Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion 1
No.531 of 2019
MHCC010013792019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.531/2019.
IN
SHORT CAUSE SUIT NO.220 OF 2019.
Amit Hasmukhbhai Patel ...Applicant.
/Plaintiff.
In the matter of :
Amit Hasmukhbhai Patel .....Plaintiff.
V/s.
1. The Board of Trustees of the Port of
Bombay and Anr. ...Defendants.
Appearances :
Adv. Mr.M.H.Mulla for plaintiff.
Adv. Mr. Basu for defendants.
Coram : Shri. S. B. Pawar.
Judge.
C. R. No. : 59.
Date : 21/02/2023.
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ORDER
Plaintiff has taken out the present Notice of Motion with a
prayer to restrain the defendants from implementing, executing and
enforcing the impugned notice dated 10.01.2019 or from demolishing
or pulling down the suit construction without following due process of
law.
2. Perused the Notice of Motion, supporting affidavit and
affidavit in reply filed by defendant No.1. Heard Ld. advocates
appearing for both the parties.
3. Ld. advocate for the plaintiff submitted that notice dated
10.01.2019 is issued by defendants under Section 53 (1) of the
Maharashtra Regional and Town Planning Act, 1966 (in short 'MRTP
Act') without passing any speaking order. The defendant No.1 has
charged premium therefore, the suit structure is deemed to be
regularized in 2007 itself. It is not mentioned in the impugned notice
as to when construction is carried out. The notice is issued after five
months from the site inspection report. In fact, the disputed
construction is permissible under DCR 2034 and no permission is
required for internal light weight partitions. Defendant has not followed
due process. Opportunity of hearing is not given to the plaintiff. The
impugned notice is illegal and void ab initio. Therefore, bar under
Section 149 of the MRTP Act is not applicable. The plaintiff has made
out prima facie case. Balance of convenience is in favour of plaintiff and
plaintiff will suffer irreparable loss, if interim injunction is not granted.
On the above grounds, he urged that the Notice of Motion be made
absolute.
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No.531 of 2019
4. Per contra Ld. advocate for the defendants submitted that
since 23/4/2018, defendant No.1 has become Special Planning
Authority under the MRTP Act. The defendant has charged premium in
the capacity of land owner and it does not amount to regularization of
unauthorized construction. The notice can be said to be nullity only if
there is jurisdictional error in issuing the notice. No case of nullity is
made out by the plaintiff. The plaintiff had remedy to apply for
regularization of the construction but the same is not availed. The suit
itself is not maintainable. CRZ2 applies to the construction site and not
DCR 2034 and therefore the structure is not tolerable. The earlier
notice issued by MCGM is held to be illegal as MbPT was the
appropriate Authority. On the above grounds, he submits that the
Notice of Motion is liable to be rejected.
5. In view of the rival contentions and submissions of the
parties, following points arise for my determination to which findings
have been recorded for the reasons discussed below:
Sr.
No.
POINTS FINDINGS
1. Whether plaintiff has made out
prima facie case?
No.
2. Whether balance of convenience
lies in favour of the plaintiff?
No.
3. Whether plaintiff will suffer
irreparable loss, if injunction is
refused?
No.
4. What order? Notice of Motion is
dismissed.
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No.531 of 2019
REASONS
As to Point Nos.1 to 4:
6. It is the case of the plaintiff that he is a lessee in structure
situate at plot No.88/89 first lane, Darukhana, Mazgoan, Mumbai and is
in settled use and occupation of the said premises. He received notice
dated 10.01.2019 issued by defendant No.2 under Section 53(1) of the
MRTP Act. Assistant Assessor and Collector has collected assessment for
CI Shed. Plaintiff replied the impugned notice. The officers of
Defendant No.2 are giving threats to demolish the structure without
giving opportunity of hearing to the plaintiff. Defendant has charged
premium for the unauthorized construction and regularized the same by
accepting the premium. Therefore, the structure is regularized. The
impugned notice is challenged on the ground that it is passed
mechanically, without speaking order and without going through the
records with MCGM. Thus, plaintiff has prayed for declaration that
impugned notice is badinlaw, illegal, null and void and not binding
upon the plaintiff along with consequential relief of permanent
injunction.
7. Defendant No.1 in its reply has raised objection that the
suit is barred under Section 149 of the MRTP Act. Plaintiff has not given
notice under Section 120 of MPT Act to the defendant. It is further
contended that plaintiff and other lessees have committed various
breaches as lessee and plaintiff is unauthorized occupant in the subject
plot and the proceeding under Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 is initiated. The notice dated
10.01.2019 is issued by defendant, as Special Planning Authority after
carrying out site inspection. The plaintiff has made unauthorised
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No.531 of 2019
construction of tin partition/cabin in Gala No.2 with the help of
iron/pipe frame and tin sheets and unauthorized construction of 22 nos.
of toilet blocks without obtaining any permission from the Authority.
Therefore, the impugned notice is completely legal.
8. The plaintiff has challenged the notice issued under Section
53(1) of MRTP Act. It is settled proposition of law that Section 149 of
MRTP Act bars suit wherein the order passed or direction issued by the
State Government or order passed or notice issued by any Regional
Board, Planning Authority or Development Authority under the Act is
questioned. Both the Ld. advocates have placed reliance upon certain
authorities in support of their submissions. However, it is by now
settled that notice under Section 53(1) of MRTP can be challenged
before Civil Court, only if it is nullity. Therefore, it is imperative that in
order to avoid the bar Section 149 of the MRTP Act, there has to be
pleading in the plaint indicating that the impugned notice is nullity.
The judgments relied upon by both the sides may be referred at this
juncture.
9. In Sarina Esmeralda Lopez Vs. Vijay Goverdhandas
Kalantri and another, 2015(2) Mh.L.J. 603, relied upon by the Ld.
advocate for defendant No.1, the Hon’ble Bombay High Court held that
the notice issued under Section 53(1) of the MRTP Act can be said to be
nullity only if there is jurisdictional error while issuing the notice.
10. Both the Ld. advocates have placed reliance upon the
judgment of the Hon’ble Bombay High Court in Vandana Creations
Pvt. Ltd. Vs. The Municipal Corporation of Greater Mumbai, First
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No.531 of 2019
Appeal No.488 of 2014 wherein it is held as under
19. The only eventuality in which such notice can be challenged
in the Civil Court is prima facie showing that the said notice is a
nullity or issued without jurisdiction; as held by this Court in
the case of Laxman Barkya Wadkar (supra). In this decision,
this Court has clearly laid down that the jurisdiction of the Civil
Court is excluded in view of the bar created under Section 149
of the MRTP Act except in a case when there is an allegation
made in the plaint that action of issuing notice under Section
53(1) or Section 55 of the MRTP Act is nullity or without
jurisdiction. It was held that, to invoke its jurisdiction, the Court
has to be satisfied prima facie that the action impugned appears
to be nullity or without jurisdiction…..
11. In para 20 of the above authority it is further observed that
20. In the instant case, therefore, once it is accepted that the
Municipal Corporation, being a Planning Authority under the
MRTP Act, is bound to take action against unauthorized
constructions, the notice issued to remove such unauthorized
constructions, that too, under the express provisions of Section
53(1) of the MRTP Act, can never be called as nullity or issued
without jurisdiction.
12. Ld. advocate for plaintiff further relied upon the judgment
of the Hon’ble Bombay High Court in Abdul Hasan Shaikh Mansuri
Vs. Municipal Corporation of Mumbai and others, 2007(4) ALL MR
97, in which it is held as under
8. While parting with this judgment I may observe that in
proceedings such as the present one, where the plaintiff
approaches the court for a limited relief that the authority be
directed to follow due process of law, there is very little or no
defence available to the authority. It would be a different
matter if the authority was to assert that the subject matter of
the suit (suit premises) were not in existence at all on the date
of institution of the suit or that the due process of law has
already been followed in respect of the suit structure in the suit,
in which case the question of granting relief in such suit would
not arise. However, in any other situation where existence of
some structure is not disputed or indisputable, relief such as
prayed in the present suit, will have to be granted for asking, as
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No.531 of 2019
no authority can be permitted to take unilateral action, even if
the structure is unauthorized except by following due process
of law……
13. If the law laid down in the above authorities is considered,
as held in the judgment of Sarina Esmeralda Lopez Vs. Vijay
Goverdhandas Kalantri and another and Vandana Creations Pvt.
Ltd. Vs. The Municipal Corporation of Greater Mumbai (supra),
mere averment in the plaint that the notice is illegal or bad in law does
not make it nullity or without jurisdiction. There has to be pleading
supported by material in support of such averment. In the facts of the
present case, prima facie there is no such pleading supported by
material. Therefore, prima facie bar under Section 149 of the MRTP Act
is attracted to the suit. The authority in Abdul Hasan Shaikh Mansuri
Vs. Municipal Corporation of Mumbai and others (supra) do not
assist the plaintiff as there is nothing to suggest that defendants have
not followed due process of law.
14. The grievance of the plaintiff is that opportunity of hearing
is not provided to plaintiff and no speaking order or reasoned order is
passed by the defendant while issuing the impugned notice. Ld.
advocate for the plaintiff has drawn attention of this Court to certain
notices issued by MCGM to suggest that Designated Officer of MCGM
has passed speaking order which is lacking in the case of the notice
issued by defendant No.2. In reference to this submission, it may be
noted that Section 53(3) of the MRTP Act provides remedy to a person
to file application for regularization of the unauthorized construction.
There is no provision to give hearing prior to issuance of notice under
Section 53(1) of the MRTP Act. Alongwith the impugned notice,
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No.531 of 2019
Schedule describing the alleged unauthorized development together
with the particulars of property as well as Site Inspection Report and
Sketch/Survey & Photographs of the unauthorized development were
annexed, giving 15 days’ time to the plaintiff either to produce relevant
documents of permission or to demolish the construction. In the present
case, the disputed structure is admittedly unauthorized as there is no
sanction or permission for making the said construction. Therefore, the
impugned notice does not prima facie appear to be illegal.
15. It is submitted on the behalf of the plaintiff that the
disputed structure is tolerable structure under DCR 2034, and therefore,
permission is not required for structure. If dimension of the structure, as
is evident from the Site Inspection Report placed on record is
considered, it does not appear that the subject structure is tolerable.
Moreover, there is prima facie bar under Section 149 of MRTP Act to the
suit. There is nothing on record to indicate that the defendant has not
followed due process of law while initiating action in respect of the
subject structure. The impugned notice is issued after carrying out site
inspection of the subject structure.
16. Ld. advocate for the plaintiff further submitted that in case
of earlier notice issued by MCGM under Section 53(1) of MRTP Act in
respect of the subject structure, this Court has granted the relief of
interim injunction to the plaintiff. I have gone through the said order
passed in Draft Notice of Motion in Suit No.1756 of 2018. The Court
granted the relief of adinterim injunction in favour of the plaintiff by
holding that MbPT was the Special Planning Authority for the subject
structure and thus MCGM had no jurisdiction to issue the notice under
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No.531 of 2019
Section 354A of the MMC Act as per Notification dated 23/04/2018 of
the Government of Maharashtra. There was thus jurisdictional error and
consequently the adinterim order is granted by the Court. The said
order is passed on completely different footing and cannot be of any
assistance to the plaintiff in the present suit.
17. In these circumstances, plaintiff has failed to make out
prima facie case. Merely accepting premium by defendant No.1 in the
capacity of land owner account convert the subject structure into
authorized construction. The balance of convenience is not in favour of
the plaintiff and there is no possibility that plaintiff will suffer
irreparable loss if injunction is refused. Therefore, point Nos. 1 to 3 are
answered in the negative. Plaintiff is not entitled to the relief of
temporary injunction. In the result, following order is passed :
ORDER
1. Notice of Motion 531 of 2019 is dismissed.
2. Notice of Motion 531 of 2019 is disposed off accordingly.
(S.B. Pawar)
Judge,
City Civil and Sessions Court
Date.:21.02.2023 Greater Bombay (CR 59).
Declared on : 21.02.2023
Dictated on : 21.02.2023
Transcribed on : 05.03.2023
Checked on : 09.03.2023
Signed on : 10.03.2023
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Order in Notice of Motion 10
No.531 of 2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
10.03.2023 at 5.30 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 21.02.2023
Order signed by P.O. on 10.03.2023
order uploaded on 10.03.2023
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