Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.391/2020 ..1.. L.C. Suit No. 256/2020
CNR NO.MHCC01-001257-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 391 OF 2020
IN
L.C. SUIT NO. 256 OF 2020
Smt. Ruksana Mohammed Jalil Kureshi )
Age 60 years, Chawl No.23, )
Kholi No.06, 254, Municipal Transit )
Camp, Tank Pakhadi Road, )
Mumbai – 400 011 )…Plaintiff
Vs.
1. Municipal Corporation of Greater Mumbai )
having its office at 2nd Floor, )
Mahapalika Marg, Mumbai -400 001. )
2. Assistant Engineer )
(Building and Factory), )
E ward, Mumbai – 400 011 ).
..Defendants
APPEARANCE:-
Ld. Adv. Mr. K.N. Kandekar for the plaintiff.
Ld. Adv. Mrs. Vidya Vyavahare for the defendants/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 15th FEBRUARY, 2020.
O R D E R
The plaintiff vide this notice of motion seeks temporary
injunction restraining the defendant corporation from enforcing,
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implementing and taking any action of demolition or any other
action, steps in pursuance of notice dated 11.12.2019 & letter
dated 21.01.2020 without following due process of law.
The case of plaintiff in brief is as follows :
2. The plaintiff is tenant/occupant of Room No.6,
admeasuring 250 sq.feet, Chawl No.23, 254 Municipal Transit
Camp, Tank Pakhadi Road, Mumbai – 400 011 which is more
particularly described in paragraph-1 of plaint is subject matter in
this order and is therefore, referred as “Suit Premises” for sake of
brevity in this order.
3. Defendants are the statutory authority constituted
under the BMC Act, 1888. Plaintiff was granted the transit camp
(suit premises) by defendant No.1 and since last 7 years plaintiff is
residing in suit premises along with her family members. Plaintiff
has ration card, electricity meter as well as Aadhar Card on the
address of suit premises. Plaintiff was shocked to receive notice
dated 11.12.2019 from defendant No.2 alleging that she is in
arrears of rent so also carried out structural additions and
alterations in suit premises and was further directed to remove the
same within 7 days from the date of receipt of notice. Plaintiff
being widow and on account of financial difficulties could not pay
the rent only for 2 months. Her earlier record shows that she was
regularly paying the rent to defendant No.2. Plaintiff managed to
arrange the arrears of 2 months i.e. Rs.980/- and paid the same to
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defendants on 18.12.2019. Plaintiff has also filed the detail reply
on 20.12.2019 to the notice of defendants dated 11.12.2019.
Plaintiff was again shocked when she received the notice dated
21.01.2020 wherein defendants had stated to visit suit premises for
demolition of notice structure on 22.01.2020. Defendants failed to
follow due process of law. The notice issued u/sec.488 of BMC Act
is for different purpose and under the same clause defendants
cannot demolish the suit notice structure. Further, there is no
description of notice structure in the notice dated 21.01.2020. The
notice issued by defendants is therefore, arbitrary, illegal, malafide
and void ab-initio. The notice is issued by defendants at the
behest of some interested person. As defendants have threatened to
demolish he suit premises, plaintiff is constrained to file this suit
and present notice of motion.
4. Defendants have resisted the aforesaid notice of motion
by filing its reply at Exh.2. Defendants have denied all the
averments in notice of motion except those which are specifically
admitted by them. They have contended that suit and notice of
motion is bad for want of notice section 527 of the MMC Act. Suit
notices are executive or administrative acts or orders of
defendants. Therefore, same are not open to challenge in the court
of law. Plaintiff failed to disclose cause of action. Suit is also not
maintainable under order 7 Rule 3 of C.P.C. According to them,
defendants are the owners of suit property. As per demand register
maintained in their office, Room No.6, Chawl No.23, 254
Municipal Transit Camp, Tank Pakhadi Road, Mumbai – 400 011
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is allotted to plaintiff. As per tenancy agreement dated 08.10.2007
and date of occupancy 01.11.2005, the rent of aforesaid premises
is Rs.60 per month. Plaintiff was allotted the aforesaid premises in
transit camp which was ground floor structure. Plaintiff has carried
out unauthorized vertical extension to the existing ground floor
structure without permission of the corporation. The Estate
Department has received various complaints in respect of the
unauthorized vertical extension in Room No.06, Chawl No.23, 254
Municipal Transit Camp, Tank Pakhadi Road, Mumbai – 400 011.
Therefore, the officers of the defendants had visited the suit
premises and found vertical extension to existing ground floor
Room No.06, Chawl No.23, 254 Municipal Transit Camp, Tank
Pakhadi Road, Mumbai – 400 011. Plaintiff failed to produce any
permission or sanction to authorize the aforesaid vertical extension
to existing ground structure. The Estate Officer of E ward
therefore, issued notice dated 11.12.2019 to plaintiff to remove the
unauthorized construction. Plaintiff has replied through her
advocate on 20.12.2019 and denied all the allegations made by
them. She also stated that building is in dilapidated condition and
requires urgent repairs. Plaintiff failed to submit reply within 7
days. Therefore, the Estate Officer had forwarded the file and
papers to building factory department for further necessary action.
As per circular AC Estate/6166/SA(Imp)2 dated 25.09.2018, the
power of demolition of structure is given to Designated Officer of
the concerned ward. The Assistant Engineer building and factory
department issued notice u/sec.488 of MMC Act dated 21.01.2020
to plaintiff for demolishing the unauthorized structure in
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compliance of notice dated 11.12.2019. After receiving the reply,
they have issued final letter on 23.01.2020 as plaintiff failed to
submit any document that corporation has granted any permission
for vertical extension to Room No.06. As defendants have followed
due process of law and issued notice dated 11.12.2019, same is
legal and valid. Plaintiff has no prima-facie case. Therefore, they
have prayed for dismissal of notice of motion.
5. Heard, Ld. Advocate Mr. K.N. Kandekar for Plaintiff,
Ld. Advocate Mrs. Vidya Vyavahare for defendants corporation. On
hearing the parties and on going through entire record of the case,
following points arise for my determination with its findings and
for reasons to follow -
S.N. POINTS FINDINGS
1 Whether plaintiff proves that prima-
facie case lies in her favour ? In Affirmative.
2 Whether plaintiff proves that balance
of convenience lies in her favour ? In Affirmative.
3 Whether plaintiff proves that
irreparable loss will be caused to her,
if the application is not allowed ?
In Affirmative.
4 What order ? As per final
order.
R E A S O N S
AS TO POINTS NO.1 TO 3
As all the points are interlinked with each other, they
are discussed together.
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6. Ld. advocate for plaintiff argued in lines of pleadings
in Notice of Motion and relied upon following case laws-
1) Sopan Maruti Thopte & Anr. V/s. Pune Municipal
Corporation and Anr. AIR 1996 BOM 304.
“In every case where a notice under Section 351 of
the B.M.C. Act/under Sec.260 of B.P. M.C. Act is issued
to a party 15 days time shall be given for submitting the
reply.”
“If the Deputy Municipal Commissioner comes to the
conclusion that he requires assistance of the party, he may
given an oral hearing if he deems fit and proper before
passing the order. It is made clear that oral hearing is not
at all compulsory but it is at the diiscretion of the
authority.”
2) A.O. Stamp No.1906 of 2001 in Civil Application
Stamp No.1907/2001 decided on 17.01.2001.
“Corporation cannot take any action till the reply
is heard and disposed of.”
3) Circular in WO/RE/OD/303 Dated 11.08.2000.
“If such development has already been completed, a
notice under section 351 shall be served giving seven days
time to prove that the work mentioned in the notice is
carried out in accordance with the provisions of Sections
337 or 342 and Section 347 of the M.M.C. Act. If the
party does not submit any document or the documents
submitted do not prove the authenticity of unauthorized
development, a reasoned order shall be passed by the
ward officer giving seven days time to the party to
remove/reinstate the unauthorized work, as may be
appropriate.”
4) Abdul Hasan Shaikh Mansuri V/s Mumbai
Corporation of Mumbai 2007 (2) Bom.C.R. 804
“(A) Bombay Municipal Corporation Act,1888, Sec.351-
Specific Relief Act, 1963, Sec.34-Code of Civil Procedure,
1908, O. 39 R.1 & 2- Demolition, -Suit for declaration and
injunction against corporation.”
“Where existence of some structure is not disputed or
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indisputable relief as prayed, of injunction will have to be
granted for asking, as no authority can be permitted to
take unilateral action, even if structure is unauthorized
except by following due process of law.”
5) Muni Suvrat Swami Jain S.M.P. Sangh V/s. Arun
Nathuram Gaikwad & Ors. 2007 (3) Bom. C.R.293,
“Section 351 obliges Municipal Commissioner in
construction of any building or execution of any work is
commenced contrary to provisions of Act to give notice
requiring person doing work to show cause why it should
not be pulled down. Word used in this context is shall. If
sufficient cause is not shown it is left to the Commissioner
discretion whether or not to demolish unauthorized
construction.”
6) Ramesh Hargovindas Diveche V/s. Municipal
Corporation of Greater Mumbai and Others in Writ Petition
No.715/1999, decided on 12.07.1999.
“We see the difficulty faced by tenant when suddenly
he is called out to prove some portion of the structure
occupied by him of the building, which is 100 years old, is
authorized.”
“The Deputy Municipal Commissioner of the concerned
Zone and Ward shall first make available for inspection of all
authorized plans, including the authorized modifications
thereof, pertaining to the tenement occupied by the
petitioner, supply certified copies of such plans/documents as
and when the petitioner may demand upon payment of
prescribed fees and thereafter give him an opportunity of
being heard with reference to the show-cause notice under
section 351 of the BMC Act served on the petitioner.”
7. Ld. Advocate for defendant argued in lines of pleadings
in reply & relied upon observations in case of
Tushar Guru Salien
V/s. State of Maharashtra and Ors. in PIL 67/2017 decided on
28.08.2019 in which it is observed that -
"Concerning a property, a suit to enforce or protect an
interest in the property which is governed by a Municipal
Statute, the interest protected has to be with respect to a plea
that prima-facie, the structure which is being targeted is in
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authorized structure. Meaning thereby, the plaint must make an
averment of the sanction obtained from the corporation and must
make an averment that the structure targeted is prima-facie
governed by the sanction. Merely pointing out deficiencies in the
notice or the authority of the person issuing the notice is neither
here nor there. Thus, the sina qua non of such kinds of suits is a
positive assertion made with reference to the sanctioned building
plans."
8. From all the aforesaid citations and circulars, legal
position is clear that if notice is issued u/sec.351 of BMC Act, then
noticee has to be given 15 days time for filing reply and
documents and then the concerned authority of BMC has to pass
final reasoned order. The right of giving personal hearing is
discretionary right of the Designated Officer.
9. There cannot be doubt about aforesaid legal position.
In present case, plaintiff is allotted the Room No.06, Chawl No.23,
254 Municipal Transit Camp, Tank Pakhadi Road, Mumbai – 400
011 in transit camp is factum not in dispute. Though it is alleged
by defendants that plaintiff has carried out vertical extension over
the ground floor structure, the letter of the Estate Officer, E ward
dated 11.12.2019 addressed to defendants at page No.13 of
documents of defendants is speaking otherwise. This letter has
recitals that plaintiff is carrying out unauthorized construction in
area adjoining to Room No.06. This letter at page No.13 of
documents of defendants nowhere speaks about the vertical
extension above the ground floor structure of Room No.06.
Whereas the notice issued by defendants to plaintiff on 11.12.2019
do not have aforesaid recitals i.e carrying out unauthorized
construction in area adjoining to Room No.06, so also about
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vertical extension of unauthorized structure above ground floor
structure of Room No.06. If defendants are issuing notice, it has to
be specific as to what is unauthorized construction with all its
details in it. However, the notice dated 11.12.2019 is not having
any such details. As discussed above, this notice dated 11.12.2019
is also not in consonance with the letter dated 11.12.2019 as
issued by Estate Department, E-Ward which speaks about
unauthorized construction in adjoining area of ground floor
structure (i.e. horizontal extension). Therefore, there is prima-facie
inconsistency in defence of defendants as per their own documents.
10. Further, as is rightly argued by Ld. Advocate for
plaintiff, the notice dated 11.12.2019 is vague. Neither it has
mention under what provision same is issued, nor the details of
the unauthorized structure. The observations in the cited case of
Sopan Maruti Thopte therefore, clearly applies.
11. It is further pertinent to note that if there is breach of
terms and conditions of tenancy, Sec.105 B of MRTP Act will
apply. Defendants can go for eviction proceedings in this
contingency. However, as defendants have issued notice for
demolition of unauthorized structure, defendants have to
substantiate as to under what provision same is issued. As
discussed above, notice dated 11.12.2019 is not having mention
about the provision under which it is issued. Ld. Advocate for
defendants failed to show provision under which this notice is
issued. According to them, the property is owned by defendants.
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As there was breach of terms and conditions of the agreement
dated 24.11.2005, the Estate Officer has issued the notice to
plaintiff. For demolition of unauthorized construction, the papers
are to forwarded to the Designated Officer. Therefore, after the
papers were forwarded, the Designated Officer has issued notice
dated 11.12.2019.
12. If the aforesaid arguments of Ld. Advocate for
defendants are accepted as it is then also as per circular of the
Assistant Commissioner (Estate) dated 25.09.2018 bearing No.Kra
Sa maa/6166/Sa aa/mu, jurisdiction to remove unauthorized
construction is under Sec.351 of MMC Act irrespective of
ownership of the land. If the notice dated 11.12.2019 is u/sec.351
of MMC Act, then it is expected from defendants that they should
observe the guidelines in
Sopan Maruti Thopte’s case. It is ironical
that defendants have issued 7 days notice, clearly contravening the
guidelines of
Sopan Maruti Thopte’s case. There is no inspection
report, panchanama filed on record. Furthermore, no final order is
passed after reply was filed by plaintiff to notice dated 11.12.2019.
Therefore, there is prima facie contravention of the guidelines
given by
Sopan Maruti Thopte’s case. The principles of natural
justice do not appear to be followed by the Designated Officer.
Therefore, the arguments of Ld. Advocate for plaintiff has merits.
If defendants go for demolition without observing due process of
law, plaintiff has every right to get interim relief in her favour.
The Designated Officer has given the notice of demolition without
giving the personal hearing to plaintiff and without passing final
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reasoned order. Therefore, the observations in all the aforesaid
citations and the circular are helpful to plaintiff to get interim
relief in this case.
13. If all the discussion is taken into account, the act of
plaintiff challenging the notice do not appear to be malafide.
Plaintiff has made out prima facie case. Therefore, both the other
factors i.e. irreparable loss and balance of convenience tilt in
favour of plaintiff. If defendants succeed in demolition then the
whole purpose of moving this notice of motion will frustrate.
Therefore, balance of convenience lies in favour of plaintiff rather
than defendants. I accede with arguments of Ld. advocate for
plaintiff as against arguments of Ld. advocate for defendants.
Accordingly, I answer point No.1 to 3 in affirmative.
14. Having arrived at aforesaid findings, the notice of
motion of plaintiff deserves to be allowed. Accordingly, I proceed
to answer point No.4 by following order
ORDER
1. Notice of Motion No.391/2020 is hereby allowed.
2. Defendant its servants, agents or any other person claiming
through Mumbai Municipal Corporation are hereby restrained by
order of temporary injunction from taking any action of demolition
of suit premises being Room No.6, admeasuring 250 sq.feet, Chawl
No.23, 254 Municipal Transit Camp, Tank Pakhadi Road, Mumbai
–400 011 in pursuance of notices dated 11.12.2019 and 21.01.2020
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u/sec.488 of Mumbai Municipal Corporation Act, till final decision
of suit.
3. Costs in cause.
4. Notice of Motion No.391/2020 is accordingly disposed of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 15.02.2020 City Civil Court, Gr. Bombay
Dictated on :15.02.2020.
Typed on :15.02.2020 & 20.02.2020.
Signed on :28.02.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 14.03.2020, 01.05 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
15.02.2020
JUDGMENT/ORDER signed by
P.O. on
28.02.2020
JUDGMENT/ORDER uploaded on 14.03.2020
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