Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1035/20 (LCS 531/20)
MHCC010031132020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.1035 OF 2020
IN
LONG CAUSE SUIT No.531/2020
Sanjay s/o. Sushil Bhosale … Plaintiff
Versus
The Municipal Corporation
of Greater Mumbai & Anr. ... Defendants
Appearance :
Mr. S. K. Bhosle, Advocate for plaintiff.
Mrs. Tondwalkar, Advocate for defendant No.1/M.C.G.M.
Mr. Hardik Desai, Advocate for defendant No.2.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 18/1/2023.
O R D E R
. The plaintiff has taken out Notice of Motion under Order
XXXIX Rule1 of The Code Civil Procedure for temporary injunction
from restraining the defendant/Corporation or anybody through it from
acting in any manner, enforcing and/or implementing notice issued
under Section 53 (1) of The Maharashtra Regional and Town Planning
Act (in short, the M.R.T.P. Act) dated 11/6/2019 and Speaking Order
dated 18/1/2020.
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2] It is contention of the plaintiff that the plaintiff carries on
business in the name and style as M/s. Hotel Universal Garden
consisting of commercial premises with car parking (used as waiting
room for staff/drivers) and 13 parking on first floor with light weight
partitions situated at Universal Magestic Building, Universal Magestic
Premises CHS Ltd., C.T.S. No. 4A/8/1 and 4A/8/2, Borla village,
Govandi, Mumbai (in short suit premises). The suit premises is used for
hotel business, parking and drivers/staff waiting room. The plaintiff is
paying maintenance charges regularly and having electricity bills, shop
and establishment certificate, etc. Suit premises is assessed to the
Corporation. The society's architect M/s. Kalgutkar & Associates got
plan approved by the M.C.G.M. Then the society was formed. In 2010
the Corporation granted occupancy certificate. However, the
Corporation issued notice under Section 53 (1) of the M.R.T.P. Act
alleging that the plaintiff has carried out unauthorized development.
The plaintiff approached architect M/s. Kalgutkar to get amended plan
approved. The plaintiff replied said notice and on 12/6/2019 stating
that he has commenced, undertaken or carried out development or
instituted or changed the use of the land, therefore, the plaintiff
requested the defendant to grant three months time. Again on
6/2/2020 the plaintiff through his advocate replied notice and
submitted documents.
3] It is further stated that suit premises is authorized, legal
protected and protected. Suit premises are assessed to the Municipal
property tax and the plaintiff paid the taxes. Thus notice is illegal and
without jurisdiction and passed without application of mind, so also
order has been passed without application of mind. Therefore, plaintiff
filed suit and took out Notice of Motion for temporary injunction.
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4] The defendant/Corporation opposed Notice of Motion by
filling Written Statementcumreply at Exh.4. At the outset, it is stated
that the plaint discloses no cause of action against the defendant. This is
suit challenging notice under Section 53 (3) of the M.R.T.P. Act hence
suit is barred as per the provisions of Section 149 of the said Act,
therefore, suit is liable to be dismissed. It is further stated that on
11/6/2019 during routine inspection the officer of the Corporation
noticed unauthorised development of admeasuring 75 Mtrs. length X 75
Mtrs. width X 3 Mtrs. height at Oyo Hotel. The work was in the nature
of addition and alteration to existing suit premises and it is being used
for commercial purpose. The officer of the Corporation asked for
permission for unauthorised development. However, the owner/
occupier failed to show any permission or amended sanction plan from
competent authority in respect of unauthorized development.
Therefore, the officer of the Corporation took measurements and
prepared Inspection Report on 11/6/2019.
5] It is further stated that the plaintiff failed to show any
permission or amended sanctioned plan for unauthorized construction.
The construction is carried out beyond sanctioned plan dated
29/10/2010. Therefore, it is necessary to remove notice structure.
Accordingly, the officer of the Corporation issued Show Cause Notice
dated 11/6/2019 for restoration of premises i.e. to restore parking area
by removing room, to restore parking area at first floor level by
removing 23 numbers of rooms (hatched in red). The plaintiff replied
notice on 12/7/2019 by giving clear admission that the plaintiff has
carried out work beyond approved plan and want to seek regularization
of notice work from competent authority and it is in process of
finalizing appoint of technical team i.e. architect, structural engineer
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and will submit regularization proposal. On 23/7/2019 designated
officer intimated the plaintiff to submit Online application number or
scrutiny fee receipt or any document to show that the plaintiff
submitted regularization proposal. The society by letter dated
21/11/2019 requested 3 months time to complete regularization
process.
6] It is further stated that then on 14/11/2019 Executive
Engineer intimated society that architect has not submitted any
regularization proposal and staff of the defendant will visit suit
premises to see whether unauthorised work has been restored as per
approved plan otherwise, action will be taken against notice premises.
The plaintiff/society requested further time of 3 months on the ground
of illhealth of architect M/s. Kalgutkar. Then on 28/12/2019 the
officer of the defendant/Corporation again visited suit premises and
noticed that unauthorised structure has not been removed as per the
approved plan. Then the officer of the Corporation prepared second
Inspection Report dated 28/12/2019 and took photographs. The
defendant has been given sufficient opportunity/time to the plaintiff for
regularization of notice structure but the plaintiff failed to submit
Online application and mere killing time. Therefore, on 27/1/2020
designated officer passed Speaking Order directing the plaintiff to
restore/reinstate work which are contrary to the approved building plan
within 7 days, otherwise, the defendant/Corporation will demolish
addition/alterations. After passing of Speaking Order the plaintiff
approached this Court challenging the Speaking Order. The defendant/
Corporation has followed due process of law and gave reasonable
opportunity to the plaintiff. The plaintiff has carried out unauthorised
development beyond sanctioned plan hence it is liable to be removed.
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In the circumstances, the plaintiff is not entitled for equitable relief of
injunction.
7] Points for determination alongwith findings thereon for the
reasons are as under :
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
:: R E A S O N S ::
AS TO POINTS No. 1 TO 3 :
8] The plaintiff has taken out this Notice of Motion for
temporary injunction under OrderXXXIX Rule1 of the C.P.C. Plaintiff is
seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
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granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
9] Learned advocate for the plaintiff submitted that the
plaintiff is in use, occupation and possession of suit premises. The
developer constructed building by obtaining sanctioned plan and the
Corporation has issued Commencement Certificate. Suit premises is in
possession of the plaintiff. Since possession of suit premises the plaintiff
has not carried out any additions/alterations in it. However, the
defendant/Corporation issued notice under Section 53 (1) of the
M.R.T.P. Act alleging that the plaintiff has carried out unauthorized
additions and alterations of permanent nature in suit premises. Then
the defendant/Corporation passed Speaking Order directing the
plaintiff to remove suit premises.
10] Learned advocate for the plaintiff further submitted that
Writ Petitions are filed by some of the flat holders of the building and
the Hon'ble Bombay High Court has granted stay. Suit premises is
protected by the Hon'ble Bombay High Court, therefore, the action
initiated by the Corporation is illegal and it is necessary to restrain the
defendant/Corporation. In support of submission learned advocate for
the plaintiff relied on the copy of Writ Petition (L) No. 348 of 2020 in
Kumud Mehta And Anr. Versus State of Maharashtra & 2 Ors.
11] In support of submission learned advocate for the plaintiff
relied on the judgment of the Hon'ble High Court in the case of
Rajendra Thacker Vs. Municipal Corporation of Gr. Mumbai and
Ors. (Writ Petition Nos.379 and 2822 of 2013) in which it is held
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that, “In conclusion, we find that all the concessions which are granted
under Orders passed by the Director (Engineering Services and Projects) or
any officer subordinate to the Municipal Commissioner prior to the stage
of regularization are without jurisdiction or authority and the question of
grant of such concessions as well as the question of allowing the retention
of unauthorized construction will have to be reconsidered by the Municipal
Commissioner under Sections 44, 45, 46 & 53 read with reg. 64 (4) of the
M.R.T.P. Act. Similarly, any concession given by the Director (Engineering
Services and Projects) or any officer subordinate to the Municipal
Commissioner under any other provision of the M.R.T.P. Act which
requires the special permission of the Municipal Commissioner, such as
reg. 35 (2) (c) will also have to be held to be bad in law and the question of
granting such concessions will have to be considered afresh by the Municipal
Commissioner”. Learned advocate for the plaintiff also relied on the judgment
of the Hon'ble High Court in the case of Radha Vithal Shetty, through
PoA Vishwanath V. Shetty Versus Municipal Corporation of Greater
Mumbai & Ors. (Appeal From Order St. No.18832 of 2017). Learned
advocate for the plaintiff relied on the judgment of the Hon'ble Apex
Court in the case of The Paper Products Ltd. Vs. Commissioner of
Central Excise dated 24/8/1999. Learned advocate for the plaintiff
relied on the judgment of the Hon'ble Bombay High Court in the case of
K.J.A. Padmanabh Vs. Municipal Corporation of Gr. Bombay (Writ
Petition No.2463 of 1999) However, the facts of the case on hand and
the facts of the judgments relied by the plaintiff are not identical. Hence
with due respect they are not applicable to this case.
12] Learned advocate for the plaintiff relied on the judgment of
the Hon'ble Apex Court in Wander Limited VS. Antox India Private
Limited (1990SCCSupp1727 ) in which it is held that, “Usually, the
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prayer for grant of an interlocutory injunction is at a stage when the
existence to the legal right asserted by the plaintiff and its alleged violation
are both contested and uncertain and remain uncertain till they are
established at the trial on evidence. The court, at this stage, acts on certain
well settled principles of administration of this form of interlocutory
remedy which is both temporary and discretionary”. The facts of the case
on hand and the facts of the judgment relied by the plaintiff are
different therefore with due respect the judgment is not applicable to
this case. Apart from oral arguments learned advocate for the plaintiff
also filed Written Submissions as well.
13] On the other hand, learned advocate for the Corporation
submits that the plaintiff has not come to the Court with clean hand.
The officer of the Corporation noticed unauthorized development in suit
premises, therefore, the concerned officer carried out inspection,
prepared panchanama and issued notice to the plaintiff. Then the
plaintiff requested for granting sometime as he is about to file
regularization proposal, however inspite of sufficient time since July
2019 till today the plaintiff is just seeking time on the ground that he is
going to submit application for regularization. This clearly shows that
the plaintiff is not diligent and has carried out unauthorized
development and, therefore, the plaintiff is not entitled for any relief.
14] In support of submission learned advocate for the
Corporation relied on the following judgments :
a) M/s Royal Paradise Hotel (P) Ltd. Vs. State of Haryana & Ors.
[Appeal (civil) No.5647 of 2005 in which the Hon'ble Apex Court held
in paragraph No.8 that,
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“8. We also find no merit in the argument that regularization of the
acts of violation of the provisions of the Act ought to have been
permitted. No authority administering municipal laws and other laws
like the Act involved here, can encourage such violations. Even
otherwise, compounding is not to be done when the violations are
deliberate, designed, reckless or motivated. Marginal or insignificant
accidental violations unconsciously made after trying to comply with all
the requirements of the law can alone qualify for regularization which is
not the rule, but a rare exception. The authorities and the High Court
were hence right in refusing the request of appellant.”
b) M/s. Monish Builder vs. The Mumbai Municipal Corporation
of Greater Bombay (Appeal From Order No.434 of 2015), in which
the Hon'ble High Court held that, “There is absolutely no case made out
to interfere with the impugned order. The appellant cannot put up
unauthorised constructions and thereafter, seek interim reliefs on the
spacious plea that the application for regulation is pending.”
15] The plaintiff has challenged notice issued by defendant/
Corporation under Section 53 (1) of the M.R.T.P. Act. The plaintiff pleaded
that he has obtained occupancy certificate, health licence and permission from
defendant/Corporation and it is further contention of the plaintiff that he
has not carried out any unauthorized alterations and/or additions to
suit premises, however the plaintiff himself in paragraph No. 4 (m) of
the plaint pleaded that, “the said letter dated 21/9/2019 is crystal clear
to establish that there are certain irregularities beyond the approved
plan hence the society also taking efforts with the builder as well as
with the defendants and applying all sources to get the regularization.”
The plaintiff after receipt of notice under Section 53 (3) of the M.R.T.P.
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Act by letter dated 12/7/2020 requested the officer of the Corporation
that the plaintiff desirous to regularize the work carried out and
submitting regularization proposal. This very fact clearly shows that the
plaintiff has carried out unauthorized development. The Corporation
has issued notice in June 2019 for removal of unauthorized
development. The plaintiff filed on record application dated 24/1/2020
in which the plaintiff has admitted that the plaintiff want to regularize
the work carried out beyond the approved plan. This fact clearly shows
that the plaintiff has carried out unauthorized development. The
plaintiff is seeking relief of injunction. It is well settled that temporary
injunction being an equitable relief the discretion to grant such relief
would be exercised only if plaintiff's conduct is free from blame and he
came to the Court with clean hands. In this case, the plaintiff has clearly
stated that it has carried out unauthorized development beyond
sanctioned plan. The plaintiff has received notice in 2019 under Section
53 (1) of the M.R.T.P. Act. The plaintiff sought time for submitting
proposal of regularization. However, since June 2019 till today the
plaintiff has not submitted regularization proposal. There is nothing on
record to show that the plaintiff approached the M.C.G.M. and
submitted proposal for regularization of unauthorized development. In
the circumstances, it appears that the plaintiff has not come to the
Court with clean hands and his conduct it not free from blame. The
impugned notice is issued in June 2019 and till today the plaintiff has
not taken any efforts, therefore, the plaintiff is not entitled for equitable
relief of injunction. The plaintiff himself stated that there are certain
irregularities beyond approved plan. This clearly shows that the
construction is unauthorized. Hence the plaintiff has not made out
prima facie case.
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16] In view of above discussion, the judgments relied by the
defendant/Corporation and considering the facts and circumstances of
the case, I hold that the plaintiff has not made out prima facie case for
grant of equitable relief of temporary injunction. Balance of
convenience does not tilt in his favour. Hence I answer points No.1 to 3
in the negative and in answer to point No.4 following order is passed :
O R D E R
Notice of Motion No.1035/2020 is dismissed.
Date : 18/01/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
25/01/2023 06:05 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 18/01/2023
ORDER Typed on 25/01/2023
ORDER signed by P.O. on 25/01/2023
ORDER uploaded on 25/01/2023
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