Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.723/18 (LCS No.465/18)
MHCC010026532018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.723 OF 2018
IN
LONG CAUSE SUIT No.465/2018
Mr. Mani Anthony Nadar … Plaintiff
Versus
1] The Municipal Corporation
of Greater Mumbai
2] Smt. Tunga Krishna Devadiga ... Defendants
Appearance :
Mr. P. N. Kulkarni, Advocate for plaintiff.
Mr. Om Suryavanshi, Advocate for defendant No.1/M.C.G.M.
Mr. Kini with Mr. Gharat, Advocates for defendant No.2.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 03/05/2023.
O R D E R
. This is suit for declaration that notice dated 6/12/2017
issued under Section 351 of The Mumbai Municipal Corporation Act (in
short the M.M.C. Act) and speaking order dated 10/2/2018 is illegal,
badinlaw and not enforceable and for permanent injunction
restraining defendant/Corporation from implementing notice and order
the plaintiff taken out Notice of Motion under OrderXXXIX Rule1 of
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The Code of Civil Procedure (in short the C.P.C.) for temporary
injunction.
2] In short, the plaintiff's case is that the plaintiff acquired suit
premises on tenancy basis. The plaintiff is having electricity and
telephone connections, shop and establishment certificate and other
documents to show that suit premises is in existence since long. Earlier
the Corporation issued notice dated 17/4/2015 stating that suit
premises is affected by road widening but no action is taken. The
plaintiff replied said notice on 24/2/2016 alongwith documents but
neither order has been passed nor any action has been initiated by
defendant/Corporation. This shows that the defendant/Corporation
accepted that suit premises is not required to be demolished and is
authorized.
3] It is further stated that surprisingly, on 6/12/2017
defendant/Corporation issued impugned notice, alleging that the
plaintiff has carried out unauthorized construction. The plaintiff
immediately replied notice by placing all relevant facts. However,
designated officer without considering reply and documents passed
speaking order hence notice as well as speaking order is illegal and bad
inlaw. Therefore, the plaintiff filed present suit and taken out this
Notice of Motion.
4] Defendant No.1/Corporation has opposed Notice of Motion
by filing replycumWritten Statement below exhibit4 and defendant
No.2 opposed Notice of Motion by filing reply below exhibit7. 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 is administrative or
executive act or order and same is not open to challenge in a Court of
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3 N/M. No.723/18 (LCS No.465/18)
law. The plaint discloses no cause of action. The plaintiff has not given
description of suit premises hence suit is liable to be dismissed under
OrderVII Rule3 of The Code of Civil Procedure (in short 'the C.P.C.').
5] It is further stated that defendant/Corporation received
complaint of defendant No.2 in respect of unauthorized construction of
ground floor made up of brick masonry wall. The inspecting officer
visited suit site and noticed unauthorized construction as shown in
notice. The inspecting officer inquired about authenticity of structure
but the occupier failed to produce any document, therefore, the officer
of the Corporation took measurements, prepared inspection report and
forwarded it to designated officer. Designated officer after verifying
inspection report came to the conclusion that notice structure is
unauthorized and, accordingly, issued impugned notice.
6] It is further stated that the plaintiff replied show cause
notice but not produced any document to show that notice structure is
in existence prior to the datum line and fixed for commercial purpose
and not produced any document showing that structure is tolerated or
there is approval of defendant/Corporation. Therefore, the plaintiff is
not entitled for any relief.
7] The plaintiff filed rejoinder affidavit and denied
contentions in reply filed by defendants.
8] The plaintiff relied on photocopies of electricity bills,
telephone bills, shop and establishment certificate, tax receipt, notices
dated 17/4/2015 and 22/2/2016, reply dated 24/2/2016, notice dated
6/12/2017, reply dated 12/12/2017, speaking order dated 10/2/2018,
R.A.E. Suit No.1345/2021, notice dated 16/6/2021, Deed of Correction,
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death certificate, Power of Attorney, order of the Hon'ble High Court
etc.
9] Defendant/Corporation relied on photocopies of complaint
and inspection report.
10] 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.
:: R E A S O N S ::
AS TO POINTS No. 1 TO 3 :
11] 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)
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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] It is contention of the plaintiff that he has been inducted as
a tenant in notice structure in 1993 and since then structure is in his
possession. It is further stated that the plaintiff is having documents
showing that structure is in existence prior to 1993. According to the
plaintiff, earlier the Corporation has issued notice stating that notice
structure is unauthorized but till today no action is taken. Thus, the
Corporation has accepted notice structure is legal and authorized.
13] The plaintiff has challenged notice issued by defendant/
Corporation under Section 351 of the M.M.C. Act, alleging that the
plaintiff has carried out construction of notice structure in
contravention of the provisions of Sections 337 or 342 and 347 of the
M.M.C. Act. As per explanation to Section 351 of the M.M.C. Act the
burden lies upon the plaintiff to show that notice structure is legal and
authorized i.e. it is not constructed in contravention of the provisions of
the M.M.C. Act. It is contention of the plaintiff that earlier the
Corporation has issued notice in 2015 stating that notice structure is
affected by the road widening but the Corporation has not taken any
action on the basis of said notice, therefore, the Corporation has
accepted that notice structure is legal and authorized. However, I find
no substance in the submissions of the plaintiff that the Corporation has
not taken any action on the basis of the earlier notice, the structure
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became authorized. Merely, the Corporation has not taken action on the
basis of previous notice does not automatically make structure legal.
The plaintiff has to show by producing documentary evidence on record
that notice structure is in existence prior to the datum line, or it is
tolerated or protected as per the policy of the Government or it is
constructed as per the sanctioned plan. However, the plaintiff has not
produced any document to show that notice structure is in existence
prior to the datum line or it is protected under the Slum Act or policy of
the Corporation. None of the documents produced by the plaintiff
proves authorization of notice structure.
14] In reply to show cause notice given by the plaintiff exhibitJ
to the plaint, it is only contention of the plaintiff that the Corporation
has not taken any action on the basis of earlier notice dated 22/2/2016
and, therefore, it can be said that Corporation has accepted and
admitted his documents and structure becomes authorized. This
submission is misconceived. Merely the Corporation has not taken
action based on the previous notice, does not automatically make notice
structure legal. Thus, I hold that the plaintiff prima facie failed to show
that notice structure is legal or authorized.
15] Learned advocate for the plaintiff relied on the judgment of
the Hon'ble Bombay High Court in the case of Sopan Maruti Thopte
And Another vs. Pune Municipal Corporation And Another (AIR
1996 Bom 304). In this judgment the Hon'ble High Court laid down the
procedure to be followed by the Corporation before taking action under
Section 351 of the M.M.C. Act or Section 260 of The Bombay Provincial
Municipal Corporation Act, 1949. However, the plaintiff has not pointed
out any defect in the procedure followed by the Corporation in passing
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demolition order under Section 351 of the M.M.C. Act. The plaintiff has
not pointed out any fault in notice as well as speaking order. The
plaintiff has not shown that construction of notice structure is carried
out in accordance with the provisions of Sections 337 and 342 or 347 of
the M.M.C. Act.
16] Subsection (2) of Section 351 of the M.M.C. Act mandates
that if noticee fails to show sufficient cause in the context of
explanation to the satisfaction of designated officer, then designated
officer may pass order of removal or demolition of notice structure. The
burden of proving legality of structure is on the noticee.
17] Learned advocate for defendant No.2 relied on the
judgment of the Hon'ble Bombay High Court in the case of Ravikant
Ronakchandra Agarwal V/s. The Municipal Corporation of Greater
Mumai (Appeal From Order No.26622 of 2019) in which it is held
that merely because action was not taken in pursuance of earlier notice
does not mean that now respondent is precluded from taking action.
What was important for the appellant was to prove the legality and
validity of the structure which the appellant has failed to prove. Trial
Court has rightly refused the adinterim relief.
18] In the case on hand, the plaintiff has not shown that
structure has been constructed in accordance with the provisions of the
M.M.C. Act, or it is protected or tolerated structure. Thus, I hold that
the plaintiff has failed to establish that notice structure is legal,
authorized, protected or tolerated structure. Therefore, the plaintiff is
not entitled for temporary injunction. In view of discussion above made
and in view of the judgment of the Hon'ble High Court in the case of
Ravikant Ronakchandra Agarwal V/s. The Municipal Corporation of
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Greater Mumbai (supra), the plaintiff is not entitled for grant of
injunction. The plaintiff has not made out prima facie. Balance of
convenience not tilts in favour of the plaintiff. Therefore, points No.1 to
3 are answered in the negative and in answer to point No.4 I pass
following order :
O R D E R
Notice of Motion No.723/2018 is dismissed.
Date : 03/05/2023. ( 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 ORDER.”
12/05/2023 02:50 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 03/05/2023
ORDER Typed on 11/05/2023
ORDER signed by P.O. on 11/05/2023
ORDER uploaded on 12/05/2023
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