Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 LCS 317/18 [J]
MHCC010017502018
Presented on : 02/02/2018
Registered on : 02/02/2018
Decided on : 06/09/2022
Duration : YY MM DD
04 07 04
Exhibit26.
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
LONG CAUSE SUIT No.317 OF 2018
Mr. Aklaque Ahmed Mohd. Hasan Khan
Age : 72 years of Mumbai, Adult,
Indian inhabitant, carrying on
business at Structure/shop adjacent to
Narayan Building, Situated at opp. Post Office,
Harichand Desai Road, Ghatkopar West,
Mumbai – 400 086. … Plaintiff
Versus
The Municipal Corporation of
Greater Mumbai a statutory body
established under the provisions of
Mumbai Municipal Corporation
Act, 1888 having their head office at
Mahapalika Building, Mahapalika Marg,
Fort, Mumbai – 400 001.
Through the Assistant Municipal
Commissioner N Ward office … Defendant
Appearance :
Mr. Mohit Jadhav, Advocate for plaintiff.
Mrs. Rawade, Advocate for defendant.
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CORAM : S. H. SALUNKHE,
JUDGE CITY CIVIL COURT,
COURT ROOM NO. 4.
DATED : 06/09/2022.
J U D G M E N T
. This suit is for declaration that notice under Section 351 of
The Mumbai Municipal Corporation Act (in short the M.M.C. Act) dated
7/10/2017 and impugned order dated 30/1/2018 in respect of suit
structure/shop having area admeasuring 80 Sq. Ft. and 13 Ft. in height
constructed of B/M wall and A/C sheet roof adjacent to Narayan
Building, opposite Post Office, Harichand Desai Road, Ghatkopar
(West), Mumbai (in short suit structure) be declared as null, bad in law
and not enforceable in law and for consequential relief of permanent
injunction restraining defendant/Corporation from implementing or
acting upon said notice and order.
2] Brief facts of the case are as under :
The plaintiff is owner and carrying on business under name
and title 'Maharashtra Juice & Snacks' from suit structure. Prior to
August 2006 suit structure was forming part of a larger structure
admeasuring 160 Sq. Ft. and the plaintiff was carrying on business
under the name and style as 'Maharashtra Chappal Mart'. It is further
stated that in September and October 1983 the plaintiff applied to the
defendant/M.C.G.M. for permission to carry out repairs to suit structure
as same was in very dilapidated condition. The defendant/Corporation
granted permission of repair by letter dated 19/12/1983. It is further
stated that the defendant/M.C.G.M. required 80 Sq. Ft. area out of
larger structure for road widening and by letter dated 1/8/2006 allotted
a temporary pitch to the plaintiff at Shraddhanand Road behind BEST
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bus stop and allowed the plaintiff to reconstruct structure as per the
terms and conditions mentioned in the said letter. Thereafter suit
structure remained to be allotted by the defendant and same is
authorized structure. It is further contended that the defendant/
Corporation has issued licence for business at suit structure. The
defendant also issued shop and establishment certificate at suit
structure. It is further contended that there is water connection at suit
structure and the plaintiff is having water bill at the address of suit
structure.
3] It is further contended that surprisingly however, on
14/10/2017 the defendant issued notice under Section 351 of the
M.M.C. Act alleging that suit structure is unauthorized. The impugned
notice is illegal, malafide, against the provisions of the M.M.C. Act and
issued without application of mind. The plaintiff replied said notice on
23/10/2017 and 9/1/2018 by placing relevant documents on record.
However, on 30/1/2018 the defendant/Corporation passed Speaking
Order without considering documents and facts. Therefore, notice as
well as Speaking Order is bad, illegal, null and void. The plaintiff is
having apprehension of demolition of suit structure by the defendant/
Corporation. Therefore, this suit for declaration and permanent
injunction.
4] The defendant/Corporation resisted suit by filing Written
Statement at Exh.3. At the outset, the Corporation contended that suit
is not maintainable for want of statutory notice under Section 527 of
the M.M.C. Act and in view of the provisions of 515A of the M.M.C. Act
this Court has no jurisdiction to try and entertain present suit, as it is
filed to challenge notice issued under Section 351 of the M.M.C. Act
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and Speaking Order dated 30/1/2018. It is further contended that
notice under challenge is executive and administrative act and order
and same is not open to challenge in the Civil Court, therefore, suit is
liable to be dismissed with compensatory cost.
5] It is further contended that one Prakash Rangwala lodged
complaint before Grievance Redressal Committee regarding
unauthorized construction and illegal water connection to suit structure
which was constructed on a footpath. Thereafter as per the directions of
the Deputy Commissioner of BMC, ZoneVI the officers of the
defendant/M.C.G.M. inspected suit site on 29/9/2017 and noticed
unauthorized construction of suit structure admeasuring 2.9 Mt. X 2.6
Mt. X 3.1 Mt. in height on open space of building and same is used for
commercial purpose by the plaintiff. The plaintiff was asked to produce
documents showing authorization or permission for construction but
the plaintiff failed to produce same. Therefore, officer took
measurements, photographs and prepared Inspection Report. The said
report was put up before designated officer who after carefully going
through the complaint and Inspection Report came to the conclusion
that suit structure is unauthorized and hence the defendant/ M.C.G.M.
issued notice under Section 351 of the M.M.C. Act and the plaintiff was
informed that he has carried out unauthorized construction of suit
structure in the compulsory open space of the building which is contrary
to the provisions of Sections 342 to 347 of the M.M.C. Act and the
plaintiff was called upon to show cause in writing why suit structure
should not be pulled down. The plaintiff replied show cause notice on
7/10/2017 but failed to produce authentic documentary evidence to
prove authorization of notice structure. The plaintiff failed to show that
notice structure is in existence prior to datum line. The plaintiff also
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failed to produce approved plan or permission for erection of suit
structure, therefore, the designated officer passed Speaking Order of
demolition on 30/1/2018. The Corporation has followed due process of
law. In the circumstances, the plaintiff is not entitled for any relief and,
therefore, suit deserves to be dismissed with costs.
6] On the basis of pleadings my learned Predecessor framed
issues at exhibit4 and those issues are reproduced alongwith my
findings thereon for the reasons to follow :
Sr.
No.
I S S U E S F I N D I N G S
1) Whether the plaintiff proves that the
notice issued by the defendant/
MCGM under Section 351 of the
M.M.C. Act dated 7/10/2017 is
illegal, badinlaw and cannot be
enforceable ? . . . In the negative.
2) Whether the plaintiff further proves
that notice structure is protected
structure and it exists prior to the
year 1995 as per the policy decision
of defendant/MCGM ? . . . In the negative.
3) Whether the suit is badinlaw as the
statutory notice under Section 527 of
the M.M.C. Act not issued to the
defendant/M.C.G.M. ? . . . In the negative.
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4) Whether the plaintiff is entitled for
reliefs as prayed ? . . . No.
5) What order and decree ? . . . Suit is dismissed.
:: R E A S O N S ::
7] In support of claim the plaintiff Aklaque (P.W.1) filed
affidavit of evidence at Exh.5 and relied on documentary evidence viz.
copies of application to repair Exh.8 collectively, repair permission
Exh.9, allotment letter Exh.10, shop act licence Exhs.11 and 12, water
connection bill Exh.13, notice under challenge Exh.14, replies by the
plaintiff dated 23/10/2017 and 9/1/2018 Exh.15 and Speaking Order
Exh.16.
8] On behalf of defendant/Corporation Mr. Rahul Kamble
(D.W.1), Junior Engineer filed affidavit of evidence at Exh.19. The
defendant/Corporation relied on documentary evidence viz. copy of
complaint Exh.21, Inspection Report and photographs Exh.22, Show
Cause Notice Exh.23 and Speaking Order Exh.24.
AS TO ISSUES No.1 AND 2 :
9] The plaintiff (P.W.1) in his affidavit of evidence deposes
that he is the owner of suit structure situated adjacent to Narayan
building, opposite Post Office, Hirachand Desai Road, Ghatkopar having
area admeasuring 80 Sq. Ft. and height 13 Ft. constructed of B/M wall,
A/C sheet roof. He further deposes that originally suit structure was
having area admeasuring 160 Sq. Ft. and he was carrying on business in
the name and style Maharashtra Chappal Mart. He further deposes that
in September and October 1983 he applied to the Corporation for
permission to carry out repairs and accordingly the Corporation granted
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permission to carry out repairs vide letter Exh.9. He further deposes
that in 2006 the Corporation acquired 80 Sq. Ft. area of the larger
structure and alloted him temporary pitch at Shraddhanand Road. He
further deposes that remaining half structure of said larger shop was
remained to be allowed by the Corporation i.e. suit structure and it is an
authorized structure.
10] Defendant/Corporation denied the contention of the
plaintiff that suit structure is authorized. It is the case of defendant that
it has received complaint that the plaintiff has carried out construction
of suit structure on a compulsory open space and, therefore,
Corporation after following due process, issued Show Cause Notice and
passed Speaking Order.
11] Learned advocate for the plaintiff submitted that suit
structure was originally having dimensions 8 X 20 Sq. Ft. i.e. 160 Sq. Ft.
and out of that 80 Sq. Ft. was acquired by the Corporation for road
widening and in lieu thereof the plaintiff has been allotted temporary
pitch at Shraddhanand Road and the original half portion i.e. suit
structure was remained there. He submitted that the Corporation
granted permission to repair suit structure in 1983. He further
submitted that (D.W.1) in his crossexamination admitted that the
Corporation grants permission of repair only to authorized structures/
constructions and, therefore, this fact clearly shows that suit structure is
authorized. Therefore, impugned notice and order are bad in law and
prayed that suit be decreed with costs.
12] On the other hand, learned advocate for the Corporation
submitted that the plaintiff has not produced any document to show
that suit structure is in existence since prior to datum line. The
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Corporation has approved sanction plan or granted permission. It is
further submitted that merely the Corporation has granted permission
to carry out repairs does not automatically makes an illegal construction
legal. The burden is on the plaintiff to prove that suit structure is
authorized or legal. However, the plaintiff has failed to establish that
suit structure is legal or authorized. Therefore, suit deserves to be
dismissed with costs.
13] In the light of evidence on record and the submissions
made on behalf of the parties it is to be seen whether suit structure is
legal or authorized. According to the plaintiff, suit structure is in
existence since long and in 1983 the Corporation has granted
permission to carry out repairs to suit structure. The plaintiff has relied
on permission to repair suit structure. On perusal of the said letter
Exh.9, it appears that the defendant/Corporation has granted
permission to repair shop admeasuring 8 X 20 Sq. Ft. on 19/12/1983.
Learned advocate for the plaintiff submitted that unequivocal admission
given by the defendant's witness in his crossexamination that
Corporation grants permission of repair to only authorized structure
clearly shows that suit structure is authorized. It is well settled that
admission given by a party or its representative is a substantive piece of
evidence but it is not a conclusive proof. It is well settled that admission
can only be made as to point of fact and not point of law. Section 347 of
the M.M.C. Act provides that no person shall erect any building or
execute any work without permission of Commissioner. Therefore,
admission by (D.W.1) is on point of law and much importance cannot be
given to it.
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14] The plaintiff came with a case that suit structure is
authorized. It is case of the plaintiff that the Corporation has granted
permission to carry out repairs of suit structure and, therefore, suit
structure is legal. The initial burden lies on the plaintiff to establish that
suit structure is authorized or legal. The plaintiff must prove that suit
structure is in existence since prior to the datum line or the Corporation
has approved sanction plan or it is a protected structure. It is stated by
the plaintiff that suit structure is in existence since long. The plaintiff
has produced on record Shop Act Licence below Exh.12. On perusal of
the same, it appears that the Shop Act Licence has been first time issued
in 1976. Thus it can be inferred that the plaintiff is carrying on business
in the name of 'Maharashtra Chappal Mart' at suit structure since 1976.
The plaintiff has not produced any document to show that suit structure
is in existence prior to the datum line i.e. 17/4/1962. The Corporation
has denied contention of the plaintiff that suit structure is authorized. It
is contention of defendant/Corporation that the plaintiff erected
structure on compulsory open space near Narayan building.
15] According to the plaintiff, suit structure is authorized.
Section 347 of the M.M.C. Act provides that no person shall commence
to erect any building or execute any such work as prescribed in Section
342 until he has given notice of his intention to erect such building to
the Commissioner. However, the plaintiff has not produced on record
any document to show that he has obtained permission for construction
of suit structure or the Corporation has approved plan. The document
relied by the plaintiff i.e. permission to carry out repairs to suit
structure cannot be said to be a permission for construction of suit
structure. Merely the Corporation has granted permission to repair suit
structure automatically does not make an unauthorized construction
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legal or authorized. Shop Act Licence below Exh.12 shows that the
plaintiff is carrying on business since 1976. The plaintiff has not
produced any documentary evidence to show that suit structure is
authorized or in existence prior to the datum line or the Corporation
has granted sanction for construction of suit structure. The plaintiff has
not produced sanction plan or permission for construction of suit
structure. The plaintiff has not produced any document to show that
suit structure is situated in an area declared as slum and it is a
protected structure.
16] In the case in hand, the plaintiff has not produced
documentary evidence to show that suit structure is authorized or the
Corporation has approved plan or granted permission for construction
of suit structure. Therefore, I hold that the plaintiff is not entitled for
relief of declaration and permanent injunction as prayed. The plaintiff
has failed to establish that the notice under Section 351 of the M.M.C.
Act is legal, badinlaw and also failed to prove that suit structure is
protected structure. Accordingly, I answer issues No.1 and 2 in the
negative.
AS TO ISSUE No.3 :
17] Advocate for defendant submitted that the plaintiff filed
this suit challenging notice dated 7/10/2017 issued under Section 351
of the M.M.C. Act. She further submitted that suit is not maintainable
for want of notice as per Section 527 of the M.M.C. Act. On the other
hand, advocate for the plaintiff submitted that defendant/Corporation
issued notice dated 7/10/2017 under Section 351 of the M.M.C. Act
and thereby threatened the plaintiff to demolish notice structure and in
such circumstances plaintiff sought immediate relief of injunction,
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therefore, it is not necessary to the plaintiff to issue notice under
Section 527 of the M.M.C. Act.
18] In the case in hand, by notice dated 7/10/2017 issued
under Section 351 of the M.M.C. Act defendant/Corporation called
upon the plaintiff to Show Cause as to why notice structure should not
be pulled down. It is further directed that if they fails to show sufficient
cause why notice structure should not be removed/pulled down the
Corporation shall take necessary action.
19] Learned advocate for the plaintiff relied on judgment of the
Hon'ble Bombay High Court in Motillal Mahadev Sharma (Since … vs
The Municipal Corporation of …) (AIR 2005 Bom 344) and
submitted that when plaintiff wants to seek immediate relief from the
Court in the form of injunction it is not necessary for him to wait till the
period of statutory notice is over. In the said judgment the Hon'ble High
Court held that, “the plaintiff has failed to establish any right in respect of
the suit plot and, therefore, the plaintiff is not entitled for any relief”. The
judgment relied by the plaintiff is squarely applicable to present case.
20] It is well settled that if plaintiff want to seek immediate
relief from the Court in the form of injunction it not necessary for him
to issue statutory notice and wait till the period prescribed under
Section 527 of the M.M.C. Act is over. In the case in hand, the plaintiff
has taken out Notice of Motion for temporary injunction restraining the
defendant/Corporation from taking any action on the basis of notice
under challenge. Thus, it is clear that the plaintiff sought immediate
relief of temporary injunction. In the circumstances, I find no substance
in the contention of defendant that suit is not maintainable for want of
notice under Section 527 of the M.M.C. Act. Accordingly, I answer issue
No.3 in the negative.
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AS TO ISSUE NO.4 :
21] The plaintiff has failed to establish that the notice under
Section 351 of the M.M.C. Act is badinlaw and legal and also failed to
establish that suit structure is a protected structure. Therefore, the
plaintiff is not entitled for reliefs as claimed. Accordingly, I answer issue
No.4 in the negative and in answer to issue No.5 following order is
passed :
O R D E R
1] Suit is dismissed with costs.
2] Decree be drawn up accordingly.
Date : 06/09/2022. ( S. H. SALUNKHE )
Judge City Civil Court,
Court Room No.4,
Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT.”
14/09/2022 11:00 a.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
JUDGMENT
06/09/2022
JUDGMENT Typed on 12/09/2022
JUDGMENT signed by P.O. on 13/09/2022
JUDGMENT uploaded on 14/09/2022
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