Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no 410-18 L.C.SUIT no. 426-2018
MHCC010016362018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO.410 OF 2018
IN
SUIT NO.426 OF 2018
Mohammed Khalid Taqi Khan ]..Plaintiff
Versus
Designated Officer, A.E. (B & F) ]
& Anr. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 2nd May, 2018.
Mr. Sumit Vankadkar, advocate for plaintiff.
Ms. Rawade, advocate for defendants.
ORDER
1. The plaintiff has taken out this notice of motion seeking
interim injunction for restraining the defendants from acting in
pursuance of notice issued under Section 354A of the Mumbai
Municipal Corporation Act (for short, “M.M.C. Act”) and order dated
23.1.2018, till the disposal of the suit.
2. The facts, in brief, are that the plaintiff claims to be a
tenant and in possession of a premises (for short, “suit premises”)
located at the property no.348350, Samuel street, Masjid Bunder
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(West), Mumbai. The suit premises are located in the building namely
Ashrafi Manzil (for short, “suit building”) which was constructed in
1934. The suit building consists of ground plus four upper floors.
3. M/s. Brothers & Nephews Pvt. Ltd. Purchased the suit
building from the original owner on 16.4.2015. On 26.5.2017, the
original tenant P.G. Shah & Company surrendered tenancy rights in the
suit premises to the landlord. Thereafter, the plaintiff became tenant in
the suit premises. The plaintiff was carrying on tenantable repairs to
the suit premises as permitted under law.
4. However, the defendants issued notice dated 19.1.2018
under Section 354A of the M.M.C. Act and pasted it on the suit
premises. The plaintiff was out of station. On 23.1.2018, when he
returned, he came to know about the same. According to the plaintiff,
the suit premises are in existence since long. The work of tenantable
repairs was already completed. However, the defendants by order
dated 23.1.2018 directed the plaintiff to remove the work immediately,
which resulted in institution of suit.
5. The defendants opposed the motion by contending that
upon receipt of various complaints about unauthorized construction
being carried on at the suit premises, the officers of the Corporation
inspected the site on 19.1.2018. They inquired with the plaintiff about
plan / permission for the repairs. The plaintiff failed to show the same.
Therefore, notice under Section 354A of the M.M.C. Act was given. The
plaintiff did not file reply. The work was not stopped and therefore, the
impugned order was passed directing the plaintiff to remove the work.
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6. By filing an affidavit in rejoinder, the plaintiff contended
that the defendant Corporation has not followed the provisions of law
and acted only on the basis of complaints and without application of
mind.
7. The learned advocate for the plaintiff submitted that the
defendant did not follow the guidelines given in the case of Sopan
Maruti Thopte and the circular dated 29.4.2010. According to him, the
work was completed and therefore, the notice under Section 351 of the
M.M.C. Act was required to be issued. He has placed reliance on the
following authorities:
A Appeal from Order no.257 of 1999
Gowardhan vs. M.C.G.,M.
Ratio: When the construction is completed,
issuance of notice under Section 354A directing to
stop the work and further demolish the same is
illegal.
B 2007 (3) Bom.C.R. 337 (O.S.)
Sub Vijay International Pvt. Ltd. vs.
Commissioner.
Ratio: In case the Corporation detects the building
which is in process of being constructed /
reconstructed / extended without permission, it
would be open to the Commissioner to demolish
the same by giving short notice of 24 hours after
drawing panchanama at the site and also taking
photographs of the structure.
8. On the other hand, the learned advocate for the defendants
submitted that the plaintiff being tenant cannot seek protection of the
entire structure. The notice was issued properly. However, the plaintiff
did not file reply and the documents. According to her, the work was in
progress without any permission and therefore, it cannot be protected.
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9. Considering the submissions made by a respective
advocates and copies of documents placed on record, the following
points are decided for the reasons stated below:
SR.
NOS.
POINTS FINDINGS
1. Whether the plaintiff has made out prima facie
case ?
In the negative.
2. Whether the points of balance of convenience,
hardship and irreparable loss lie in favour of
plaintiff?
In the negative.
3. Whether the plaintiff is entitled to the relief of
interim injunction as sought for?
In the negative.
REASONS
As to point nos.1 to 3:
10. Upon going through the pleadings, it prima facie appears
that the plaintiff has not specifically described the suit premises and
their location. However, it appears from the impugned notice that the
suit premises are located at the rear side of the suit building. The
impugned notice describes the work as follows:
“Unauthorized construction of G + 1 structure on the back
side open space of the building, using material ladi coba ladi and R.S.J.
section admeasuring 10 meters x 4 meters.”
11. Though, it is mentioned in the impugned order that since
the plaintiff had not submitted any documents with his reply, it is now
undisputed position that, in fact, the plaintiff did not file the reply to
the impugned notice. The learned advocate for the plaintiff submitted
that the notice was not issued in the name of plaintiff and it is vague. It
prima facie appears that the notice has been issued in the name of
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owner / occupier / user and the same was pasted on the suit premises
and consequently the plaintiff instituted the suit seeking declaration
and injunction, and therefore, now the plaintiff cannot contend that his
name was not mentioned in the notice. Had it been the case that the
plaintiff had no nexus with or interests to protect the suit premises, he
had no occasion to institute the suit and take out the motion.
12. It is necessary to look into the documents placed on record.
It can be gathered from the copies of deed of conveyance, list of
tenants, rent receipts, consumer information extract given by BEST
undertaking that earlier the ground floor office no.4 was held by P.G.
Shah & Company and subsequently upon surrendering the tenancy
rights, the plaintiff was inducted in the suit premises.
13. The copy of first inspection report dated 19.1.2018, prima
facie shows that when the suit premises were inspected, the work was
in progress. Considering the copies of photographs, it appears that the
work as described in the impugned notice was in progress. The
skeleton work in steel girders and flooring tiles was in progress.
Existence of construction material and especially a gas cylinder prima
facie shows that the work of welding would be in progress, otherwise
there wont be any occasion for existence of a gas cylinder in such half
constructed premises.
14. The plaintiff has not specified the work of tenantable
repairs which according to him was carried out. He has not filed any
documents to show that the work of tenantable repairs as contemplated
under section 342 of M.M.C. Act was completed prior to inspection. On
the other hand, the inspection report and the photographs show that
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the construction activity was in progress i.e. raising girders and laying
ladi etc. The status of work as depicted in the photographs cannot be
termed as tenantable repairs. Thus, prima facie, it appears that the
construction work was in progress at the relevant time, and therefore,
issuance of notice under Section 354A is prima facie proper. The
plaintiff has not shown that his case falls within the ambit of Section
351 of the M.M.C. Act.
15. The plaintiff has also not produced any documents, plan or
permission to show that whatever work he was carried on / out was
authorized one. The plaintiff had also not produced on record any
documents or photographs to show the original status of the structure
of the suit premises. Under such circumstances, in absence of such
documents the plaintiff has failed to make out prima facie case. The
points of balance of convenience, hardship and irreparable loss do not
lie in favour of the plaintiff. Therefore, the plaintiff is not entitled to
interim relief. Accordingly, point nos.1 to 3 are answered in the
negative.
16. At this juncture, the learned advocate for the plaintiff prays
for protection of the notice structure so as to facilitate the plaintiff to
challenge the order before the Hon'ble High Court. Earlier, an order of
status quo was passed and continued from time to time till today.
Therefore, in view of the ratio laid down in the case of Kranti Mohan
vs. Fatechand reported in A.I.R. 1982 Bombay 263, “ a laudable
principle is implicit in the system to give fair deal to each litigant who is
aggrieved by an order of Court and has legitimate right to move the higher
court to ask for redress, and therefore, a reasonable opportunity should
normally be given, provided that the prayer on the face of it does not
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appear to be vexatious or frivolous. The principle is essential so as to
instil a sense of confidence in the system of administration of justice,” ad
interim protection granted earlier to the suit structure is extended till
6.6.2018. It will not be extended further on any count.
17. Thus, the following order is passed:
ORDER
1. Notice of Motion no.410 of 2018 is dismissed.
2. Parties to bear their respective costs of motion.
3. The interim protection given to the plaintiff by order of status
quo is continued till 6.6.2018. It will not be extended further on
any count.
Sd/
(M.S. Deshpande)
Ad hoc Judge,
City Civil Court, Mumbai.
Directly typed on : 02/05/2018.
Checked on : 03/05/2018.
Signed by HHJ on : 04/05/2018.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.05.2018 At 03.15 p.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
02.05.2018
JUDGMENT/ORDER signed by P.O.
on
04.05.2018
JUDGMENT/ORDER uploaded on 04.05.2018
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