Final Order 2

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 702 OF 2019
(CNR NO.MHCC01-001813-2019)
IN
L.C.SUIT NO.967 OF 2019
Jagdish P. Soni …. Plaintiff
V/s.
The Municipal Corporation of
Gr.Mumbai. ...Defendants
CORAM: HIS HONOUR JUDGE
SHRI. R. B. PARVEKAR
CITY CIVIL COURT
GR. MUMBAI
DATE : 07/03/2024
Adv. Mr.Jash Vyas for the plaintiff.
Adv. Ms.Meena Dhuri for the defendants/BMC.
ORAL ORDER
This notice of motion is taken out by the plaintiff
under order XXXIX Rule 1, 2 r/w section 151 of the Code of
Civil Procedure for restraining defendants/BMC from
implementing notice under section 351 of the MMC Act and
speaking order dated 23.01.2019 in respect of the suit premises
till disposal of the suit.
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Description of the suit premises:-
Shop No.1 Pearl Mansion Co-operative Housing
Society, Acharya Dinde Marg, Parel, Mumbai-12 admeasuring
250 sq.ft carpet i.e. 300 sq.ft. Built up area i.e. 28 sq.mtrs built
up on ground floor of building known as Pearl Mansion Co-
operative Housing Society Ltd.and parcel of land bearing Plot
No.6 at Supari Baug Estate, bearing new Survey No. 2589 (part)
and cadastral Survey No. 189/74 of Parel, Sewree Division.
2. For the sake of convenience, I would like to
reproduce alleged unauthorized construction well mentioned in
schedule of notice under section 351 of the MMC Act dated
23.01.2019 as below:-
“ unauthorized construction of toilet and full
loft at above premises”.
(hereinafter called as notice structure)
Case of Plaintiff
3. Plaintiff is carrying on business in suit premises. He
is having share certificate issued by co-operative Hsg.Soc. He is
in use and occupation of the suit premises. He is regularly
paying property tax. Suit premises is assessed and plaintiff is
paying tax for loft and toilet, which is the subject matter of the
suit. Premises is situated in the building, which was constructed
in the year 1936.
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4. Plaintiff has not carried additions, alterations and
construction in the suit premises. Suit premises is very old. Suit
premises is protected from demolition. Plaintiff vide letter
dated 18.03.2018 applied for inspection of extract for the year
1995-96. The same was received by plaintiff on 15.03.2018.
after receipt of notice plaintiff replied the same by advocate
letter dated 29.12.2018. Defendant passed speaking order dated
23.01.2019. Notice under section 351 of the MMC Act and
speaking order is illegal. Suit premises was assessed for the
year 1995-96. Hence this notice of motion.
Case of defendant/BMC
5. Suit is bad for want of notice under section 527 of
the MMC Act. On the basis of complaint, officer of
defendant/BMC inspected the suit premises and detected
unauthorized construction of toilet and full loft in respect of
shop no.1 i.e. suit premises. Defendant/BMC prepared
inspection report and issued impugned notice. Plaintiff carried
out construction without permission and contrary to the
sections 342 and 347 of the MMC Act. Plaintiff fails to produce
permission, sanction and approved map in respect of the notice
structure. After providing opportunity speaking order is passed.
Rest of the averments in plaint are denied by the defendant/
BMC in toto.
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6. From the rival pleadings following points arise for
my determination to which I have recorded my findings for the
reasons stated hereinbelow:-
Sr.
No.
Points Findings
1 Whether the plaintiff has prima-
facie case?
Negative.
2 Whether balance of convenience
lies in favour of plaintiff.?
Negative
3 Whether plaintiff will suffer
irreparable loss if injunction is not
granted?
Negative
4 What order ? As per final
order
REASONS
7. Read Notice of motion, reply filed by the
defendants/BMC. Both the parties consented to decide Notice of
motion finally, accordingly advance arguments.
As to Point Nos.1 to 3
8. Point nos. 1 to 3 are interlinked with each other
hence, grouped together for discussions. First and foremost
requirement for grant of temporary injunction is that the party
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seeking such relief must establish prima-facie case in his favour.
To make out prima-facie case a party is not required to establish
his title. It is enough if he can show that he has fair question to
raise as to the existence of alleged rights and the property in
the meantime should be preserved.
9. At the very outset, it is not disputed that Pearl
Mansion CHS Ltd Building is old structure. The controversy
involved in the present notice of motion is in respect of alleged
unauthorized construction well mentioned in Notice Structure
i.e. construction of full loft and toilet. It is the contention of
the plaintiff that notice structure is very old. Loft and toilet is
assessed for Property Tax purposes by defendant/BMC. It is a
tolerable structure. Defendant/BMC denied the said contention.
10. On perusal of photocopy of Agreement for Sale dated
11.03.2010 it appears that plaintiff has purchased the suit
premises from one Srinath Singh Khilodhar. In the recitals of
agreement for sale, it is mentioned that the building is ground
+ three storeyed building and it was constructed in the year
1936 and there is no lift in the said building. From this recitals
primafacie it is gathered that building was constructed in the
year 1936. But in the present motion the dispute is in respect of
alleged unauthorized construction of full loft and toilet.
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11. In agreement for sale dated 11.03.2010, it is
nowhere mentioned about the existence of full loft and toilet.
Plaintiff has not placed sanctioned map of suit building on
record. On perusal of description and details of capital value
calculation dated 30.05.2015 in respect of suit premises i.e.
shop No.1, it appears that Unit Nos.1 and 1A are on ground
floor and used for commercial purpose. Unit No.1A on ground
floor is having loft. On perusal of letter dated 15.03.2019, it
appears that suit shop No.1 assessed for tax purpose in the year
1995-96. It is further mentioned in the letter dated 15.03.2019
that shop No.1 with loft was assessed for tax purposes in the
year 1995-96. It is specifically mentioned in the letter dated
15.03.2019 that shop No.1 with loft, added on room area
approximately 10 sq.meter., which is fair and reasonable used
for godown and toilet block. It is settled principle of law that
property assessed for tax purposes is only for the purpose of tax
collection, which does not authorize or legalize the said
structure. Accordingly, this document would hardly the case of
plaintiff to prove that notice structure is tolerable or exists
prior to datum line.
12. Secondly it is the contention of plaintiff that he has
not carried out alleged unauthorized construction. He has not
carried out additions or alterations in the suit premises. On the
other hand, defendant denied the said contention and placed
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reliance on remarks mentioned in the speaking order by
designated officer.
13. In order to substantiate the contention the plaintiff
has not placed single documents to prove the authorization of
existence of loft and toilet prior to datum line. On the other
hand, it is not the case of plaintiff that as per approved policy
dated 14.08.1997 of BMC , he applied for regularization of loft.
14. On minute perusal of First Inspection Report dated
27.08.2018, it appears that Inspecting officer detect additions
and alterations to the existing structure and unauthorized
construction of toilet and full loft. Photograph snapped at the
time of inspection of suit premises uploaded in the Inspection
report clearly shows alleged unauthorized construction of full
loft and toilet. After receipt of notice plaintiff filed reply with
the designated officer. After considering the reply dated
01.10.2018 DO passed speaking order dated 23.01.2019. On
minute perusal of remark relating to the assessment extract
dated 15.03.2018, it appears that DO specifically mentioned
that he has verified assessment extract dated 15.03.2018 from
Asst. Assessor and Collector F/south Ward. As per remarks
received from Asst. Assessor and Collector dated 01.04.1992
tenant of shop No.1 (suit premises) has added one room
backside to the shop No.1 and using as Godown and Toilet block
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which was assessed prior to 1992. On the contrary, it is not the
case of the plaintiff notice structure is authorized and
construction with permission and sanction from the competent
authority. Therefore, now it is upto the plaintiff to show
authenticity of the notice structure.
15. In the present case, plaintiff has not placed sanction
map or permission to authorize notice structure. Plaintiff also
fails to show sufficient cause i.e. work carried out in
accordance with provision of section 337 or 342 and section
347 of the MMC Act. It is also not the case of the plaintiff that
regularization proposal is pending before the defendant/BMC.
On the other hand, after considering the reply filed by the
plaintiff defendant passed speaking order. Thus, defendant has
followed due process of law. As plaintiff fails to show
permission, sanction or approved map in respect of the alleged
illegal construction, hence, not having sufficient reason or
cause to raise fair question as to the existence of the alleged
rights. Plaintiff will not suffer relative inconvenience by refusal
of prohibitory relief. There are no equities in favour of plaintiff.
If discretionary relief of temporary injunction is refused,
plaintiff will not suffer irreparable loss. Accordingly, I answer
all point in the negative and proceed to pass following order.
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ORDER
1. Notice of motion No. 702/2019 of rejected.
2. Ad-interim relief granted vide order dated 29.01.2019
stands vacated.
3. Both the parties to take note of this order.
4. Cost in cause.
5. Notice of motion No.702/2019 is disposed off.
Date-07/03/2024 (R. B. Parvekar)
Ad-hoc Judge, City Civil Court
Gr. Mumbai
Dictated on:07/03/2024
Typed on :07/03/2024
signed on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12/03/2024 05.55p.m. ( Mayuresh
P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R. B. Parvekar (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
07/03/2024
JUDGMENT/ORDER signed by
P.O.on
12/03/2024
JUDGMENT/ORDER uploaded on 12/03/2024
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