Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Draft notice of motion
In
S.C.Suit No.290 of 2019
Rajiv Gandhi Nagar Utkarsh Seva Sangh ...Plaintiff
Versus
MCGM
... Defendants
Advocate Mr.S.K.Chaurasia for plaintiff
Advocate Mr.G.O.Giri for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 25th February , 2019
(Court Room No.06)
O R D E R
Plaintiff has taken out this draft notice of motion to
restrain the defendant Municipal Corporation , Gr. Mumbai from
implementing or executing order dated 16/01/2019 passed pursuant to
show cause notice dated 28/06/2017 or taking any coercive action or
taking forcible possession of the said public toilet, i.e. Utkarsh Seva
Sangh Public Toilet, Rajiv Gandhi Nagar, Near Maharashtra Nisarg
Udyan, Opp: Dharavi Bus Depot, Dharavi, Mumbai 400 017 from the
plaintiff in any manner whatsoever or save and except by following due
process of law.
Facts in brief are as under:
2 Plaintiff is an organization of local residents of Rajiv
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Gandhi Nagar, Dharavi, Mumbai. Plaintiff is registered under the
provisions of the Maharashtra Cooperative Societies Act as well as
Maharashtra Public Trusts Act. Plaintiff's trust is a nonprofit making
organization and dedicated towards the health and welfare services
and known for performing various public charitable tasks such as free
education to poor children of the slum, organizing pulse polio
vaccination program, running, managing and maintaining public toilets
and urinary, etc.
3 Plaintiff has good will, reputation. Plaintiff has
contribution in the field of public welfare programes and therefore
defendant had offered and plaintiff had accepted to operate, manage
and maintain public toilet constructed under the Slum Sanitation
Program, situate at Rajiv Gandhi Nagar, Near Maharashtra Nisarg
Udyan, Opp. Dharavi Bus Depot, Dharavi, Mumbai400 017. The
Memorandum of Understanding (MOU) is executed between plaintiff
and defendant Municipal Corporation on 6/01/2011.
4 Defendant handed over the said public toilets to plaintiff
without laying down underground sewage line for waste disposal from
the toilet blocks. The defendant corporation did not provide the basic
infrastructure like water, electricity, proper wiring etc. in order to
enable the plaintiff to smoothly run and manage the public toilet. There
are 40 toilet blocks in the said public toilet which were being used by
460 passholders in the year 2014, however, for want of laying down
of sewage line, insufficient water, electricity and proper wiring by the
defendant, there had been constant blockage of toilets and disruption
in services. Plaintiff had written many letters to the defendant. Plaintiff
has copies of said letters dated 31/12/2015 and 13/07/2017.
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5 Defendant continued to be adamant and lethargic contrary
to the conditions in the MOU. Thus, due to non cooperation from the
defendant the public compelled to use the said public toilet in their
pathetic condition. Thereafter, plaintiff itself engaged a licensed
plumber and applied to the defendant for seeking permission for laying
down sewer connection for toilet blocks by letter dated 26/02/2018.
Till today the office of the defendant has failed to grant any such
permission to the plaintiff.
6 Plaintiff further stated that, despite the aforesaid
deficiencies on the part of the defendant, the plaintiff has been
maintaining the said public toilet at its own costs and expenditure.
Plaintiff has been paying electricity bills and income tax. Thereafter,
defendant had granted permission to the plaintiff to dig a new ring
well . Thus, plaintiff has dugged ring well and plaintiff is using the said
well for the use of toilets.
7 However, the local corporator from congress party
demanded a amount of Rs. 2,50,000/ from the plaintiff for allowing it
to function smoothly. Plaintiff could not fulfill his illegal demand and
thus, the corporator started making false and frivolous complaints
against the plaintiff to the defendant and on the basis of false
complaints defendant issued a show cause notice dated 28/06/2017. In
the notice it has alleged that nonmaintenance and unauthorized
alteration in the said public toilet. Plaintiff gave reply to the notice.
Thereafter, defendant kept quiet for almost one and half years, and on
16/01/2019 pasted an order on the outer wall of the said public toilet
on 17/01/2019. Thus, defendant unilaterally terminated the MOU
dated 6/01/2011 and called upon the plaintiff to hand over possession
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of the said public toilet to the defendant within 24 hours from the
receipt of the said requisition. Plaintiff gave reply to the said order.
8 Plaintiff is community based organization. Plaintiff has
engaged in various social activities. Plaintiff was not intending to start
private tuitions in the said toilets. Notice and order are illegal.
Defendant has no right to dispossess the plaintiff forcibly from the
public toilet. ( Suit premises). The action of the defendant is malafide
and on this ground plaintiff prayed to make the notice of motion
absolute.
9 Notice is served to defendant. Defendant filed affidavit in
reply to the notice of motion. Defendant filed affidavit of Mr. Kiransing
N. Patil, Jr. Engineer, G/North ward. Defendant admitted that plaintiff
is community based organization. Defendant admitted that defendant
has constructed toilets under the Slum Sanitation Program. Rajiv
Gandhi Nagar, Near Maharashtra Nisarg Udyan, Opp: Dharavi Bus
Depot, Dharavi, Mumbai400 017. Defendant admitted that defendant
handed over the said toilets to the plaintiff. Defendants admitted that
Memorandum of Understanding dated 6/01/2011, is executed between
plaintiff and defendant. However, defendant denied the remaining
contention made in the plaint and affidavit in support of notice of
motion. Defendant denied that defendant has not provided Sewage line
to the toilets. Defendant denied that plaintiff is providing proper
service to the public at large. Defendant denied that plaintiff has not
reached any terms of the Memorandum of Understanding and the
defendant unilaterally terminated the agreement.
10 According to defendant, plaintiff has not given notice U/s
527 of MMC Act. Plaint does not disclose cause of action. The
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impugned notice and order are the Executive and Administrative act of
the defendant. Hence, the suit is not maintainable. Defendant further
contended that defendant has received a complaint dated 27/10/2017
from one Gau Bharat Bharati regarding unauthorized use of the toilet
block. Social Development Officer of these defendants issued a notice
to the Secretary Shri Venkatesh Jogi, in respect of unauthorized use
and violation of terms and conditions as mentioned in the MOU.
Plaintiff was directed to file reply. Plaintiff has filed reply dated
10/07/2017. In the reply plaintiff has denied the allegations but in
para 1 of the reply plaintiff admitted that Shri Gahule was residing in
the toilet block. Social Development Officer considered the reply filed
by plaintiff and came to the conclusion that plaintiff has unauthorizedly
using the toilet blocks and he proposed for action as per law.
11 Thereafter, sub engineer S.P.(S.S.P) of the defendant has
inspected the toilet and prepared the inspection report. Plaintiff has
breached the terms and conditions of the MOU. The Sub engineer
(S.S.P) has forwarded his report to officer on special duty on
5/02/2018. Thereafter, the officer on special duty after scrutinizing all
papers forwarded a proposal for cancellation of MOU and also
proposed action to be taken against the plaintiff to Deputy Municipal
Commissioner (ZoneII). Deputy Municipal Commissioner (Zone II_ is
a competent authority to revoke the MOU.
12 Defendant further stated that the abovesaid toilet blocks
is in dilapidated condition . Defendant obtained structural audit report
from Space Design and Development. The Space Design and
Development submitted their report that the toilet blocks falls within
the C1 category to be evacuated and demolished immediately as
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structure is showing major distress. These structure is not safe for the
intended purpose. The Assistant Commissioner, G North ward has
forwarded the report to Deputy Municipal Commissioner, Zone II. The
Deputy Municipal Commissioner after considering the record
terminated the MOU and also directed to take immediate possession of
the toilet block and also provide mobile toilet block for the persons
residing in the vicinity.
13 The officer of G North ward has immediately taken the
possession of the above toilet block and it is also decided to reconstruct
the new toilet block for local inhabitants. Defendant has put the
mobile toilet in the vicinity for the sake of public in the area. Thus,the
defendant has followed the due process of law. The plaintiff is the
licensor of the toilet block. Defendant is the owner of the toilet block.
Thus, plaintiff cannot seek injunction against the true owner. Hence
amongst these grounds defendant prayed to dismiss the notice of
motion.
14 From the rival contention of both the parties following
points arise for my consideration, I record my findings against them for
the reason given below.
Sr.No ISSUES FINDINGS
1 Whether plaintiff has made out prima
facie case?
In the negative
2 Whether balance of convenience lies in
favour of plaintiff?
In the negative
3 To whom irreparable loss will be
caused if injunction is granted?
To the defendant
4 What order? As per final order
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R E A S O N S
15 I have heard Mr.S.K.Chaurasia advocate for plaintiff and
Mr. G.O.Giri advocate for defendant/MMC.
16 Mr. S.K.Chaurasia advocate for plaintiff has submitted that
plaintiff is community based organization. Plaintiff is registered under
the provisions of the Maharashtra Cooperative Societies Act as well as
Bombay Public Trusts Act. Plaintiff is engaged in the social welfare
activities of the society. Plaintiff has goodwill and reputation in the
vicinity. Plaintiff was invited many NGO's to organize their programe.
Plaintiff was smoothly running the toilet blocks despite of non
providing sewage line, water, electricity by the defendant. Plaintiff has
dugg ring well for the water. Plaintiff is providing service of the toilets
to the poor people in the vicinity. He further submitted that plaintiff
had many times written letters to defendants to provide the facilities
however, defendant did not provide the water and electricity facility to
the plaintiff. The local corporator had demanded Rs. 2,50,000/ from
the plaintiff and he filed false complaint against the plaintiff. He denied
that the suit premises is being used for residential purpose. He also
denied that suit premises is in C1 category i.e. dilapidated condition.
According to him, the Memorandum of Agreement is executed between
the plaintiff and the defendant. Defendant has no right to unilaterally
terminate/cancell the agreement. Defendant cannot take forcible
possession from the plaintiff. Defendant has to follow the due process
of law. Hence, he prayed for interim relief as sought.
17 Shri G.O.Giri advocate for defendant has submitted that
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toilet blocks was handed over to the plaintiff for providing service to
the poor people in the vicinity, however, plaintiff has broke some toilets
and there one Gahule was found residing. He has invited my attention
towards the documents on record. On the complaint of one reporter
Gau Bharat Bharati, notice was issued to the plaintiff. Plaintiff gave
reply to the notice. Thereafter, the officer of the defendant inspected
the site and found that plaintiff has made unauthorized construction.
Plaintiff has converted some toilets in residential purpose. Thus,
plaintiff has breached the terms and conditions of the Memorandum of
Understanding. He further submitted that defendant corporation is the
owner of the toilet. Toilets were only handed to the plaintiff to
maintain them and provide service to the poor people in the vicinity.
Thus, plaintiff except this has no right in the premises. According to
him, after considering the record DMC Zone II has terminated the
MOU. Plaintiff has no right in the premises. Inspite of the service of
notice plaintiff did not vacate the toilet blocks. Accordingly, the officers
of the defendant have taken possession of the premises. Hence, he
prayed to dismiss the notice of motion.
18 To succeed plaintiff has to show that plaintiff is in
possession of the toilet blocks and plaintiff is maintaining the toilet
blocks as per the Memorandum of Understanding dated 6/01/2011.
Plaintiff has to establish the prima facie case, balance of convenience
and irreparable loss in case of refusal of injunction.
19 Admittedly, plaintiff is Community Based Organization.
Plaintiff engages in the various activities of welfare of the people/. The
toilet blocks were constructed by the defendant municipal corporation
for the use of public in general. On 6/01/2011, Memorandum of
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Understanding is executed between the plaintiff and defendant and the
possession of toilet blocks was handed over to the plaintiff.
20 However, defendant Municipal corporation received a
complaint against the plaintiff in respect of the unauthorized
construction and change of user of the toilet blocks and thus, the
defendant municipal corporation initiated action against the plaintiff.
21 The memorandum of understanding dated 6/01/2011,
recites that permission is granted to plaintiff to maintain the toilet
blocks which is constructed under 'Slum Sanitation Program'. In para
no.2 it is recited that in variation and change in the structure will be
considered as unauthorized construction and MCGM shall be at liberty
to demolish the same without giving any notice and recover the cost of
demolition from plaintiff. In para no.24 both the parties agreed that in
the event of the CBO committing any breach of the terms and
conditions, the Director (ES&p) DMC (Env & W.M) shall be entitled to
terminate the agreement and on such termination, the
attendant/caretaker found on the premises would be removed from the
said premises. In para no.25 it is agreed that in all cases of disputes, the
Municipal Commissioner's decision shall be final and legally binding
upon the CBO.
22 Thus, on aforesaid terms and conditions the toilet blocks
was handed over to the plaintiff. Admittedly, people in the vicinity
were using the said toilet blocks. One Gau Bharat Bharati, a local
Corporator has set the motion to initiate action against the plaintiff.
Gau Bharat Bharati, filed complaint to the defendant against the
plaintiff stating that the secretary of the plaintiff namely Venketesh is
using some part of premises for his private use. He is collecting extra
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amount from the people and the said toilet block is not properly
maintained. It is to be noted that earlier this defendant had issued
notice to the plaintiff stating that plaintiff has demolished the urinal
and toilet block and constructed room thereon. The said action was
taken on the basis of complaint of the chairman of plaintiff namely
Abdul Razak. However, after the complaint of Gau Bharat Bharati, the
officer of the defendant i.e. sub engineer found that the toilet seats at
ground and first floor are not matched with the architectural drawing
available with the M.O.U file and the same are relocated. Seven nos. of
Ladies toilet seats are converted in to Gents toilet seats at ground floor.
Children squatting area is converted into care taker room. The urinal
area converted into room, is again reinstated by constructing urinals.
However urinals are not found in use. Accordingly, he prepared
inspection report. Thereafter, the action was proposed to terminate the
M.O.U and on that basis Deputy Municipal Commissioner terminated
the MOU.
23 It is to be noted that plaintiff could not satisfactorily gave
reply in respect of the aforesaid changes. Toilet blocks was constructed
for the public. However, plaintiff made changes therein. The secretary
of plaintiff was using some portion of the toilet for his personal use,
being a room. Therefore, as per clause of the Memorandum of
Understanding the Deputy Municipal Commissioner, Zone II has rightly
terminated the contract. From the reply of defendant, it appears that
after termination of MOU the defendant Municipal Corporation has
taken possession of the toilet blocks. The defendant has also provided
mobile toilet blocks in the vicinity.
24 Plaintiff has suppressed the material facts from this court
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about changing the nature of toilet blocks. From the documents of the
defendant, defendant has proved that plaintiff has made substantial
changes and there an advertisement of coaching class was also found.
Therefore in such a circumstances plaintiff is not entitled for interim
relief.
25 The said toilet blocks are constructed under the 'Slum
Sanitation Programe'. Defendant made structural audit of the toilet
blocks from Space Design and Development. The report do show that
the toilet blocks are in dilapidated condition and requires immediate
evacuation and demolition. The structural auditor Space Design and
Development categorized toilet blocks in C1 category.
26 From aforesaid discussion, I find that plaintiff has no prima
facie case, balance of convenience does not lie in favour of plaintiff and
if the interim relief as prayed is granted then irreparable loss will be
caused to the defendant, I answer the point accordingly and pass the
following order:
ORDER
1 Draft Notice of motion is dismissed.
2 Draft Notice of motion be registered for statistical
purpose.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 25/02/2019
Typed on : 26/02/2019
Signed by HHJ. : 27/02/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
28/02/2019 S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
25/02/2019
JUDGEMENT/ORDER signed by
P.O. on
27/02/2019
JUDGEMENT/ORDER uploaded
on
28/02/2019
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