Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM 1372-2019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.1372 OF 2019
(CNR NO.MHCC01-003530-2019)
in
L.C. SUIT NO. 825 OF 2019
Mrs. Sangeeta Kewalramani ]...Plaintiff.
Versus
MCGM & Others ]..Defendants.
Appearance:
Advocate Shri.P.D. Gandhy for Plaintiff.
Advocate Shri. Suryavanshi for defendant No.1 & 2(MCGM).
Advocate Shri. Bhadang for defendant No.3(society).
CORAM : S.C. Pathare, Judge
(Court Room no.5)
DATED : 16th December, 2020
ORAL ORDER
1) Plaintiff took out this notice of motion seeking interim
injunction against defendants under Order 39 Rule 1 & 2 of the CPC.
2) The schedule of the show cause notice u/s. 351 of the
MMC Act is, “unauthorized construction of B.M. wall opposite to lift
admeasuring 4.8 m (length)X3.55(height) and covering of common
terrace by erecting two M.S. collapsible gates admeasuring
2mX1.15m each on third floor of Jaywant Industrial Premises Co-
operative Society Ltd., Tardeo Road, as shown in the sketch with red
colour”.
3) It is contended that plaintiff is the owner of the open
space of the 3rd floor of defendant No.3 (society). That, the terrace
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was purchased by the husband of the plaintiff in the year 1985 by
way of an agreement from the Chief Promoter. According to plaintiff
since then she is in possession of the terrace mentioned above.
Plaintiff further contended that the said society i.e. defendant No.3
never raised any sort of objection regarding title and possession of
plaintiff over the said terrace. It is further contended that
subsequent to formation of the society in the year 2001 the share
application is taken by the society. Plaintiff claims that the
maintenance amount regarding the said terrace is paid by her. It is
stated that there is another common terrace above the 3rd floor for
the purpose of user of defendant No.3 society. Plaintiff claims that
the said suit premises is a private terrace which is under ownership
and exclusive possession of herself.
4) That, the defendant No.3 society initiated false
complaints against the plaintiff. Resultantly, defendant (corporation)
on 11/12/2018 slapped seven days show cause notice u/s. 351 of
the MMC Act against plaintiff. It was replied accordingly to
corporation on 26/12/2018. The plaintiff alleged that without
paying any heed to her reply the designated officer passed final
order dated 9/3/2019 thereby asking plaintiff to remove the notice
structure within the stipulated period. The plaintiff is making two
folds prayers viz. Corporation should be restrained from acting upon
the said show cause notice and final order of designated officer.
Further defendant/society and its members be restrained from
trespassing on the said terrace till disposal of the main suit. The
main suit is instituted u/s. 34 and 38 of the Specific Relief Act.
5) Defendant No.1/corporation submitted reply/written
statement Exh.9 and thereby admitted and supported the action till
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date taken by it. Defendant No.1 denied strongly all the adverse
allegations. The notice structure is without sanction or
authorization. According to defendant in the Notice of Motion and
plaint necessary details/description of notice structure is not
provided therefore, this application is not maintainable.
6) According to the corporation it had received one
complaint dated 19/11/2018 against the said unauthorized
construction. Thereafter, on 11/12/2018 the concern officer
inspected the suit site and noticed the said unauthorized
construction. Plaintiff could not show any sanction or permission to
the officers of the corporation in that regard. Therefore, there was
no any option than to issue notice u/s.351 dated 11/12/2018.
Thereon plaintiff had submitted reply with documents. On
22/1/2019 personal hearing was given. Plaintiff had expressed
suspicion about the authenticity of approved plan which was
annexed with complaint. Therefore, remarks of building and
proposal department were called for. In the said plan notice
structure is not reflected. Furthermore, plaintiff wrongly relied upon
unregistered agreement dated 24/9/1985 to establish the rights over
the said terrace/3rd floor. Thereafter, the designated officer passed
speaking/final order dated 9/3/2019 and served on the plaintiff.
According to the corporation said structure is unauthorized.
7) Defendant No.3 society submitted reply and denied the
alleged ownership of plaintiff over the said terrace. It is contended
that the supra open terrace is the common area of the society.
According to defendant No.3 terrace cannot be sold to anybody. The
society terrace is common and the same is under use and enjoyment
of the members of the society. Further this is the simplicitor
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injunction suit against the society without claiming declaration as to
title of plaintiff. The title of plaintiff is disputed by defendant No.3.
The notice structure is not reflecting in the sanctioned plan. The
society cannot be restrained from entering the said common terrace.
On all such grounds defendants prayed to dismiss Notice of Motion
with costs.
8) I have heard arguments advanced by the parties. I have
also perused written notes of arguments submitted by Ld Advocate
of plaintiff and Ld Advocate of defendant No.3.
9) The request of ad-interim injunction in draft Notice of
Motion was rejected on 29/3/2019. The plaintiff preferred appeal
against the order before Hon’ble High Court. In the meantime before
Trial court reply/written statement of defendants was made
available. Thereafter, on 7/1/2020 Hon’ble High Court directed to
decide Notice of Motion on merits. Further, order of status quo came
to be continued.
10) On behalf of plaintiff it is argued that the then Chief
Promoter executed unregistered agreement regarding said terrace in
favour of husband of plaintiff. Thereafter, in the year 1987 on the
basis of IOD the construction of said building was started.
Thereafter, in the year 1992/93, occupancy certificate was issued.
According to him since then plaintiff is having possession over said
terrace. He further argued that apart from unregistered agreement
there are receipts issued by defendant No.3 society in respect of
payment of maintenance charges by plaintiff regarding said terrace,
from time to time. He further argued that husband of plaintiff
expired in the year 2012. Thereafter, necessary release deed was
effected in the year 2018. However, the new body of the society is
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now unnecessarily harassing plaintiff and denying ownership of
plaintiff over said terrace. The Ld counsel argued that BMC is acting
on behalf of defendant No.3 so that possession of said terrace should
be handed over to defendant No.3. Advocate of plaintiff denied the
alleged unauthorised construction.
11) On the other hand Ld Advocate of the corporation
argued that MMC had received complaint dated 19/11/18 regarding
unauthorised construction of plaintiff. Thereafter, necessary
inspection was carried out. According to him MMC issued show
cause notice and then considered reply of plaintiff prior to issuing
the final order. He further submitted that the said notice structure
viz. BM wall and two collapsible gates do not find place in the
sanction plan of the building.
12) On behalf of defendant No.3 action of MMC is strongly
supported. The Ld Advocate of defendant No.3 argued that in para
No.10 & 11 of the suit the plaintiff has admitted existence of said
notice structure. He further argued that said unregistered agreement
is without consideration therefore, it cannot be used against
defendant No.3. He further argued that terrace is not saleable
property. According to Advocate of defendant No.3 said terrace on
the said 3rd floor requires repairs etc from time to time. Therefore,
plaintiff cannot block it and cannot prevent society from
approaching it. He further argued that plaintiff constructed BM wall
and blocked fire escape passage of the building. Further, plaintiff by
erecting two collapsible gates blocked said terrace unlawfully.
13) Alongwith suit plaintiff produced index alongwith
various documents from Sr. No.7 to 24. Defendant No. 1 & 2 (MMC)
produced few documents with reply. Defendant No.3 produced
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compilation of documents of nearabout 11 documents. Defendant
No.3 produced around 8 documents with the index. I have perused
those documents.
14) Admittedly, said agreement regarding the terrace is not
registered. However, as per the settled position of law at this
primary stage the same can be looked into for collateral purposes. It
is to be noted that in the said unregistered agreement on pg no.5
there is mention of said terrace on the 3rd floor. Thereafter, letter
dated 16/2/93 shows that the Chief Promoter gave no objection in
favour of plaintiff for taking telephone, water, electricity etc
connections on open terrace on 3rd floor. Furthermore, various
maintenance receipts issued by defendant No.3 society goes to show
that since long plaintiff is in possession of said terrace. For the
purpose of this temporary injunction I am not going to consider
whether title of the plaintiff is legal or not because said fact will
have to be considered by the court in the main suit after recording
the evidence.
15) Perusal of the sanction plan of said building it clearly
goes to show that plaintiff has constructed wall and blocked fire
escape passage. If any incidence of fire takes place in that event
there will be risk of lives of residents etc of said building. Therefore,
it is highly objectionable that plaintiff without permission of the
MMC blocked said fire escape passage. Plaintiff in his suit contended
that if her two collapsible gates are allowed to keep continued, in
that event she can remove the BM wall from fire escape passage.
Perusal of record shows that the said two collapsible gates are also
erected by plaintiff without obtaining prior permission of the BMC.
Under such circumstances, such condition put forth by the plaintiff
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cannot be sustained. Needless to mention that if such type of
unauthorised construction is carried out without permission then it
raises presumption that the same is not safe and sound. Whenever
any construction is carried out by obtaining sanction plan then it
raises presumption that such construction is safe and sound.
Therefore, said unauthorised construction cannot be permitted to
remain continue.
16) The said building got OC in the year 1992/93 therefore
there is no question that said structure mentioned in the notice
exists prior to the datum line 1962/64.
17) Said building came under the occupation in the year
1992/93 but said notice structure is not mentioned in the sanctioned
plan. Therefore it is incumbent on the part of plaintiff to show that
said BM wall and two collapsible gates are constructed by obtaining
permission of the authority, but unfortunately she has faied to show
such type of authorization. Plaintiff could not show such
authorization to designated officer in response to show cause notice
and even now to this court.
18) Admittedly, defendant No.3 society is denying validity
of title of plaintiff over the said 3rd floor terrace. Plaintiff has not
claimed declaration of ownership in that regard in the suit.
However, fact remains that there is unregistered agreement of sale
dated 18/8/85 in favour of plaintiff, thereafter the concern Chief
Promoter gave no objection in favour of plaintiff for electricity etc,
then society issued bills of maintenance charges to plaintiff party
from time to time and accepted those amounts from the same. These
vital aspects cannot be ignored. Therefore, these points required to
be decided in the main suit after recording evidence. Further, for the
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same reasons there is need to pass necessary order that after action
of removal by BMC society members should not approach the said
place where collapsible gates are presently existing. It is also
surprising to note down that as per the agreement initially said wall
and gates were not existing. It means said structure came to be
erected subsequently in due course of time, but, nobody from said
building obstructed plaintiff from raising said new structure while it
was ongoing, this aspect is also required to be considered. This
makes me to pass balanced order so that unauthorised structure
should not be protected, but at the same time the long standing
possesion of plaintiff over the said terrace should not be disturbed
by defendant No.3 or any other member of said society till disposal
of the suit.
19) Perusal of record it shows that after receipt of complaint
the MMC authority took care and carried out necessary inspection,
then plaintiff was given opportunity to file reply, then after
considering opinion of building and proposal Engineer's opinion
final order was passed by designated officer by following due
process of law. Therefore, MMC authority cannot be prevented from
carrying out its statutory duties to demolish the structure which is
not authorised.
20) On behalf of plaintiff reliance is placed on the copy of
judgment passed in
appeal from order No.559/2000(H.C. Bom.)
dtd. 4/9/20 wherein appellant was having structure on the land of
respondent No.3. Respondent No.3 had issued notice that they
should vacate premises otherwise the steps for removing from the
premises will be taken. This is misconceived approach for getting the
possession of the property. It is held that it was appearing that
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plaintiffs/appellants were apprehending that on the basis of such
notice respondent No.3 may move the municipal corporation
respondent No. 1 & 2 to remove the unauthorised construction.
Thereafter, respondent No.1 & 2 will come forward with a notice
u/s.351 of the Act as to demolish the structure and thus respondent
No.3 will get the land vacated through agency of respondent No.1
&2 without following the process of law. Therefore, appellants had
approached Hon'ble High Court for protecting their structure. Such
possibility can not be overruled. It is held that even assuming for a
moment that trespass is by appellants still the remedy for
respondent No.3 is to file a suit for possession and thereafter obtain
possession of the land. Therefore, Hon'ble High Court held that the
high handed action on the part of respondent No.3 and also the
municipal corporation were not desired. Respondent No.1 and 2
were restrained from demolishing the stalls of the
appellants/plaintiffs or demolishing the structure. However, in the
present matter notice and speaking order u/s. 351 of the Act are
already issued. Thereafter, in the draft Notice of Motion order was
passed against plaintiff. In the present matter alongwith two
collapsible gates plaintiff blocked fire escape passage of the said
terrace, these aspects are different from facts and circumstances of
above said citation. Therefore in my humble view this citation is not
helping plaintiff especially against the corporation when it is clear
that plaintiff is having unauthorised construction.
21) Plaintiff further relied on the copy of judgment in the
case of
Bilkishbai Vasi Vs. MCGM & Ors. (H.C. Bom.) dtd. 10/8/83
wherein it is held that the court cannot impede the exercise of
discretion of the municipal commissioner by the issuance of
mandatory order. In a purely private dispute for which the petitioner
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must seek redressal by way of civil suit, they cannot be provided
with the machinery of the let respondent to settle private scores. In
the present matter court has not issued mandatory injunction for
taking action against unauthorised construction of the plaintiff. In
my humble view, in the present matter this citation is not appearing
helpful to plaintiff against defendant No.1 and 2. So far as
defendant No.3 i.e. the private person/society is concerned
necessary order is required in that regard.
22) Plaintiff further relied on the case of
Sarladevi Vs.
Gaurishankar (H.C. Bom.) AIR 1996 pg.98 wherein it is held that
possession is sufficient to protect interest of plaintiff. Plaintiff cannot
be evicted without following the due process of law. In the present
matter plaintiff has carried out unauthorised construction more
particularly she has blocked fire escape passage of said building.
Therefore, the other occupiers of same building cannot be denied
approach to fire escape passage at the time of any emergency. So far
as remaining portion is concerned defendant No.3 (society) can be
prevented from going to that place till final decision of the suit.
However, this case law is also not helpful for protecting the said
unauthorized construction of BM Wall and two collapsible gates.
23) On behalf of defendant No.3 reliance is placed on the
case of
Ramgauri Virani Vs. Valkeshwar Triveni Co-op. Hsg. Soc. &
Ors. wherein it is held that there is no any statutory provision
authorising builder to sell terrace of the building. However, said
unregistered agreement was effected in the year 1985, thereafter,
defendant No.3 society perhaps the earlier body from time to time
accepted maintenance amount and issued such receipts in favour of
plaintiff repeatedly. Moreover, longstanding possession of the
plaintiff over the said terrace is getting established ex-facie.
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Therefore, this aspect needs to be decided in the main suit.
24) In the written notes of arguments defendant No.3
quoted one more case law but the same did not made any
submission in that regard during oral arguments. So also copy of
said case law is not produced. I have searched said case law on
Internet viz.
Anatulla Sudhakar Vs. P.B. Reddy dtd. 25-3-2000 (S.C.)
indiankanoon.org wherein Hon’ble Apex Court held that when there
is clog on the title of the plaintiff in that event simplicitor suit for
injunction without declaration of such title is not maintainable. In
the present matter plaintiff sought declaration only against action of
MCGM. However, in my humble view said citation does not put bar
in deciding temporary injunction application. In my humble view
said citation may be helpful to the defendant in the main trial of the
suit.
25) Regarding unauthorised structure vide Sec.56 & 57 of
the Evidence Act it is necessary to consider the law laid down by the
Hon'ble High Court Bombay in the case of Tushar Salian V/s. State
of Maharashtra PIL No.67/2017 (DB) judgement dated 28/08/2019
and further judgement passed in the same case by the Hon'ble High
Court dated 23/09/2019. The Hon'ble High Court held that (i) when
the property is governed under Municipal Statute the interest
protected has to be with respect to plea that prima facie the
structure being targeted is unauthorized structure (ii) the plaint
must make averment of sanction obtained from corporation and
must make the averment with the structure targeted is prima facie
governed by sanction (iii) merely pointing out deficiencies in the
notice or the authority of a person issuing the notice is neither here
nor there (iv) thus, sine quo non of such suits is positive assertion
made with reference to the sanction of building plans. If any plan is
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produced then the same must have endorsement of approval of the
corporation. Plaintiff must produce such permission or the approved
plan in support of the plaint. Furthermore, the similar view was
taken in the case of Mohd. Zuber V/s. MCGM, AFO 27460 dated
25/10/2016 (HC Bom.)
26) Apart from that in the case of Sopan Thopte V/s. PMC
AIR 1996 Bom 34 and in the case of MCGM V/s. Sunbeam Hightech
Developers Pvt. Ltd. 2019 SCC Online 1389 (SC) it is held that the
injunctions cannot be granted casually in such suits, against
statutory body.
27) Moreover, as per the provisions of Section 106 of the
Evidence Act burden of proving fact which is specially within
knowledge of any person lies upon such person. For example if any
person is traveling in railway without a ticket, then burden of
proving that he had ticket is on him. Similarly, if a person is found
having unauthorized structure then such person is duty-bound to
produce permission of corporation or approved plan in that regard.
If such person fails to make said legal compliance then the same has
to face the legal consequences.
28) Thus, it appears that plaintiff is not having a prima facie
case or balance of convenience against the MCGM. However, in view
of above discussion plaintiff is having a prima facie case and balance
of convenience against defendant No.3 (society).
29) Considering peculiar facts, circumstances, documents
available on record and arguments of the parties, I proceed to pass
the following order in the interest of justice:
ORDER
1) The Notice of Motion No.1372/19 is hereby
partly allowed and disposed off.
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2) Relief prayed by the plaintiff against defendant
No.1 & 2 is hereby rejected.
3) Till disposal of the main suit defendant No.3
(society) or its members shall not disturb
longstanding possession of plaintiff over the
said terrace, more particularly near the said
two collapsible gates.
4) After removal of the said BM wall by MCGM
defendant No.3 (society) and its members will
be at liberty to use the said fire escape passage
at the time of fire emergency, if any, till
disposal of the suit.
5) Parties to avoid delay on their part in the main
suit.
6) Costs shall follow the event.
(S.C. Pathare)
Ad-hoc Judge
City Civil Court
Directly typed on : 16/12/2020.
Checked by PO : 16/12/2020.
Signed by HHJ on : 16/12/2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/12/2020 & 1 p.m. Mrs. S.A. Shekade.
Name of the Judge (With Court
room no.)
SHRI S.C. Pathare (Court Room
No.05)
Date of Pronouncement of
JUDGEMENT/ORDER
16/12/2020.
JUDGEMENT/ORDER signed by
P.O. on
16/12/2020.
JUDGEMENT/ORDER uploaded on 16/12/2020.
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