Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.1358/19 (LCS No.768/19)
MHCC010034952019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.1358 OF 2019
IN
LONG CAUSE SUIT No.768/2019
Manaparampil Gangadharan Shivankutty … Plaintiff
- Versus -
1] The Municipal Corporation
of Greater Mumbai
2] Mr. Amrik Singh Diwanchand Alag ... Defendants
Appearance :-
Mr. S. K. Bhosle, Advocate for plaintiff.
Mr. Om Suryavanshi, Advocate for defendant No.1/M.C.G.M.
Ms. Deepa Pohuja with Ms. Asfiya Khan i/b. M/s. J Law Associates,
Advocates for defendant No.2
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 19/07/2023.
O R D E R
. This is suit challenging notice issued by the M.C.G.M.
under Section 351 of the Mumbai Municipal Corporation Act (in short
the M.M.C. Act) and speaking order in respect of notice structure
having area admeasuring 15 mtr. X 6.50 Mtr. with average height 4.25
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Mtrs. made up with brick masonary G/I sheet walls and A/C sheet
roofing (notice structure) and the plaintiff has taken out present Notice
of Motion for temporary injunction restraining defendant MCGM from
implementing notice and speaking order.
2] Brief facts of the plaintiff's case are that late Mr. V. Gopalan
i.e. predecessor title of the plaintiff constructed structure on the land
bearing C.T.S. No.165 (Part), survey No.14, Hissa No.8 (in short said
land) of village Wadavali in 1960. The plaintiff is having city survey
plan issued by the City Survey Office on 24/4/1978 and copy of 7/12
extract. Mr. Gopalan was a tenant of the original lease holder Smt.
Nagubai Patil in respect in respect of land with structure and he was
paying rent. The plaintiff is having rent receipt dated 1/12/1967.
3] It is further stated subsequently, Mrs. Nagubai Patil
executed a Lease Deed in favour of Mr. Gopalan on 20/8/1980 in
respect of area admeasuring 5,142 Sq. Ft. together with structure
including notice structure having area 1,250 Sq. Ft. Said structure has
been assessed for municipal taxes under number M-1728 (8/A), Borla,
Koliwada Road on 1/4/1967.
4] It is further stated that the landlady gave copy of lease
deed, licence under Section 394, assessment bill, letter dated 5/1/1973,
N.A receipt and copy of letter dated 10/7/1981 by D.I.L.R. to establish
title.
5] It is further stated that Mr. Gopalan was tenant of suit
structure and he was carrying business. The plaintiff was carrying
business in suit structure in the name and style M/s. Ayyapa
Enterprises. The plaintiff is having weight machine inspection
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certificate. The plaintiff is presently running business of fabrication and
grill work in the name and style M/s Amay Enterprises and having shop
and establishment certificate, electricity bill, telephone connection, gas
bill at the address of suit premises.
6] It is further stated that in 2015 one Mr. Amrit Singh Diwan
Singh of M/s. Natraj Caterers approached the plaintiff and claimed that
he has purchased land underneath the suit structure and he
continuously forcing the plaintiff to vacate suit structure. He has filed
complaint to the M.C.G.M. Then the Corporation sent impugned notice,
alleging that the plaintiff has carried out unauthorized construction.
The plaintiff replied show cause notice stating that notice structure has
been constructed in 1960. The plaintiff has submitted documents
alongwith reply to show cause. However, designated officer without
application of mind and without considering documents and reply
passed speaking order holding that the plaintiff failed to prove existence
of notice structure prior to the datum line i.e. 1/4/1962 which is fixed
for commercial structure or failed to prove notice structure is
authorized and legal and directed the plaintiff to remove notice
structure within 7 days. Hence the plaintiff filed this suit.
7] Defendant No.1/B.M.C. opposed Notice of Motion by filing
reply dated 4/3/2020. At the outset, it is stated that suit is not
maintainable for want of statutory notice under Section 527 of the
M.M.C. and suit is barred under the provisions of Section 515A of the
said Act. Suit is not maintainable under Order-VII Rule-3 of The Code of
Civil Procedure and the plaintiff has not given description of suit
property.
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8] It is further stated that the defendant/Corporation has
received complaint from M/s. Natraj Hospitality Services Pvt. Ltd.
regarding unauthorized illegal construction. Then the officer of the
defendant/BMC issued notice under Section 488 of the M.M.C. Act and
inspected site to very contentions in the complaint. Accordingly, the
officer on 25/10/2018 inspected suit site and found unauthorized
construction of notice structure. The occupier has not shown permission
or any document to prove authenticity of the structure. Therefore,
inspecting officer prepared inspection report and forwarded same to
designated officer. Designated officer came to the conclusion that
structure is unauthorized hence designated officer issued notice and
called upon the plaintiff to submit document showing authorization of
structure and said notice was served on 26/10/2018.
9] The plaintiff has replied said notice through advocate
alongwith various documents. Designated officer considered reply and
documents and passed speaking order holding that the plaintiff has
failed to prove authorization of notice structure. The said order has
been served on 2/3/2019. Thus, the defendant/B.M.C. has followed due
process and, therefore, the plaintiff is not entitled for any relief.
10] Defendant No.2 resisted Notice of Motion by filing reply
dated 24/9/2021. It is stated that defendant No.2 Natraj Caterers is the
owner of survey No.14, Hissa No.1 corresponding CTS NO.164/1 to 4.
Defendant No.2 purchased said property in 2009-2010 by two different
Conveyance Deeds. CTS No.165, survey No.14 is divided into four parts.
Actually, there is no Hissa No.8. The plaintiff claiming that his structure
is situated in survey No.18, Hissa No.8 but said structure is situated in
survey No.14/1. Name of predecessor of the plaintiff Mr. Gopalan is not
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recorded to 7/12 extract of survey No.14, Hissa No.1, therefore,
contention of the plaintiff that notice structure is in existence prior to
1962 is false. The plaintiff stated that structure is in existence prior to
1960 but suit structure is assessed on 1/4/1998 for the first time. Lease
Deed dated 20/8/1980 is for plot of land and not for structure and
same is not valid document proving authenticity of structure. The
documents relied by the plaintiff does not prove authenticity of
structure. On these grounds, defendant No.2 prayed for dismissal of
Notice of Motion.
11] The plaintiff filed rejoinder affidavit to reply filed by
defendants No.1 and 2. Defendant/B.M.C. filed written arguments.
12] 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.
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- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
13] The plaintiff relied on documents i.e. 7/12 extract, rent
receipt, assessment bill, lease agreement dated 20/8/1980, copy of
notice issued under the Maharashtra Land Revenue Code, letters, leave
and licence agreement, electricity bill, telephone bill, verification
certificate, shop and establishment licence etc.
14] Defendants brought on record copy of 7/12 extract, Akar
Phod Patrak, letter issued by Talthi, Turbhe, copies of mutation entries.
15] The plaintiff has challenged notice issued by defendant/
B.M.C. under Section 351 of the M.M.C. Act, alleging that the plaintiff
has carried out unauthorized construction of ground floor structure
using brick masonry/GI sheet as walls and A/C sheet roof admeasuring
15 Mtr. X 6.50 Mtr. with average height of 4.25 Mtrs. as shown in the
sketch. Learned advocate for the plaintiff submitted that the
predecessor of the plaintiff has constructed structures in 1960. The
predecessor of the plaintiff was a tenant of the original lease holder
Smt. Nagubai Patil. Said Smt. Nagubai had executed a Lease Deed in
1980 in favour of Mr. V. Gopalan but he was in possession of land since
prior to that. However, the structure has been construed prior to 1960.
Learned advocate for the plaintiff pointed out that in the Lease Deed it
is mentioned that the land is in possession of Mr. Gopalan since 1967.
Learned advocate for the plaintiff further submitted that suit structure is
tolerated. However, defendant/BMC at the behest of defendant No.2
issued a false notice. He further submitted that structure is in existence
since long. Hon'ble Bombay High Court in the matter of Mahesh
Nandlal Asrani vs. Versus B.M.C. and others (Appeal From Order St.
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No.11708 Of 2007) held that the structure is in existence for more than
30 years and as such, structure ought to have protected till final
disposal of suit. Advocate for the plaintiff submitted that suit structure
is in existence for more than 50 years and, therefore, the plaintiff is
entitled for interim protection. Learned advocate for the plaintiff further
relied on the judgment of the Hon'ble High Court in the matter of
MCGM Versus Ramniklal Nanji Vasani (Appeal From Order No. 631 Of
1994) to submit that if the structure is shown in survey map in black
ink it is authorized structure. However, the plaintiff has not produced
city survey map to show that structure is in shown black ink in the said
map. Learned advocate further relied on the judgment of the Hon'ble
Bombay high Court in the matter of Gopal Rai K. Sharma Versus The
Municipal Corporation of Gr. Mumbai and others (Writ Petition No.570
Of 2008) and judgment of the Hon'ble Apex Court in the matter of
Wonder Limited Vs Antox India Private Limited (1990-MADLJ-2-1) to
submit that the existence of structure is not disputed and documents
relied by the plaintiff needs adjudication, therefore, the plaintiff is
entitled interim protection.
16] On the other hand, learned advocate for the B.M.C. and
defendant No.2 submitted that the plaintiff has not come to the Court
with clean hands. Defendant No.2 submitted that the plaintiff filed fake
and fabricated documents i.e. 7/12 extract to show that Mr. V. Gopalan
was the tenant. It is further submitted that Talathi by letter dated
20/12/2012 informed that ME No.132 of village Wadhavali is not in
respect of survey No.14 (1). The defendant No.2 has filed on record
7/12 extract of 14 (1) to (4) and submitted that survey No.14 is divided
into four parts and there is no Hissa No.8 in survey No.14. He further
submitted that none of the documents proves that notice structure is in
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existence prior to 1964, or it is legal, authorized or constructed as per
the sanctioned plan. On these grounds, learned advocate for defendants
prayed for dismissal of Notice of Motion.
17] The plaintiff has taken out this Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 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
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.
18] It is case of the plaintiff that notice structure is situated in
survey No.14, Hissa No.8, C.T.S. No.65. However, the plaintiff has
produced on record photocopy of 7/12 extract of survey No.14 (1). This
shows that the plaintiff has not produced on record 7/12 extract of
survey No.14 (8). As per the letter dated 20/12/2022 issued by Talathi,
Turbhe, it appears that mutation entry No.132 of village Wadhavali is
not in respect of survey No.14 (1). This creates doubt about 7/12
extract of survey No.14 (1) relied by the plaintiff. The plaintiff
contended that notice structure has been constructed by Mr. V. Gopalan
in 1960. In support of his submission, learned advocate for the plaintiff
placed reliance on registered Indenture of Lease executed by Mrs.
Nagubai Patil in favour of Mr. Gopalan. In the said Indenture of Lease it
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is mentioned that leasee i.e. Mr. Gopalan is in possession of plot of land
since 1967. Therefore, I do not understand how a person who is in
possession of the land since 1967 constructed the structure in 1960 i.e.
prior to 7 years before coming into possession of the land. Moreover,
the plaintiff has not produced document showing that Mr. V. Gopalan
was in possession of land bearing survey No.14 (8). Advocate for the
plaintiff further relied on Assessment Bill to show that notice structure
is in existence prior to the datum line. However, on perusal of same, it
appears that structure No.M-05-0326-00-5 of Borla, Koliwada road has
been first time assessed on 1/4/1967. Thus, the assessment bill falsifies
the contention of plaintiff that notice structure has been constructed by
Mr. Gopalan prior to 1960. The address of the assessed property and
address of suit structure are altogether different. Therefore, it is difficult
to say that assessment bill is in respect of notice structure. The plaintiff
has also relied on copy of application made by Mr. V. Gopalan to BMC
for rateable value of the shed. The plaintiff produced leave and licence
agreement, notice issued by Talathi for land revenue, shop and
establishment licence, affidavit, telephone and electricity bills, gas card,
undertaking and inspection report prepared by Inspecting Officer of the
B.M.C. However, none of the documents relied by the plaintiff shows
that notice structure is in existence prior to the datum line of 1/4/1962
which is fixed for commercial structure. The plaintiff has not produced
sanctioned plan or permission of the Corporation to show that notice
structure has been constructed as per approved plan.
19] It is important to note here that in the application dated
5/1/1973 written by Mr. V. Gopalan number of the property has been
mentioned as M-1728 (10) and at page No.36 of plaint the plaintiff has
annexed assessment bill having number MW-1728(8A) of Borla,
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Koliwada. Thus, the address of notice structure and address on this
assessment bill is different. Moreover, the property bearing MW-
1728(8A) of Borla, Koliwada has been assessed in 1993. This
assessment also not supports case of the plaintiff that notice structure is
in existence prior to 1960.
20] The plaintiff has failed to establish that notice structure is
in existence prior to the datum line of 1962. None of the document
relied by the plaintiff proves authenticity or legality of structure. 7/12
extract filed by the plaintiff at page No.34 of the plaint appears to be
doubtful as Talathi of village Turbhe by letter dated 20/12/2022
informed that Mutation Entry No.132 of village Wadhavali is not in
respect of survey No.14 (1). Photocopy of Mutation Entry No.132 filed
by the defendant No.2 alongwith affidavit dated 11/1/2023 shows that
the Mutation Entry No.132 is in respect of entry of legal heirs of Nikalas
Varas in respect of survey No.55 (1) and (7) and it is in respect of
survey No.14 (1). Thus, p
rima facie, it appears that 7/12 extract of
survey No.14 (8) relied by the plaintiff is doubtful.
21] This shows that the plaintiff has not come to the Court with
clean hands. Therefore, I hold that the plaintiff has not made out
prima
facie case for grant of injunction. Balance of convenience does not tilt in
his favour and no irreparable loss or injury would be caused if
injunction is refused.
22] I have gone through the judgments relied by the plaintiff.
The plaintiff has not shown that notice structure has been shown in
black ink in C.T.S. map. Therefore, the judgment in the case of MCGM
Versus Ramniklal Vasani (supra) is not applicable to present case. The
facts of the judgments relied by the plaintiff and the facts of the case on
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hand, are not identical. Therefore, the judgments relied by the plaintiff
are not applicable to the present case. Hon'ble Bombay High Court in
the matter of Tushar Guru Salien Versus State of Maharashtra and
others (Public Interest Ligation No.67 Of 2017) clarified the legal
position in respect of properties governed by the Municipal law. It is
held that in a suit to protect an interest governed by the Municipal
statute the plaintiff must make an averment of sanction obtained from
the Corporation i.e. the plaintiff has to show
prima facie that structure
is legal/authorized. As per explanation to Section 351 of the M.M.C. the
burden lies upon the noticee i.e. the plaintiff to prove that notice
structure has been constructed as per sanctioned plan or permission of
competent authority or it is a tolerated structure. However, the plaintiff
has failed to prove that notice structure is in existence prior to the
datum line or it is constructed as per the sanctioned plan or it is
protected under the Slum Act. Therefore, the plaintiff is not entitled for
interim relief. Hence I answer points No.1 to 3 in the negative and in
answer to point No.4 pass following order :-
O R D E R
Notice of Motion No.1358/2019 is dismissed.
Date : 19/07/2023. ( 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.”
21/07/2023 05:30 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
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Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 19/07/2023
ORDER Typed on 21/07/2023
ORDER signed by P.O. on 21/07/2023
ORDER uploaded on 21/07/2023
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