to Banumati Palan and
Manish Makhija. The plaintiff by virtue of Deeds of Conveyance dated
27/5/2012 and 22/12/2015 acquired suit premises. The erstwhile
owner in 1980 divided two shops for business purpose by common
partition.
3] The erstwhile owner was carrying on business in suit
premises since long. Defendant/BMC has issued various licences for
running business in suit premises. However, on 30/7/2017 defendant/
B.M.C. issued false notice, alleging that the plaintiff has removed
common wall between two shops without permission of competent
authority. The plaintiff replied said notice on 11/10/2007 and denied
allegations in the notice. However, Designated Officer without
considering reply and documents passed speaking order whereby
directed the plaintiff to restore the suit premises.
4] It is further stated that speaking order has been passed
without considering the documents and without application of mind.
The plaintiff has carried out interior work and not carried out any
unauthorized construction or not removed wall. The common wall was
not in existence. The Corporation has not followed guidelines issued by
the Hon'ble Bombay High Court as such notice as well as speaking order
is illegal and bad-in-law. The issue raised by the plaintiff requires
-- 2 of 8 --
3 N/M. No.303/18 (LCS No.
adjudication after leading evidence by the parties. Therefore, the
plaintiff prayed for temporary injunction.
5] Defendant/B.M.C. opposed Notice of Motion by filing reply
dated 2/8/2018. At the outset, it is stated that suit is not maintainable
for want of statutory notice under Section 527 of the M.M.C. Act. Suit
notice is executive or administrative act and same are not open to
challenge in the Court of law. The plaint does not disclose cause of
action and the plaintiff has not described suit structure as per the
provisions of Order-VII Rule-3 of The Code of Civil Procedure.
Therefore, suit is not maintainable.
6] It is further stated that the officer of the Corporation
inspected suit premises on 3/7/2017 and noticed ongoing unauthorized
construction work. Thereafter stop work notice was issued for removal
of wall without permission. The plaintiff replied said notice on
17/7/2017 alongwith documents however, the plaintiff has not
produced permission for removal of wall. Therefore, Designated Officer
passed speaking order. The plaintiff has removed common wall without
permission of planning authority after purchasing two shops. Thus, the
plaintiff has not made out prima facie case. Balance of convenience
does not lie in his favour. The Corporation, therefore, prayed for
dismissal of Notice of Motion.
7] Points for determination alongwith findings thereon for the
reasons are as under :-
-- 3 of 8 --
4 N/M. No.303/18 (LCS No.129/18)
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 ? . . . Yes.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . Yes.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . Yes.
4) What order ? . . . Notice of Motion is
made absolute.
- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
8] Learned advocate for the plaintiff submitted that the
plaintiff acquired suit premises by virtue of Deed of Conveyance and is
running business in suit premises. He further submitted that the
previous owner removed the common wall. He further submitted that
said wall was not in existence since long back. He further submitted
that the plaintiff has carried out only interior work, however, the
Corporation has issued a false notice and Designated Officer passed
speaking order without considering reply and documents. He further
submitted that the Corporation has not followed guidelines of the
Hon'ble High Court in Sopan Maruti Thopte’s case and its own circular.
Thus, the plaintiff is entitled for temporary injunction.
-- 4 of 8 --
5 N/M. No.303/18 (LCS No.
9] On the other hand, learned advocate for defendant/B.M.C.
submitted that on perusal of the plaint it is clear that the plaintiff
purchased two shops from different owners and removed the common
wall and running business therein. This shows that the plaintiff has
removed the partition wall between two shops without permission of
the Corporation. It is further submitted that the officer has prepared
inspection report and took photographs. As such, there is sufficient
compliance of the guidelines of the Hon'ble Bombay High Court. The
plaintiff has not made out
prima facie case and, therefore, he is not
entitled for temporary injunction.
10] In the light of submissions made by learned counsel for the
parties now it is to be seen whether the plaintiff has made out
prima
facie case for grant of temporary injunction. The defendant/B.M.C. has
issued notice under Section 354A of the M.M.C. Act which provides that
when Designated Officer is satisfied that erection of any building or
execution of any such work in violation of Section 342 has been
unlawfully commenced or is being unlawfully carried out the
designated officer, may by written notice requires the person to stop
such erection or work forthwith. Further Section 354A (2) of the
M.M.C. Act provides that if the work is not stopped or permission of
competent authority is not produced designated officer, may without
notice remove/pull down work. For the guidance of the staff M.C.G.M.
issued circular dated 15/3/2012. These guidelines provides for
procedure to be followed or action to be taken under Section 354A and
351A of the M.M.C. Act.
11] The Hon’ble Bombay High Court in Sopan Maruti Thopte
And Another Versus Pune Municipal Corporation And Another (AIR
-- 5 of 8 --
6 N/M. No.303/18 (LCS No.129/18)
1996 Bom 304) laid down guidelines before taking demolition action.
In paragraph No.19 the Hon’ble High Court held that,
“
(iii) In case the staff of the Corporation detects the building which is
in the process of being constructed and/or reconstructed and/or
extended without valid permission from the Corporation, it would be
open to the Commissioner to demolish the same by giving a short
notice of 24 hours after drawing a panchanama at the site and also by
taking photographs of such structure and/or extension. The
photographs should indicate the date when the same were taken.”
12] So also as per the guidelines dated 15/3/2012 if inspecting
officer detects unauthorized work under construction he shall take
photographs showing date and the status of the work and prepare
panchanama/ inspection report of the work in progress. The officer
shall make entry of the unauthorized ongoing work in detection
register. There is allegation of breach of the guidelines of the Hon'ble
High Court as well as not following its own guidelines. As earlier stated,
the Hon'ble Bombay High Court in Sopan Maruti Thopte (supra) held
that if inspecting officer detects unauthorized construction without prior
permission of the Planning Authority the officer has to prepare
panchanama at site and also took photographs indicating the date and
status of ongoing work. In the case on hand, the Corporation, produced
on record inspection report. It appears that the inspecting officer has
taken photographs at the time of inspection and prepared inspection
report. However, inspection report as well as photographs does not
show that demolition of wall was going on. It is alleged by the
Corporation that the plaintiff has demolished common wall without
permission of competent authority. However, in the inspection report it
-- 6 of 8 --
7 N/M. No.303/18 (LCS No.
is not mentioned that work was going on at the time of inspection.
Nothing produced on record by defendant/B.M.C. to show that at the
relevant time, work was going on.
12] The Hon'ble Apex Court in the matter of Muni Survat-
Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad and Ors. [2006
Vol.108 (4) Bom.L.R.3161] held that the provisions of Section 354A of
the M.M.C. Act have nothing to do with question of demolition. Hon'ble
Bombay High Court in the matter of Ms. Kangana Ranaut Versus
Municipal Corporation of Greater Mumbai & 3 Ors. [Writ Petition (ST.)
No. 3011 Of 2020] held that the object and purpose of Section 354A of
the M.M.C. Act is to stop the unauthorized ongoing work and its
removal, if despite of such notice the noticee does not stop ongoing
work or produce permission within 24 hours and purpose is not
demolition of unauthorized work already carried out.
13] In the case on hand, inspection report and photographs
produced by defendant/B.M.C. do not indicate that any work was being
carried out at the suit premises at the time of issuance of impugned
notice under Section 354A of the M.M.C. Act. Inspecting officer has not
prepared detailed panchanama and taken photographs showing the
date and status of ongoing work. Thus, it appears that there is breach of
the directions given by the Hon'ble Bombay High Court in the case of
Sopan Maruti Thopte's case and breach of its own guidelines dated
15/3/2012. Thus,
prima facie, it appears that the Defendant/B.M.C. has
not followed due process of law while issuing impugned notice. There is
no material on record to show that at the relevant time, unauthorized
work was going on. The drastic action of demolition of structure cannot
be taken without following due process of law, but in this case, it
-- 7 of 8 --
8 N/M. No.303/18 (LCS No.129/18)
appears that the M.C.G.M. has not followed due process of law. The
plaintiff has raised triable issue which needs adjudication after giving
opportunity to the parties to lead evidence. Therefore, I hold that the
plaintiff has made out
prima facie case for grant of temporary
injunction. The balance of convenience tilts in his favour. If temporary
injunction is refused he would suffer irreparable loss or injury.
Accordingly, I answer points No.1 to 3 in the affirmative and in answer
to issue No.4 pass following order :-
O R D E R
Defendant/B.M.C. is temporarily restrained from
implementing impugned notice and speaking order till decision of suit.
Date : 18/07/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
02/08/2023 02:55 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 18/07/2023
ORDER Typed on 01/08/2023
ORDER signed by P.O. on 02/08/2023
ORDER uploaded on 02/08/2023
-- 8 of 8 --