Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.765/20 (L.C.S. No.1769/21)
MHCC010020822020
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.765 OF 2020
IN
LONG CAUSE SUIT No.1769/2021
Mr. Atul s/o. Kondiba Kadam … Plaintiff
- Versus -
1] The Municipal Corporation
of Greater Mumbai
2] M/s. Prem Kutir Co-operative
Housing Society Limited ... Defendants
Appearance :-
Mr. P. N. Thonse, Advocate for plaintiff
Counsel Mr. Shinde with Advocate Mrs. Mhatre, for defendant No.1.
Mr. A. R. Mishra, Advocate for defendant No.2.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 10/05/2024.
O R D E R
. This is suit to challenge notice under Section 351 of The
Mumbai Municipal Corporation Act dated 26/11/2019 and Speaking
Order dated 23/12/2019 and for perpetual injunction. The plaintiff has
taken out this Notice of Motion for temporary injunction under Order-
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XXXIX Rule-1 of The Code of Civil Procedure (in short the C. P. C.)
restraining defendant B. M. C. from enforcing notice.
2] In brief, facts of the plaintiff's case are that :-
The plaintiff is in lawful possession of room No.27-1,
Premchand Building, Ghatkopar, Mumbai (in short suit structure). His
grandfather was staying in said room since 1958. It is further stated that
after the death of grandfather of the plaintiff late Kondiba Kadam,
father of the plaintiff and his family were in use, occupation and
possession of notice structure. The plaintiff is having ration card,
electricity and water connections, voter I/D, Aadhaar card etc. at the
address of suit structure. There is bathroom and toilet attached to said
room having area 1.06 Mtr. X 2.06 Mtr. (i.e. suit structure). It is further
stated that surprisingly on 25/11/2019 defendant B. M. C. issued
impugned notice, alleging that the plaintiff has unauthorizedly carried
out construction of bathroom with B/M wall and channel ladi
admeasuring 1.06 M X 2.06 M. It is further stated that notice structure
is part and parcel of room which is in existence since 1958 and the
plaintiff is in use of bathroom since 1958.
3] It is further stated that suit structure is in existence since
1958. The plaintiff has replied show cause notice stating that no any
unauthorized construction was carried out by the plaintiff. The plaintiff
has carried out only minor repairs and increased height of said room.
However, the Corporation rejected reply submitted by the plaintiff and
passed Speaking Order to remove suit structure within 7 days. The
order is bad-in-law and illegal and, therefore, the plaintiff is entitled for
injunction.
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4] Defendant B. M. C. opposed Notice of Motion by filing
reply-cum-Written Statement below exhibit-2. At the outset, it is stated
that suit is not maintainable for want of statutory notice under Section
527 of the M. M. C. Act. The plaint discloses no cause of action and,
therefore, suit is not maintainable. Further, the plaintiff has not given
details of immovable property to identify sufficiently hence suit is not
maintainable under Order-VII Rule-3 of the C. P. C. As per amended
Section 515A of the M. M. C. Act this Court has no jurisdiction to try
and entertain present suit.
5] It is further stated that the Corporation has received
complaint from Prem Kutir C. H. S. regarding unauthorized construction
of shanty, bathroom and water closet. Accordingly, the officer of the
Corporation inspected suit premises and noticed unauthorized
construction of notice structure as per the Schedule annexed to notice.
The owner/occupier failed to prove legality of structure thereafter
impugned notice was issued directing the plaintiff to show sufficient
cause. After receipt of notice the plaintiff has replied show cause notice
on 28/11/2019. The Designated Officer has considered reply and
documents submitted by the plaintiff. The plaintiff has failed to produce
documents proving legality of notice structure. The plaintiff has failed
to prove that notice structure is legal and authorized. The Corporation
has followed due process of law. Therefore, the plaintiff is not entitled
for temporary injunction and prayed for dismissal of suit as well as
Notice of Motion.
6] The defendant No.2 has filed reply-cum-Written Statement.
It is contended that the defendant No.2 is a society registered under the
Cooperative Society's Act. The plaintiff has filed a false and frivolous
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suit. There is no cause of action against this defendant. The plaintiff has
not approached this Court with clean hands hence suit is liable to be
dismissed. It is further stated that this defendant has made various
complaints to police and B. M. C. in respect of unauthorized
construction. Accordingly, the Corporation has issued impugned notice
and the plaintiff has challenged said notice by filing suit but without
joining society. Hence defendant-society taken out Chamber Summons
and same has been allowed by the Court. It is further stated that notice
structure is not legal and authorized. The plaintiff has carried out
unauthorized construction. The Corporation has followed due process of
law. The plaintiff has not produced any document showing existence of
structure prior to the datum line, therefore, the plaintiff is not entitled
for injunction as prayed.
7] The plaintiff has filed rejoinder affidavit.
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] Heard parties.
10] Learned advocate for the plaintiff submitted that the
plaintiff has challenged notice under Section 351 of the M. M. C. Act. It
is further submitted that the plaintiff's late parents were staying
together with grandfather Dhondiba Kadam since 1958 and after the
death of grandfather of the plaintiff the father of the plaintiff and his
family were in use, occupation and possession of said room. The notice
structure is bathroom and it is part of room and is in existence since
prior to the datum line and it is a tolerated structure. The structure is
old and, therefore, the plaintiff has carried out repair works as there
was some leakage. It is further submitted that surprisingly, defendant B.
M. C. issued impugned notice, alleging that the plaintiff has
unauthorizedly carried out construction of bathroom. The plaintiff has
replied show cause notice but the Corporation has not considered reply
and documents submitted by the plaintiff. Learned advocate for the
plaintiff relied upon ration card, electricity and water bills to show that
the plaintiff's family is residing in suit structure since 1966. It is further
submitted that the documents on record establishes existence of
structure prior to the datum line and, therefore, the plaintiff is entitled
for temporary injunction as prayed.
11] On the other hand, learned advocate for B. M. C. submitted
that the plaintiff has not produced a single document to show that the
notice structure is in existence prior to the datum line of 1964. The
plaintiff has not produced on record documents to show that notice
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structure is in existence prior to the datum line. It is further submitted
that the Corporation has inspected suit site and noticed unauthorized
construction. The inspecting officer prepared inspection report, took
photographs. The plaintiff has failed to prove the legality of structure.
Therefore, Designated Officer issued impugned notice. However, the
plaintiff has failed to prove legality of structure. The Corporation has
followed due process of law. Learned advocate for the defendant No.3
supports submissions made by learned advocate for B. M. C. and
submitted to dismiss Notice of Motion.
12] Learned advocate for B. M. C. relied on the judgments of
the Hon'ble High Court in Tushar Guru Salien Versus State of
Maharashtra and others (Public Interest Litigation No.67 Of 2017).
13] I have given careful considerations to the submissions made
by both sides and material on record.
14] The plaintiff has challenged notice under Section 351 of the
M. M. C. Act. As per the proviso to Section 351 of the M. M. C. Act the
words “to show sufficient cause” would mean to prove that the work
mentioned in the notice is carried out as per the provisions of the
M.M.C. Act. Sub-section (2) of Section 351 of the M. M. C. Act
mandates that if a person fails to show sufficient cause to the
satisfaction of designated officer, then the designated officer may pass
order of removal of notice structure. Thus it is incumbent upon the
plaintiff to show that notice structure is constructed as per the
sanctioned plan of the B. M. C. or it is in existence prior to the datum
line of 1962.
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15] Thus, as per the explanation to Section 351 of the M. M. C.
Act the burden lies upon the noticee to prove that work mentioned in
notice is carried out in accordance with the provisions of Sections 337,
342 and 347 of the M. M. C. For that purpose, the plaintiff has relied
upon the ration card which has been issued in 1967, Aadhaar card and
electricity bill. As per said ration card address of the plaintiff is shown
as Prem Kutir, Kachrabhai Wadi, Ghatkopar. Thus, the documents i.e.
ration card and Aadhaar card show that the plaintiff and his family are
residing at the address mentioned therein since 1966. Learned advocate
for B. M. C. submitted that the plaintiff's family is residing on the same
address but in a different structure and the plaintiff carried out
construction of notice structure in 2019. It is submitted that the
documents submitted by the plaintiff are in respect of the adjacent
structure. It is pointed out by learned advocate for B. M. C. that the
plaintiff has carried out unauthorized construction in 2019. The
impugned notice has been issued to unauthorized construction of
bathroom made up with B/M wall and channel ladi. The Corporation
has produced on record inspection report dated 23/11/2019 alongwith
photographs in support of contention that the plaintiff has carried out
unauthorized construction of bathroom i.e. notice structure. The
inspection report has been prepared by a public servant while
discharging his duty. It is not case of the plaintiff that the inspecting
officer has any enmity with him. As such, there is no reason to discard
inspection report. The plaintiff has not produced on record legitimate
document to show that notice structure i.e. B/M wall and channel ladi
has been assessed for the first time in 1964 and exists since prior to the
datum line. The plaintiff has not produced document to prove existence
of suit structure prior to the datum line of 1964. All the documents
submitted by the plaintiff are subsequent to 1967. The defendant No.2
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has produced on record assessment bill bearing No.NX0800870040000
in respect of C/I shed outhouse which has been assessed first time on
31/3/1961. Thus, it appears that C/I shed for Mali and outhouse have
been assessed prior to 1961. However, notice has been issued to
bathroom. The existence of structure is to be proved on the basis of
documents. But none of the documents proves the existence of notice
structure prior to the datum line. The inspection report dated
23/11/2019
prima facie shows that the plaintiff has carried out
construction of bathroom without permission of defendant B. M. C. It is
pointless to say structure is in existence prior to the datum line without
any documentary evidence. None of the documents relied by the
plaintiff prove the existence of structure prior to 1964. The Hon'ble
High Court in Tushar Guru Salien Versus State of Maharashtra and
others (Public Interest Litigation No.67 Of 2017) it is held that, “
Before
any protective orders are passed the Court must ascertain plaint
contains a specific statement that notice structure is authorized and
legal and it has been constructed as per permission or sanction from the
B. M. C”. In the case on hand, the plaintiff has failed to establish
existence of structure prior to the datum line. Therefore, I hold that no
case made out to grant temporary injunction as prayed. Accordingly, I
answer points No.1 to 3 in the negative and in answer to point No.4
pass following order :-
O R D E R
Notice of Motion is dismissed.
Date : 10/05/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
07/06/2024 03:55 p.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 ORDER 10/05/2024
ORDER Typed on 06/06/2024
ORDER signed by P. O. on 07/06/2024
ORDER uploaded on 07/06/2024
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