Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 COMMON ORDER ON N/M
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 1246 OF 2018
(CNR no. MHCC010039782018)
IN
L.C. SUIT NO. 913 OF 2018
(CNR no. MHCC010037842018)
1. Mrs. Pervin Jimay Irani & 7 ors. ]..Plaintiffs
Versus
1. Municipal Corporation of Gr. Mumbai & 10 Ors. ]... Defendants
NOTICE OF MOTION NO. 1091 OF 2018
(CNR no. MHCC010035262018)
IN
L.C. SUIT NO. 2179 OF 2017
(CNR no. MHCC010095502017)
Mrs. Pervin Jimay Irani ]..Plaintiff
Versus
1. Municipal Corporation of Gr. Mumbai & anr. ]... Defendants
NOTICE OF MOTION NO. 1092 OF 2018
(CNR no. MHCC010035252018)
IN
L.C. SUIT NO. 2180 OF 2017
(CNR no. MHCC010095522017)
Nalini Pandya ]..Plaintiff
Versus
1. Municipal Corporation of Gr. Mumbai & anr. ]... Defendants
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2 COMMON ORDER ON N/M
NOTICE OF MOTION NO. 1093 OF 2018
(CNR no. MHCC010035302018)
IN
L.C. SUIT NO. 2181 OF 2017
(CNR no. MHCC010095512017)
Ardeshir Tabeshi ]..Plaintiff
Versus
1. Municipal Corporation of Gr. Mumbai & anr. ]... Defendants
NOTICE OF MOTION NO. 1094 OF 2018
(CNR no. MHCC010035282018)
IN
L.C. SUIT NO. 2182 OF 2017
(CNR no. MHCC010095492017)
Greta Fernandis ]..Plaintiff
Versus
1. Municipal Corporation of Gr. Mumbai & anr. ]... Defendants
NOTICE OF MOTION NO. 1095 OF 2018
(CNR no. MHCC010035272018)
IN
L.C. SUIT NO. 2588 OF 2017
(CNR no. MHCC010117552017)
Niranjan Waghela ]..Plaintiff
Versus
1. Municipal Corporation of Gr. Mumbai & anr. ]... Defendants
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3 COMMON ORDER ON N/M
NOTICE OF MOTION NO. 890 OF 2018
(CNR no. MHCC010030472018)
IN
L.C. SUIT NO. 698 OF 2018
(CNR no. MHCC010026622018)
Saeeda Banu Fazlur ]..Plaintiff
Versus
1. Municipal Corporation of Gr. Mumbai & anr. ]... Defendants
NOTICE OF MOTION NO. 891 OF 2018
(CNR no. MHCC010030462018)
IN
L.C. SUIT NO. 697 OF 2018
(CNR no. MHCC010026632018)
Shaikh Parvez Ahmed ]..Plaintiff
Versus
1. Municipal Corporation of Gr. Mumbai & anr. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date :25th & 26th October, 2018.
Mr. P. D. Gandhi with Indira Bhushan, Mr. Niranjan Waghela i/b
Mr. Bipin Joshi, advocates for plaintiff.
Mr. S. B. Suryavanshi with Mr. Pradeep Patil, advocates for defendant
no. 1 & 2 in L. C. Suit no. 913/2018. In remaining suits Mr. Pradeep
Patil, advocate for defendant no. 1.
Ms. Reema Mishra, advocate for defendant no. 11 in L. C. Suit No.
913/2018 and for defendant no. 2 in remaining suits.
ORDER
1. The plaintiffs have taken out these motions seeking
temporary injunction for restraining the defendant corporation from
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acting upon the notices issued under Section 351 of Mumbai Municipal
Corporation Act (MMC Act) and the orders passed in furtherance of the
same.
2. The L. C. Suit no. 913 of 2018 (N/M no. 1246 of 2018) is
instituted by the occupants / members of flat nos. 35 to 41 (suit flat/s)
located on the 5th floor of the building (suit building) of the plaintiff no.
7, Gulmanor society, Strand road, Coloba, Mumbai. The notice dated
11.11.2017 and order dated 03.03.2018 issued under Section 351 of
M.M.C. Act in respect of the 5th floor (suit premises) are impugned. The
plaintiffs have also prayed for interim relief to direct the defendant
corporation to produce approved plans and complete files of the suit
building and offer the plaintiffs inspection thereof. In the alternative, an
interim relief to direct the defendant corporation to restore /
reconstruct / recreate plans of the suit building as per existing building
is also sought.
3. The L. C. Suit no. 2179 of 2017 (N/M no. 1091 of 2018) is
instituted by the occupant / member of flat no. 39 (suit flat) located on
the 5th floor of the suit building. The notice dated 09.09.2014 and
orders dated 21.11.2014, 24.04.2015, 07.08.2015 and 10.07.2017
issued under Section 351 of M.M.C. Act in respect of unauthorized
conversion of set back terrace into rooms are impugned.
4. The L. C. Suit no. 2180 of 2017 (N/M no. 1092 of 2018) is
instituted by the occupant / member of flat no. 35 (suit flat) located on
the 5th floor of the suit building. The notice dated 09.09.2014 and
orders dated 21.11.2014, 24.04.2015, 07.08.2015 and 10.07.2017
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issued under Section 351 of M.M.C. Act in respect of unauthorized
conversion of set back terrace into rooms and unauthorized
construction of bathroom are impugned.
5. The L. C. Suit no. 2181 of 2017 (N/M no. 1093 of 2018) is
instituted by the occupant / member of flat no. 40 (suit flat) located on
the 5th floor of the suit building. The notice dated 09.09.2014 and
orders dated 21.11.2014, 25.04.2015, 07.08.2015 and 10.07.2017
issued under Section 351 of M.M.C. Act in respect of unauthorized
conversion of set back terrace into three rooms are impugned.
6. The L. C. Suit no. 2182 of 2017 (N/M no. 1094 of 2018) is
instituted by the occupant / member of flat no. 41 (suit flat) located on
the 5th floor of the suit building. The notice dated 09.09.2014 and
orders dated 21.11.2014, 25.04.2015, 07.08.2015 and 10.07.2017
issued under Section 351 of M.M.C. Act in respect of unauthorized
conversion of set back terrace into rooms are impugned.
7. The L. C. Suit no. 2588 of 2017 (N/M no. 1095 of 2018) is
instituted by the occupant / member of flat no. 36 (suit flat) located on
the 5th floor of the suit building. The notice dated 09.09.2014 and
orders dated 10.07.2017 and 09.11.2017 issued under Section 351 of
M.M.C. Act in respect of unauthorized conversion of set back terrace
into W.C. / bathroom etc. are impugned.
8. The L. C. Suit no. 698 of 2018 (N/M no. 890 of 2018) is
instituted by the occupant / member of flat no. 37 (suit flat) located on
the 5th floor of the suit building. The notice dated 09.11.2017 and
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orders dated 10.07.2017 and 07.02.2018 issued under Section 351 of
M.M.C. Act in respect of unauthorized conversion of set back terrace
into rooms are impugned.
9. The L. C. Suit no. 697 of 2018 (N/M no. 891 of 2018) is
instituted by the occupant / member of flat no. 38 (suit flat) located on
the 5th floor of the suit building. The notice dated 09.11.2017 and
orders dated 10.07.2017 and 07.02.2018 issued under Section 351 of
M.M.C. Act in respect of unauthorized conversion of set back terrace
into rooms and sub division of toilet are impugned.
10. In brief, it is the case of the plaintiffs that they are the
members / L.R. of members / occupants etc. of their respective flats
located at the 5th floor of the suit building, whereas the defendant nos. 3
to 10 in L. C. Suit no. 913 of 2018 are the successors in title of the
developer / builder of the said building. The defendant Mr. Vijay Gupta
at whose complaint the defendant corporation initiated action is an
occupant / member of the flat no. 29 located on the 4th floor of the suit
building. In short, it is the case of the defendant corporation that the
construction of entire 5th floor is unauthorized.
11. The learned advocate for the plaintiffs submitted that
Mr. Porbunderwala (Developer) got the plans of the suit building
(ground plus five upper floors) approved and accordingly I.O.D. was
issued on 02.05.1958. The construction of the suit building started in
1960. The suit building consists of ground plus five upper floors and
terrace above inclusive of 41 flats and 5 shops. The occupants have
formed cooperative housing society which is registered and thus, the
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plaintiffs have rights in the land and building. According to him, the
construction work was protracted till 1964. All the correspondence
shows that construction of 5th floor was permitted and even the
enclosure of set back terrace was regularized.
12. The learned advocate for plaintiffs further submitted that
the suit flats are in existence and occupied for more than last 50 years.
The approved plans of the suit building and certain documents are
missing from the file no. 4148 maintained by the defendant corporation
and somebody has tampered with the same. The developer never
handed over the copies of approved plans to the plaintiff society.
However, the entire action has been initiated at the complaint of
defendant Mr. Gupta, who had challenged the construction of entire 5th
and 6th floors in W.P. no. 2312 of 2015.
13. He further submitted that the defendant corporation
approved the plan for construction of society office on the 6th floor level
terrace above the 5th floor on 08.04.1975. The said documents are
available in file no. 7561 dated 31.10.1974 and therefore, it shows that
the construction of 5th floor is authorized, otherwise sanction for 6th
floor room could not be so granted. He further submitted that the
Assistant Engineer of concerned ward in his affidavit in reply filed in
W.P. no. 2312 of 2015 has stated that the action of defendant no. 1
against the enclosure of set back terraces was justified and not against
the suit flats at 5th floor. He further submitted that the suit flats are
assessed to municipal taxes since 197677, which shows that the
structures are authorized.
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14. The learned advocate for plaintiffs further submitted that
by order dated 29.09.2017 passed in W.P. no. 2312 of 2015 the Hon'ble
High Court of Bombay (Coram : Abhay S. Oka and Riyaz I. Chagla, JJ.)
directed that action against suit flats was not to be taken as they were
excluded from that order and therefore, the designated officer could not
go beyond that order and issue notices dated 11.11.2017 to suit flats.
15. Lastly, he submitted that the designated officer is acting
arbitrarily at the instance of defendant Mr. Gupta and targeting the
plaintiffs unnecessarily. According to him, the survey sheet / map for
the year 1969 shows the existence of structure viz. ground plus five
upper floors plus terrace. The impugned notices / orders are passed
without verifying own records of the corporation and the fact that the
original files are tampered and the approved plans are missing. He also
submitted that in spite of the directions dated 09.03.2015 given by the
R.T.I. Authorities, the defendant no. 1 did not reconstruct plans of the
suit building. Therefore, it is unfair to compel the helpless plaintiffs to
produce plans in order to prove legality of construction of their flats and
the entire 5th floor.
16. On the other hand, the learned advocate for the defendant
corporation submitted that the notices of motion and the suits are not
maintainable. At the complaint of defendant Mr. Gupta the officer of
defendant corporation inspected the site. Notices under Section 351 of
M.M.C. Act were issued in respect of suit flats and the unauthorized
covering of set back terrace. The plaintiffs were given full opportunity
to defend. Thereafter, the final orders were passed.
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17. He further submitted that in the meeting dated 09.07.2015
held by the Grievances Redressal Committee (G.R.C.) various
authorities of the corporation like Executive Engineer (B.P.) City,
Executive Engineer (B.P.) City II have confirmed that as per City Survey
Record for 1969 the suit building consists of ground plus 4 upper floors
plus part 5th floor plus terrace / lift machine room at 6th floor level.
However, the same can not prove the authorization of structure.
According to him, the plaintiff society was directed to submit building
plans and if not available, to recreate the same and get approved from
Executive Engineer (B.P.) City. However, the plaintiffs refused the same
on the ground that the plans to be reconstructed by the defendant
corporation only as per the order of G.R.C.
18. According to him, the defendant corporation requested
Executive Engineer (B.P.) City II to reconstruct the plans and submit
remarks whether there is provision for enclosure of set back terrace as
per F.S.I. rules. However, the said office informed that plans could not
be reconstructed if the original plans are missing. According to them,
the plaintiff society could submit the plans and get them approved as
per rules. Further the Deputy Municipal Commissioner Zone I ordered
to set aside the order of G.R.C. pertaining to reconstruction of plans etc.
19. Lastly, he submitted that by following due process of law,
notices under Section 351 were issued to the plaintiffs about
unauthorized enclosure of set back terrace and construction of their
respective flats. However, the plaintiffs failed to show final approval for
the construction of the suit flats or their assessment prior to
01.04.1964. According to him, as per Development Control Regulations
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(D.C.R.), building plans cannot be recreated. Thus, he has prayed for
dismissal of the motions.
20. The learned advocate for defendant Mr. Gupta submitted
that the construction of entire 5th and 6th floor is illegal. Due to
additional load thereof cracks are developed to suit building and there
is leakage of water. The plaintiffs have kept the management of the
society under their control in order to protect their illegal structures.
Therefore, the defendant Gupta complained with the defendant
corporation. As the corporation did not take any action he approached
G.R.C., which directed the corporation to take appropriate action.
However, the plaintiff did not file any documents in support of their
claim.
21. According to her, the defendant corporation is in collusion
with the plaintiffs and had thereby given indefinite hearing for 3 years
by violating its own circulars and thereafter issued notices only in
respect of covering of set back terrace. The corporation only took action
after the directions given in the judgment dated 29.09.2017 by the
Hon'ble High Court, Bombay. She further submitted that the so called
approval of the construction of a room on 6th floor has not been
obtained from appropriate authority. Completion certificate is also not
obtained in respect of the said construction.
22. The learned advocate for the defendant Gupta further
submitted that in 1986 he complained with corporation about missing
of plans of the suit building and illegal construction of 5th floor.
According to her, the plans and documents in the file are missing at the
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instance of one of the employees of the corporation who was an
occupant of the suit building. According to her, the plaintiffs society
never constructed 6th floor. The defendants have no power to regularize
any structure in violation of D.C.R. The plaintiff Parvin Irani is using the
6th floor for her personal commercial use. The suit has been filed
without authority or resolution of the society by violating the rights of
the remaining members. Thus, she prayed for dismissal of the motions.
23. Though, the subject matters of individual motions are
unauthorized enclosure of set back terrace and of collective motion is
unauthorized construction of the suit flats, they being interrelated and
having common documents, the motions are decided by the common
judgment.
24. On the premise of rival submissions, it is necessary to look
into the copies of documents placed on record by the respective parties.
The copy of plan bearing no. 7561 obtained by the plaintiffs under
R.T.I. Act prima facie shows that it pertains a room to be constructed at
the terrace above the 5th floor. However, the plaintiffs have not
produced the copies of commencement certificate or completion
certificate pertaining to the same.
25. The copy of affidavit of Mr. Dushyant Ahirwar, Asst. Engg.
(B&F) A ward, filed in W.P. no. 2312 of 2015 prima facie shows a
statement that the suit building was assessed to municipal taxes since
197677 and that the property was constructed and occupied from
01.04.1966 and the assessment remarks for 197677 shows that the suit
building was having ground plus five upper floors.
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26. So far as, the submissions made by the learned advocate for
the plaintiff that by order dated 29.09.2017 passed in W.P. no. 2312 of
2015 further action was not to be taken in respect of flat nos. 32, 35,
36, 39, 40 and 41, etc. are concerned, it appears from the said order
that the concerned designated officer was directed to ascertain whether
any other portions of 5th and 6th floor of the suit building were illegal.
The Hon'ble High Court, Bombay kept the issues of legality and validity
of orders under Section 351 of the M.M.C. Act in respect of flat nos. 35,
39, 40 and 41 as well as orders passed by G.R.C. on 07.08.2015 and
10.07.2017 expressly open. Similarly, all the contentions raised relating
to flat nos. 32 and 36 were also kept open. Lastly, Hon'ble High Court,
Bombay made it clear that as far as the suits filed in relation to four
flats were concerned the City Civil Court is free to decide the same on
its own merits in accordance with law and that no adjudication made by
that Court on merits of the said suits.
27. So far as, the collective notice of motion is concerned, the
impugned notice dated 11.11.2017 describes the notice structure as
follows :
“Unauthorized construction of fifth floor admeasuring
24.8 m. X 15.2 m. X 2.8 m. (ht) including flat nos. 35, 36, 37, 38, 39,
40 and 41 with brick masonry walls and R.C.C. top slab except the
notice work mentioned in the notices issued under Section 351 of
M.M.C. Act earlier on 09.09.2014 and 09.11.2017 in respect of flat nos.
35 to 41.”
28. So far as, individual notices of motion are concerned the
impugned notices dated 09.09.2014 and 09.11.2017 pertain to
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unauthorized conversion / covering / closure of set back terrace into
rooms / W.C. / bathroom / unauthorized subdivision of bathroom etc.
29. It is undisputed that the plaintiffs individually as well as
collectively filed replies to the common notice as well as notices sent to
them individually. The society also issued reply. Similar contentions are
raised therein.
30. The plaintiffs placed reliance on copy of agreement dated
30.06.1966 in respect of purchase of flat no. 18 in the suit building, to
show some references of the suit building having structure of ground
plus five upper floors. However, mere reference of such structure in a
private document prima facie does not show that the construction of
fifth floor was authorized.
31. Similarly, the copies of correspondence relating to
registration of plaintiff society are not sufficient to show prima facie
that the fifth floor structure was legal and authorized or even it can not
be inferred prima facie that as the society was registered, the entire
structure of suit building was authorized.
32. The copy of Intimation of Disapproval (IOD) no. EB/4148
dated 02.05.1958 shows that in furtherance of the proposal / notice
dated 17.03.1958 the said IOD was issued. The copy of letter dated
07.05.1958 issued by architect Karim Noorani & Co. (said architect) to
the corporation prima facie shows that in compliance of the objection
raised in the IOD the said architect submitted the details and calculation
of RCC work of the suit building. It also includes calculation relating to
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fifth floor and terrace.
33. Importantly, the copy of letter dated 25.06.1958 issued by
corporation to the said architect prima facie shows that he was
informed that layout of the building was changed and therefore, to
amend the RCC calculations with necessary schedule. The plaintiffs
have not produced further correspondence or made averments in order
to show whether the said architect complied with these requirements.
34. The copy of letter dated 01.02.1965 issued by the said
architect to the corporation prima facie shows that the said letter was
issued as the work of fifth floor of the suit building was stopped by the
municipal staff by issuing notice under Section 354A of MMC Act. The
said letter appears to be in the form of a reply to the said notice. It
prima facie appears from the contentions raised in the said letter that
initially the plan was sanctioned for ground plus five upper floors with
F.S.I. of 3.4. However, thereafter the F.S.I. was allowed 2.72 and
accordingly the said architect submitted calculation on 22.11.1958 and
an application for commencement certificate was also made. It is
contended that such change was not necessary when the plans were
approved. However, nothing has been placed on record by the plaintiffs
to show prima facie as to whether the said developer and architect were
permitted to raise construction of fifth floor after change in F.S.I.
35. The aforesaid letter dated 01.02.1965 also shows prima
facie that on 02.01.1959 the commencement certificate was refused on
the ground that F.S.I. exceeded 2.45 which was the floor ratio and
therefore, the said developer was permitted on 20.01.1959 to proceed
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with the work only up to 3rd floor level. Thereafter, amended plans were
submitted restricting the F.S.I. 2.24 for ground and four upper floors
only and were accordingly approved on 24.07.1959 by the defendant
corporation. The said architect by the aforesaid letter claimed that the
action requiring amended plans was unjustified and further requested
the corporation to proceed on the basis of earlier floor space index by
reconsidering the matter and permit to construct fifth floor on the basis
of the old plans. However, nothing has been placed on record by the
plaintiffs to show prima facie that the aforesaid request was considered
and the said architect and developer were permitted to construct fifth
floor on the basis of old plans.
36. The copy of letter dated 14.09.1965 issued by the said
architect to the corporation prima facie shows that at the request of the
concerned City Engineer Mr. Carnac, the developer deleted the proposal
for construction of fifth floor on assurance of Mr. Carnac that he would
restore the sanction for the fifth floor. It was requested by way of the
said letter that it was a case of old sanction of 1958 and as the
construction of ground plus three floors was completed at the end of
1964 and thereafter, the said architect and developer realized that the
sanction for fifth floor was not renewed, and thus, they prayed for
permission to proceed with the construction of fifth floor. The plaintiffs
have not placed on record anything to show prima facie that such
sanction was either renewed or permission was granted by the
corporation to construct fifth floor.
37. At this stage from the aforesaid documents, it can well be
inferred that till 01.02.1965 the construction of fifth floor was not
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commenced. Thus, the datum line available for tolerating residential
premises i.e. 17.04.1964 is not available to the suit flats and therefore,
for want of any documents showing existence of the suit flats or the
entire fifth floor structure prior to datum line 17.04.1964, the said
datum line would also not be available to the structures raised on set
back terrace by the respective plaintiffs.
38. The copy of letter dated 13.10.1965 and partial completion
certificate dated 29.10.1965 annexed there to prima facie show that the
construction of ground plus four upper floors was completed on that
day and the said architect requested corporation for permission to
occupy the same and permission for water connection etc.
39. The copy of letter dated 16.11.1965 issued by the said
architect to the corporation prima facie shows that the plans for
construction of fifth floor, terrace floor and section in triplicate were
submitted with request to grant the same at earliest. The plaintiffs had
also annexed a copy of plan of fifth floor construction with this letter.
However, nothing has been placed on record to show whether in
furtherance of the same the defendant corporation accorded sanction to
the same or not.
40. The copy of letter dated 21.05.1965 issued by the said
architect to the corporation shows a request that in order to save the
lower floors from damage due to monsoon permission for casting slab
over fifth floor was sought with undertaking that walls on the fifth floor
will not be constructed till the decision for the construction of fifth floor
is taken in furtherance of request letter dated 01.02.1965. The plaintiffs
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or the defendant corporation have not explained prima facie as to how
and on what basis permission to accommodate water storage tank was
merely given. It prima facie appears that in anticipation / hope that the
permission would be granted for construction of fifth floor, the
construction of fifth floor was so raised and thereupon, permission to
accommodate water storage tank was sought.
41. The learned advocate for the plaintiffs has much harped on
the letter dated 26.05.1965 issued by the corporation, which prima
facie shows that in furtherance of the circumstances mentioned in the
letter dated 21.05.1965 issued by the said architect, there would be no
objection to cast a R.C.C. slab over the entire fifth floor to accommodate
the water storage tank. According to him, it shows that the construction
of fifth and sixth floors were permitted. However, the said letter dated
26.05.1965 also shows prima facie a caution given by the corporation to
the said architect that no enclosures will however be permitted to that
work. Even though, nothing has been placed on record showing prima
facie that any plan was sanctioned for the construction of fifth and sixth
floor, the aforesaid letter only shows prima facie that casting of R.C.C.
slab over entire fifth floor for the purpose of water storage tank was
permitted.
42. The copy of letter dated 23.06.1965 issued by the said
architect to the corporation prima facie shows that he was eagerly
expecting permission for construction of exterior walls and partitions at
the fifth floor. However, the plaintiffs have not produced any document
to show that permission was granted. However, it appears that on the
basis of the so called permission to cast the slab of fifth floor thereafter,
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on 08.04.1975 plan for construction of an office / room on the terrace
above fifth floor was sought.
43. The plaintiffs have not produced any documents for the
period during 1966 to 1975 to show prima facie that such permission /
approval for raising suit flats or the enclosure of set back terrace was
granted by the defendant corporation. The plaintiffs are relying only on
the ground that the concerned file was tampered or the defendant
Gupta caused some documents missing from that file. The submission
made on behalf of the plaintiffs that once the permission for
construction of a small room at sixth floor level slab was granted would
amount to recognition of the construction of suit flats at the fifth floor
does not hold any water, and that too, in absence of any document
supporting prima facie legality of such construction. I have already held
that the case of the plaintiffs does not fall within the category of
tolerating the construction, and therefore, it was necessary for the
plaintiffs to show valid permission for the construction of fifth floor.
The copy of letter undated issued in response to the part completion
certificate submitted by the said architect on 02.11.1965 shows that the
said certificate was accepted by the defendant. The copy of letter dated
02.11.1965 issued by the said architect prima facie shows that the
partial completion certificate only in respect of ground plus four upper
floors was issued.
44. It also appears prima facie from certain correspondence
inter se the occupants of the flats on the fifth floor and the defendant
corporation that temporary yearly permissions were granted for
covering of set back terrace and extended from time to time. It also
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appears that the defendant called upon such occupants to submit
regular proposal for getting the set back terrace covering regularized
and further informed that as nothing was found done for a period more
than six months, such covering would be removed departmentally by
initiating appropriate action. The plaintiffs have not placed on record to
show prima facie that in response to such ultimatum given by the
defendant corporation they had submitted any proposal and further the
same was accepted by regularizing such covering. It prima facie appears
that under such temporary / annual permissions the plaintiffs have
carried out permanent constructions by covering the set back terrace as
narrated in the impugned notices. Had it been the case that the
covering of set back terrace was regularized by the defendant
corporation, the plaintiffs could submit copies of their applications and
permissions so sought. For this aspect plaintiffs can not contend that the
concerned file was tampered with and documents are missing.
45. The learned advocate for the plaintiff submitted that the
defendant corporation, earlier had not taken action against the entire
flat, but only took action against set back terrace of flat no. 35. He has
placed reliance on the averments made by the corporation in paragraph
no 6 of the written statement dated 31.08.1981. However, the same is
not sufficient to absolve either of the plaintiffs from showing prima facie
the authorization of the suit flats or validity of enclosure of set back
terrace.
46. So far as, the submissions made by the learned counsel for
the plaintiffs that the suit flats are assessed to municipal taxes since
197677 or for period prior to that etc. are concerned, the copy of
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assessment extract of the suit building prima facie shows that it pertains
to year 197677. Even if, the assessment has been made prior to that
period, the plaintiffs have not produced any document on record to
show that the suit flats were in existence and such assessment was
made prior to datum line 17.04.1964. The correspondence inter se the
said architect and corporation narrated above shows that at least 1965
66 there was no construction of fifth floor and in absence of fifth floor
there was no possibility to cover set back terrace at any streach of
imagination. Therefore, the documents relating to assessment do not
show prima facie the existence of the suit flats or the notice structures
prior to datum line. So far as, the factum of assessment is concerned, it
is the settled position of law that the mere assessment of a structure
does not confer legality or authorization on a structure. Therefore, the
said assessment will not help the plaintiffs in any manner.
47. Similarly, the submission made on behalf of the defendants
that the suits are barred by law of limitation and therefore, the notices
of motion can not be considered etc. are concerned, prima facie the
point of limitation appears to be mixed question of facts and law and
therefore, it is expedient, just and proper to decide the same after
allowing both the parties to lead evidence. The same can not be
considered at this stage.
48. So far as, the directions dated 07.08.2015 issued by the
G.R.C. are concerned, the same are considered by the Hon'ble High
Court, Bombay while passing order dated 29.09.2017 in W.P. no. 2312
of 2015, and ultimately, the issue of legality and validity of orders
under Section 351 of the M.M.C. Act in respect of the suit flats is
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expressly kept open considering the pendency of suits before City Civil
Court. Similarly, the issue relating to legality and vires of rejecting the
permission for fifth floor by the defendant corporation in 1958 is not a
matter in dispute in either of these suits.
49. The impugned orders passed under Section 351 of the
M.M.C. Act on 03.03.2018, whereby the defendant corporation directed
the plaintiffs to pull down notice structures i.e. the suit flats within a
period of 15 days or to face an action for their demolition etc. Under
such circumstances the earlier order dated 09.11.2017 passed by the
defendant corporation setting aside the point no. (I) of impugned notice
dated 09.04.2014 issued under Section 351 of the M.M.C. Act to the
plaintiff no. 5, occupant of flat no. 36, relating to unauthorized covering
of set back terrace does not survive and it merges in the order dated
03.03.2018 as on one hand the defendant corporation can not held that
the fifth floor structures are illegal and unauthorized and on the other it
can not held that the covering of set back terrace was not objected by
the concerned assistant engineer by letter dated 09.07.1971. It smells
otherwise.
50. The learned advocate for the plaintiff relied on ratio laid
down by the Hon'ble High Court of Bombay in the case of Keshvaji
Dhanji vs. M.C.G.M. reported in 1997 (2) Mah. L.R. 1014 to the
effect that when the corporation granted temporary permission to
construct a structure and which was allowed to continue from time to
time on the basis of yearly permissions, the corporation has to
regularize the structure. Here, prima facie it appears that the entire fifth
floor is illegal and raised without valid permission, and therefore,
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granting yearly permission for covering set back terrace and continuing
it would be of no use and therefore, I do not find any ratio in the case of
Keshavji which is applicable to the present set of facts. Under such
circumstances, the ratio in the following cases on which the plaintiffs
have relied upon for the purpose of their case for regularization are not
applicable to the present set of facts.
i) Dr. Girish Sanghavi vs. M.C.G.M. (Misc. Petition no. 2329/1997)
ii) Shivram Shetty vs. M.C.G.M. (M. D. Petition no. 2505/1992)
51. The learned advocate for plaintiff further relied on the ratio
laid down in the case of Zenit Mataplast Pvt. Ltd. vs. State of
Maharashtra to the effect that it may not be appropriate for any Court
to hold a mini trial for grant of temporary injunction. Interim order is to
be passed to preserve status quo till the matter is decided to ensure that
the matter does not become infructous. The Hon'ble Supreme Court in
the said case has reiterated certain principles for granting temporary
injunction namely making out prima facie case, balance of convenience
and possibility of irreparable injury. In the present set of facts the
plaintiffs have utterly failed even to make out prima facie case, and
therefore merely on the ground of sympathy or inconvenience which
may be caused to the plaintiffs, illegal structures can not be protected
any more, as held in the case of Seema Arshad Zaheer vs. M.C.G.M. by
the Hon'ble Supreme Court by its judgment dated 05.05.2006 in
paragraph no. 30 to the effect where the plaintiffs do not make out
prima facie case for grant of injunction and the documents produced
clearly show that the structures are unauthorized, the Court may not
grant temporary injunction merely on the ground of sympathy and
hardship. The Hon'ble Supreme Court by relying on the ratio in the case
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of M.I. Builders Pvt. Ltd. vs. Radhey Shyam Sahu reported in
(1999)6 Supreme Court cases 464 has reiterated that judicial
discretion can not be exercised which encourages or perpetuates
illegality. Unauthorized construction, if it is illegal and can not be
compounded, has to be demolished. Judicial discretion can not be
guided by expediency. Courts are not free from statutory fetters. Justice
is to be rendered in accordance with law. Judges are not entitled to
exercise discretion wearing the robs of judicial discretion and pass
orders based solely on their personal predilections or peculiar
dispositions. Judicial discretion wherever it is required to be exercised
has to be in accordance with law and set legal principles.
52. So far as, the reliance placed by the plaintiffs on the ratios
in the case of Lily Pandit vs. M.M.C. {W.P. (l.) no. 88,89,90 of 2014
decided on 16.01.2014}, Gopal Krishna Ketkar vs. Mohammad Haji
Latif (A.I.R. 1968 Supreme Court 1413) and Kamalabai Pandurang
Sonawane vs. M.C.G.M. {A.O. (st.) no. 18179/2017 dated
11.07.2017} to the effect that Section 351 of M.M.C. Act requires
application of mind and observance of principles of natural justice and
fair play etc. as well as a party in possession of best evidence
withholding the same, an adverse inference should be drawn against
such party, and that the practice followed by the corporation to require
the noticee to produce the plans and permissions is unreasonable etc.
are concerned, here even though the plaintiffs are contending that the
approved plans are not available and the concerned file of the suit
building has been tampered with, the copies of documents placed on
record by the plaintiffs prima facie show that after 1958 there was
permission for raising ground plus four upper floors only and
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accordingly, completion certificate was issued and there was no
permission for raising fifth floor, however, in sheer anticipation or hope
that one day or the other permission would be granted, the fifth floor
structure was raised and the plaintiffs undertook the risk to reside in
such structures by purchasing the same. Therefore, the plaintiffs can not
now contend to draw adverse inference or expect fair play.
53. The learned advocate for the plaintiff further placed
reliance on the ratio in the case of Sai Kripa Mangal Karyalaya vs.
Nagpur Municipal Corporation reported in (2015)11 Supreme
Court case 347 to the effect that in absence of original coloured plan,
true copy thereof can not be relied on to decide disputed question of
fact regarding legality of construction. In the said case the issue
involved was relating to the user of the premises whether commercial or
residential or office purpose etc., which was raised by filing a public
interest litigation after a period of 8 years. It was held that in absence of
sanctioned plan and after such delay it was not justified in entertaining
the so called public interest litigation. Here, though the defendant
Gupta has complained against the suit flats, the defendant corporation
has issued notices under Section 351 of the M.M.C. Act and after
granting sufficient opportunity to the plaintiffs to prove their metal and
on their failure has directed to demolish the same. Even, the documents
placed on record nowhere create a possibility in favour of the plaintiffs
about legality or authorization of the suit flats. Therefore, I do not find
any ratio applicable to the present set of facts. Merely, the negligence or
deliberated inadvertence or connivance on the part of officers of the
corporation in taking action against the structures or without
considering the previous documents permitting to erect slab or a room
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thereon will not confer legality on the structure or make them entitled
for regularization.
54. So far as, the ratio in the case of Gunavanti vs. M.C.G.B.
(decided on 16.02.2006) to the effect that corporation is responsible
for maintaining and preserving the plans and complete file regarding
construction and therefore, deciding the matter by the Deputy
Municipal Commissioner without furnishing the copies of approved
plans would show clear non application of mind etc. are concerned,
since beginning it is the case of non approval of the construction of fifth
floor at the suit building. It is not the case that the plans were
sanctioned and accordingly, construction was raised and thereafter, the
plans are misplaced and after passage of time notices under Section 351
of M.M.C. Act were issued calling upon the noticee to prove the legality.
Under such circumstance, when since beginning it is the case of raising
the construction of fifth floor without any approval and in absence of
sanctioned plans, it is the concerned developer / builder responsible for
raising such construction and the plaintiffs purchasing the suit flats in
anticipation that one day or the other the construction would be
approved. Therefore, I do not find any ratio applicable to the present set
of facts.
55. Under such circumstances, the plaintiffs have failed to
make out prima facie case. The points of balance of convenience and
hardship do not lie in their favour. Therefore, they are not entitled to
temporary injunction so far as, the impugned notices and orders are
concerned. So far as, interim reliefs relating to direction to produce
approved plans and complete files of the suit building for inspection of
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the plaintiffs or alternate relief of directing defendant corporation to
reconstruct the plans etc. are concerned, the plaintiffs may seek
appropriate proceeding permissible under law in that behalf.
56. At this juncture the learned advocate for the plaintiffs
submitted applications for continuing the earlier order for eight weeks
and granting protection to the suit flats and notice structures till the
plaintiffs prefer an appeal or sought appropriate remedy against this
order. He submitted that by dismissal of motions the defendant
corporation may take action for demolition and therefore remedy to
prefer appeals will become infructuous. On the other hand, the learned
advocate for the corporation prays for dismissal of the applications with
heavy costs. The learned advocate for the defendant no. 11 objected for
granting any relief.
57. Considering, rival submissions as well as the apprehension
of demolition and plaintiffs' right to prefer an appeal, as held in the case
of Kranti Mohan vs. Fatechand reported in A.I.R. 1982 Bombay 263
a laudable principle is implicit in the system to give a fair deal to each
of litigants who is aggrieved by order of Court and has legitimate right
to move the higher Court to ask for redress and a reasonable
opportunity should normally be given, provided that the prayer on the
face of it does not appear to be vexations or frivolous. That principle is
essential so as to instil a sense of confidence in system of administration
of justice. Therefore, it is just and proper to extend the earlier order of
protection of the suit flats and notice structures till 17.12.2018 with a
direction that it will not be extended on any court thereafter. It is also
expedient to direct the respective parties to bear their own costs of the
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respective motions. Therefore, the following order is passed :
ORDER
1. The Notice of Motion no. 1246 of 2018 in L.C. Suit no. 913 of
2018 is dismissed.
2. The Notice of Motion nos. 1091 of 2018 to 1095 of 2018 in L.C.
Suit nos. 2179 of 2017 to 2182 of 2017 and 2585 of 2017 are
dismissed.
3. The Notice of Motion no. 890 of 2018 in L.C. Suit no. 698 of
2018 and Notice of Motion no. 891 of 2018 in L.C. Suit no. 697
of 2018 are dismissed.
4. The earlier order of protection of suit flats, notice structures is
extended till 17.12.2018 with a direction that it will not be
extended further.
5. Parties to bear their own costs of the motion.
(Dr. M. S. Deshpande)
Ad hoc Judge,
Date : 26.10.2018 City Civil Court, Mumbai.
Directly typed on dias computer : 25 & 26.10.2018
Checked by HHJ on : 29.10.2018
Signed by HHJ on : 29.10.2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 29.10.2018 at 5.30 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
26/10/2018
JUDGMENT/ORDER signed by
P.O. on
29/10/2018
JUDGMENT/ORDER uploaded
on
29/10/2018
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