Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.556/20 (L.C.S. No.280/20)
MHCC010014192020
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.556 OF 2020
IN
LONG CAUSE SUIT No.280/2020
Laxmi Kathiresen … Plaintiff
- Versus -
Municipal Corporation
of Greater Mumbai ... Defendant
Appearance :-
Mr. J. S. Yadadv h/f. Mr. B. P. Shukla, Advocates for plaintiff.
Mr. Som Sinha with Mr. Suryavanshi, Advocates for defendant.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 13/12/2023.
O R D E R
. This is suit for perpetual injunction restraining defendant
B.M.C. from demolishing structure bearing shops No.4 and 5, more
particularly described in paragraph No.1 of the plaint, without
following due process of law and the plaintiff took out present Notice of
Motion under Order-XXXIX Rule-1 of The Code of Civil Procedure (in
short the C. P. C.) for temporary injunction restraining defendant B. M.
C. from demolishing suit structure without following due process of law.
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2 N/M. No.556/20 (L.C.S. No.280/20)
2] Brief facts of the plaintiff’s case are that the suit structures
are in existence prior to 1961-62 and same is reflected in C. T. S.
enquiry map. Suit premises have been assessed for the purpose of
municipal taxes under property No.MW-441 (2A). The plaintiff is a
tenant and in use and occupation of the premises and paying rent to the
landlord Mr. V. C. Patel.
3] It is further stated that suit structures are situated in a
compound of the building known as Rail View building. Defendant
B.M.C. had issued notice under Section 354 of The Mumbai Municipal
Corporation Act (in short the M. M. C. Act) to the said building. The
plaintiff’s name is not in the list of tenants/occupiers of said building
given by B. M. C. The B. M. C. has not issued notice under Section 353B
or 354 of the M. M. C. Act to suit premises. However, the landlord
intends to demolish suit premises and using machinery of B. M. C. to
evict the plaintiff. It is further stated that on the instigation of the
landlord the officers of B. M. C. without issuing any notice disconnected
electricity on 14/6/2020 and also threatened to demolish notice
structure. Therefore, the plaintiff constrained to file suit and took out
present Notice of Motion.
4] Defendant B. M. C. resisted Notice of Motion by filing reply.
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. Notice is
executive or administrative act or order and same is not open to
challenge in the Court of law. The plaint discloses no cause of action.
The plaintiffs have not give description of property to identify it hence
suit is liable to be dismissed under Order-VII Rule-3 of the C. P. C. In
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3 N/M. No.556/20 (L.C.S. No.280/20)
view of the provisions of Section 515A of the M. M. C. Act this Court
has no jurisdiction to try and entertain present suit.
5] It is further stated that the officer of the Corporation, on
usual inspection, issued notice under Section 353 (B) of the M. M. C.
Act to the building namely Rail View and directed to submit structural
stability certificate within 30 days. Pursuant to said notice, Mr. Yatin
Dosa, executor of the properties of V. C. Patel, submitted structural audit
report through structural auditor M/s. S. J. Mhatre categorizing said
building as C/1 category. Thereafter, Designated Officer forwarded
Proforma-B of said structural audit report to the occupants and called
their objections. However, neither the plaintiff replied nor challenged
said Proforma-B within prescribed time of 30 days. Then, the
Corporation issued notice under Section 354 of the M. M. C. Act to the
occupants of the building and directed to evacuate said building. It is
further stated that the Corporation has followed due process of law and
guidelines laid down by the Hon’ble Bombay High Court in Writ Petition
No.1135 Of 2014. The plaintiff has not challenged structural audit
report submitted by the landlord. Further, the plaintiff has not
challenged notice under Section 354 of the M. M. C. Act. The defendant
B. M. C. has followed due process of law. Therefore, the plaintiff is not
entitled for the relief of injunction.
6] Points for determination alongwith findings thereon for the
reasons are as under :-
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.
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4 N/M. No.556/20 (L.C.S. No.280/20)
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 :-
7] The plaintiff relied on location plan, City Survey Plan, letter
issued by defendant, rent receipts, electricity bills, shop and
establishment certificate, notice under Section 354 of the M. M. C. Act.
8] Defendant B. M. C. relied on notice under Section 353 of
the M. M. C. Act, structural audit report, approval of Executive
Engineer, letter of intimation, copy of notice under Section 354 of the
M. M. C. Act, approved plan, area certificate, demolition report etc.
9] Learned advocate for the plaintiff submitted that suit
structure is not part of Rail View building and the Corporation has not
issued notice under Section 353B or Section 354 of the M. M. C. Act to
the plaintiff however, on the instigation of the landlord defendant
B.M.C. disconnected the electricity and threatened to demolish notice
structure without following due process of law. He further pointed out
that notice has been issued to Rail View building and not to the suit
structure. He further submitted that in area statement of Rail View
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5 N/M. No.556/20 (L.C.S. No.280/20)
building, prepared by designated officer, it is mentioned that these stalls
are situated in compulsory open space and hence suit premises are not
included in area certification. In his submission, the area statement
clearly shows that the notice structure is not part of said building.
Therefore, the plaintiff is entitled for temporary injunction as prayed.
10] On the other hand, learned advocate for the B. M. C.
submitted that as per the guidelines of the M. C. G. M. for declaring
private and Corporation buildings as dangerous, notice under Section
353B of the M. M. C. Act was issued to the landlord/owner calling upon
him to submit structural audit report of building. The landlord through
architect Samir J. Mhatre submitted structural audit report categorizing
building in C-1 category. Then, objections were called upon from
occupiers/owners of said building. However, the plaintiff has not
challenged Proforma-B or carried out structural audit through structural
auditor. Then, the Corporation issued notice under Section 354 of the
M. M. C. Act. In his submission the Corporation has followed due
process of law. Therefore, the plaintiff is not entitled for any relief.
11] Learned advocate for defendant B. M. C. relied on the
judgment of the Hon'ble Bombay High Court in the matters of
Municipal Corporation of Greater Mumbai Versus State of Maharashtra
& 8 Ors. (Writ Petition No.1135 Of 2014), Municipal Corporation of
Greater Mumbai Vs. The State of Maharashtra and Ors. (Writ Petition
No.1080 Of 2015) and Mahendra Bhalchandra Shah and 4 Ors. Versus
Municipal Corporation of Greater Bombay and 5 Ors. [Writ Petition (L)
No.1755 Of 2019]. In the above cited judgments the Hon'ble High Court
laid down the guidelines for declaring private/municipal building as
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C/1 category. However, facts of case on hand are not identical. Hence
the judgments relied by the Corporation are not helpful to the B. M. C.
12] The plaintiff has filed suit restraining defendant B. M. C.
from demolishing suit premises without following due process of law.
Learned advocate for the plaintiff invited my attention to an undated
notice notice under Section 353B of the M. M. C. Act, wherein, there is
reference of only Rail View building. He submitted that the said notice
was not in respect of suit structures, which are not part and parcel of
Rail View building. He further submitted that structural audit report
submitted by the landlord is of building and not notice structure. He
submitted that the measurements in area statement clearly show that
notice structure is not part of said building. Defendant B. M. C. has
produced on record plan of Rail View building which indicates that suit
shop is stand alone and is located away from Rail View building. The
area statement produced by the Corporation does not find mention
about suit structure. It is contention of the plaintiff that the landlord
intends to develop property and in order to evict the plaintiff without
providing alternate accommodation the landlords is using machinery of
B.M.C. It appears that the real dispute is between the plaintiff and the
landlord with regard to permanent alternate accommodation and other
benefits. The plaintiff has contended that defendant B. M. C. has not
carried out inspection of suit structure and not followed its guidelines/
procedure laid down by law. It appears that notices under Sections 353B
and 354 of the M. M. C. Act cannot be said to be in respect of suit
shops. There is
prima facie material on record to show that the plaintiff
is in possession of suit structure and they are away from Rail View
building which is declared as dilapidated. There is no material on
record to show that defendant B. M. C. has followed due process of law
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7 N/M. No.556/20 (L.C.S. No.280/20)
before issuing notice of demolition/eviction notice. Thus, the plaintiff
has made out case for grant of temporary injunction as prayed. In the
event of denial of interim relief he would suffer irreparable loss.
Accordingly, I answer points No.1 to 3 in the affirmative and in answer
to point No.4 pass following order :-
O R D E R
Defendant B M. C is temporarily restrained from demolishing suit
premises without following due process of law.
Date : 13/12/2023. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
29/12/2023 04:50 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 13/12/2023
ORDER Typed on 28/12/2023
ORDER signed by P. O. on 29/12/2023
ORDER uploaded on 29/12/2023
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