Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 64619 IN ST 186419
CNR NO.MHCC01-001682-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.646 OF 2019
IN
STAMP NO.1864 OF 2019
1. Christabel S. Fernandes widow ]
of Fernandes & Ors. ]....Plaintiffs.
Versus
The Municipal Corporation of ]
Gr. Mumbai. ]... Defendant.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 15th June, 2019.
Mr. Mohd. Kaiz h/f. Mr. Yusuf Khan, Advocate for plaintiffs.
Ms. Chavan Advocate for MCGM/Defendant.
O R D E R
1. By this Notice of Motion, the plaintiffs have sought temporary
injunction against the defendant Corporation from demolishing the suit
property i.e. House No.82, Village Ward, Father Peter Pereira Marg,
Kurla (West), Mumbai.
2. In brief the plaintiff's case is that, they are the lawful tenants in
Gomes building i.e. the suit property since several decades. Except oral
intimation dated 12.2.2015 to vacate the suit property, no other notice
is served upon them. The suit is filed in representative capacity. One
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Mr. M.L. Ellar Gomes was the original owner of plot of land bearing CTS
No.353/1 to 8 at Kurla Village with three structures standing thereon.
The suit property is duly assessed and consists of ground plus three
upper floors. After the death of Mr. and Mrs. Gomes, suit property is
inherited by their heirs. The suit property being in Gaothan is a “Baithi
Chawl” and consists of 36 rooms. A Notice dated 3.7.2013 and
subsequent Notices were served only on the landlord and not on the
tenants. The suit property is more than 60 years old. It is in ruinous and
dilapidated condition. The defendant Corporation issued notice under
Section 354 of the MMC Act to the owner. The notices are not served
upon tenants. Behind their back, the defendant Corporation has declared
the suit property as dilapidated and has also taken steps to disconnect of
the water and electricity supply. The suit property is in repairable
condition. The original owner, after receiving the Notice under Section
354, appointed Structural Engineer Mr. A.N. Agashe who found that the
building needs repairs and the building was a load bearing structure
having slopping roofs covered with Mangalore tiles. He suggested that
the building needs to be vacated during repairs. Therefore, original
owner namely Joseph Gomes addressed letter dated 18.10.2013 to
defendant Corporation for repairs. Since no response was received, he
decided to start the repair work. For such repairs permission of
defendant Corporation was not mandatory. The repair work started in
January, 2014 and is now completed. However, during the course of
tenantable repairs defendant Corporation issued notice under Section
354A of MMC Act to the owner. The tenants are put back in possession.
Thereafter, the owner filed suit No.1308 of 2014 challenging the Notice
under Section 354A of the MMC Act. This Court granted Adinterim
relief which was continued till 24.7.2017 when original owner withdrew
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the suit as well as the Notice of Motion. The suit property is assessed
prior to 1962. The City Survey record reveals that the suit property was
multi storied structures. The defendant has not followed guidelines in
Writ Petition Lodging No.1135 of 2014. Defendant is trying to pull
down the suit property on the basis of a Notice under Section 354 of the
MMC Act after six years of it’s issuance. On 12.2.2019 the defendant has
demolished six rooms. Yet no final order is passed by the defendant
Corporation.
3. By way of an amendment the plaintiffs have further contended
that, a notice under Section 354 of the MMC Act dated 23.10.2016 was
issued to owner / occupier Desban Fernandes who does not exists. The
Notice under Section 354A dated 4.4.2014 was also issued to the
Original owner. Said Notice was challenged by the owner in Suit
No.1308 of 2014. The Court has granted adinterim relief. During
pendency of said suit Corporation issued Notice dated 23.10.2016 under
Section 351 of MMC Act to the owner i.e. Desban Fernandes who does
not exist. The entire proceedings are vitiated as the tenants were never
the party in any of the proceedings, hence injunction is necessary. On
21.1.2017 the speaking order was passed only against the owner /
Occupier Shri Desban Fernandes/ Sheldon. The tenants were never
heard before passing such order. The plaintiffs were not the party to the
suit No.244 of 2017. The plaintiffs were not aware about the alleged
letters of regularization. They were also not party to the Writ Petition
No.2669 of 2014 wherein the Hon'ble Bombay High Court has passed
Judgment. The impugned Notices, Orders and Judgment cannot be
enforced against the plaintiffs as they were not parties to those
proceedings. A letter dated 21.6.2018 is also not served upon the
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tenants. The Notice under Section 488 dated 21.1.2019 is also not served
upon the tenants, but was pasted on the doors.
4. The defendant Corporation opposed the Notice of Motion
contending that the suit is not tenable as the defendant has already
followed due process of law by issuing Notices under Sections 354, 354A
and 351 of MMC Act as required by the circumstances. The Notice under
Section 351 dated 23.10.2016 was issued after inspection of the site and
the noticee was called upon to prove the authorization of the notice
structure. It was replied and considering the reply, an order dated
21.1.2017 was passed. The owner of the suit property already filed a
Suit No.244 of 2017 before this Court in which the Notice of Motion is
already dismissed on 31.8.2017. The said Order has attained finality as
it is not challenged by the plaintiff therein. Thus, the suit challenging
Notice under Section 354 by the plaintiff is not tenable. The plaintiffs
have challenged the Notice under Section 354 of the MMC Act which
was given to the old structure. The old structure was in dilapidated
condition and was having ground plus first floor. The owner/ occupier
was called upon to pull down old structure. The owner/ occupier himself
pulled down, said old structure in terms of the Notice under Section 354
of the MMC Act. This fact is suppressed by the plaintiffs. After pulling
down the old structure, the new unauthorized construction was started
and therefore, a Notice under Section 354A dated 4.4.2014 was issued.
It was challenged in Suit No.1308 of 2014 and the Order of statusquo
was obtained by misleading the Court. Under the grab of such status
quo order the unauthorized construction was completed. Therefore,
another Notice under Section 351 of the MMC Act dated 23.10.2016 was
issued to the owner/ occupier who has carried out unauthorized
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construction of ground plus three floors on open land. The Notice was
replied and after considering the speaking order dated 21.1.2017 was
passed directing the noticee to remove the notice structure. The
demolition of the notice structure was arranged however, the noticee
approached the Hon'ble Court by filing the suit No.244 of 2017. The
Hon'ble Court rejected the adinterim relief. The plaintiff therein
challenged it in A.O. Stamp No.4268 of 2017 and obtained a statusquo
order from the Hon'ble High Court. After filing Suit No.244 of 2017, the
Suit No.1308 of 2014 was withdrawn unconditionally. This Court has
dismissed the Notice of Motion in L.C. Suit No.244 of 2017 on
31.8.2017, after hearing the parties. The application to stay the effect of
order dated 31.8.2017 is also rejected by this Court. Thereafter, the
information about any pending regularization application was called and
it was found that no application for regularization was pending. In Writ
Petition No. 2669 of 2014 the Hon'ble High Court has specifically
directed the defendant to demolish the suit building as expeditiously as
possible. The contractor is appointed to demolish said building and a
letter dated 21.6.2018 was addressed to the owner / occupier. The
plaintiff again took out fresh Notice of Motion praying for temporary
injunction on 30.7.2018 however, it did not move for hearing of said
Notice of Motion. Therefore, on 21.1.2019 the Notice under Section 488
of MMC Act was issued and was pasted on the suit site. Thereafter, this
Court was moved for hearing fresh Notice of Motion on 29.1.2019 and
the fresh Notice of Motion is also dismissed by this Court on merit. Said
Order is not challenged. In such circumstances, the Notice of Motion is
meritless and dismissed with costs.
5. Perused. Heard.
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6. Following points arise for determination against which findings are
recorded for the reasons to follow:
Sr. No. POINTS FINDINGS
1. Do plaintiffs prove a prima facie case in
their favour?
In the Negative.
2. Whether the balance of convenience lies
in plaintiffs’ favour?
In the Negative.
3. Whether the plaintiffs will suffer
irreparable loss if injunction as sought
is refused?
In the Negative.
4. What Order ? Notice of motion is
dismissed.
REASONS
As to point Nos.1 to 4.
7. This case is a classic example as to how the legal process is
misused. It is also an example of the dangerous and ongoing trend to
file the suits one after another by different sets of plaintiffs in respect of
the same structure by not disclosing the earlier suit and the orders
therein.
8. The plaintiffs themselves have produced on record a copy of L.C.
Suit No.1308 of 2014. Said Suit was filed by the Joseph Gomes through
his Constituted Attorney Shri Desban Fernandes D'souza. In said suit
property was described as House No.82 having two structures. These
two structures are described as one having ground plus first floor and
another having ground plus two floors both jointly having fourteen
rooms rented out to the tenants. In said suit in paragraph 8 it is alleged
that a Notice under Section 354 issued by the defendant Corporation was
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issued to all the tenants also. Since plaintiffs have relied upon these
pleadings it was for the plaintiffs to explain the pleadings therein.
Without any explanation to the contrary by the plaintiffs, it has to be
inferred that the plaintiffs accept those pleadings.
9. The copy of another suit bearing No.244 of 2017 is placed on
record by defendant Corporation with list Exh.7. Said suit is also relating
to House No.82. However, its description mentions that it is having two
structures but having ground plus two floors and another having ground
plus three floors both jointly consisting of 26 rooms. In present suit the
plaintiffs have come with a case that same House No.82 is presently
consisting of these structures having ground plus three floors i.e. total
four floors consisting of 36 rooms.
10. A comparison of the description of suit property in all of three
above mentions suit reveals that, not only the number of structures but
the number of floors and rooms is increasing year by year as if the suit
property is a growing child. There is nothing on record to explain this
phenomenon. The advocate for plaintiffs also could not explain as to
how this is happening.
11. The documents filed with the plaint more particularly Exh.H and I,
reveal that the House No.82 having assessment No.123012 is a ground
plus first floor structure in the year 20082009 and it was said ground
plus first floor structure that was assessed on 31.1.1962. Thus it is clear
that the original building/ structure or House No.82 was only consisting
of ground floor plus first floor. These are the documents relied upon by
the plaintiffs to prove the existence of the suit property. However,
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unfortunately the documents revealed existence of structure comprising
ground floor plus first floor though the plaintiffs claimed that it is ground
plus three floors structure.
12. The defendant has filed on record the photographs revealing the
old structure of House No.82 which was in absolutely dilapidated and
ruinous condition requiring its removal. The plaintiffs have denied these
photographs to be of original structure by filing a rejoinder.
13. If at all these photographs filed with list Exh.4 were not of the
original House No.82, it was for the plaintiffs to file the affidavit of
owner of the building who could have been in a better position to deny
these photographs. It is the plaintiffs own pleading that when the Notice
under Section 354 of the MMC Act was issued the suit property was in
ruinous and dilapidated condition. Considering all these circumstances it
has to be prima facie accepted that the photographs flied by the
defendant Corporation are of the old House No.82. It also needs to be
considered that defendant Corporation, being a public body, cannot have
a personal interest in any matter so as to being incorrect information
before the Court as it will not have personal gain in such matters.
14. Considering the plaint pleadings and the photographs on record, it
is clear that the old house No.82 was consisting of only ground floor and
first floor. The plaintiffs' claim is that they are the tenants in house
No.82 since inception. They claim to be inducted by Mr. and Mrs.
Gomes. If it is so, it was for them to explain in what circumstances the
old ruinous and dilapidated House No.82 having ground plus first floor
structure is now grown into a new, structurally stable ground plus three
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floors structure. There is no such explanation. This itself is indicative of
the fact that, the plaintiffs have not come with true version before the
Court.
15. Considering the actions of defendant Corporation taken time to
time from the year 2013 onwards i.e. the inspection report dated
3.4.2014, the consequent notice under Section 354A dated 4.4.2014 and
further notice under Section 351 of the MMC Act dated 21.1.2017,
prima facie there is substance in its contention that after demolishing the
old House No.82 fresh construction was started, after challenging the
Notice under Section 354A and obtaining the statusquo construction of
new building of ground plus three floors was completed.
16. The documents placed on record also reveal that said Notice under
Section 351 and the Order passed thereupon was unsuccessfully
challenged before this Court.
17. The plaintiffs have come with a case that, they are unaware of all
the earlier Notices. However, in plaint paragraph two they have stated
that they had oral intimation dated 12.2.2015 to vacate the suit property
or that it will be forcibly demolished. In what circumstances such oral
intimation was given is not explained by the plaintiffs. This again is a
circumstance to doubt the truthfulness and the conduct of the plaintiffs.
The plaintiffs have also relied upon the plaint in suit No.1308/2014
wherein the then plaintiff i. e. the owner, has claimed the tenants have
been served with notice under section 354 of the MMC Act. As already
discussed, the plaintiffs did not explain this circumstance.
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18. The circumstances brought on record prima facie reveal that, after
demolishing old house a new building was constructed. The plaintiffs
claim to be the tenants in such old as well as new building. If this is so,
it is not only difficult but also impossible to believe that the plaintiffs
were not aware of the demolition of the old house and the construction
of the new building. Consequently the knowledge of Notices and the
proceedings filed in the Court can also be attributed to the plaintiffs.
19. Thus it is clear that, the plaintiffs have come before this Court in
an incorrect and false version only to halt the legal process legally
initiated by the defendant. Such efforts on the part of the plaintiffs
cannot be tolerated.
As is described initially, this is a classic case in which a
dangerous trend is revealed wherein the different sets of plaintiffs file
the suits one after another to protect the illegal construction. The plaint
pleadings in all the three suits reveal that those contain almost identical
pleas. The conduct of the plaintiffs in this case is absolutely not
equitable. They are not at all entitled to the equitable remedy of
injunction.
Advocate for plaintiffs relied upon Asit Kumar Kar Vs. State
of West Bengal & Ors., and submitted that the paragraph 5 as follows:
"The aforesaid directions in paragraph 40 of the
judgment was passed without hearing the persons
whose licences were ordered to be cancelled. In fact
even the impleadment applications of such persons were
rejected. It is a basic principle of justice that no adverse
orders should be passed against a party without
hearing him. This is the fundamental principle of
natural justice and it is a basic canon of jurisprudence".
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He has submitted that the plaintiffs were having no knowledge of
earlier proceedings. Their structures cannot be demolished.
20. The Provisions of Municipal Corporation Act are such that the
action of demolition etc to be taken by the Corporation is against the
structure and not against the person. That is why the Notice can be
given to either the owner or the occupier. If the Notice is already given
to the owner, the plaintiffs cannot claim that being tenants they were
entitled to the Notice without which defendant / Corporation cannot
take action. Further in the circumstances of this case the knowledge of
earlier notices and incidents is attributable to the plaintiffs. Hence the
plaintiffs cannot claim the violation of principle of natural justice.
21. The advocate for plaintiff also relied upon the Judgment of
Hon'ble High Court in Writ Petition No.591 of 2013 wherein the Hon'ble
High Court had directed the Corporation to inform the twenty five
occupants of the twenty five structures against which the action of
demolition was to be taken. Relying upon the said judgment the
Advocate for plaintiffs submitted that it was necessary for this Court to
direct that the tenants should also have been informed about
proceedings in earlier suit. Since that was not done their structures
needs to be protected.
22. Yet again it has to be stated that the plaintiffs have not come with
clean hands. They have also suppressed various material facts. The
knowledge of earlier proceeding is also attributable to them therefore,
they cannot take benefit of Judgment cited supra.
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23. The defendant Corporation has filed the copy of Judgment of the
Hon'ble Bombay High Court in Writ Petition No.2669 of 2014 wherein
the Hon'ble High Court had considered the statement of Municipal
Corporation that is shall demolish the suit property as expeditiously as
possible in accordance with law. Said Writ Petition was filed by Vijay K.
Manthena. The Advocate for plaintiffs has submitted on record the
Judgment of Hon'ble Bombay High Court in Anticipatory Bail Application
No.734 of 2014 and the copy of FIR No.211 of 2014 registered with
Kurla Police Station, against the said Vijay K. Manthena. This is nothing
but an effort to prejudice this Court against this Vijay K. Manthena.
However, These documents have nothing to do with present case.
Plaintiffs have failed to make out the case on their own count.
24. The net result of the discussion made above is that the plaintiffs
have failed to make out a prima facie case in their favour. They have
also failed to prove that the balance of convenience lies in their favour.
The construction, being prima facie illegal, no case of irreparable loss is
made out by the plaintiffs. Hence, I record my findings on point Nos.1 to
3 in the negative and in response to point No.4, pass the following order:
ORDER
1. Notice of Motion No.646 of 2019 is dismissed with costs.
Sd/
(A.N. MARE)
Judge,
15/06/2019 City Civil Court, Mumbai.
Dictated On : 15.06.2019
Transcribed on : 18.06.2019
HHJ Signed on : 20.06.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
20.06.2019 02.40 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
15.06.2019
JUDGEMENT /ORDER signed by
P.O. on
20.06.2019
JUDGEMENT /ORDER uploaded
on
20.06.2019
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