Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM L.C. Suit No.369/2020
CNR NO.MHCC01-001361-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO. 369 OF 2020
Anees Ahmed Abbasi )
S/O. Mr. Mohammed Sayed Abbasi )
Age 50 years, Occ, Business )
An Adult Indian Inhabitant, )
Carrying on business Gala No.7/A, )
Rangunwala Compound, Maulana Azad )
Road, Lathi Galli, Madanpura, Mumbai )
Central, Mumbai – 400 008 ).…Plaintiff
Vs.
1. Mumbai Municipal Corporation )
of Greater Mumbai. )
Having its registered office at Mahapalika )
Bhavan, Mahapalika Marg, )
Mumbai – 400 001. )
2. The Designated Officer, )
Asstt. Engineer (B & F), E/Ward, )
Byculla, Mumbai – 400 008. ).
..Defendants.
APPEARANCE:-
Ld. Adv. Mr. S.P. Srivastava 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 : 9th MARCH, 2020.
O R D E R
This notice of motion is moved by plaintiff under Order 39
Rule 1 of Code of Civil Procedure praying to restrain defendants from
taking any action in pursuance of notice dated 23.05.2018 issued
u/sec.351 of MMC Act & speaking order dated 25.07.2019.
The case of plaintiff in brief is as follows :
2. Commercial premises consisting of ground plus three floors
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Gala No.7/A, Rangunwala Compound, Maulana Azad Road, Lathi Galli,
Madanpura, Mumbai Central, Mumbai – 400 008 is entire property
(hereinafter as “Suit property” for sake of brevity). Out of this property,
the second and third floor is the subject matter in this order and is
therefore, referred as “Suit premises” for sake of brevity in this order.
3. Mr. Mohammed Sayeed Abbasi, father of plaintiff had
acquired the suit property on tenancy basis from the owner of landlord
Ezzi Trust in year 1980. The suit property consists of the ground plus
mezzanine and first and second floor. Actually there is mezzanine on
the ground floor, therefore, while issuing rent receipt, the landlord has
mentioned ground plus first and second floor. In reality there is ground
plus mezzanine (first floor), second and third floor. The suit property is
in same condition since the acquisition of tenancy by father of plaintiff
till date. His father was using the suit property to run the factory of
repairing of household appliances and metal cutting. His father
obtained the license to carry on said business in the suit property.
Plaintiff has factory permit, electricity connection, water connection in
suit property. After the death of father of plaintiff on 09.02.2007,
plaintiff is carrying on business in suit property. After death of father of
plaintiff, he and his wife is giving the suit property on leave and license
basis. Plaintiff had made application under RTI Act on 17.07.2018 to
know the action taken by E Ward of defendants against unauthorized
construction carried out by Mr. Sarmad Khalil Beig on his complaint.
Plaintiff was shocked and surprised to know that the defendants have
obtained police protection for demolition of suit property. Plaintiff had
not received notice u/sec. 351 of MMC Act dated 23.05.2018.
Therefore, plaintiff had no opportunity to reply the said notice. The
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endorsement on the notice shows that one Mr. Gopal Yadav has signed
the notice. He does not know Gopal yadav or Gopal Yadav is not related
to him. Defendant No.2 had passed the order dated 31.05.2018 on the
ground that no reply or documentary evidence is submitted pursuant to
said notice. On the endorsement made on said order, it appears that
someone received the said order on 07.06.2018. Neither the notice
dated 23.05.2018 nor the order dated 07.06.2018 is served upon
plaintiff or his family members. He has not carried out unauthorized
construction in the suit premises as alleged in the notice. Defendants
did not follow the principles of natural justice. Therefore, he had filed
L.C. Suit (Stamp) No.10275/2018 order in City Civil Court, Bombay
challenging the notice dated 23.05.2018 and order dated 31.05.2018 in
said suit. The court had directed the plaintiff to submit the reply along
with documents to defendant No.2 and further directed defendant No.2
to pass fresh speaking order after considering reply and documents of
plaintiff. He had then submitted his reply along with documents and
requested for personal hearing to defendant No.2 on 07.08.2018.
However, suddenly on 20.01.2020 defendants came to demolish the
suit property. He had informed that there is stay of this court. However
defendant No.2 had removed the iron sheet from the top floor and
partly demolished the wall on 20.01.2020. On enquiring with staff of
defendants, who had come for demolition, he came to know that
speaking order is passed. He informed the staff that he has not
received any speaking order from defendants. On asking by plaintiff to
show the speaking order, it appeared that one Mr. Rehan had accepted
the speaking order. The staff of defendants did not listen to stop the
demolition and demolished partly the aforesaid wall and removed the
iron sheet from the top floor. He had therefore written letter dated
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21.01.2020 to defendant No.2 and requested to furnish the copy of
speaking order. Plaintiff was shocked and surprised to see the speaking
order dated 25.07.2019. The said speaking order was never served
upon plaintiff. The speaking order is illegal, improper and bad in law.
Therefore, he has filed this suit and present notice of motion.
4. Defendants have replied the suit and notice of motion by
filing reply cum written statement at Exh.2. They have denied all the
averments in notice of motion except those which are specifically
admitted by them. It is contended that suit and notice of motion is bad
for want of notice section 527 of the MMC Act. As per Government
Regulation dated 13.03.2012 as published in Maharashtra Government
Gazette on 13.03.2012 inserting Section 515-A of Mumbai Municipal
Corporation Act, 1888, this court will have no jurisdiction to try and
entertain the present suit as the same is filed for challenging the notice
dated 23.05.2018 issued u/s.351 of the MMC Act, 1888. According to
defendants, the concerned officer of defendants had inspected the suit
site on 23.05.2018. He found unauthorized vertical extension of
additional two floors to the existing ground+1st floor admeasuring
3.75 m x 13.70 m and height 6 m by means of M.S. Channed Ladi coba
slab and G.I. Sheet Roof at Gala No.7/A, Rangunwala Compound,
Maulana Azad Road, Lathi Galli, Madanpura, Mumbai Central,
Mumbai – 400 008. The notice was duly served upon plaintiff on
23.05.2018. Plaintiff failed to file reply to show sufficient cause with
respect to authorization of notice structure. Therefore, the Designated
Officer has passed speaking order on 31.05.2018 which was received
by plaintiff on 07.06.2018. Plaintiff then challenged the notice and
speaking order in L.C. Suit (Stamp) No.10275/2018. In L.C. Suit
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(Stamp) No.10275/2018, directions were given by the court to pass
fresh order after giving opportunity to plaintiff to file reply and after
considering his reply. The plaintiff had then filed reply on 07.08.2018
along with documents. However, none of the documents were
satisfactory and proved the construction of notice structure prior to
datum line i.e. 01.04.1962 for tolerating commercial structure. The
notice structure is therefore unauthorized. The Designated Officer then
passed detail, reasoned speaking order on 25.07.2019. The notice and
the speaking order are both legal and valid. Plaintiff has no primafacie
case. Defendants had arranged for demolition on 20.01.2020. However,
plaintiff has filed this false suit and false notice of motion. Therefore,
they prayed for dismissal of notice of motion.
5. Heard, Ld. Advocate Mr. S.P. Srivastava, 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 his favour ? In Negative.
2 Whether plaintiff proves that balance of
convenience lies in his favour ? In Negative.
3 Whether plaintiff proves that irreparable
loss will be caused to him, if the application
is not allowed ?
In Negative.
4 What order ? As per final order.
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REASONS
AS TO POINTS NO.1 TO 3
As all the points are interlinked with each other, they are
discussed together.
6. According to Ld. Advocate for plaintiff, the suit premises
i.e. 2nd & 3rd floor of suit property existed in suit property when father
of plaintiff had acquired the suit property in year 1980. Father of
plaintiff & after demise of his father, plaintiff himself carried on
business i.e. factory of repairing household appliances and metal
cutting. Plaintiff has licenses, permits of said business. There is
electricity & water connection in suit premises. After directions given in
L.C. Suit No.10275/2018 to defendants to pass fresh speaking order,
plaintiff did not receive any speaking order. All of sudden on
20.01.2020, staff of defendants came to demolish suit premises. Upon
enquiry, plaintiff came to know that defendants have passed speaking
order on 25.07.2019. However, said speaking order was not served on
plaintiff but was served on one Mr. Rehan with whom plaintiff is not
concerned. Suit premises of plaintiff is prior datum line. Defendants
have not followed principles of natural justice. According to him, notice
dated 23.05.2018 & speaking order dated 25.07.2019 are illegal & bad
in law.
7. Per contra, Ld. advocate for defendants have strenuously
submitted that impugned notice & speaking order are perfectly legal
and valid. There is no breach of principles of natural justice. Notice is
served on plaintiff. The notice structure is not authorized. Plaintiff
failed to submit any document to show that notice structure is prior
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datum line.
8. On perusal of documents of plaintiff, viz the rent receipt
dated 01.08.2010, it is appearing that it has mention about structure of
suit property being ground + first floor + second floor as is argued by
Ld. advocate for plaintiff. But it is important to note that existence of
ground + first floor + second floor rather ground + third floors is not
in dispute as defendants have issued impugned notice with respect to
suit premises i.e. second floor & third floor of suit property. Plaintiff has
to show existence of suit premises prior datum line prima-facie at this
stage. This rent receipt is of dated 01.08.2010 i.e. not prior datum line.
Further, documents i.e. photo copy of license dated 29.09.2016,
renewal of factory permit dated 05.02.2013, energy bill dated
23.02.2018, receipt of Brihanmumbai Mahanagarpalika dated
05.11.2012, ‘A’ form of office of electrical inspector, death certificate of
father of plaintiff, leave and license agreement dated 01.03.2018
through substantiate existence of suit premises do not substantiate its
existence prior datum line. Except these documents, there are no other
documents on record filed by plaintiff. There is not a single piece of
document on record to show existence of suit premises prior datum line
prima-facie at this stage. In absence of any document on record, how
arguments of plaintiff prima-facie at this stage can be accepted that suit
premises is authorized & prior datum line.
9. It is important to note that plaintiff is denying every time
about receipt of notice & speaking order. Plaintiff is not denying the
correctness of address of suit premises recited on impugned notice. The
impugned notice dated 23.05.2018 bears address of suit premises with
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endorsement of having been received by one Mr. Gopal Yadav. The
impugned speaking order dated 25.07.2019 bears the correct address
of suit premises & endorsement of one Mr. Rehan of receiving the same.
If some other person on behalf of plaintiff is receiving correspondence
on address of suit premises, it is for plaintiff to enquire & take steps.
How plaintiff can blame defendants for same. The impugned speaking
order dated 25.07.2019 reflects that the aforesaid documents filed in
court which are discussed above were the only documents submitted
before designated officer. As discussed above, they do not reflect prima-
facie that suit premises is prior datum line. Therefore, how prima-facie
at this stage, it can be concluded that speaking order of designated
officer dated 25.07.2019 in pursuance of notice dated 23.05.2018 is
illegal and bad in law. The arguments of Ld. advocate for plaintiff
therefore cannot be countenanced. The arguments of Ld. advocate for
defendants are therefore accepted.
10. For aforesaid discussion, I conclude that plaintiff has not
made out prima-facie case. Therefore, both the other factors i.e.
irreparable loss & balance of convenience do not lie in favour of
plaintiff. Accordingly, I answer point No.1 to 3 in negative.
11. As point Nos.1 to 3 are answered in negative, notice of
motion of plaintiff deserves to be dismissed. In result, I proceed to
answer point No.4 by following order -
ORDER
1. Draft Notice of Motion is hereby dismissed with costs.
2. Draft Notice of Motion is accordingly disposed of.
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3. Draft Notice of Motion be registered for statistical purposes.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 09.03.2020 City Civil Court, Gr. Bombay
Dictated on :09.03.2020.
Transcribed on :09.03.2020 & 30.03.2020 & 30.07.2020.
Signed on :13.08.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 20.08.2020, 11.12 am.
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
09.03.2020
JUDGMENT/ORDER signed by P.O.
on
13.08.2020
JUDGMENT/ORDER uploaded on 13.08.2020
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