Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion NO.1053 of 2018
In
L.C.Suit No. 644 of 2018
MHCC010034132018
Sadik Ali Asgar Ali Plaintiff
v/S
BMC and Anr Defendants
Advocate Muhammed Iftikhar Ali for plaintiff
Advocate Shri B.S.Sutar for defendant /MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 3rd October, 2018
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this notice of motion to restrain the
defendants i.e. Municipal Corporation Gr. Mumbai and its designated
officers from demolishing the alleged unauthorized construction of the
suit premises i.e. wall admeasuring 1.9.m x1.8 m thereby closed
northwest opening of GulshaneHind hotel adjucant to shop no.6 41/D
Dockyard Road, Mumbai400 010 till the disposal of the suit on merit,
2 Case of the plaintiff may be summarized as under:
Plaintiff is in occupation and possession of the suit premises.
Earlier plaintiffs father in law Mr. Sattar Hussein was running pan shop
in the suit premises. Mr. Sattar Hussein was in possession of the pan
shop on the basis of agreement dated 11/1/1951 in between him and
Rasulanbibi widow of Mohammed Yusuf. Thereafter on 3/10/1974, the
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owner of the Gulshan e Hind Hotel Mr. Abdulla Nana Parkar issued a
letter in favour of Sattar Hussein that he is carrying on business of pan
shop in the suit premises. Thereafter, on or about 6/1/1981, one Mrs.
Shahnaz Khan daughter of said Rasulanbibi executed an affidavit in
favour of the plaintiff. She accepted Rs. 15,000/ as a compensation
from the plaintiff. She relinquished all her rights in favour of plaintiff.
Thereafter, again Mrs. Shahnazbi executed further affidavit dated
2/4/1981 certifying that plaintiff and Sattar Hussain's sons Mukhtar
Ahmed and Mumtaz Ahmed are equally entitled to the suit premises.
Sattar Hussain has died in July 1985. Thus, the plaintiff and Mumtaz
are running the pan shop in the suit premises.
3 Plaintiff has taken electricity connection in the suit
premises. Plaintiff has Income tax returns, Adhar card, Identity card
issued by Election Commission of India, land line telephone connection
at the address of the suit premises.
4 The owner of the GulshaneHind Hotel has stopped
accepting rent since two years and he threatened to the plaintiff to face
dire consequences. Accordingly, defendant no. 2, issued notice to the
plaintiff on 10/02/2018 U/s 351 of MMC Act. Plaintiff gave reply to
the notice. Plaintiff also filed do*cuments. However, defendant no. 2
did not consider the reply and documents produced by the plaintiff and
passed the order and thereby directed the plaintiff to remove the
notice structure and on failure of the same structure will be
demolished. Plaintiff further contended that defendant has not
followed the principles of natural justice. The defendant no.2 has
passed the order without application of mind. Plaintiff is in possession
of the suit premises since long and accordingly prayed to grant interim
relief.
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5 Notice is served to defendant. Defendants filed affidavit in
reply of Sanip Yadav. According to defendant, plaintiff has not given
notice U/s 527 of the MMC Act. Defendant no.2 has passed order in his
administrative capacity. The plaint does not disclose cause of action.
Hence, suit is not maintainable.
6 Defendants denied that the plaintiff has not made the
alleged construction. Defendant denied that plaintiff is entitled for
interim relief.
7 According to defendant, defendant had received the
complaint from Abdul Mateen dated 21/11/2017 against unauthorized
construction of the notice structureComplainant had produced MHADA
REPAIR Plan,Assessment record and photographs. The Assistant
Engineer (B & F) E ward wrote a letter dated 2/01/2018 to MHADA to
check and verify the authenticity of the complaint structure and
irregularities in contravention to the plan available on record of
MHADA. Thereafter, the executive engineer MHADA informed by letter
dated 4/1/2018 that the said Panbidi shop is the outside and beyond
the building line of the cessed building 41/D Dadan Bldg, Dockyard
Road, Mumbai400 010. Thereafter, the officer of the defendant visited
the suit premises. The photographs are taken and it is found that
plaintiff has made unauthorized construction. Accordingly, a notice U/s
351 of the MMC Act was issued to the plaintiff. Plaintiff gave reply to
the notice however, plaintiff could not prove the authorization of the
structure and thus the order is passed. The defendant no. 2 has
followed the due process of law and hence prayed to refuse the interim
relief.
8 From the rival contention of both the parties following
points arise for my consideration *to which I record my findings against
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them for the reasons given below:
Points Findings
1 Whether plaintiff has made out
prima facie case?
In the affirmative
2Whether balance of convenience
lies in favour of plaintiff?
In the affirmative
3 To whom irreparable loss will
be caused if injunction is refused?
To the plaintiff
4 What order? As per final order
REASONS
9 Here in the present suit earlier plaintiff had pressed ad
interim relief. At that time defendant had not filed reply to the notice of
motion. This court had refused ad interim relief to the plaintiff.
Plaintiff had filed appeal from order no. 209/2018 before Hon'ble High
Court, Bombay.Hon'ble High Court directed this court to consider the
notice of motion finally. Accordingly, defendants filed detailed reply
and thus, notice of motion is taken up for final hearing.
10 Shri Muhammed Ali advocate for plaintiff has submitted
that the said pan shop is in existence prior to 1951. Plaintiffs father in
law acquired the rights in the pan shop. Thereafter, the said pan shop
came in possession of the plaintiff and the two sons of Sattar Hussain
namely Mukhtar Ahmed and Mumtaz Ahmed. Plaintiff is conducting his
business in the suit premises. P*laintiff has Shop and Establishment
certificate at the address of the suit premises. Plaintiff is having
electricity bills, landlines telephone bills, election identity card etc. at
the address of the suit premises. Suit premises is assessed by the*
corporation. The possession of the plaintiff is also confirmed by the
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earlier owner of the Gulshane Hind Hotel namely Abdulla Parkar.
Now the owner of the hotel of GulshaneHind Hotel has not accepting
the rent from the plaintiff and he threatened to the plaintiff. He lodged
false complaint in respect of the suit premises with defendant no. 2
and th*us defendant no.2 without verifying the facts initiated action
U/s 351 of MMC Act. The plaintiff replied to the notice however the
defendant no.2 with malafide intention has passed the order. He has
invited my attention towards the documents on record and submitted
that the documents are sufficient to prove the long standing possession
of the plaintiff. Therefore he prayed to grant interim relief.
11 Shri B.S.Sutar advocate for defendant/MMC has submitted
that the building is cessed building. Plaintiff has made unauthorized
construction. Therefore the action is initiated against the plaintiff. He
has invited my attention towards the MHADA Plan. According to him,
the MHADA plan did not contain about the suit premises. Plaintiff had
made the construction of unauthorized wall. Therefore, a notice
structure is liable to be demolished. The defendant no. 2 has followed
the d*ue process of law. Hence, he prayed to dismiss the notice of
motion.
12 The action U/s 351 is initiated on the basis of complaint of
Abdul Mateen proprietor of GulshaneHind Hotel. The said Hotel is
situate at 41/D Dockyard Road, Mumbai10. It is alleged that the
Panpatti stall is running in a full swing unauthorizedly and very
adjacent to GulshaneHind Hotel. It is alleged that the pan shop owner
constructed the wall without his permission and consent and obtained
various licenses on the basis of false and fabricated documents.
Accordingly, defendant called information from MHADA. According to
MHADA the said pan shop is out side gala no. 6 and requested
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defendant no.2 to initiate action. Defendant had produced MHADA
plan, assessment record. It is to be noted that the said panbidi shop is
assessed by defendant. In the notice the schedule of the structure is
unauthorized construction of wall admeasuring 1.9 x 1.8m by closing
northwest opening of the GulshaneHind Hotel by using brick masonry
wall and constructed pan stall. Admittedly the said building is very old
and the defendant no. 1 have not sanctioned plan as per the MMC Act.
The building is cessed building and defendant relied on the plan of
MHADA. However, from the perusal of the documents of the plaintiff, it
appears that earlier one Mr. Sattar Hussein, father in law of the
plaintiff was running pan shop in the suit premises. He was running
pan shop since 1951. Thereafter plaintiff came in possession of the pan
shop. Document is also executed in favour of the plaintiff. Rasulanbi
widow of Mohammed Yusuf had executed affidavit and relinquished
her right, title and interest in favour of the plaintiff . Now the plaintiff
and Sattar Hussein's t*wo sons namely Mukhtar Ahmed and Mumtaz
Ahmed are in possession of the pan shop.
13 It is to be noted that the said pan shop is duly assessed
since long by the defendant corporation. Plaintiff has taken electricity
connec*tion, land line telephone connection in suit premises. The
documents do show that plaintiff has identity card issued by election
commission of India, Adhar card at the address of the suit premises.
Plaintiff has certificate of Shops and Establishment Act which shows
that plaintiff is running pan shop in the suit premises. It is pertinent to
note that earlier owner of the GulshandeHind Hotel namely Abdulla
Parkar on 3/10/1974 certified that Sattar Hussain, father in law of the
plaintiff is conducting his business of pan shop below his hotel. He is
regular tenant and paying Rs.75 per month as a rent. All these
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documents do show the existence of pan shop at least since 1951. The
action is initiated on the basis of the complaint of the owner partner of
GulshandeHind Hotel. The action is based on MHADA plan. The
defendant has no sanctioned plan under the MMC Act. Therefore, in
such a circumstances, I find that there are triable issues between the
parties. Plaintiff has proved prima facie case, balance of convenience
lies in favour of plaintiff and if injunction as prayed is not granted then
irreparable loss will be caused to the plaintiff. Therefore I answer
points accordingly and pass following order:
ORDER
1 Notice of motion no. 1053 of 2018 is allowed in terms of
prayer clause (a) of the notice of motion till decision of the
suit on merit.
2 Costs in cause.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 3/10/2018
Typed on :5/10/2018
Signed by HHJ. :6/10/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
6/10/2018 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
3/10/2018
JUDGEMENT/ORDER signed by
P.O. on
6/10/2018
JUDGEMENT/ORDER uploaded
on
6/10/2018
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