Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.744/19 (LCS No.96/19)
MHCC010019362019
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION No.744 OF 2019
IN
LONG CAUSE SUIT No.96/2019
Smt. Maggi Mathew Poyakaran … Plaintiff
- Versus -
Municipal Corporation of
Greater Mumbai ... Defendant
Appearance :-
Mr. Pandey with Mr. Mishra, Advocates for plaintiff.
Mrs. Vyawahare, Advocate for defendant/M. C. G. M.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 03/07/2024.
O R D E R
. This is suit to challenge notice under Section 351 of The
Mumbai Municipal Corporation Act dated 9/5/2018 and Speaking
Order dated 14/8/2018 and perpetual injunction restraining defendant
B. M. C. from implementing notice and the plaintiff took out present
Notice of Motion for temporary injunction under Order-XXXIX Rule-1 of
The Code of Civil Procedure (in short the C. P. C.).
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2 N/M. No.744/19 (LCS No.96/19)
2] In short, facts of the case may be summarized as follows :-
The plaintiff is the owner of a structure and running
business in the name and style M/s. Hotel Alma Tea Coffee & Eatable at
shop No.3FED Villa, Maroli Church, Maroli village, Chembur, Mumbai
situated at C. T. S. No.11, 11/1 and 11/2 (in short “suit structure”). The
suit structure is of a pre-merger category constructed of B/M wall with
A/C sheet roof and same is tolerated and protected as per the policy of
B. M. C. C. T. S. No.11, 11/1 and 2 of village, Maroli, Chembur have
been declared as a slum area. The structure is in existence since prior to
the datum line. However, the B. M. C. has issued notice under Section
351 of the M. M. C. Act and not given personal hearing as per the
principles of natural justice.
3] It is further stated that suit structure has been assessed first
time on 1/4/1963. The plaintiff is having shop and establishment
licence issued by B. M. C. bearing registration No.M-II 1713 dated
8/4/1978 in the name of Mini Electrical Engineer Work. The plaintiff is
also having shop and establishment certificate bearing registration
No.MW00453, Restaurant & Eating house dated 13/12/2016, Health
Licence bearing No.761444169 dated 17/12/2017. The impugned
notice as well as Speaking Order is false and fabricated and not
enforceable in law. Therefore, the plaintiff filed suit and taken out
present Notice of Motion.
4] In spite of sufficient time and opportunity the B. M. C. did
not file reply to Notice of Motion. Hence no say order came to be passed
against defendant B. M. C.
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5] 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 ? . . . Yes.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . Yes.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . Yes.
4) What order ? . . . Notice of Motion is
made absolute.
- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
6] Perused Notice of Motion, affidavit in support thereto,
record and proceeding. Heard learned advocates for the parties.
7] Learned advocate for the plaintiff submitted that notice
structure is in existence since prior to the datum line and same has been
assessed first time on 1/4/1963. Thus, notice structure is tolerated as
per the policy of B. M. C. However, B. M. C. has issued impugned notice,
alleging that the plaintiff has carried out unauthorized construction of
notice structure. It is further submitted that the plaintiff is having Shop
& Establishment Certificate, electricity bill showing address of structure.
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The structure is very old and same is situated in slum area. He further
submitted that as per the provisions of the Slum Act structure which is
in existence prior to 1/1/1995 and situated in slum area is protected
under the Slum Act and defendant B. M. C. has no authority to take
action against notice structure and the only Competent Authority is M.
H. A. D. A. He further submitted that defendant B. M. C. has not filed
reply to Notice of Motion hence the facts pleaded in Notice of Motion
deemed to be admitted and Notice of Motion be made absolute.
8] Learned advocate for the plaintiff relied upon judgment in
the matter of Shri Rameshwar Babulal Jajodia Vs. Municipal
Corporation of Greater Mumbai [2014 (2) ALL MR 303] in which it is
held that the Assistant Commissioner has no jurisdiction to decide the
complicated issue specifically when it pertains to slum areas governed
by the Slum Act. He further relied upon the judgment of the Hon'ble
High Court in the matter of Masood Ahmed Siddiqui V/s. Mumbai
Municipal Corporation & Ors. (Appeal From Order No.57 Of 2013) in
which the Hon'ble High Court granted interim protection by holding
that
prima facie the existence of suit structure atleast from 1977 and
carrying on business therefrom is established and proved. He further
relied upon judgment of the Hon'ble High Court in the matter Mushtaq
A. Shah Versus Municipal Corporation of Greater Mumbai [Appeal From
Order (ST) NO.31205 OF 2013] in which it is held that respondent B.
M. C. has not filed reply to Notice of Motion. The averments made in
the plaint and supporting affidavit just cannot be overlooked merely
because respondent B. M. C. has issued notice by treating the premises
as unauthorized. It is obligatory on the part of respondent B. M. C. to
collect information and/or material to give opportunity to the
concerned before declaring structure as unauthorized. He further relied
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upon judgment of the Hon'ble High Court in Goverdhan Ramnaresh
Singh V/s. The Municipal Corporation of Greater Mumbai (Appeal From
Order No.257 Of 1999) in which it is held that if person has raised
unauthorized construction before the notice under Section 354A of the
M. M. C. Act was issued, the remedy to the B. M. C. is under Section
351 of the M. M. C. Act and not under Section 354A of the M. M. C. Act.
9] Learned advocate for the plaintiff further submitted that
the documents on record
prima facie establishes that notice structure
has been first time assessed on 1/4/1963 i.e. the structure is in
existence since prior to the datum line. He submitted that suit structure
was first time assessed on 1/4/1963 that means notice structure might
have been in existence even prior to that date i.e. it might be in
existence prior to the datum line of 1/4/1962. However, Designated
Officer has not considered these facts and passed demolition order.
Therefore, the plaintiff is entitled for interim protection.
10]
Per contra, learned advocate for the B. M. C. submitted that
each and every structure in slum area is not protected and only the
structure which is having photo-pass is protected under the Slum Act.
The plaintiff is not having photo-pass. Therefore, notice structure is not
protected under the Slum Act. He further submitted that the plaintiff
has produced on record assessment bill to prove existence of structure
prior to the datum line. However, the description of structure assessed
and notice structure is totally different and notice structure has been
first time assessed on 1/4/1963 i.e. it is assessed after the datum line of
1/4/1962 which is fixed for commercial structure and, therefore,
assessment bill is not helpful to the plaintiff. It is further submitted that
the Hon'ble High Court in the matter of High Court on its motion (In
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the matter of Jilani Building at Bhiwandi) Versus Bhiwandi Nizampur
Municipal Corporation & Ors.) (Suo Motu Public Interest Litigation
No.1 Of 2020) held that though structure is situated in slum area the
Corporation being the Planning Authority has every power and
authority to take action against any structure beyond the photo-pass
structure which is found to be unauthorized even if situated in the slum
area. On the basis of these submissions, it is submitted that the
Corporation has rightly issued notice. It is further submitted that though
B. M. C. has not filed reply to Notice of Motion however, the existence
of structure has to be proved by the plaintiff on the basis of documents
and the plaintiff cannot take the benefit of non-filing of reply to Notice
of Motion. Lastly, it is submitted that the plaintiff has failed to prove
legality of structure hence Notice of Motion be dismissed.
11] The plaintiff has challenged notice under Section 351 of the
M. M. C. Act, alleging that the plaintiff has carried out unauthorized
construction of ground floor structure using B/M wall and A/C sheet
roof as shown in the sketch annexed to notice without permission of the
B. M. C. The plaintiff has replied show cause notice. However,
Designated Officer passed Speaking Order without considering
documents.
12] It is first contention of the plaintiff that notice structure is
in existence prior to 1/4/1962 and for that purpose reliance has been
placed by the plaintiff on assessment bill bearing property No.
MW0701060020000 in the name of plaintiff. As per assessment bill A/C
shed as a hotel has been assessed on 1/4/1963. It is contention of the
plaintiff that notice structure is in existence prior to the datum line.
Admittedly, the assessment bill shows that A/C shed as a hotel was
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assessed to tax on 1/4/1963. Designated Officer discarded assessment
bill on the ground that suit structure being a commercial structure its
existence prior to 1/4/1962 ought to have been shown as that is the
datum line for commercial structures. The structure was assessed first
time to tax on 1/4/1963 hence it cannot be safely said that it had been
in existence since prior thereto. The first date of assessment to tax need
not be the date from which only existence of structure can be inferred.
It must have been in existence prior to the date of first assessment.
Thus, the document i.e. assessment bill
prima facie establishes the
existence of structure since prior to 1/4/1963 and the plaintiff must be
given opportunity to substantiate claim during the trial that suit
premises is in existence since prior to the datum line.
13] It is contention of the plaintiff notice structure is situated in
slum area and, therefore, the B. M. C. has no authority to take action
against notice structure. However, the Hon'ble High Court in Suo Moto
Public Interest Litigation No.1 Of 2020 (supra) held that the Municipal
Corporation has every power and authority to take action against any
structure beyond photo-pass structure which is unauthorized evenif
situated in slum area. In view of the observations of the Hon'ble High
Court in abovecited judgment I find no substance in the submission of
learned advocate for the plaintiff that structure is situated in slum area.
Defendant B. M. C. has no authority to take action against notice
structure. Further, learned advocate for the plaintiff submitted that
notice structure is in existence since prior to 1/1/1995 and same is
situated on C. T. S. No.11, 11/1 and 2 and, therefore, notice structure is
protected under the Slum Act. However, the Hon'ble High Court in the
matter of Anil Madhav Gore vs Bombay Municipal Corporation of Gr.
Mumbai [2002 (1) BomCR 146] the Hon'ble High Court held that if
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8 N/M. No.744/19 (LCS No.96/19)
structure is not censused structure no protection is available to such
structure though it may be situated in slum area. In the circumstances, I
find no substance in the submission of learned advocate for the plaintiff
that suit structure is protected under the Slum Act.
14] I have gone through the judgment of the Hon'ble High
Court relied by the plaintiff in the case of Goverdhan Ramnaresh Singh
V/s. The Municipal Corporation of Greater Mumbai (supra) this
judgment is on the point of notice under Section 354A of the M. M. C.
Act. Thus, the facts of the case at hand and abovereferred judgment are
not identical.
15] The judgment in the matters of Shri Rameshwar Babulal
Jajodia Vs. Municipal Corporation of Greater Mumbai, Masood Ahmed
Siddiqui V/s. Mumbai Municipal Corporation & Ors., and Mushtaq A.
Shah Versus Municipal Corporation of Greater Mumbai (supra) are on
the point that Assistant Commissioner has no jurisdiction to decide
complicated issue specifically when it pertains to slum area and
structure situated in slum areas. However, in view of the judgment of
the Hon'ble High Court in the matter of if structure of the plaintiff is
not protected structure i.e. there is no photo-pass, it does not affect the
jurisdiction of Commissioner and it makes structure legal, therefore, the
facts of the case at hand, and facts of the judgments in the cases of Shri
Rameshwar Babulal Jajodia Vs. Municipal Corporation of Greater
Mumbai and Mushtaq A. Shah Versus Municipal Corporation of Greater
Mumbai (supra) are not identical.
16] I have also gone through the judgment in the case of
Masood Ahmed Siddiqui V/s. Mumbai Municipal Corporation & Ors.
(Appeal From Order No.57 Of 2013). In the said judgment the Hon'ble
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High Court granted interim protection by holding that the plaintiff has
prima facie established existence of structure prior to 1977. In the case
at hand, the documents on record i.e. assessment bill
prima facie
establishes existence of structure prior to 1/4/1963. The documents
demonstrate that suit structure might have been in existence prior to
the first date of assessment. In such circumstances, the plaintiff cannot
be non-suited at this stage without providing opportunity to
substantiate claim at the trial that suit structure is pre-merger and
tolerated structure. Thus, I hold that the plaintiff has raised triable issue
which needs adjudication at trial and, therefore, the plaintiff is entitled
for interim protection as prayed. Thus, I hold that the plaintiff has made
out
prima facie. Balance of convenience lies in his favour. If temporary
injunction as prayed is refused he would suffer irreparable loss which
cannot be compensated in terms of money. Accordingly, I answer points
No.1 to 3 in the affirmative and in answer to point No.4 following order
is passed :-
O R D E R
Defendant B. M. C. is temporarily restrained from implementing
notice dated 9/4/2018 and Speaking Order order 14/8/2018 till the
decision of suit.
Date : 03/07/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
18/07/2024 11:15 a.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
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10 N/M. No.744/19 (LCS No.96/19)
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 03/07/2024
ORDER Typed on 15/07/2024
ORDER signed by P. O. on 16/07/2024
ORDER uploaded on 18/07/2024
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