Final Order 1

Order Details: Notice of Motion
Pdf Text: (CNR No.: MHCC010034892019) 1 Notice of Motion No. 1353/2019
in L.C. Suit No. 1409/2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1353 OF 2019.
IN
L.C. SUIT NO. 1409 OF 2018.
Bipinkumar D. Jakhetiya…………………………… …. PLAINTIFF.
V/s.
MCGM. ....………………………………………........ …. DEFENDANT.
CORAM : SHRI. S.H. SALUNKHE.
(Court Room No.11).
DATED : 22nd April, 2025.
APPEARANCES :
Mr. Ashutosh Shukla a/w Mr. Priyank Shukla, the Ld. Advocate for Plaintiff.
Mrs. Sheetal Metkari a/w Mr. Yadav, the Ld. Advocate for Defendant/MCGM.
*****
01. This is suit to challenge notice u/s. 351 of the MMC Act,
dtd. 28.02.2018, restraining it from demolishing the structure i.e. the
room premises made up with BM wall and AC sheet roof, described in
para 1 of the plaint. The plaintiff has taken out this Notice of Motion
(‘the NM’), U/O. XXXIX, Rule 1 of the the Civil Procedure Code, 1908,
for temporary injunction, restraining defendant/BMC demolishing the
structure till decision of the suit.
02. The defendant/BMC opposed the NM, by filing reply-cum-
WS. It is stated that the BMC Officer inspected the suit structure and
noticed unauthorized construction as occupier failed to produce the
document showing legality, hence, BMC issued notice. Thus, the BMC
has followed the due process of law.
03. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
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(CNR No.: MHCC010034892019) 2 Notice of Motion No. 1353/2019
in L.C. Suit No. 1409/2018
(i). Whether the plaintiff has made out prima
facie case in his favour? …..........…......…. …In the negative.
(ii). Whether balance of convenience lies in
favour of the plaintiff? ….…..…............….…In the negative.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted?.….................. …In the negative.
(iv). What Order? …..........….…....................... …As per final Order .
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
04. Ld. Advocate for the plaintiff submitted that the plaintiff is
owner and in possession of suit structure. There was dispute between
the plaintiff and occupants of neighbouring plot. The plaintiff has filed
the suit for declaration and injunction. The plaintiff has acquired the
ownership rights in respect of suit structure. The suit structure is
situated since long and assessed for the purpose of property tax. Thus,
the impugned notice is illegal and bad in law. Ld. Advocate for the
plaintiff further submitted that the suit structure is in existence since
prior to datum line of 1964, as such, the structure is tolerated structure
as per policy of BMC. He further submitted that the plaintiff is having
the documents showing existence of the suit structure prior to
01.01.1995. However, designated Officer overlooked these documents
and passed demolition Order. Hence, impugned Order illegal and bad in
law.
05. While concluding the oral submissions, Ld. Advocate for the
plaintiff filed written notes of arguments along-with assessment bills
bearing PR No. SX/1107710070000, payment receipts of property tax,
electricity bill, shop and establishment license and Annexture-A.
06. Per contra, Ld. Advocate for the defendant/BMC submitted
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in L.C. Suit No. 1409/2018
that in view of sec. 515-A of the MMC Act, the suit is not maintainable.
It is further submitted that in absence of statutory notice U/s. 527 of the
MMC Act the suit is not maintainable. It is further submitted that the
inspecting Officer inspected the suit structure and found unauthorized
construction of ground floor structure, made up with MS angles and AC
sheet roof without permission. The Officer prepared inspection report.
The occupier failed to produce document showing legality of structure,
hence, designated Officer issued notice, the plaintiff replied the show
cause notice. However, none of the document relied by the plaintiff
prove legality of the structure. The BMC has followed the due process of
law. Hence, the NM be dismissed with costs.
07. The plaintiff has challenged the notice u/s. 351 of the MMC
Act. The explanation to Section 351 of the MMC Act provides the word
“to show sufficient cause” would mean to prove that work mentioned in
the notice has been carried in accordance with the provisions of the
MMC Act. Sub-section (2) of Section 351 of the MMC Act mandates that
if a person fails to show sufficient cause to the satisfaction of designated
officer, then the designated officer may pass order of removal of notice
structure. Thus it is incumbent upon the plaintiff to show that notice
structure has been constructed as per sanctioned plan or it is in
existence prior to the datum line of 1962. It is the case of the plaintiff
that the notice structure is in existence since prior to 1962. For that
purpose, the plaintiff has relied upon agreement, affidavit, irreparable
POA, assessment bills, rent receipts. However, all these documents are
subsequent to datum line of 1964. The assessment bill relied by the
plaintiff shows that first date of assessment bill is 01.04.1973. Hence,
the assessment bill and Annexture-A relied by the plaintiff falls short to
prove the existence of structure prior to datum line of 1962.
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(CNR No.: MHCC010034892019) 4 Notice of Motion No. 1353/2019
in L.C. Suit No. 1409/2018
08. As far as procedure to be followed before taking action of
demolition, no fault can be found in the same. It appears that after the
inspection, the BMC has issued show cause notice and called upon the
plaintiff to show documents, proving legality of the structure, to which
the plaintiff had replied. The Speaking Order shows that the designated
Officer dealt with each and every document and passed the reasoned
Order.
09. The defendant/BMC came with the plea that suit is not
maintainable in view of provisions of sec. 515-A of the MMC Act. This
Court has no jurisdiction to entertain the present suit. Thus, it is useful
to refer judgment of the Hon’ble Bombay High Court in the matter of
Abdul Razzaq Sunesra Vs. MCGM, therein the Hon’ble Bombay High
Court rejected challenge to the constitutional validity of sec.515-A of
the MMC Act. The Hon’ble Bombay High Court in the matter of Abdul
Karim Ahmed Mansoori Vs. MCGM, held that even the jurisdiction of
the Civil Court has been excluded, the Court has jurisdiction to
entertain the suit on limited ground as to whether impugned notice,
Order is nullity or there is an jurisdictional error in exercise of power or
Order is outside this scope of act. In the case in hand, there is no
pleading that there is jurisdictional error or Order is out of scope of the
MMC Act. Thus, I find substance that in view of the bar u/s. 515-A of
the MMC Act appears to be not maintainable and the the plaintiff is not
entitled for injunction as prayed.
10. As earlier discussed, the documents relied by the plaintiff
i.e. the affidavit, irreparable POA, assessment bills, Annexture-A,
Electricity bill and shop and establishment license are also subsequent
to prior to datum line of 1964 falls short to prove existence of structure
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(CNR No.: MHCC010034892019) 5 Notice of Motion No. 1353/2019
in L.C. Suit No. 1409/2018
prior to 1964. The assessment bill is of 01.04.1973.Thus, I hold that the
plaintiff failed to establish that the notice structure is in existence since
prior to datum line of 1962 i.e. tolerated structure. Therefore, no case
made out for granting of temporary injunction, the balance of
convenience does not tilts in favour of plaintiff. Accordingly, I answer
point Nos. 1 to 3 in the negative and in answer to point No. 4, I pass the
following Order :
-: ORDER :-
(i). Notice of Motion No. 1353/2019 is dismissed.
(ii). Notice of Motion No. 1353/2019 is, accordingly,
disposed of.
(S.H. Salunkhe)
Mumbai. Ad-Hoc Judge,
Dated : 22.04.2025. City Civil Court, Mumbai.
Directly typed on computer on : 22.04.2025.
Draft given to HHJ on : 25.04.2025.
Checked and Signed on : 03.05.2025.
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(CNR No.: MHCC010034892019) 6 Notice of Motion No. 1353/2019
in L.C. Suit No. 1409/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
03.05.2025 at 2.42 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri Salunkhe
(Court Room No.11).
Date of Pronouncement of Judgment/Order 22.04.2025.
Judgment/Order signed by P.O. on 03.05.2025.
Judgment/Order uploaded on 03.05.2025.
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