Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 725/20 (LCS 473/20)
MHCC010019152020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.725 OF 2020
IN
LONG CAUSE SUIT No.473/2020
Anwar Mohammed Shaikh … Plaintiff
Versus
The Municipal Corporation
of Greater Mumbai. ... Defendant
Appearance :
Mr. S. K. Bhosle, Advocate for plaintiff.
Mrs. Tondwalkar, Advocate for defendant.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 18/1/2023.
O R D E R
. The plaintiff has taken out Notice of Motion under Order
XXXIX Rule1 of The Code Civil Procedure for temporary injunction
from restraining the defendant/Corporation or anybody through it from
acting in any manner, enforcing and/or implementing notice issued
under Section 53 (1) of The Maharashtra Regional and Town Planning
Act (in short, the M.R.T.P. Act) dated 11/6/2019 and Speaking Order
dated 27/1/2020.
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2] It is contention of the plaintiff that the plaintiff carries on
business in the name and style as M/s. Grand Banquet Hall consisting of
basements 1 and 2, ground and first floors situated at Universal
Magestic Building, Universal Magestic Premises CHS Ltd., C.T.S. No.
4A/8/1 and 4A/8/2, Borla village, Govandi, Mumbai (in short suit
premises) with kitchen, toilets with passage. The basement of suit
premises is used for parking and drivers' waiting room with two lifts.
The plaintiff requested developer to convert assembly hall to Banquet
Hall. The plaintiff's architect Smt. Kusum Kalgutkar got plan approved
by the M.C.G.M. Then the society was formed. The plaintiff is paying
maintenance charges regularly and having electricity bills, shop and
establishment certificate, health licence etc. Suit premises is assessed to
the Corporation. In 2010 the Corporation granted occupancy certificate.
The plaintiff has invested huge amount to meet market needs and
decorated the hall. However, the Corporation issued notice under
Section 53 (1) of the M.R.T.P. Act alleging that the plaintiff has carried
out unauthorized development. The plaintiff replied said notice and on
12/7/2019 stating that he has to obtain NOCs. and also approached
architect for submission of proposal, therefore, the plaintiff requested
the defendant to grant time. Again on 27/1/2020 the plaintiff through
his advocate replied notice and submitted documents.
3] It is further stated that suit premises is authorized, legal
protected and protected. Suit premises are assessed to the Municipal
property tax and the plaintiff paid the taxes. Thus notice is illegal and
without jurisdiction and passed without application of mind, so also
order has been passed without application of mind. Therefore, plaintiff
filed suit and took out Notice of Motion for temporary injunction.
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4] The defendant/Corporation opposed Notice of Motion by
filling Written Statementcumreply at Exh.2. At the outset, it is stated
that the plaint discloses no cause of action against the defendant. This is
suit challenging notice under Section 53 (3) of the M.R.T.P. Act hence
suit is barred as per the provisions of Section 149 of the said Act,
therefore, suit is liable to be dismissed. It is further stated that on
4/6/2019 during routine inspection the officer of the Corporation
noticed unauthorised development of admeasuring 70 Mtrs. length X 90
Mtrs. width X 4 Mtrs. height at suit premises. The work was in the
nature of addition and alteration to existing suit premises and it is being
used for commercial purpose. The officer of the Corporation asked for
permission for unauthorised development. However, the owner/
occupier failed to show any permission or amended sanction plan from
competent authority in respect of unauthorized development.
Therefore, the officer of the Corporation took measurements and
prepared Inspection Report on 4/6/2019.
5] It is further stated that the plaintiff failed to show any
permission or amended sanctioned plan for unauthorized construction.
The construction is carried out beyond sanctioned plan dated
29/10/2010. Therefore, it is necessary to remove notice structure.
Accordingly, the officer of the Corporation issued Show Cause Notice
dated 11/6/2019 for restoration of premises i.e. to restore parking area
by removing room, to restore parking area by removing additional lift
leading to basement1, ground floor as per sketch No.1 (hatched in
red), to restore parking space by removing five rooms and to restore
parking area by removing additional lift leading to ground and first
floors, to restore 2 car lifts by removing washroom and to restore
parking space by removing additional lift and office cabins. The plaintiff
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replied notice on 4/7/2019 by giving clear admission that the plaintiff
has carried out work beyond approved plan and want to seek
regularization of notice work from competent authority and it is in
process of finalizing appoint of technical team i.e. architect, structural
engineer and will submit regularization proposal. On 23/7/2019
designated officer intimated the plaintiff to submit Online application
number or scrutiny fee receipt or any document to show that the
plaintiff submitted regularization proposal. The society by letter dated
21/11/2019 requested 3 months time to complete regularization
process.
6] It is further stated that then on 14/11/2019 Executive
Engineer intimated society that architect has not submitted any
regularization proposal and staff of the defendant will visit suit
premises to see whether unauthorised work has been restored as per
approved plan otherwise, action will be taken against notice premises.
The plaintiff/society requested further time of 3 months on the ground
of illhealth of architect M/s. Kalgutkar. Then on 28/12/2019 the
officer of the defendant/Corporation again visited suit premises and
noticed that unauthorised structure has not been removed as per the
approved plan. Then the officer of the Corporation prepared second
Inspection Report dated 28/12/2019 and took photographs. The
defendant has been given sufficient opportunity/time to the plaintiff for
regularization of notice structure but the plaintiff failed to submit
Online application and mere killing time. Therefore, on 27/1/2020
designated officer passed Speaking Order directing the plaintiff to
restore/reinstate work which are contrary to the approved building plan
within 7 days, otherwise, the defendant/Corporation will demolish
addition/alterations. After passing of Speaking Order the plaintiff
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approached this Court challenging the Speaking Order. The defendant/
Corporation has followed due process of law and gave reasonable
opportunity to the plaintiff. The plaintiff has carried out unauthorised
development beyond sanctioned plan hence it is liable to be removed.
In the circumstances, the plaintiff is not entitled for equitable relief of
injunction.
7] 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.
4) What order ? . . . Notice of Motion is
dismissed.
:: R E A S O N S ::
AS TO POINTS No. 1 TO 3 :
8] The plaintiff has taken out this Notice of Motion for
temporary injunction under OrderXXXIX Rule1 of the C.P.C. Plaintiff is
seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
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be made out by plaintiff, (i) existence of a prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
9] Learned advocate for the plaintiff submitted that the
plaintiff is in use, occupation and possession of suit premises. The
developer constructed building by obtaining sanctioned plan and the
Corporation has issued Commencement Certificate. Suit premises is in
possession of the plaintiff. Since possession of suit premises the plaintiff
has not carried out any additions/alterations in it. However, the
defendant/Corporation issued notice under Section 53 (1) of the
M.R.T.P. Act alleging that the plaintiff has carried out unauthorized
additions and alterations of permanent nature in suit premises. Then
the defendant/Corporation passed Speaking Order directing the
plaintiff to remove suit premises.
10] Learned advocate for the plaintiff further submitted that
Writ Petitions are filed by some of the flat holders of the building and
the Hon'ble Bombay High Court has granted stay. Suit premises is
protected by the Hon'ble Bombay High Court, therefore, the action
initiated by the Corporation is illegal and it is necessary to restrain the
defendant/Corporation. In support of submission learned advocate for
the plaintiff relied on the copy of Writ Petition (L) No. 348 of 2020 in
Kumud Mehta And Anr. Versus State of Maharashtra & 2 Ors.
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11] In support of submission learned advocate for the plaintiff
relied on the judgment of the Hon'ble High Court in the case of Radha
Vithal Shetty, through PoA Vishwanath V. Shetty Versus Municipal
Corporation of Greater Mumbai & Ors. (Appeal From Order St.
No.18832 of 2017). Learned advocate for the plaintiff also relied on
the judgment of the Hon'ble Gauhati High Court in the case of Jadav
Chandra Das v. Gauhati Municipal Corporation and others (1996
AIHC 2126) in which Hon'ble Gauhati High Court held that, “The power
under Section 337 of The Gauhati Municipal Corporation Act cannot be
utilised and/or used in respect of a building constructed on the own land
of a person after completion of the same and after assessed by the
Municipal Authority.” However, in the case on hand, notice issued by
the Corporation is under Section 53 (1) of the M.R.T.P. Act hence with
due respect the judgment relied by the plaintiff is not applicable to this
case. Learned advocate for the Corporation relied on the judgment of
the Hon'ble Apex Court in the case of Dorab Cawasji Warden v/s
Coomi Sorab Warden and Others (Civil Appeal No.2422 of 1989) in
which the Hon'ble Apex Court held that, “Old cause of action under
Section 44 of The Transfer of Property Act no longer survived in view of
taking possession”. The facts of the case and the facts of the judgment
relied by the plaintiff are not identical hence with due respect the
judgment is not helpful to the plaintiff. Learned advocate for the
plaintiff relied on the judgment of the Hon'ble Bombay High Court,
Nagpur Bench in the case of Ramshankar Monmohanlal Pande Versus
State of Maharashtra & others [2002 (4) Bom.C.R.645] in which it is
held that, “Conversely, stalling of public interest scheme for months
together, so that the petitioners get their pound of flesh, i.e. equivalent
accommodation to what they are occupying, they cannot be allowed to
idefinitely postpone development scheme, which is going to benefit
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thousands of people”. However, facts of the present case and facts of
the judgment relied are altogether different, therefore, the judgment is
not helpful to the plaintiff.
12] Learned advocate for the plaintiff also relied on the
judgment of the Hon'ble High Court, Aurangabad Bench in Shamrao
Ganpat Chintamana Vs. Kakasaheb Laxman Gorde [2008 (2) ALL
MR 118] in which it is held that, “While considering the prima facie case,
in case of temporary injunction the Court has to record a finding as to
whether the plaintiff has established prima facie possession over the suit
property. Such possession, again has to be referable, either to the title of
the property or some lawful right vested with the plaintiff. After fulfilling
the test of prima facie case, the Court has to turn to consider the question
of equity between the parties. Irreparable loss to the plaintiff is also
material while considering such application for temporary injunction.”
However, the facts of the case on hand and facts of the judgment relied
are different hence with due respect the judgment is not applicable to
this case. Learned advocate for the plaintiff also relied on the judgment
on the case of Dashrath Sahadeo Khade vs. Municipal Corporation of
Greater Mumbai and others [2005 (1) Mh.L.J.] in which it is held
that, “The rule that before the issue of a temporary injunction, the Court
must satisfy itself that the plaintiff has a prima facie case, does not mean
that the Court should examine the merits of the case closely and come to a
conclusion that the plaintiff has a case in which he is likely to succeed.
This would amount to prejudging the case on its merits. All that the Court
has to see is that on the face of it the person applying for an injunction has
a case which needs consideration and which is not bound to fail by virtue
of some apparent defects. The balance of convenience also has to be looked
into”. He further relied on the judgment of the Hon'ble Apex Court in
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the case of Smt. Rajnibai alias Mannubai v. Smt. Kamla Devi and
others (AIR 1996 Supreme Court 1946), “Under Section 151 CPC, the
Court has got inherent power to protect the rights of the parties pending
the suit”. Learned advocate for the plaintiff further relied on the
judgment of the Hon'ble Bombay High Court in case of Abdul Hasan
Shaikh Mansuri Versus Mun. Corpn. of Mumbai & ors. [2007 (2)
Bom.C.R. 804] in which it is held that, “In proceedings where the
plaintiff approaches the Court for a limited relief that the authority be
directed to follow due process of law, there is very little or no defence
available to the authority. It would be a different matter if the authority
was to assert that the subject matter of the suit (suit premises) were not in
existence at all on the date of institution of the suit or that the due process
of law has already been followed in respect of the suit structure in the suit,
in which case the question of granting relief in such suit would not arise.
However, in any other situation where existence of some structure is not
disputed or indisputable, relief prayed will have to be granted for asking,
as no authority can be permitted to take unilateral action, even if the
structure is unauthorizedexcept by following due process of law ”. Learned
advocate for the plaintiff relied on the judgment of the Hon'ble Apex
Court in Wander Limited VS. Antox India Private Limited (1990
SCCSupp1727 ) in which it is held that, “Usually, the prayer for grant
of an interlocutory injunction is at a stage when the existence to the
legal right asserted by the plaintiff and its alleged violation are both
contested and uncertain and remain uncertain till they are established
at the trial on evidence. The court, at this stage, acts on certain well
settled principles of administration of this form of interlocutory remedy
which is both temporary and discretionary”. The facts of the case on
hand and the facts of the judgment relied by the plaintiff are different
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therefore with due respect the judgment is not applicable to this case.
Learned advocate for the plaintiff also relied on the judgment of the
Hon'ble Bombay High Court in Ramesh Hargovindas Divecha Vs. The
Mun. Corporation of Greater Mumbai & Ors. (Writ Petition No.715
of 1999) in which it is held that, “It would be a travesty of natural
justice is the plans are not disclosed to the tenant and he is called upon
to prove that the tenement or any portion thereof occupied by him is an
authorized structure. Learned advocate further relied on the judgment
of the Hon'ble Bombay High Court in case of Mahesh Nandlal Asrani
vs. B.M.C. and others (Appeal From Order St. No.11708 of 2007) in
which it is held that, “Whether the structure was in existence on the
prescribed datum line or not is a matter of evidence”. However, facts of
the judgment relied by the plaintiff and facts of the case on hand are
different. Hence with due respect the case relied by the plaintiff is not
applicable to the case on hand.
13] On the other hand, learned advocate for the Corporation
submits that the plaintiff has not come to the Court with clean hand.
The officer of the Corporation noticed unauthorized development in suit
premises, therefore, the concerned officer carried out inspection,
prepared panchanama and issued notice to the plaintiff. Then the
plaintiff requested for granting sometime as he is about to file
regularization proposal, however inspite of sufficient time since July
2019 till today the plaintiff is just seeking time on the ground that he is
going to submit application for regularization. This clearly shows that
the plaintiff is not diligent and has carried out unauthorized
development and, therefore, the plaintiff is not entitled for any relief.
14] In support of submission learned advocate for the
Corporation relied on the following judgments :
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a) M/s Royal Paradise Hotel (P) Ltd. Vs. State of Haryana & Ors.
[Appeal (civil) No.5647 of 2005 in which the Hon'ble Apex Court held
in paragraph No.8 that,
“8. We also find no merit in the argument that regularization of the
acts of violation of the provisions of the Act ought to have been
permitted. No authority administering municipal laws and other laws
like the Act involved here, can encourage such violations. Even
otherwise, compounding is not to be done when the violations are
deliberate, designed, reckless or motivated. Marginal or insignificant
accidental violations unconsciously made after trying to comply with all
the requirements of the law can alone qualify for regularization which is
not the rule, but a rare exception. The authorities and the High Court
were hence right in refusing the request of appellant.”
b) Esha Ekta Apartments CoOperative Housing Society Ltd. &
Ors. Versus Municipal Corporation of Mumbai & Ors. [2013 DGLS
(SC) 163 in which the Hon'ble Apex Court held in paragraph No.45
that,
“We hold that the petitioners in the transferred case have failed to make
out a case for directing the respondents to regularize the construction
made in violation of the sanctioned plan. Rather, the ratio of the above
noted judgments and, in particular, Royal Paradise Hotel (P) Ltd. v.
State of Haryana and Ors. (supra) is clearly attracted in the present
case. We would like to reiterate that no authority administering
municipal laws and other similar laws can encourage violation of the
sanctioned plan. The Courts are also expected to refrain from exercising
equitable jurisdiction for regularization of illegal and unauthorized
constructions else it would encourage violators of the planning laws and
destroy the very idea and concept of planned development or urban as
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well as rural areas”.
15] The plaintiff has challenged notice issued by defendant/
Corporation under Section 53 (1) of the M.R.T.P. Act. The plaintiff pleaded
that he has obtained occupancy certificate, health licence and permission from
defendant/Corporation and it is further contention of the plaintiff that he
has not carried out any unauthorized alterations and/or additions to
suit premises, however the plaintiff himself in paragraph No. 4 (r) of the
plaint pleaded that, “the said letter dated 21/9/2019 is crystal clear to
establish that there are certain irregularities beyond the approved plan
hence the society also taking efforts with the builder as well as with the
defendants and applying all sources to get the regularization.” The
plaintiff after receipt of notice under Section 53 (3) of the M.R.T.P. Act
by letter dated 12/7/2019 requested the officer of the Corporation that
the plaintiff desirous to regularize the work carried out and submitting
regularization proposal. This very fact clearly shows that the plaintiff
has carried out unauthorized development. The Corporation has issued
notice in June 2019 for removal of unauthorized development. The
plaintiff filed on record application dated 12/7/2019 in which the
plaintiff has admitted that the plaintiff want to regularize the work
carried out beyond the approved plan. This fact clearly shows that the
plaintiff has carried out unauthorized development. The plaintiff is
seeking relief of injunction. It is well settled that temporary injunction
being an equitable relief the discretion to grant such relief would be
exercised only if plaintiff's conduct is free from blame and he came to
the Court with clean hands. In this case, the plaintiff has clearly stated
that it has carried out unauthorized development beyond sanctioned
plan. The plaintiff has received notice in 2019 under Section 53 (1) of
the M.R.T.P. Act. The plaintiff sought time for submitting proposal of
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regularization. However, since June 2019 till today the plaintiff has not
submitted regularization proposal. There is nothing on record to show
that the plaintiff approached the M.C.G.M. and submitted proposal for
regularization of unauthorized development. In the circumstances, it
appears that the plaintiff has not come to the Court with clean hands
and his conduct it not free from blame. The impugned notice is issued
in June 2019 and till today the plaintiff has not taken any efforts,
therefore, the plaintiff is not entitled for equitable relief of injunction.
The plaintiff himself stated that there are certain irregularities beyond
approved plan. This clearly shows that the construction is unauthorized.
Hence the plaintiff has not made out prima facie case.
16] In view of above discussion, the judgments relied by the
defendant/Corporation and considering the facts and circumstances of
the case, I hold that the plaintiff has not made out prima facie case for
grant of equitable relief of temporary injunction. Balance of
convenience does not tilt in his favour. Hence I answer points No.1 to 3
in the negative and in answer to point No.4 following order is passed :
O R D E R
Notice of Motion No.725/2020 is dismissed.
Date : 18/01/2023. ( 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.”
25/01/2023 03:10 p.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 18/01/2023
ORDER Typed on 24/01/2023
ORDER signed by P.O. on 25/01/2023
ORDER uploaded on 25/01/2023
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