Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.854/18 (L.C.S. No.567/18)
MHCC010029442018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.854 OF 2018
IN
LONG CAUSE SUIT No.567/2018
Mr. Vilas s/o. Waman Vaity … Plaintiff
- Versus -
The Municipal Corporation
of Greater Mumbai ... Defendant
Appearance :-
Mr. Mukesh Dubey, Advocate for plaintiff.
Mrs. Sujata Puri, Advocate for defendant/M. C. G. M.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 06/12/2024.
O R D E R
. This is suit to challenge notice dated 19/9/2016 issued
under Section 354A of The Mumbai Municipal Corporation Act (in short
the M. M. C. Act) and subsequent order dated 20/11/2017 whereby the
B. M. C. directed to remove unauthorized work, for perpetual injunction
restraining defendant B. M. C. from enforcing notice and order and the
plaintiff has taken out present Notice of Motion under Order-XXXIX
Rule-1 of The Code of Civil Procedure (in short the C. P. C.) for
temporary injunction.
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2 N/M. No.854/18 (L.C.S. No.567/18)
2] Brief facts can be summarized as follows :-
The plaintiff is in use, occupation and possession of
structure admeasuring 32’ X 23’ sq. ft. made up with B/M wall, more
particularly described in paragraph No.1 of the plaint (in short ‘notice
structure’). The structure is very old and same was acquired by Mr.
Bhiva Shanivar Vaity, grandfather of plaintiff and it was transferred in
the name of father of the plaintiff in 1953. The notice structure has
been assessed prior to 1962. The plaintiff is having electricity bills and
telephone bills, election card, ration card etc. showing existence of
structure. However, at the instance of complainant Rajendra Vaity, real
brother of the plaintiff, the B. M. C. has issued impugned notice.
3] It is further stated that his brother had filed Writ Petition
No.1045 Of 2017 which has been disposed of on 10/1/2018. It is
further stated that due to pendency of the Writ Petition action of
demolition was not initiated but there is apprehension of demolition of
structure. It is further stated that notice is vague, illegal and issued
without application of mind. The plaintiff has not carried out any
unauthorized construction. The notice structure is already in existence
and there was no any ongoing construction, therefore, the B. M. C. has
no right to enforce impugned notice and Speaking Order. The B. M. C.
has not followed due process of law and the guidelines of the Hon'ble
High Court and its own circular. Therefore, the plaintiff has approached
this Court and taken out present Notice of Motion for temporary
injunction.
4] The suit is of 2018 and in spite of sufficient time and
opportunity the B. M. C. did not file detail reply to Notice of Motion.
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3 N/M. No.854/18 (L.C.S. No.567/18)
Hence as per order dated 18/9/2024 Notice of Motion heard without
reply of defendant B. M. C.
5] 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 ? . . . Yes.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . Yes.
3) Whether plaintiff 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 :-
6] Learned advocate for the plaintiff submitted that notice
structure is in existence since prior to the datum line and it has been
assessed for the purpose of property tax prior to 1961-62. Learned
advocate for the plaintiff relied on assessment bill bearing property No.
M-4995 (4) issued in the name of Waman Shivram Vaiti, who is father
of the plaintiff. He further submitted that on the basis of false complaint
of brother of the plaintiff, the B. M. C. issued notice under Section 354A
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4 N/M. No.854/18 (L.C.S. No.567/18)
of the M. M. C. Act to stop work but in fact, no work was going on at
the relevant time. It is submitted that this Court by an order dated
23/2/2018 granted status quo as shown in photograph at page No.34 of
the plaint. He submitted that structure in photograph is complete
structure and no work was going on, therefore, the impugned notice to
stop work is illegal and bad-in-law. The B. M. C. ought to have given
notice under Section 351 of the M. M. C. Act however, without issuing
notice under Section 351 of the M. M. C. Act the B. M. C. has directed
to remove structure which is in existence since prior to the datum line.
It is further submitted that it is well settled that if structure is complete
at the relevant time, the Corporation has to issue notice under Section
351 of the M. M. C. Act and shall follow due process accordingly. In the
case at hand, no such procedure is followed and, therefore, the
impugned notice is illegal and the plaintiff is entitled for temporary
injunction as prayed.
7] Learned advocate for defendant B. M. C. submitted that the
B. M. C. has received complaint of unauthorized construction, therefore,
officer visited site and noticed ongoing work and, therefore, impugned
notice came to be issued. The plaintiff has not produced permission for
ongoing construction. It is further submitted that the document i.e.
assessment bill relied by the plaintiff is not in respect of notice
structure. The plaintiff has failed to produce permission or approval of
competent authority for ongoing work. The notice structure is
unauthorized, therefore, the plaintiff is not entitled for temporary
injunction as prayed.
8] I have given thoughtful consideration to the submissions
made by learned advocates for the parties.
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5 N/M. No.854/18 (L.C.S. No.567/18)
9] The plaintiff has challenged stop work notice issued under
Section 354A of the M. M. C. Act. It is alleged by the B. M. C. that the
plaintiff has commenced unauthorized construction using R. C. C.
column and B/M wall without permission. The plaintiff came with a
specific case that notice structure is in existence since prior to the
datum line of 1962 and for that purpose reliance has been placed upon
assessment bill bearing property No.M-4995 (4) issued in the name of
Waman Shivram Vaiti. As per the assessment bill house has been
assessed prior to 1961-62. It is further contention of the plaintiff that at
the relevant time no work was in progress. The plaintiff produced on
record photograph of notice structure at page No.34 of the plaint. On
perusal of the same, it appears that structure was complete in all
respect. The sketch annexed to notice also shows that notice structure
was completed in all respects i.e. no work was in progress.
10] Defendant B. M. C. has not produced panchanama of
ongoing work or photograph showing status and date of ongoing work.
The Hon'ble High Court in the matter of Sopan Maruti Thopte And
Another vs Pune Municipal Corporation And Another (1996 Bom 304)
laid down guidelines for taking action against unauthorized
construction. In paragraph No.19 (iii) it is held that,
(iii) In case the staff of the Corporation detects the building which is
in the process of being constructed and/or reconstructed and/ or
extended without valid permission from the Corporation, it would be
open to the Commissioner to demolish the same by giving a short
notice of 24 hours after drawing a panchanama at the site and also by
taking photographs of such structure and/or extension. The
photographs should indicate the date when the same were taken.
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6 N/M. No.854/18 (L.C.S. No.567/18)
11] The B. M. C. has also issued circular dated 15/3/2012 for
taking action against unauthorized structure. As per said circular if staff
or officer of the B. M. C. detects ongoing work the concerned officer has
to prepare panchanama, took photographs showing date and status and
make entry in detection register. However, the B. M. C. has not
produced copy of detection register, photographs or panchanama to
show that on the date of issuance of notice work was in progress. The
Hon'ble Bombay High Court in the matter of Ms. Kangana Ranaut
Versus Municipal Corporation of Greater Mumbai & Ors. [Writ Petition
(ST.) No.3011 Of 2020] held that the object of stop work notice under
Section 354A of the M. M. C. Act is to stop ongoing unauthorized work
and if work is completed though recently, the Corporation has to issue
notice under Section 351 of the M. M. C. Act and without issuing such
notice order of demolition, pursuant to notice under Section 354A of
the M. M. C. Act, is not legal. In the case at hand, on perusal of
photograph and sketch annexed to notice, it appears that at the material
time, structure was complete. However, without issuing notice under
Section 351 of the M.M.C. Act Designated Officer passed demolition
order. Thus, I find substance in the contention of the plaintiff that the B.
M. C. has not followed due process of law, therefore, the impugned
notice and demolition order are illegal and bad-in-law. In the
circumstances, I hold that the plaintiff made out
prima facie for grant of
temporary injunction. Balance of convenience tilts in his favour and if
temporary injunction is not granted the plaintiff would suffer
irreparable loss or injury. The points No.1 to 3 are answered accordingly
and in answer to point No.4 I pass following order :-
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7 N/M. No.854/18 (L.C.S. No.567/18)
O R D E R
1] Defendant B. M. C. is hereby temporarily restrained from
enforcing notice dated 19/9/2016 under Section 354A of The
Mumbai Municipal Corporation Act and Speaking Order dated
20/11/2017 till decision of suit.
Date : 06/12/2024. ( 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.”
21/12/2024 04:05 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 06/12/2024
ORDER Typed on 18/12/2024
ORDER signed by P. O. on 20/12/2024
ORDER uploaded on 21/12/2024
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