Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No. 715 of 2018
CNR:MHCC01-002635-2018
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.715 OF 2018
IN
L.C.SUIT NO.2159 OF 2017
M/s. Uppals & Co. .. Plaintiff
V/s.
The Municipal Corporation
Gr. Mumbai .. Defendant
Appearance:-
Adv. B. P. Shukla for plaintiff.
Adv. Pradip Patil for MCGM.
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 02/04/2024.
ORDER
This Notice of Motion is taken by the plaintiff for
restraining the defendant from demolishing the suit premises in
pursuance of the notice dt. 06/06/2017 issued under Section 351 of the
MMC Act and the order dt. 16/09/2017 and 20/02/2018 in respect of
the suit premises, pending the hearing and decision of the suit.
2 Perused the affidavit in support of Notice of Motion, reply
and rejoinder. Heard both sides.
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3 In the light of respective submissions, I have carefully gone
through the respective pleadings and copies of documents on record. It
appears that by impugned notice dt. 06/06/2017 under Section 351 of
the MMC Act, defendant alleged that the owner/occupier/ Manager
Vodafone Store, Ground Floor, IMC Building 77, Sitaram Deora Marg,
Churchgate has erected/made unauthorised construction of 1)
mezzanine floor using ladi coba slab ad-measuring 6.20m x 7.80m
having height 2.40m above mezzanine floor and 2.30m below
mezzanine floor and 2) erection of wooden partition ad-measuring
3.40m x 2.10m x 2.30m as shown in the sketch at ground floor
premises of Vodafone Store, IMC Building.
4 The plaintiff being partnership firm has come with a case
that the plaintiff firm is a tenant in respect of shop No.3 consisting
mezzanine floor in the said building which is very old and in existence
since prior to 1961. The mezzanine floor in the shop No.3 is also in
existence since inception of the said building and it has been duly
assessed by the defendant since prior to 1961 in the name of trustees of
Indian Merchant Chamber who is landlord of the said building. The
plaintiff was carrying the business in the said shop No.3 having
mezzanine floor in the name and style M/s. Uppals & Co. Thereafter,
the plaintiff firm has given the suit premises i.e. shop No.3 alongwith
mezzanine floor on leave and licence basis to the Vodafone company.
After receipt of the impugned notice, plaintiff firm replied the same by
letter dt. 16/06/2017 through their Architect and also submitted some
documents alongwith reply. However, defendant has passed non-
reasoned order dt. 16/09/2017 without seeking remarks from the
concerned department to determine that the suit premises is in
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existence since prior to datum line. After receipt of the impugned order,
plaintiff against issued a letter through their advocate on 25/09/2017
stating all the facts by submitting necessary documents. However,
defendant threatened to demolish the suit premises. It is also the
contention of the plaintiff that in the earlier Notice of Motion No. 3450
of 2017, this Court had directed the defendant to consider the reply dt.
25/09/2017 by giving an opportunity of hearing to the plaintiff and
thereafter, to pass afresh order. However, inspite of giving directions by
this Court, defendant passed the order dt. 20/02/2018 by holding that
the plaintiff failed to produce the documentary evidence showing
existence of notice structure prior to 01/04/1962 and called upon the
plaintiff to remove the notice structure within three days.
5 On the other hand, it is the contention of the defendant
that the plaintiff submitted no objection letter No. CHE/376/DPC dt.
26/07/2004 issued by the Deputy Chief Engineer-II (DP) as well as no
objection letter No. CHE/768/DPC/heritage dt. 25/08/2004 issued by
the Deputy Chief Engineer-II (DP) which was from Heritage
Conservation under DCR-67 (heritage Regulations) alongwith plan No.
CHE/376DP/City dt. 26/07/2004 as well as plan No. CHE/768/City/
WS/ES dt. 25/08/2004. In these letters, it was mentioned that the
existing mezzanine floor, loft etc should be got approved from the
concerned Building Proposal Department by approaching to the office of
Deputy Chief Engineer (BP), City for necessary permission. However,
the plaintiff firm has not submitted any approval in respect of the notice
work by obtaining sanction from the Building Proposal Department.
Moreover, after issuing the directions by this Court by an order dt.
20/01/2018 in Notice of Motion No.3450 of 2017, plaintiff was given
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personal hearing. At that time, copy of assessment bill 2016-17 and
copy of capital value calculation sheet dt. 20/12/2012 alongwith rent
receipts were filed which were already submitted alongwith reply dt.
25/09/2017. Therefore, after getting detailed remarks towards these
documents, Designated Officer of the defendant arrived at the
conclusion that the notice structure is unauthorised and there is no
evidence to show the existence of the notice structure since prior to
01/04/1962 which the datum line for commercial structure. It is,
therefore, submitted that the notice of motion is liable to be dismissed.
6 After cumulative consideration of the entire facts and
circumstances and upon close scrutiny of the copies of documents on
record, it reveals that the plaintiff has also filed a copy of Inspection
Extract in respect of shop No.3 bearing No. AAC/A/EXT/35/2005-2006
dt. 26/09/2005. Perusal of this copy of Inspection Extract which is of
the year 2005, it reveals that shop No.3 occupied by the plaintiff firm
on the ground floor is shown to be divided into two parts, Part I-
Laundry with loft Area 31.38m. Part II- Business Centre of M/s.
Hutchison Max Area 209.27 X 3 time = Rs.627.31 @ Rs.628/-
Mezzanine floor Area 31.61m.
7 The plaintiff has also filed extract of Register of Inspection
of the said building of the year 1983-1984. In the copy of extract of
Register of Inspection, it reveals that on the ground floor of the said
building, there exists shop No.2, 3, 4 and 5 alongwith mezzanine floor.
Perusal of the copy of Inspection Extract and Register of Inspection
clearly indicates that the mezzanine floor in Shop No.5 is in existence
since prior to 1983-1984 and the said building has been shown to be
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assessed since prior to 31/03/1961. Thus, at this juncture, it can be
seen that the mezzenine floor in the shop No.5 is in existence since long
i.e. since prior to 1983-1984. In these circumstances, at this juncture,
one cannot jump over to the conclusion that the notice structure No.1
as mentioned in the schedule of the impugned notice has been recently
unauthorisedly constructed unless the suit is decided on merit.
8 So far as unauthorised structure No.2 as described in the
schedule of the impugned notice is concerned, it is alleged that there is
erection of wooden partition at the ground floor of the said shop. In
this context, learned advocate for the plaintiff placed reliance on
Circular No. CL/82906/Bldgs dt. 20/12/1985 which is in respect of the
permission for putting up partitions where separate Tenancy to be
created. As per this circular, it is mentioned that it has been decided by
the office of the defendant in a Coordination Meeting that in case where
the premises are in the occupation of one owner and where the suit
premises are used for office purpose only, there would be no objection
to internal dividing partition or partitions being construction with
glazed shutters so as to form cabin/cabins for office use and no
permission plan in such cases would be necessary. Thus, relying on this
circular, learned advocate for the plaintiff submitted that no permission
at all is necessary towards alleged erection of wooden partition as
mentioned in the impugned notice. On the other hand, no any
clarification has been made on the part of defendant towards this
circular dt. 20/12/1985.
9 Therefore, having regard to the copy of Inspection Extract
dt. 26/09/2005 and extract of Register of Inspection of the year 1983-
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1984 in which mezzanine floor is already shown to be in existence since
prior to 1983-1984 coupled with copy of circular dt. 20/12/1985, I am
of the considered view that the plaintiff has made out a prima facie case
and balance of convenience also lies in favour of the plaintiff. In these
circumstances, if interim relief is not granted, as prayed for, it will cause
great prejudice to the plaintiff. In the result, following order is passed.
ORDER
1. Notice of motion No. 715 of 2018 is made absolute in terms
of prayer clause (a).
2. Costs in cause.
3. Notice of motion stands disposed of accordingly.
Date:02/04/2024. (R. M. Mishra )
Dictated on :02/04/2024. Judge, City Civil Court,
Typed on :03/04/2024. Gr.Mumbai.
Signed on :03/04/2024.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
03/04/2024. 02.50 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
02/04/2024.
JUDGMENT/ORDER signed by P.O.on 03/04/2024.
JUDGMENT/ORDER uploaded on 03/04/2024.
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