Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.453/18 (LCS No.272/18)
MHCC010018232018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.453 OF 2018
IN
LONG CAUSE SUIT No.272/2018
Firoz Idris Khan … Plaintiff
- Versus -
The Municipal Corporation
of Greater Bombay ... Defendant
Appearance :-
Mr. B. P. Shukla, Advocate for plaintiff.
Mr. Om Suryavanshi, Advocate for defendant.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 04/10/2023.
O R D E R
. This is suit to challenge notice issued by defendant/B.M.C.
under Section 3Z-1 of The Maharashtra Slum Areas (Improvement,
Clearance And Redevelopment) Act, 1971 (in short the Slum Act) and
for perpetual injunction restraining defendant/B.M.C. and the plaintiff
has taken 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/BMC from implementing the notice.
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2] It is contended by the plaintiff that he is in possession of
structure admeasuring 18 X 18 consisting of ground plus mezzanine
floor made up of BM wall, Ladi Coba roof of ground floor and tin sheet
wall and A/C sheet roof of first floor (in short suit premises). The suit
premises is in existence prior to 1995. The plaintiff and his family
members are residing there. The plaintiff is having ration card at the
address of suit premises. The competent authority has censused suit
premises and photo-pass has been issued in the name of mother of the
plaintiff bearing receipt No.1652054.
3] It is further stated that the plaintiff is having voters’ ID
card, shop and establishment licence, PAN card, electricity connection
etc. at the address of suit premises. The officers of M/East ward of
defendant/B.M.C. threatened to demolish notice structure without
following due process of law. Therefore, the plaintiff had filed Suit No.
2812/2017 and in that suit the Court has granted ad-interim relief in
his favour.
4] It is further contended that on the basis of a false complaint
the impugned notice has been issued to the plaintiff, alleging that he
has carried out unauthorized construction with further direction to
reply notice within 24 hours. The plaintiff has replied show cause notice
and submitted that notice structure is tolerated and protected. The
plaintiff has submitted documents alongwith reply. However, without
considering the reply designated officer passed speaking order.
Therefore, speaking order is bad-in-law, illegal. Thereafter Designated
Officer made statement on 30/1/2018 before the Court that he will pass
speaking order afresh. Then designated officer passed speaking order
without considering reply, documents and without application of mind.
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Therefore, notice as well as speaking order is bad-in-law and nullity. In
the circumstances, the plaintiff filed this suit and seeking temporary
injunction.
6] Defendant/B.M.C. opposed Notice of Motion by filing reply.
At the outset, it is stated that the plaintiff has not given notice under
Section 527 of The Mumbai Municipal Corporation Act (in short the
M.M.C. Act) hence suit is not maintainable. The plaintiff has challenged
order passed by competent authority under the Slum Act and as per the
provisions of Section 42 of The Slum Act the Civil Court has no
jurisdiction in respect of any notice/order passed by authority under the
Slum Act. The plaintiff has not given description of the property to
identify it, hence suit is not maintainable as per Order-VII Rule-3 of the
C. P. C.
7] It is further stated that the officer of the BMC on routine
inspection dated 7/7/2017 found unauthorized construction of ground
plus two storied structure near Shiv Sena branch, Ghatkopar Mankhurd
Link Road, Bhimwadi, Govandi, Mumbai. The officer has made inquiry
with the occupier and took photographs of notice structure and sent the
report alongwith photographs to competent authority. The competent
authority after going through documents, came to the conclusion that
notice under Section 3Z of the Slum Act is necessary. Accordingly,
impugned notice has been issued which was served upon the occupier.
However, the occupier failed to reply show cause within 24 hours and,
therefore, competent authority has passed demolition order on
14/7/2017. However, the plaintiff filed Suit No.2812/2017 for
injunction. This Court has observed that notice dated 13/7/2017 is not
served upon the plaintiff and further directed the B.M.C. not to take
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steps without following due process of law. Defendant/B.M.C. reissued
notice to the plaintiff which was served upon him. The plaintiff has
replied said notice but reply was wrongly marked to other officer and,
therefore, designated officer has not considered reply filed by the
plaintiff and passed speaking order on 12/1/2018. Then after coming to
know about filing of reply by the plaintiff to show cause dated
4/1/2018 designated officer passed fresh speaking order dated
31/1/2018 by considering reply and documents. The Corporation has
followed due process of law. The plaintiff has efficacious remedy of
appeal against the order of competent authority as per the provisions of
the Slum Act. Therefore, the plaintiff is not entitled for the equitable
relief. The plaintiff has failed to prove that notice structure is legal/
authorized by producing documentary evidence. Therefore, defendant/
B.M.C. prayed to dismiss Notice of Motion.
8] 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 ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
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4) What order ? . . . Notice of Motion is
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
9] Learned advocate for the plaintiff submitted that notice
structure is in existence since prior to 1995 and structure is situated in
slum area. Competent authority has issued survey receipt. Notice
structure is protected under the Slum Act and, therefore, notice issued
by the B.M.C. for demolition of notice structure and speaking order is
bad-in-law and illegal. Learned advocate for the plaintiff further
submitted that the plaintiff has produced ration card, survey receipt,
voters' identity card, shop and establish certificate at the address of suit
premises to prove that notice structure is protected under the Slum Act.
He further submitted that without considering documents and
application of mind competent authority passed speaking order.
Therefore, notice as well as speaking order and not enforceable under
law. Therefore, the plaintiff is entitled for the relief of temporary
injunction.
10] On the other hand, learned advocate for the Corporation
submitted that the plaintiff has challenged notice and speaking order
passed by Competent Authority under the Slum Act and as per the
provisions of Section 35 of the Slum Act the plaintiff has remedy of
appeal. The plaintiff is having alternate efficacious remedy and,
therefore, he is not entitled for equitable relief of injunction. It is further
submitted that as per the provisions of Section 42 of the Slum Act the
Civil Court has no jurisdiction to entertain suit challenging notice issued
or order passed by competent authority under the Slum Act.
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11] It is further submitted by learned advocate for the
Corporation that as per the Government of Maharashtra Resolution
dated 5/6/2002 the permissible height of commercial structure situated
in slum area is 10 feet. However, the plaintiff has raised the height
beyond the permissible limit without permission and, therefore, the
plaintiff is not entitled for temporary injunction as prayed.
12] On perusal of speaking order dated 31/1/2018, it appears
that the competent authority dealt with all the documents relied by the
plaintiff and came to the conclusion that the plaintiff has raised the
height of structure beyond permissible limit of 10 feet and notice
structure is not authorized and legal. It is contention of the plaintiff that
notice structure is situated in slum area and it is protected under the
Slum Act. However, the plaintiff has not produced notification of the
Government issued under the Slum Act to show that the land on which
notice structure is situated is declared as slum. Moreover, the plaintiff
has not produced photo-pass or census certificate issued by competent
authority. It is well settled that structure which is situated in slum area
and censused by competent authority is protected and not each and
every structure situated in slum area is protected. The plaintiff has not
produced photo-pass issued by competent authority to notice structure
to show that notice structure is protected under the Slum Act. Thus, I
hold that the plaintiff has failed to establish that notice structure is
protected under the Slum Act. Thus I hold that the plaintiff has failed to
prove that notice structure is legal/authorized and notice as well as
speaking order is illegal and bad-in-law.
13] The plaintiff has challenged notice and order issued by
competent authority under the Slum Act. As per Section 35 of the Slum
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Act the person aggrieved by notice or order passed by competent
authority under the Slum Act has remedy of appeal. Thus the plaintiff is
having alternate efficacious remedy against notice and order passed by
competent authority. As per the provisions of Section 41 (h) of The
Specific Relief Act an injunction cannot be granted if the plaintiff is
having efficacious remedy. Moreover, as per Section 42 of the Slum Act
the this Court has no jurisdiction in respect of any matter which
Appellate Authority or Competent Authority or Tribunal is empowered
under the said Act and the Court shall not grant injunction in respect of
any action taken or to be taken under the said Act. In view of the
provisions of Section 42 of the Slum Act this Court has no jurisdiction to
entertain suit challenging notice and order passed by competent
authority under the Slum Act. In the circumstances, I hold that the
plaintiff has not made out
prima facie case for grant of injunction.
Balance of convenience does not tilt in his favour. The points No.1 to 3
are answered in the negative and in answer to point No.4 pass
following order :-
O R D E R
Notice of Motion is dismissed.
Date : 04/10/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
10/10/2023 11:10 a.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
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Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 04/10/2023
ORDER Typed on 09/10/2023
ORDER signed by P.O. on 10/10/2023
ORDER uploaded on 10/10/2023
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