Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.717/18 (LCS No.2590/18)
MHCC010026322018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.717 OF 2018
IN
LONG CAUSE SUIT No.2590/2018
Mr. Kiran s/o. Mulji Shah … Plaintiff
- Versus -
The Municipal Corporation
of Greater Mumbai & Anr. ... Defendants
Appearance :-
Mr. P. F. Singh, Advocate for plaintiff.
Mr. Om Suryavanshi, Advocate for defendants.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 17/07/2023.
O R D E R
. This is suit to declare that notice issued by defendant/
B.M.C. under Section 55 of The Maharashtra Regional and Town
Planning Act (in short the M. R. T. P. Act) is bad-in-law and illegal and
the plaintiff has taken out Notice of Motion for temporary injunction
restraining defendant/B.M.C. from implementing notice.
2] Briefly stated the plaintiff’s case is that the plaintiff and his
brothers, who are the members of the Mulji Umarshi Shah have
-- 1 of 8 --
2 N/M. No.717/18 (LCS No.2590/18)
acquired plot of land bearing C.T.S. No.117/A, 117 A/6, 117A/7, 117
A/11 to 38 of Trombay village, Kurla, Mumbai admeasuring 4,329.30
square meters (in short suit plot) through a registered Conveyance Deed
dated 11/2/2000 and since then they are in use, occupation and
possession of suit plot. It is further stated that the previous owner had
given said plot to the Defence Department, Government of India. The
Defence Department had constructed some structures on suit plot for
their activities prior to 1960. It is further stated that Defence
Department vacated and handed over possession of suit plot alongwith
the structures standing thereon to the plaintiff. It is further stated that
there are residential buildings and slum area near suit plot and illegal
and unauthorized persons residing there are throwing garbage on suit
plot and, therefore, the plaintiff carried out demarcation of suit plot
through the City Survey Office and fixed boundaries on suit plot. It is
further stated that the plaintiff put up M/S. pipe/angle with barbed
wire with bamboo and put up net clothes upto 4 feet just to stop illegal
and unauthorized encroachment and protected suit plot from slum
encroachers and illegal vehicles parking. It is further stated that the
plaintiff has not carried out any development, nor constructed any
boundary wall or has not carried out unauthorized illegal activities.
However, the Corporation has issued impugned notice. It is further
stated that the plaintiff has replied said notice alongwith documents
and sought personal hearing. It is further stated that there is a
typographical error in notice hence the plaintiff again gave a detailed
reply on 31/8/2018.
3] It is further stated that the officers of defendant/B.M.C.
started visiting and inquiring about the plaintiff and threatened to take
drastic action of demolition and seizure of articles used for fencing. It is
-- 2 of 8 --
3 N/M. No.717/18 (LCS No.2590/18)
further stated that the officer of the Corporation Mr. Swapnil Prasad
alongwith his associates visited suit plot and threatened the plaintiff to
remove structure standing on suit plot on or before 1/2/2018 failing
which necessary action will be taken. It is further stated that the
plaintiff is having apprehension that officer of the Corporation may take
demolition action and seizure of articles, therefore, the plaintiff filed
suit and taken out this Notice of Motion and prayed for temporary
injunction under Order-XXXIX Rule-1 of The Code of Civil Procedure.
4] Defendant/B.M.C. opposed Notice of Motion by filing reply
below exhibit-3. At the outset, it is stated that the plaintiff has not given
notice under Section 527 of the M.M.C. Act, therefore, suit is not
maintainable. It is further stated that as per the provisions of Section
149 of the M.R.T.P. Act notice and order are executive and same are not
open to challenge in a Court of law, therefore, this Court has no
jurisdiction to entertain present suit. The plaintiff has not given
description of suit property, hence suit is not maintainable as per Order-
VII Rule-3 of the C.P.C.
5] It is further stated that defendant/B.M.C. has received
various complaints about illegal construction by the plaintiff at the suit
plot, therefore, the officer of defendant/B.M.C. inspected suit plot and
noticed unauthorized temporary development by covering boundary
with M/S pipe and cloth upto 4 feet height as shown in the sketch. It is
further stated that the occupier failed to produce any permission from
Competent Authority, therefore, inspecting officer prepared inspection
report, took photographs and forwarded same to higher authority for
approval. After going through the available record Designated Officer
issued impugned notice under Section 55 of the M.R.T.P. Act whereby
-- 3 of 8 --
4 N/M. No.717/18 (LCS No.2590/18)
the plaintiff was directed to remove unauthorized development within
15 days. Notice has been duly served upon son of Mohammad Khan,
who was present at the site.
6] It is further stated that after receipt of notice Mr. Himayat
Choudhary replied notice. Mr. Kiran Shah also replied notice on
29/1/2018 and 31/8/2018. However, they failed to produce documents
proving authorization of notice structure. It is further stated that then
on 1/2/2018 the plaintiff himself removed temporary development. The
officer of the Corporation took photographs of suit plot. The plaintiff
has been given opportunity to prove authorization of notice structure
but he failed to prove authorization of notice structure. On these
grounds, defendant/B.M.C. prayed for dismissal of Notice of Motion.
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.
-- 4 of 8 --
5 N/M. No.717/18 (LCS No.2590/18)
- :: R E A S O N S ::-
AS TO POINTS No. 1 TO 3 :-
8] The plaintiff in support of contention relied on rought sketh
plan, property card, City Survey map, impugned notice, copy of reply
etc.
9] Defendant/B.M.C. produced on record Inspection Report
dated 15/2/218 and photographs.
10] Perused Notice of Motion, affidavit in supprt thereto, reply
and Record and Proceeding. Heard both sides.
11] The plaintiff has taken out this Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 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 hand.
12] The plaintiff has challenged notice issued under Section 55
of the M.R.T.P. Act, alleging that the plaintiff has carried out
unauthorized temporary development i.e. the plaintiff erected
temporary fencing with M/S. pipe and cloth admeasuring 30 meters X
-- 5 of 8 --
6 N/M. No.717/18 (LCS No.2590/18)
18 meters with 4 feet height. The plaintiff pleaded that suit plot is open
and there are residential buildings and slum area and in order to avoid
encroachment and throwing garbage he put up M/S. pipe/angle with
barbed wire with bamboo and put up net clothes upto 4 feet around suit
plot. It is contention of defendant/B.M.C. that after reply to show cause
notice on 1/2/2018 the plaintiff himself removed temporary
development.
13] This suit is to challenge notice under Section 55 of the
M.R.T.P. Act. The provisions of Section 55 of the M.R.T.P. Act
contemplates order to be served on the person, who has carried out
unauthorized construction, giving him time to remove same failing
which person is liable for prosecution or unauthorized structure is liable
to be removed without giving further notice. On perusal of material on
record, it appears that the alleged structure was made up with M/S.
pipe/angle with barbed wire with bamboo and net clothes. Thus from
the material used for construction of structure, it appears that structure
is purely of temporary in nature. Further it is not case of the plaintiff
that structure is not temporary or he has taken permission for carrying
out development of temporary nature.
14] Learned advocate for the Corporation/B.M.C. relying on
the judgment of the Hon’ble Bombay High Court in Sachindra Umanath
Kotian Versus The Municipal Corporation of Greater Mumbai & 3 Ors.
(Writ Petition No.557 Of 2011) submitted that if structure is of
temporary nature i.e. fencing was made up with M/S. angle, bamboo
and net cloth as such it can safely be said that structure is temporary. It
is further submitted that the plaintiff has not obtained permission from
Competent Authority. It is important to note here that the plaintiff has
-- 6 of 8 --
7 N/M. No.717/18 (LCS No.2590/18)
taken out present Notice of Motion for temporary injunction restraining
defendant/B.M.C. from implementing notice. However, in the plaint,
the plaintiff has not prayed for relief of temporary injunction. Suit is for
declaration and the plaintiff has not sought relief of perpetual
injunction. In paragraph No.23 (b) of the plaint, it is prayed that during
the pendency, hearing and disposal of suit defendant/B.M.C. be
restrained by permanent order of injunction. In the plaint, the relief of
injunction during pendency of suit has been sought. Learned advocate
for the Corporation submitted that in the absence of relief of perpetual
injunction relief of temporary injunction cannot be granted.
15] As per sub-section (7) of Section 2 of The Maharashtra
Regional And Town Planning Act the expression 'development' reads
thus :-
“(7) “development” with its grammatical variations means the carrying
out of building, engineering, mining or other operations in or over or
under, land or the making of any material change, in any building or
land or in the use of any building or land [or any material or structural
change in any heritage ; building or its precinct and includes demolition
of any existing building, structure of erection ; and reclamation,
redevelopment and lay-out and subdivision of any land ; and “to
develop” shall be construed accordingly.
16] From perusal of the photographs prodced on record, it
appears that the plaintiff has carried out unauthorized covering of
boundary with M/S angle pipe and net cloth upto the height of 4 feet.
From the material on record, I am of the opinion that the construction
falls under the expression development of temporary nature. The
plaintiff has not produced on record reliable and satisfactory material to
-- 7 of 8 --
8 N/M. No.717/18 (LCS No.2590/18)
show that Section 55 of the M.R.T.P. Act is not applicable. Moreover, as
per Section 55 (2) of the M.R.T.P. Act the decision of the Planning
Authority on the question of what is development of temporary nature
is final. In view thereof, I am of the opinion that the plaintiff is not
entitled for interim injunction as prayed. Balance of convenience does
not tilt in his favour and no irreparable loss or injury would cause if
temporary injunction is refused. Hence points No.1 to 3 are answered in
the negative and in answer to point No.4 following order is passed :-
O R D E R
Notice of Motion No.717/2018 is dismissed.
Date : 17/07/2023. ( 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 JUDGMENT.”
02/08/2023 05:20 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 17/07/2023
ORDER Typed on 01/08/2023
ORDER signed by P.O. on 02/08/2023
ORDER uploaded on 02/08/2023
-- 8 of 8 --