Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M.902/19 (LCS 595/19)
MHCC010023882019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.902 OF 2019
IN
LONG CAUSE SUIT No.595/2019
Mrs. Indra Bihari Sukheja … Plaintiff
Versus
Municipal Corporation of
Greater Mumbai. ... Defendant
Appearance :
Mr. A. M. Saraogi, Advocate for plaintiff.
Mrs. Tondwalkar, Advocate for defendant.
CORAM : S. H. SALUNKHE,
JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 10/10/2022.
O R D E R
. The plaintiff took out Notice of Motion under OrderXXXIX
Rule1 of The Code of Civil Procedure for temporary restraining the
defendant/Corporation or anybody through it, in any manner, from
implementing notice under Section 351 of The Mumbai Municipal
Corporation Act (in short M.M.C. Act) dated 23/1/2019 and Speaking
Order dated 19/2/2019 and from taking action of demolition from
structure consisting of ground plus mezzanine floor i.e. shop No.112,
Sweety Cloth Store situated at Gandhi Bazar, Chembur Colony, Mumbai
(in short suit premises).
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2] It is contention of the plaintiff that the plaintiff is lawful
owner of suit structure and running business in the name and style of
M/s Sweety Cloth Stores. The area of structure is 160 Sq. Ft., made up
of B/M. walls and A/C. sheet roofs and is in existence for years
together. Suit premises was originally belonging to one Shri. Tharumal
and the plaintiff purchased suit premises in 1990 through registered
agreement. As per knowledge of the plaintiff suit premises is in
existence since prior to 1950, or in any case, prior to 1965 and suit
premises is assessed by the Corporation. Suit premises is situated in the
said locality and is in existence for years together. Suit premises is in
the nature of ground plus mezzanine floor. In 2011 defendant issued
notice under Section 351 of the M.M.C. Act alleging that the plaintiff
has carried out illegal construction of suit premises. The plaintiff
approached this Court and filed Long Cause Suit No.2910/2011. This
Court observed that suit premises though required to be of 14 Ft.
height, however it has been raised upto 27 Ft. The plaintiff carried
matter to the Hon'ble High Court and the Hon'ble High Court permitted
the plaintiff to withdraw the appeal with liberty to apply for
regularization. Accordingly, the plaintiff approached the defendant and
the plaintiff was directed to reduce height of suit premises. Accordingly,
the plaintiff reduced height of suit premises as per the norms of the
defendant.
3] Then again the defendant/Corporation issued impugned
under Section 351 of the M.M.C. Act stating that the plaintiff has
carried out illegal construction of suit premises. The plaintiff replied
notice immediately. The plaintiff filed regularization application,
however instead of considering the application the defendant issued
impugned notice in respect of ground plus mezzanine floor.
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4] It is further stated that suit premises is in existence prior to
1962 i.e. prior to the datum line and it is tolerated structure. If suit
premises is illegal then surrounding structures are also illegal, however
action only against plaintiff clearly shows malafide intention of the
officers. The plaintiff is in possession of suit premises since 1990 i.e.
after purchase of same, however action of the defendant/Corporation is
malafide and the Corporation is bent upon to demolish suit premises.
Hence the plaintiff filed suit and took out Notice of Motion.
5] The defendant/Corporation resisted Notice of Motion by
filing reply. 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. Notice
and order are executive or administrative acts and same are not open to
challenge in the Court of law, therefore, suit is not maintainable. The
plaint discloses no cause of action against the defendant. It is further
stated that the Corporation received complaint from Mrs. Lata Suhanda
in respect of unauthorized construction of ground floor structure made
up of using brick work masonry wall and A/C. sheet roof. Accordingly,
the officer of the Corporation inspected suit premises and noticed
unauthorised construction of ground floor admeasuring 7.10 M. X 1.90
M X 3.30 M. using B/M. wall and A/C. sheet roof without any
permission of the M.C.G.M. The officer of the Corporation inquired
about permission of competent authority or documentary proof but the
plaintiff failed to show any document or permission to prove
authenticity of suit premises. The officer of the Corporation took
measurements of suit premises and prepared inspection report. After
receipt of said report the Corporation issued notice under Section 351
of the M.M.C. Act informing the plaintiff that she has carried out
unauthorized construction and further directed to produce documentary
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evidence to prove authorization of suit premises. The plaintiff replied
said notice. The officer of the Corporation scrutinized documents
submitted by the plaintiff. Assistant Collector, M/W ward made remarks
that suit premises has been assessed from 1965 for shed only. This
present structure is not constructed with permission of the Corporation.
Therefore designated officer passed Speaking Order and directed the
plaintiff to remove suit premises within 15 days as same is not an
authorized construction. The defendant/Corporation has followed due
process of law and passed Speaking Order after considering documents
submitted by the plaintiff. Therefore, notice is legal and proper,
therefore, suit as well as Notice of Motion deserves to be dismissed with
costs.
6] Heard parties. Perused Notice of Motion, affidavit in
support thereto, documents filed alongwith the plaintiff and the
Corporation.
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.
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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 :
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
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 hands.
9] The plaintiff filed rejoinder affidavit and written
submission. Learned advocate for the plaintiff relied on the judgment of
the Hon'ble Bombay High Court in Kamla Maria Bari Versus The
Municipal Corporation of Greater Mumbai (Appeal From Order
No.760 of 2015) to buttress his submission that the Corporation has
not filed affidavit alongwith documents as per the procedure of the City
Civil Court. He further submitted that the documents cannot be treated
as part of record and cannot be considered. Learned advocate for the
plaintiff further relied on the judgment of the Hon'ble Apex Court in
Sundeep Kumar Bafna Versus State of Maharashtra and Another
[(2014) 16 Supreme Court Cases 623] in which the Hon'ble Apex
held that,
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“The discipline demanded by a precedent or the disqualification or diminution
of a decision on the application of the per incuriam rule is of great importance,
since without it, certainly of law, consistency of rulings and comity of courts
would become a costly casualty. A decision or judgment can be per incuriam
any provision in a statute, rule or regulation, which was not brought to the
notice of the court. A decision or judgment can also be per incuriam it it is not
possible to reconcile its ratio what that of a previously pronounced judgment
of a coequal or larger Bench ; or it the decision of a High Court is not in
consonance with the views of the Supreme Court. The per incuriam rule is
strictly and correctly applicable to the ratio decidendi and not to obiter dicta.
It is often encountered in High Courts that two or more mutually
irreconcilable decisions of the Supreme Court are cited at the Bar. The
inviolable recourse is to apply the earliest view as the succeeding ones would
fall in the category of per incuriam. An earlier judgment cannot possibly be
seen as per incuriam a later judgment as the latter if numerically stronger only
then it would overrule the former”.
10] Learned advocate for the plaintiff submitted that the
plaintiff is lawful owner and is in occupation of suit premises since
1990. Suit premises is in existence since 1950 or, in any case, prior to
1965 which a datum line for commercial structure. It is further
submitted that in 2012 the Corporation had issued notice under Section
351 of the M.M.C. Act stating that the plaintiff has carried out
unauthorized construction of first floor. The plaintiff had challenged
said notice, however the plaintiff later on withdrawn suit as the Hon'ble
Bombay High Court permitted the plaintiff to make application for
regularization. Later on the plaintiff removed first floor. Now again the
defendant/Corporation has issued notice under Section 351 of the
M.M.C. Act alleging that the entire suit premises is unauthorized and
illegal. If the entire structure is illegal then why the Corporation has not
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taken any steps in 2012 in respect of notice structure. This shows that
the plaintiff's action is malafide. Learned advocate further submits that
there are various structures which are illegal and unauthorized,
however the officer of the Corporation bent upon to demolish the suit
premises. He further submits that suit structure is in existence prior to
the datum line, however the defendant/Corporation issued notice for
demolition of structure. If adinterim injunction is not granted then suit
premises would be demolished. The plaintiff would lost her business
and suffer irreparable loss, therefore, adinterim injunction may kindly
be granted.
11] On the other hand, learned advocate for the Corporation
submitted that the plaintiff has not shown sanctioned plan or
permission for construction of suit premises. The plaintiff has not
produced any evidence or document to show that suit premises is in
existence prior to the datum line. It is further submitted that suit
premises was first time assessed in 1965 which clearly shows that suit
premises was not in existence prior to 1/4/1962. Thus structure is not
tolerated structure. There is no sanction plan or requisite permission of
the Corporation for construction of suit premises. She further submits
that the Corporation has taken action against only first floor in 2011 it
does not make ground floor structure as legal. Learned advocate further
submitted that structure which is illegal cannot be made legal on the
ground that no action was taken by the Corporation in 2011. There is
no pleading that the plaintiff has constructed structure with permission
of the Corporation or obtained requisite permission. Merely pointing out
the deficiencies in notice are not sufficient.
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12] Learned advocate for the Corporation further submits that
a complaint has been received against suit premises and, therefore, the
Corporation has issued notice. On the basis of complaint the
Corporation may take action against unauthorized construction. It
cannot be said that there is malafide intention behind the action. In
support of submission learned advocate for the Corporation relied on
the judgment of the Hon'ble Bombay High Court in Tushar Guru Salien
Versus State of Maharashtra and others (Public Interest Litigation
No.67 of 2017) in which the Hon'ble Bombay High Court held in
paragraph No.5 that,
“5] Concerning a property, a suit to enforce or protect an interest in the
property which is governed by a Municipal Statute, the interest protected
has to be with respect to a plea that primafacie, the structure which is
being targeted is an authorized structure. Meaning thereby, the plaint
must make an averment of the sanction obtained from the Corporation
and must make an averment that the structure targeted is prima facie
governed by the sanction. Merely pointing out deficiencies in the notice or
the authority of the person issuing the notice is neither here not there.
Thus, the sine qua non of such kinds of suits is a positive assertion made
with reference to the sanctioned building plans.”
13] It is contention of the plaintiff that suit premises is in
existence prior to the datum line i.e. 1/4/1962 which is fixed by the
Corporation for tolerated commercial structures. In order to support
contention that suit premises is in existence prior to 1/4/1962 i.e. prior
to the datum line the plaintiff relied upon assessment bill exhibitB. On
perusal of which it appears that suit premises was first assessed for
property tax on 1/4/1962. Thus it is clear that suit structure is assessed
for property tax after the datum line of 1/4/1962 which is fixed by the
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Corporation for commercial structures. The plaintiff produced Power of
Attorney executed by Mr. Tharumal Topandas Suhanda. In the said
document description of structure is mentioned as 8' X 20' i.e. 160 Sq.
Ft. On perusal of said registered agreement it appears that suit structure
has been constructed prior to 1965. Thus registered agreement also
does not support claim of the plaintiff that suit premises is in existence
prior to the datum line. Apart from that there is no document or
material produced on record by the plaintiff to show that suit premises
is in existence prior to datum line and it is tolerated structure.
14] According to the plaintiff, in 2011 the Corporation has
issued notice under Section 351 of the M.M.C. Act alleging that first
floor of suit premises was unauthorized, therefore, the plaintiff had filed
suit but said suit was withdrawn by the plaintiff and he removed first
floor. Learned advocate for the plaintiff submits that if suit premises is
illegal the Corporation would have issued notice in the year 2011 in
respect of suit premises also. However, at that time the Corporation has
not taken any action against notice structure. In his submission this
clearly shows that notice structure is illegal. However, prima facie
burden lies upon the plaintiff to prove that suit premises is authorized
and legal. However, the plaintiff has not produced any document or
material on record to show that suit premises is in existence prior to
datum line or the Corporation has sanctioned plan or the plaintiff
obtained requisite permission from the Corporation. The Corporation
has not taken any action in 2011 against notice structure when
Corporation issued notice in respect of first floor cannot automatically
makes suit premises legal or authorized. The structure which is illegal
cannot be automatically becomes legal on the ground that no action
taken in the year 2011.
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15] It is contention of the plaintiff that action of the
Corporation is malafide. However, it is contended by the Corporation
that on the basis of complaint of the daughter of the original owner the
defendant/Corporation cannot take action. In this case, the daughter of
the original owner has not been made party to suit. Learned advocate
for the Corporation submitted the Corporation being a Planning
Authority is duty bound to take any action against illegal structures.
Whether on the complaint of Mrs. Lata Suhanda the Corporation
initiated action or otherwise what is to be seen is whether procedure
has been followed or not. In this case, it appears that the Corporation
has followed due process of law, therefore, I find no substance in the
contention of the plaintiff that action of the defendant is malafide.
16] The plaintiff has not shown sanctioned plan or requisite
permission for construction of suit premises nor produced documentary
evidence to show that suit premises is in existence since prior to the
datum line and it is a tolerated structure. The plaintiff has failed to
establish that suit premises is in existence prior to the datum line i.e.
1/4/1962 or it has been constructed with requisite permission or
sanctioned plan. The plaintiff has not produced sanctioned plan or
requisite permission for construction of suit premises. Hence the
plaintiff has not made out prima facie for grant of equitable relief of
temporary injunction. Balance of convenience does not tilt in favour of
the plaintiff. The plaintiff has not shown as to how if temporary
injunction is refused she will suffer irreparable loss. Accordingly, I
answer points No.1 to 3 in the negative and in answer to point No.4
following order is passed :
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O R D E R
Notice of Motion No.902 of 2019 is dismissed.
Date : 10/10/2022. ( S. H. SALUNKHE )
Judge City Civil Court,
Court Room No.4,
Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
20/10/2022 11:25 a.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 10/10/2022
ORDER Typed on 18/10/2022
ORDER signed by P.O. on 19/10/2022
ORDER uploaded on 20/10/2022
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