Interim Order 1

Order Details: Notice of Motion
Pdf Text: Combine Order in N/m in Suit No. 538/2020, 1 Ad-interim order.
539/2020 & 494/2020.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
AD-INTERIM ORDER IN
NOTICE OF MOTION
IN
L. C. SUIT NO. 538 OF 2020
(CNR NO. MHCC01-002154-2020)
Mr. Mohammed Javed Chikte ...Plaintiff
Versus
The Municipal Corporation for Greater Mumbai ...Defendants
AND
NOTICE OF MOTION
IN
L. C. SUIT NO. 539 OF 2020
(CNR NO. MHCC01-002151-2020)
M/s. Plutusone Hospitality Private Limited ...Plaintiff
Versus
The Municipal Corporation for Greater Mumbai ...Defendants
AND
NOTICE OF MOTION
IN
L. C. SUIT NO. 494 OF 2020
(CNR NO. MHCC01-001900-2020)
Mr. Siddik Pattillath Vadakkepuram ...Plaintiff
Versus
The Municipal Corporation for Greater Mumbai ...Defendants
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Combine Order in N/m in Suit No. 538/2020, 2 Ad-interim order.
539/2020 & 494/2020.
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 27th FEBRUARY, 2020.
Mr. S.K.Dubey, Advocate for Plaintiffs in Suit No.538/2020 and
539/2020.
Mr. V.T.Dubey, Advocate for Plaintiff in Suit No. 494/2020.
Mrs. Mhatre, Advocate for Defendants / MCGM.
COMBINE ORDER
This is a combine order issued in draft notice of motion in
Suit No. 538, 539, 494 of 2020. The suit property is situated in 'C' Wing
of Shah Industrial Estate, Opposite Huntsmain Building, Sakivihar
Road, Andheri (East), Mumbai -400072. In all three suits, notice is
issued by the MCGM under Section 314 of the MMC Act dated
07/02/2020 for construction of M.S. fabricated stairways / steps
covered with M.S. angles and fiber sheet roofing, for approaching to
Sakivihar Road. As question involved in all suits, the building structure
and staircase as discussed above is similar, it is proceeded for combine
order.
2. In view of allegations in the plaint, the case of plaintiff and
appropriate details are mentioned in following table :
Suit
No.
Details of Plaintiff
and Suit Building
Stair
Ways
L/L
Agreement
Notice
u/sec.
314 of
MMC Act
Reply of
Plaintiff
538/20 Unit - 301 - ‘C’
Wing, 3rd Floor,
M/s. Zaid
2 x 15
mtrs.
23/05/19 07/02/20 08/02/20
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539/2020 & 494/2020.
International.
Licensor – Hare-
rama Prints.
Mohd. Javed
Chikte.
539/20 Unit – 201, 202,
M/s. Plutusone
Hospitality,
Mr. Nilesh Gupta,
Licensor - ABEL
Estate.
2 x 1
mtr.
03/10/16 07/02/20 14/02/20
494/20 Unit - C-201, 202,
203,
Hotel Blue Moon,
2nd Floor,
Licensor – Ramesh
Lulla.
Not
mentio
ned in
plaint.
22/12/17 07/02/20 10/02/20
3. In view of various complaints received from social activists
of two political parties i.e. R.P.I. and M.N.S. and some complaints from
localite, officer of MCGM has visited the suit site and observed
substance in the complaint. It is noticed that impugned stairways of
M.S.angle came to be installed by the plaintiff from the building for
approaching to Sakivihar Road, which is at about 30 feet distance.
Therefore upon submission of report, Assistant Engineer of 'L' Ward has
submitted proposal on 03/02/2020, which was sanctioned by the
Assistant Commissioner of 'L' Ward. It resulted into issuance of notice
in question dated 07/02/2020 under Section 314 of MMC Act. The
material part from the report which came to be approved, is reproduced
as follows :
“The measurement of unauthorized work
carried out by respective hotel owners is as below :-
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539/2020 & 494/2020.
Name of
Owner
Description Size
Hotel Blue
Moon
M.S. Fabricated stairways /
steps covered with M.S.
Pipes & Fiber sheet roofing
1.60 Mtr. X
2.10 Mtr.
Hotel Zaid
International
M.S. Fabricated stairways /
steps covered with M.S.
Angle & Fiber sheet roofing
1.80 Mtr. X
2.00 Mtr.
M/s. Finch
Rhythm &
Brews
M.S. Fabricated stairways /
steps covered with M.S.
Pipes & PVC sheet roofing
2.00 Mtr. X
1.11 Mtr.
The photographs showing the unauthorized
M.S. Fabricated stairways / steps constructed by all
the three Hotel owners are attached herewith.
In view of above it is proposed to issue notices
u/s 314 of MMC Act to the owner / occupiers of the
above three Hotels for providing unauthorized
entrance & construction of M.S. Fabricated
stairways / steps resting on Municipal footpath
thereby endangering the retaining wall by putting
additional load.”
4. It is supported with affidavit of plaintiff in each case that
there is no encroachment on public street. However, it is case of MCGM
that staircase is unauthorized, as sanction plan of the building is not
submitted by the plaintiff. It is added that the staircase and the steps
are beyond the compound wall and crossing footpath adjacent to
Sakivihar Road.
5. Ld. advocate S.K.Dubey for plaintiffs in Suit No. 538 and
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539/2020 & 494/2020.
539 of 2020 submits that plaintiff is a licencee. He availed the suit
premises as existed on licence from the licensor. Plaintiff do not know
about authorization of staircase. However plaintiff is sure that it is
noway encroached on public street or footpath. Plaintiff has replied the
notice, however speaking order is yet not pronounced by the MCGM. It
is added that MCGM is used as a tool for vested interest of local political
leaders. It is submitted that there is no single step beyond the
compound wall of Shah Industrial Estate.
6. Ld. advocate V.T.Dubey for plaintiff in Suit No. 494/2020
submits that there is no obstructions to the pedistrian nor any
encroachment on public street. In absence of final order to be
pronounced by the MCGM, it would be not proper to draw any
conclusion about encroachment. However, it is admitted that impugned
staircase/bridge is not shown in the sanction plan. However, plaintiff is
firm that entire bridge and staircase is well within compound wall of
Shah Industrial Estate.
7. Ld. advocate Mhatre for MCGM submits that for
withdrawal of encroachment on public road, there is no necessity of
issuance of notice. There are two-fold arguments on the part of MCGM
i.e.
A) Bridge and staircase in itself is unauthorized.
B) Some part of staircase around 5 to 8 feet is coming on foot-
path, beyond the area of compound wall of Shah Industrial
Estate.
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539/2020 & 494/2020.
REASONS FOR ORDER
8. It is to note at the inception that no sanction plan of ‘C’
Wing of concerned building is submitted by plaintiffs. Prima facie it
appear that construction of bridge for approaching from the building
directly to the Sakivihar Road has created no hurdle to the public
crossing below the bridge, therefore, the people residing in the building
and within Shah Industrial Estate has submitted no grievance.
9. Ld. Advocate Mhatre for MCGM relied on Tushar Salien
V/s. State of Maharashtra (PIL 67/2017 order dated 04/10/2019)
wherein, it is held that authorization of the structure is to be shown by
the occupier when he approached the Court.
10. Ld. Advocate S.K.Dubey for plaintiff relied on
Navinchandra Chhadva V/s. State of Maharashtra (W.P.No. 454/2016
Judgment dated 01/03/2018), wherein, it is observed that,
“In the facts of the case, we may note that it is not
the case of the Municipal Corporation that the
structures are erected in or upon any street,
footway etc. Considering clause (a) of section 314,
the said provision can certainly be invoked if a
structure is constructed upon any open channel,
drain, well or tank contrary to the provisions of
sub-section (1) of section 312 of the said Act of
1888. However, in the notice at Exhibit-K, it is not
the case made out by the Municipal Corporation
that the structure is constructed on an open
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539/2020 & 494/2020.
channel, drain, well or tank. Therefore, in the facts
of the case, it cannot be said that the act of issuing
notice under section 314 of the said Act of 1888
would amount to following due process of law.”
11. Ld. Advocate Mhatre for MCGM relied on the MCGM V/s.
Rafiqunnisa M. Khalifa (Deceased) Through His Legal Heir Mr. Mohd.
Muqueen Qureshi & Anr. (Civil Appeal No. 1727/2019, Judgment dated
18/02/2019), wherein, it is observed as follows :
“19. Section 314(1) with which we are concerned in this case
confers power on the Commissioner to remove any wall,
fence, rail, post, step, booth or other structure or fixture
which is found erected or set up on any street, open channel,
drain, well or tank contrary to the provisions of sub-Section
(1) of Section 312 of the Act after coming into force the
provisions of Bombay Municipal (Extension of limits) Act,
1950 or in the extended suburbs after coming into force
Further Extension of Limits and Schedule BBA (Amendment)
Act, 1956.
20. In other words, in order to exercise the power under Section
314 (1) of the Act, two conditions must be present. First,
the disputed wall, fence, rail, post, step, booth or any other
type of structure or fixture, as the case may be, is erected or
set up on any public street or open channel or drain or well
or tank; and Second, any such structure or fixture, as the
case may be, is erected or set up in the city or suburbs
contrary to the provisions of Section 312(1) of the Act after
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coming into force the two Acts specified in sub-section (1).”
12. In view of aforesaid case-laws and ratio laid down therein,
it is duty of plaintiff to submit authorization of the structure. However,
plaintiff are using the said in the capacity of the licensee, and in view of
agreement as mentioned above, plaintiff is paying licence fees to the
licensor. However it appear that impugned bridge and staircase came to
be in existence for more than 10 to 20 years. It create no hurdle to the
people residing in the building ‘C’ Wing and Shah Industrial Estate. No
doubt, impugned building has access from the another side of the
building. However, considering height of the Sakivihar Road and the
building is situated in ditch of around 50 feet, the people residing in 2nd
and 3rd floor has created another access for their convenience to
approach Sakivihar Road.
13. As discussed above, plaintiff is not sure that impugned
bridge and staircase is shown in sanction plan. Plaintiff require to
obtain its copy from the licensor or the developer /builder. However,
plaintiff is sure that entire construction of the bridge and steps are well
within compound wall.
14. In view of aforesaid discussion, following are the important
points to note :
a) According to plaintiff, entire bridge and staircase are well
within compound wall.
b) Plaintiff has no objection if anything on public street or
footpath, MCGM may withdraw it.
c) It is contention of MCGM that for around 5 to 8 feet, some
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steps are coming on footpath, which has created hurdle and
inconvenience to the pedestrians.
15. Both side has submitted unscaled map and various
photographs from different angles. Considering aforesaid discussion in
total, ad-interim relief is granted as follows :
- ORDER -
1. No coercive action be obtain in view of notice dated
07/02/2020 issued under Section 314 of the MMC Act to
the extent of structure / bridge and steps, well within
premises of Shah Industrial Estate, more specifically inside
the compound wall.
2. It is made clear, MCGM is at liberty to withdraw any part of
steps or bridge, if it is beyond the compound wall of Shah
Industrial Estate.
3. MCGM to proceed for speaking order at the earliest.
4. MCGM to submit reply-cum-written statement to expedite
hearing of the notice of motion.
5. Plaintiff to file relevant documents in respect of sanction
plan, authorization of structure, exact measurement of suit
structure, structure in dispute, bridge, etc. and submit
scaled map.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 27/02/2020. Mumbai.
1. Dictated on : 27/02/2020.
2. Transcribed on : 28 & 29/02/2020.
3. Signed on : 29/02/2020.
4. Delivered to Certified :
Copy Section on
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539/2020 & 494/2020.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
29/02/2020. 2.01 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 27/02/2020.
Judgment/Order signed by P.O. on 29/02/2020.
Judgment/Order uploaded on 29/02/2020.
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