Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.1054/19 (LCS No.534/19)
MHCC010027322019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.1054 OF 2019
IN
LONG CAUSE SUIT No.534/2019
Mr. Shivshankar s/o. Tihuli Saroj
& 2 Ors. … Plaintiffs
- Versus -
The Municipal Corporation of
Greater Mumbai & 3 Ors. ... Defendants
Appearance :-
Mr. R. R. Sharma, Advocate for plaintiffs.
Ms. Jyoti Patil-Mhatre, Advocate for defendant/M. C. G. M.
Ms. Henna P. Shah, Advocate for defendants No.2 to 4.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 23/02/2024.
O R D E R
. This is suit to challenge notice under Section 351 of The
Mumbai Municipal Corporation Act (in short the M. M. C. Act) issued by
defendant B. M. C. and for perpetual injunction restraining defendant
No.1/B. M. C. from demolishing suit structure i.e. shop No.1
admeasuring 13 X 8 Sq. ft. made up of B/M wall, A/C sheet roof, more
particularly described in paragraph No.1 of the plaint and the plaintiffs
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have taken out present Notice of Motion for temporary injunction under
Order-XXXIX Rule-1 of The Code of Civil Procedure.
2] In brief, facts of the plaintiffs' case are that late Tihuli Saroj,
the father of the plaintiffs No.1 and 2 and father in law of plaintiff No.3
was the tenant of suit structure admeasuring 13 X 13 and he was
inducted as a tenant prior to 1961-62. The plaintiffs are in possession
and enjoyment of suit structure since long. Late Tihuli was paying
monthly rent of Rs.30/- and was doing business of coal, coke and
firewood. The necessary licence has been issued by the B. M. C. prior to
1965. It is further stated that the old record prior to 1967 is not
available with the plaintiffs. The suit shop has been shown in C. T. S.
plan in black ink as same is in existence since prior to 1961-62.
3] It is further stated that late Tihuli obtained licence for
business prior to 1965 under Section 394 read with Section 412-A of
the M. M. C. Act for sale of coal, coke and firewood. The plaintiffs are
having shop act licence, property card, electricity bill, ration card and
receipts of payment made to B. M. C. to show that notice structure is in
existence prior to the datum line. The plaintiffs had received notice
under Section 314 of the M. M. C. Act that the portion of suit structure
admeasuring 4.40 meters X 1.40 meters is required for road widening.
Accordingly, the Corporation removed said portion of suit premises.
Then, the Corporation issued impugned notice, alleging that the
plaintiffs have carried out unauthorized construction of notice structure.
The plaintiffs have replied said notice stating that structure is in
existence prior to the datum line. However, the Designated Officer
passed stereotype order directing the plaintiffs to remove notice
structure. The Designated Officer has not considered documents
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submitted by the plaintiffs. Therefore, notice as well as Speaking Order
is illegal and bad-in-law, hence the plaintiffs constrained to file suit and
took out present Notice of Motion.
4] Defendant B. M. C. opposed 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 is
executive or administrative act or order and same is not open to
challenge in the Court of law. The plaint discloses no cause of action.
The plaintiffs have not given description of property to identify it hence
suit is liable to be dismissed under Order-VII Rule-3 of the C. P. C. It is
further stated that in view of the provisions of Section 515A of the
M.M.C. Act, this Court has no jurisdiction to try and entertain present
suit.
5] It is further contended that defendant B. M. C. has received
various complaints in respect of unauthorized construction of notice
structure. Therefore, the officer of the B. M. C. inspected suit site and
noticed unauthorized structure. The occupier failed to show documents
proving authorization of structure. Therefore, the inspecting officer took
measurements of unauthorized structure and thereafter impugned
notice came to be issued.
6] The plaintiffs replied show cause notice through advocate
Mr. R. R. Sharma but failed to prove legality of structure. Therefore,
Designated Officer passed Speaking Order directing the plaintiffs to
remove notice structure. The Corporation has followed due process of
law. The plaintiffs have failed to prove legality of structure, therefore,
they are not entitled for temporary injunction as prayed.
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7] Defendants No.2 to 4 have been added as per order passed
in Chamber Summons No.1193/2021. Defendants No.2 to 4 filed
Written Statement as well as reply to Notice of Motion and denied
contentions in the plaint as well as Notice of Motion. It is contended
that late Ratansi Patel gratuitously allowed late Tihuli Saroj to reside in
suit premises, which was assessed as C/I shed/residential premises
having area 15 square meters. In 2012 the plaintiffs started illegal
construction on said premises by removing tin sheet and constructing
brick masonry walls and putting A/C sheet roof and thereby converted
semi-permanent Kaccha structure to unauthorized permanent structure.
These defendants have made complaints of unauthorized construction
to police as well as B. M. C. The plaintiffs had illegally encroached upon
public road and it causes nuisance and inconvenience to public. Once
again in August 2018 the plaintiffs illegally carried out vertical
extension to said premises by adding brick walls and A/C sheet roof.
Hence defendants made complaint of unauthorized construction to the
M. C. G. M. The plaintiffs have carried out unauthorized construction
without permission admeasuring 4 X 2 meters and elevated said
premises by illegal construction. The Corporation had followed due
process of law. The plaintiffs are habitual offenders and they have
carried out unauthorized construction without permission, therefore,
they are not entitled for relief of injunction as prayed.
8] 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 plaintiffs have made out
prima facie case ? . . . Yes.
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2) Whether balance of convenience lies
in favour of plaintiffs ? . . . Yes.
3) Whether plaintiffs would suffer
irreparable loss if temporary
injunction is refused ? . . . Yes.
4) What order ? . . . Notice of Motion is
made absolute.
- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
9] The plaintiffs have relied upon C. T. S. map, property card
of C. T. S. No.4997, photocopy of licence issued by B. M. C., intimation
cum inspection report dated 8/9/1967 issued by the inspecting officer
of Licence Department, B. M. C., receipts of payment made to B. M. C.,
ration card, notice under Section 314 of the M. M. C. Act, reply,
Speaking Order etc.
10] Defendant B. M. C. relied upon inspection report,
photographs, show cause notice, speaking order etc. Defendants No.2 to
4 have relied upon property card, assessment bills, photocopy of
complaints of unauthorized construction dated 3/5/2015 and
1/9/2018, photographs, copies of complaint, letter dated 8/9/2021,
coloured photographs.
11] The plaintiffs have filed rejoinder affidavit.
12] Learned advocate for the plaintiffs submitted that late
Tihuli Saroj, father of plaintiffs No.1 and 2 was inducted as a tenant in
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suit structure prior to 1961-62 and initially, structure was 13 X 13 Sq. ft.
However, in road widening the Corporation has removed part of
structure and presently structure admeasuring 13 X 8 square feet is in
existence. It is further submitted that father of the plaintiffs was
running coal and firewood shop with due permission and licence issued
by B. M. C. Advocate for the plaintiffs submitted that the Liecence
Department had visited suit premises and inspected it on 8/9/1967 and
licence was issued. He further submitted that documents prior to 1967
are not available with the plaintiffs.
13] Learned advocate for the plaintiffs further submitted that in
C. T. S. map suit structure is shown in black ink. In his submission
structures which are in existence prior to the datum line are shown in
black ink in C. T. S. plan. In his submission, C. T. S. map clearly shows
that suit structure is in existence prior to 1962-64. However, defendant
B. M. C. on the basis of complaints, initiated action with malafide
intention. The plaintiffs have replied show cause notice however,
Designated Officer has not considered documents and discarded C. T. S.
plan, shop and establishment licence and passed order mechanically. It
is further submitted that according to defendants No.2 to 4, notice
structure has been constructed as per the sanctioned plan. He submitted
that in Chamber Summons taken out by defendants No.2 to 4 they
pleaded that suit premises is constructed as per the sanctioned plan
admeasuring 15 Sq. Mtrs. However, the Designated Officer passed
Speaking Order holding that notice structure is unauthorized. In his
submission, the plaintiffs have
prima facie established that structure is
legal and authorized. Hence the plaintiffs are entitled for temporary
injunction as prayed.
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14] Advocate for the plaintiffs relied on judgments in the
matter of Shiv Kumar Chadha Etc. Etc. Vs. Municipal Corporation of
Delhi And Ors. [1993 SCR (3) 522] in which it is held that power to
grant to injunction is an extraordinary power and in order to maintain
status quo the Court can grant temporary injunction. He further relied
on the judgment in the matter of Kishor S/o. Ramalu @ Rambhau
Telang Versus The Municipal Commissioner, Nagpur Municipal
Corporation (Second Appeal No.491 Of 2012) in which it is held that
the jurisdiction of Civil Court for the purpose of examining as to
whether statutory requirements have been duly complied or not or
whether basic procedural requirement followed or not can be examined
and if the jurisdiction Civil Court is invoked for considering the validity
of the notice, then the jurisdiction of Civil Court will not be barred. He
further relied on judgments in the matter of Mrs. Sarina Esmeralda
Lopez versus Mr. Vijay Goverdhandas Kalantri (Civil Revision
Application No.448 Of 2013), Municipal Corporation of Greater
Mumbai V/S. Rajendra Phulchand Gupta And Ors. [Appeal From Order
(ST.) No.16017 Of 2021] and Mr. Yogesh Megaji Gada V/s. The
Municipal Corporation of Greater Mumbai & Anr. (Writ Petition
No.2243 Of 2013) to submit that if the order passed by the authority is
nullity or there is lack of jurisdiction, the Civil Court has jurisdiction to
entertain suit and the only exception to entertain suit is on the basis of
order being nullity as suffering from jurisdictional error.
15]
Per contra, advocate for the B. M. C. submitted that the
plaintiffs have failed to prove that notice structure is in existence prior
to 1962 i.e. tolerated structure. The plaintiffs have not produced a
single document in support of their contention that notice structure is in
existence prior to the datum line. It is further submitted that the
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Corporation has received complaint of unauthorized construction,
therefore, the officer of the B. M. C. inspected site and prepared
inspection report, took photographs of unauthorized construction. The
plaintiffs have failed to prove that notice structure is in existence prior
to the datum line. The Corporation has followed due process of law.
Therefore, the plaintiffs are not entitled for temporary injunction.
16] Learned advocate for defendants No.2 to 4 submitted that
father of the plaintiffs' No.1 and 2 was gratuitous licencee and
permitted to use suit premises for residential purpose. Neither the
plaintiffs nor their predecessors accepted rent. The plaintiffs have
carried out unauthorized construction by raising the height of structure
and by replacing C/I sheet with A/C sheet without permission of the
B.M.C. These defendants are the owners of structure. They have made
complaints of unauthorized construction. It is further submitted that
none of the documents relied by the plaintiffs prove that notice
structure is tolerated. It is further submitted that there is no pleading
that notice is nullity or there is jurisdictional error, therefore, suit is not
maintainable. Advocate for defendants No.2 to 4 relied upon the
judgment of the Hon'ble High Court in Sopan Maruti Thopte And
Another Versus Pune Municipal Corporation And Another (AIR 1996
Bom 304) in which the Hon'ble High Court laid down guidelines to be
followed before taking action under Section 351 of the M. M. C. Act or
260 of the B. P. M. C. Act. Advocate for defendants No.2 to 4 submitted
that the plaintiffs are not entitled for injunction and unauthorized
construction cannot be protected at any cost. On these grounds, she
prayed for dismissal of Notice of Motion.
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17] The plaintiffs have challenged notice under Section 351 of
the M. M. C. Act issued to structure admeasuring 4 X 2 Sq. Mtrs. with
height 2.6 meters made up of B/M wall and A/C sheet roof. It is
contention of the plaintiffs that late Tihuli Saroj the father of the
plaintiffs No.1 and 2 was inducted as a tenant by the predecessors of
defendants No.2 to 4 prior to 1961-62 and said Tihuli Saroj was
running coal and firewood shop. For that purpose reliance has been
placed on licence issued by defendant B. M. C. in the name of late Tihuli
Saroj. The plaintiffs have produced on record licence bearing No.3595,
2627, 6358 and 19749. The plaintiffs have also produced on record
inspection report prepared by the Licence Department of B. M. C. On
perusal of said report, it appears that the Licence Department of B.M.C.
inspected suit structure on 8/9/1967 and licence was issued from
30/3/1966. According to defendants No.2 to 4 the plaintiffs have
carried out unauthorized construction in 2012 and raised the height of
structure by replacing tin sheet. According to defendants No.2 to 4, suit
structure has been constructed as per the sanctioned plan and area of
said structure as per the sanctioned plan is 15 Sq. Mtrs. but defendants
have not produced sanctioned plan to show that area of structure was
15 Sq. Mtrs. It is further contention of defendants that the original
structure was made up of C/I sheet but the plaintiffs have replaced C/I
sheet with A/C sheet. However, the defendants have not produced
assessment bill or any document to show that the plaintiffs have
replaced C/I sheet with A/C sheet. The plaintiffs alongwith rejoinder
affidavit produced photocopy of affidavit of defendants No.2 to 4. In the
said affidavit defendants No.2 to 4 have made statement that structure
has been constructed as per the sanctioned plan. However, it is
contention of defendants No.2 to 4 that the plaintiffs have raised the
height of structure and replaced C/I sheet i.e. the plaintiffs have made
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change in vertical existing dimension of structure. As per Section 342 of
the M. M. C. Act a person who intends to make any alteration, addition,
repairs or change in existing user shall give notice of his intention to the
Commissioner. As per explanation to Section 342 of the M. M. C. Act the
change in horizontal and vertical dimension to existing structure does
not fall under the category of tenantable repair.
18] The plaintiffs have produced on record intimation-cum-
inspection report dated 8/6/1967 exhibit-E to the plaint, prepared by
the Licence Department of the B. M. C. On perusal of said report, it
appears that suit premises is in existence since prior to 1966. The
plaintiffs had filed intimation-cum- inspection report of 1967 alongiwith
reply to show cause notice. However, the Designated Officer flatly
discarded said report holding that the notice structure being a
commercial structure its existence prior to 1962 ought to have been
proved. In clause No.5 of the Speaking Order the Designated Officer
observed that said intimation-cum-inspection report of year 1967
cannot be treated as conclusive proof of authorization of notice
structure. The plaintiffs have produced on record C. T. S. map exhibit-A
to the plaint issued by the City Survey Office, Ghatkopar. In the said
map all the structures have been shown in black ink. Learned advocate
for the plaintiffs submitted that the structures are in existence prior to
the datum line and are shown in black ink in C. T. S. map. The
intimation-cum-inspection report of 1967 and C. T. S. map exhibit-A to
the plaint
prima facie shows the existence of structure prior to the
datum line. However, Designated Officer has discarded these documents
on the premises that the said documents cannot be treated as conclusive
proof/authenticated documents towards authorization of notice
structure. The date of licence mentioned in the intimation-cum-
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inspection report need not to be the date from which the existence of
structure can be inferred. It might be possible that structure is in
existence prior to date mentioned in intimation-cum-inspection report
exhibit-E to the plaint i.e. prior to the datum line. Therefore, the
plaintiffs cannot be non-suited at this stage. In the circumstances, I hold
that the plaintiffs have
prima facie established the existence of structure
prior to the datum line.
19] As stated earlier, the C. T. S. plan and intimation-cum-
inspection report established existence of structure prior to the datum
line. Defendants No.2 to 4 have produced on record complaint and
photographs in support of their contention that the plaintiffs have
carried out vertical extension to existing structure and replaced roof
sheet by a different material. However, impugned notice alleges that the
plaintiffs have carried out unauthorized construction of the entire
structure and not has not been given to vertical extension or for
changing of roof by a different material.
20] I have gone through the judgment relied by the defendants
No.2 to 4 in the case of Shantilal Chhogalalji Doshi and another Versus
Municipal Corporation of Greater Mumbai and another (Appeal From
Order No.8 Of 2021). In the said case the Hon'ble High Court refused
interim protection by observing that the plaintiffs, therein, have not
made out
prima facie case. However, in the case on hand, the plaintiffs
have established the existence of structure prior to the datum line. In
Sopan Maruti Thopte's case the Hon'ble High Court observed that the
Court cannot grant injunction merely on asking and it is not charity at
the cost of public. However the facts of the case and the facts of
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judgment relied by defendants are not identical. Hence this judgment is
not helpful to them.
21] The defendants No.2 to 4 contended that in view of the
provisions of Section 515A of the M. M. C. Act this Court has no
jurisdiction to try and entertain suit challenging notices under Sections
351 and 354A of the M. M. C. Act. However, the Hon'ble High Court in
the abovecited judgments Mr. Yogesh Megaji Gada V/s. The Municipal
Corporation of Greater Mumbai & Anr. and Mrs. Sarina Esmeralda
Lopez versus Mr. Vijay Goverdhandas Kalantri (supra) held that even if
the jurisdiction of Civil Court has been excluded by Section 515A of the
M. M. C. Act it is still open if the plaintiff shows that there is
jurisdictional error on the part of authority and principles of natural
justice are not followed. Learned advocate for the plaintiffs relied upon
the judgment of Motillal Mahadev Sharma and others Versus Municipal
Corporation of Greater Bombay (2005 SCC OnLine Bom 401) in which
it is held that if plaintiff is seeking ad-interim relief, therefore, it is not
necessary for the plaintiff to give statutory notice and wait till the notice
period. In view of the above referred judgment I find no substance in
the contention of defendants that suit is not maintainable.
22] The plaintiffs have
prima facie established the existence of
structure prior to the datum line. Thus, the plaintiffs have made out
prima facie case for grant of temporary injunction. Balance of
convenience lies in favour of the plaintiffs. If temporary injunction is
refused they would suffer irreparable loss. Accordingly I answer points
No.1 to 3 in the affirmative and in answer to point No.4 following order
is passed :-
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O R D E R
Notice of Motion is hereby made absolute in following terms :-
Defendant B. M. C. is temporarily restrained from implementing
notice and Speaking Order till decision of suit.
Date : 23/02/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
02/03/2024 05:35 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 23/02/2024
ORDER Tyed on 28/02 and 29/02/2024
ORDER signed by P. O. on 02/03/2024
ORDER uploaded on 02/03/2024
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