Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010034582019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO.1338 OF 2019
IN
L. C. SUIT NO.2553 OF 2023
K. A. Abdul Salaam
Age : 60 years, Indian Inhabitant
Carrying on business at : Kakson house, Plot No.80,
Sion Rombay Road, Opp. R. K. Studio, Chembur,
Mumbai – 400 071 … PLAINTIFF
Versus
Municipal Corporation of Greater Mumbai, M-West
Ward and another.
… DEFENDANTS
APPEARANCES :
Mr. Pranav Chavan a/w Mr. Dipesh Palvankar I/B Mr. Mahesh Menon,
Advocates for the Plaintiff.
Ms. Sangita Honmane, Advocate for Defendants/MCGM.
CORAM : AMIT ANANT LAULKAR, JUDGE
COURT ROOM NO.04
DATED : 23rd JULY, 2025
FINAL ORDER
1.
Being disgruntled with action posed by the
defendant/MCGM vide section 53 (1) of the MRTP Act, the plaintiff has
knocked the doors of this Court with present suit for declaration and
perpetual injunction wherein he moved instant Notice of Motion and
crave for interim injunction against defendant vide order 39 Rule 1 of
The Code of Civil Procedure.
-- 1 of 9 --
(2)
2.
Succinct outline of the Notice of Motion states in volume
that the plaintiff hails from Chembur, Mumbai. He is co-lessee in
respect of property viz plot No.80, Sion Trombay Road, Chembur,
Mumbai – 71 (for brevity referred as 'suit property'). It is urged that by
way of registered Indenture of Lease dated 17th July 1965 the erstwhile
owner Heerabai Bhoir granted in favour of Mr. K. A. Abdul Karim, a
lease in respect of suit property and since then he was enjoying it
uninterruptedly. The name of plaintiffs predecessor in title was entered
in the property record. The lease was executed for 50 years and the
property record has mutation of the same. Eventually, Mr. K. A. Abdul
Karim breathed his last on 17th August, 1995 leaving behind him the
plaintiff and other heirs as his only heirs and legal representative.
Mutation to that effect is taken in property record. Thus, as of now, the
plaintiff and other heirs are presently in exclusive possession of the said
property and every part thereof. It is further averred that plaintiff's
predecessor in title i.e. his father had constructed a building comprising
of ground plus two upper floors upon the suit property after obtaining
approval from BMC and other appropriate authorities. The plaintiff is
regularly paying NA tax and other assessment tax regularly. The
plaintiff's possession in respect of suit property is authorized and legal
for last couple of years and more. The plaintiff has building on the said
property which is completed in the year 1979 and he is being occupied
by commercial users. Various portions of the said property have been let
out to various licensees under Leave and License Agreements. The area
allotted to those licensees are as detailed in para 4 of the plaint. As per
plaintiff, he has not carried out any alleged alteration in the suit
premises. He has not commenced or carried out development or
changed the user of the land i.e. unauthorized construction at Standard
Chartered Bank made by wooden, glass partition and cabins as two
-- 2 of 9 --
Order (3) Notice of Motion No.1338/2019
In L.C. Suit No. 2553/2023
shops 'namely Subway' and 'Kakson Furniture'. Despite such scenario at
the instance of defendant No.2, the MCGM has issued false Notice vide
section 53 (1) of the MRTP Act, dated 19th December, 2017 and also
passed Speaking order dated 03rd May, 2018. Said notice as well as
speaking order is not served upon the plaintiff. It is only at the instance
and instigation of defendant No.2 who cited false complaint letter,
made the authority to issue false and illegal notice to the plaintiff.
3. The plaintiff further urged that, without prejudice to the
aforesaid contentions, he had placed application with defendant No.1
Authority for regularization of the Bank user, Subway and Kakson
furniture shop. The proposal is under consideration. In the backdrop, on
all aforesaid counts, the plaintiff implored for conferring interim
injunction against defendant authority in terms of clause “a” of the
Notice of Motion and oblige.
4. Post service of the Notice of Motion, defendant No.1 caused
their appearance before this Court. They did not opt to file separate
reply. However, they tendered list of documents along with list dated
22.03.2019, thereby revealing that the proposal placed by the plaintiff
for regularization is rejected.
5. Heard Mr. Pranav Chavan, Advocate for Plaintiff and Ms.
Sangita Honmane, Advocate for Defendants/MCGM. I have pondered
over entire record minutely.
6. In view of rival submission following points arose for
consideration, my findings thereon are as follows:
-- 3 of 9 --
(4)
Sr.No. POINTS FINDINGS
1. In whose favour prima facia case lies? Defendant
2. In whose favour balance of convenience lies? --Do---
3. To whom irreparable loss would cause? --Do--
4. What order? .. As per Final
Order.
REASONS
7. All above points are interlinked therefore they are taken up
together for consideration and due deliberation.
8. Incisively, the plaintiff has claimed temporary injunction
against the defendant authority. While conferring and adjudicating
such relief, the plaintiff must approach to the Court with equity. It
being equitable relief must show the bonafide’s of the plaintiff at its
peak.
9. Having considered version put-forth by the rival parties, it
is apparent that plaintiff took stiff objection and unfolded that the
impugned notice as well as speaking order is not duly served upon him
and therefore,
ex-facia it is bad in law. Without service of such notice,
defendant cannot act upon the same and initiate any demolition process
as regard notice structure is concerned. On this count, I have pondered
over entire record. Admittedly, the plaintiff has initiated regularization
process as regard notice structure is concerned. This fact presupposes
that he would have been served with the impugned notice as well as
speaking order or else he would not have approached the appropriate
authority for regularization purpose. Even the impugned notice as well
-- 4 of 9 --
Order (5) Notice of Motion No.1338/2019
In L.C. Suit No. 2553/2023
as speaking order bears certain signatures thereby acknowledging its
receipt. Had it been the case that plaintiff is not intimated or served
with impugned notice as well as speaking order, he would not have
approached the appropriate authority, especially when he was aware
about the complaint made by defendant No.2 regarding the suit
property is concerned with defendant No.1. So also it can be seen that
the plaintiff had approached Information officer of defendant No.1
under the RTI Act for the copy of impugned notice and speaking order.
Had there been no knowledge to the plaintiff regarding impugned
notice and speaking order, what virtually prompted him to approach the
Information officer of defendant invoking RTI Act, is not justified by
him. Cumulative consideration of all above facts goes to show that
apparently the plaintiff must have received the impugned notice and
speaking order and there remains no shade of doubt rotating around it.
Prima facie it cannot be inferred that there is equity in the submissions
advanced by the plaintiff as regards non receipt of impugned notice and
speaking order is concerned.
10. Pertinent to note that the plaintiff, admittedly, has
approached the appropriate authority of defendant No.1 with an
application for regularization of the notice structure. Documents to that
effect are already annexed to the plaint. In that context, defendant No.1
tendered list of documents dated 22.03.2019 inclusive of letter at serial
No.1 which speaks into volume that the regularization proposal applied
by the plaintiff regarding notice structure is duly rejected by the
appropriate authority. If that being factual scenario, there remains
nothing to ponder over. When the regularization proposal is considered
and finally rejected by the appropriate authority and subsequent thereto
-- 5 of 9 --
(6)
no steps have been taken by the plaintiff, then it cannot be said that the
alleged notice structure is duly regularized by the authority. The other
side of the coin is that when the plaintiff approached the appropriate
authority for regularization purpose, it means he had knowledge that
the notice structure is not erected as per the sanctioned plan and
therefore he sought indulgence of the authorities to regularize it. This
scenario goes to the root of the matter.
11. In addition, it is visible from record that as per plaintiff he
has not carried out any alleged alteration, construction, change in user
over the suit property in deviation of approved plan dated 05.08.1978.
In support of said version nothing substantial is brought on record.
Barring all assertions of the plaintiff the record prima facie nowhere
reveals that the plaintiff has obtained any requisite permission for
erection of the notice structure. There is no positive document put-forth
on record thereby showing that the alleged structure was built strictly in
adherence to the sanction plan dated 05.08.1978. The photographs of
the structure primarily unveils that said structure is quite new in nature
as if recently erected. Without there being any substantial document
thereby revealing the notice structure was built long way back that too
in adherence with sanction plan dated 05.08.1978, no inference can be
drawn that there is iota of merit in the version posed by the plaintiff. In
fact, moving proposal for regularization of notice structure at the
instance of plaintiff speaks for itself and it shows his conduct too.
12. As of now, the plaintiff has not brought on record
irrefutable documentary material thereby showing that notice structure
is authorized and erected strictly within the compass of sanction plan
dated 05.08.1978. To add, the regularization proposal dated
-- 6 of 9 --
Order (7) Notice of Motion No.1338/2019
In L.C. Suit No. 2553/2023
26.02.2019 moved by the plaintiff is already rejected. The screen-shot
of said refusal of application is placed on record by the defendant. So
also it is apparent that certain disputes are going on
inter-se plaintiff
and defendant No.2 as regards suit property is concerned. These aspects
goes to the roots and had deliberation.
13. Last but not the least, Notably, in view of section 149 of the
M.R.T. P Act, there is an express bar to question any action, every order,
direction passed by other, the State Government or by any Development
Authority under the M.R.T.P Act in any suit or other legal proceedings.
Section 149 of the M.R.T. P Act reads thus;
"149. Finality of order- Save as otherwise expressly
provided in this Act, every order passed or directions issued by
the State Government or order passed or notice issued by any
Regional Board, Planning Authority or Development Authority
under this Act shall be final and shall not be questioned in any
suit or other legal proceedings".
Preceding legal scenario is crystalline. A useful reference on
the point can also be made from the landmark verdict delivered by
Honble Bombay High court in the case of
Sarina Esmeralda Lopez Vs.
Vijay Goverdhandas Kalantri and another, 2015 (2) Mh. L.J, 603
wherein the Honble court while emphasizing the aim and object of the
Maharashtra Regional and Town Planning Act followed by Section 149
reiterated and has been expressed in the following manner;
" The said provision posits that every order passed or
direction issued by the State Government or order passed or
notice issued by any Regional Board, Planning Authority or
Development Authority would be final and would not be
questioned in any suit or other legal proceedings. Hence, the said
section can be said to be what is popularly known as "the Finality
Clause", or "the Clause of Exclusion".
-- 7 of 9 --
(8)
14. Naturally, there is an express bar under section 149 of the
M.R.T.P Act by which no suit or any other legal proceeding can be filed
against the MMC/MCGM. Needless to say that there is an express bar to
question the impugned notice and speaking order in a Civil Court.
Consequently, instant motion itself is not tenable as the impugned order
has attained finality and thus on the score of jurisdictional aspect too
the motion deserves refusal.
15. Conjoint effect of circumstances manifested above unveils
that the plaintiff has not approached this Court with equity. He has not
shown prima facie case in his favour. None of the element goes to
highlight prima facie case and substance in the case put-forth by the
plaintiff. In absence of prima facie case, it cannot be inferred that
balance of convenience lies in his favour. Certainly, it tilts in favor of
the defendant. In such premises, if temporary injection is granted then
it would cause more prejudice and loss to the defendant. Thus, the
defendant authority would put to more hardship as compared to the
plaintiff. Naturally, instant notice of motion deserves disapproval. To
sum up, I answer all points in favour of the defendant.
16.
Ergo the order.
ORDER
Notice of Motion No.1338 of 2019 stands rejected and disposed
of accordingly.
(Amit Anant Laulkar)
Judge,
Date : 23.07.2025 City Civil Court, Mumbai.
-- 8 of 9 --
Order (9) Notice of Motion No.1338/2019
In L.C. Suit No. 2553/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
25.07.2025 03.05 p.m. Shilpa P. Pawar
Stenographer - Grade IUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. Amit A. Laulkar
Court Room No. 4.
Date of Pronouncement of ORDER 23.07.2025
ORDER signed by P. O. on 25.07.2025
ORDER uploaded on 25.07.2025
-- 9 of 9 --