Interim Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010031832022
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO. 795 OF 2022
CNR No. MHCC010031832022
1. Vikas Mahendra Agarwal
2. Vishal Mahendra Agarwal
Both having address at 1st Floor,
Old Indrabhuvan Walkeshwar Road,
Mumbai 400 006. ... Plaintiffs
V/s.
1. Designated Officer
Executive Engineer (B & F), 'D'Ward,
Municipal Office, Jobanputra Compound,
Nanachowk, Mumbai 400 007.
2. Municipal Corporation of Greater Mumbai,
SA Body Corporate constituted under the
Mumbai Municipal Corporation Act, 1988
having its address at
Mahapalika Bhavan, Mahapalika Marg,
Opp. C.S.T. Fort, Mumbai 400 001. ... Defendants
-- 1 of 15 --
2 Draft NM in L.C. Suit No.795/2022
Appearance:
Adv. P.D Gandhy for the Plaintiffs.
Adv. Dalal I/b Adv. Gada for Caveator.
Adv.Smt. Kumud Soraan for MCGM/ defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 07.04.2022
ORDER
1. The plaintiff has taken out this notice of motion for grant of
interim relief, thereby, restraining defendants, their servants, agents
and representatives etc. from taking any action, pursuant to the notice
under section 351 of MMC Act bearing No. D/DO2D/219/351MMC,
ACT/D14NO1/29.1.2022 dtd. 29.1.2022 addressed to their father and
order dtd. 22.3.2022 in respect of Flat on first Floor, Old Indrabhuvan,
Walkeshwar Road, Mumbai 400 006.
2. In the impugned notice it is alleged that the Municipal
Corporation detected unauthorized construction of bathrooms and W.C
in bedroom admeasuring 2.5 mt x 2.0 mt having height 2.4 mt and ad
measuring 2.0 mt x 1.0 mt having height 2.1 mt at entrance of flat at 1st
floor as described above. The plaintiff has prayed for protection against
the action by defendants through interim orders in terms of prayer
ClauseA on this notice of motion.
3. The defendant has appeared and filed affidavit in reply/
written statement alongwith documents on record opposing the
-- 2 of 15 --
3 Draft NM in L.C. Suit No.795/2022
contents of the application and strongly agitating against the proposed
interim relief.
4. Heard advocate for the plaintiff and defendant at length
and perused record. Perused draft notice of motion, affidavit in support
of said motion, suit plaint, documents produced by plaintiff as well as
defendant and caveator and reply filed by the defendant.
5. Before entering into the merits of the motion, it is pertinent
to note that one M/s. Mellona Developers Pvt. Ltd. ie. Owner of the
building is situated has filed caveat in this suit. The wording of section
148A (1) of CPC ' any person claiming a right to appear the court on
the hearing of such application' make it sufficiently clear that the
caveator has right to appear for hearing. Therefore, considering the
harmonious interpretation of said provision, the caveator though not
joined in the suit as party defendant, is allowed to appear and heard on
this notice of motion by offering legal and fair opportunity.
6. As it is transpires from the motion, the defendant has
issued notice to the plaintiff under section 351 of MMC Act on dtd.
29.1.2022 in respect of the disputed notice structure and according to
the plaintiff the said notice is nullity as it is issued for the construction
for which no permission of competent authority is required, therefore it
is devoid of any merits. Hence, the notice action needs to be stayed by
way of interim orders directing defendants not to take action on the
basis of the said notice. It is submitted that if, the relief is not granted, it
will cause grave and irreparable loss to the plaintiff.
7. In reply the defendant has submitted that the suit is barred
-- 3 of 15 --
4 Draft NM in L.C. Suit No.795/2022
by Order 7 Rule 3 of the Code of Civil Procedure. The notice issued by
the defendant is legal and due process of law is followed by them. The
plaintiff has carried out unauthorized construction and even after
issuance of notice has not produced any authenticate document of
approved plan or permission of the competent authority to prove the
authorization of notice work. The speaking order is rightly passed by
the designated officer. The plaintiff failed to remove the notice work
within 7 days from receipt of speaking order. The designated officer is
authorized to take action against the unauthorized construction. The
plaintiff miserably failed to establish that their construction is made
with the permission of the defendant or it is constructed prior to datum
line. Therefore, neither prima facie case nor balance of convenience lies
in favour of plaintiff. No irreparable loss will be caused to them. Hence,
the notice of motion may be rejected.
8. From the facts and circumstances of the case and material
produced on record following points arose for my determination and
my findings there on are as under for the reasons stated therein :
POINTS FINDINGS
1 Whether Prima facie case is
established by the plaintiff ?
Not proved
2 Whether balance of convenience lies
infavour of plaintiff?
Not proved
3 Whether plaintiff proves that in the
event of failure to grant interim
injunction, Irreparable loss would be
caused to him?
Not proved
4. What Order? Notice of motion is
dismissed as per final
order.
-- 4 of 15 --
5 Draft NM in L.C. Suit No.795/2022
R E A S O N S
As to Point nos. 1 to 3:
9. All these points are inter linked with each other, hence for
the sake of convenience all are discussed simultaneously. The advocate
for the plaintiff has vehemently argued that the alleged notice is ultra
virus and nullity, as the same is issued by the officer not authorized as
per the provisions of law. It is stated that the notice has been issued by
the Executive Engineer, who is not the designated officer, as per the
provisions of MMC Act and powers are not delegated to him by the
Commissioner. Hence, notice is nullity and no action can be taken on
the basis of the said impugned notice. Therefore, prima facie case lies in
their favour. Secondly, it is said that the notification dtd. 4.4.2013 on
the basis of which the notice has been issued by the alleged designated
officer has came to an end by the circular dtd. 12.4.2013. The Executive
Engineer is not the designated officer, hence notice action is not tenable
in law.
10. It is specifically submitted that the plaintiff has affixed
fixtures in the suit premises and same cannot be considered as a
structure. Therefore, case comes under the provisions of section 43(1)
of MRTP Act. The fixtures are saved from such notice action and no
permission is required for internal partition.
11. Further, it is submitted that the notice action is in respect
of private property of plaintiff and the applicant of Chamber Summons
i.e intervenor/caveator and not against the public property. Therefore,
the defendant has committed wrong in taking notice action against the
private property. Prima facie impugned notice action is bad in law and
-- 5 of 15 --
6 Draft NM in L.C. Suit No.795/2022
therefore, plaintiff is entitled to be protected against the said action by
passing interim orders restraining the defendant from taking action on
the basis of the impugned notice. In support of the said contention the
Ld. Advocate for the plaintiff has relied upon the relevant provisions of
law including section 351 of MMC Act and section 43(1) of MRTP Act.
Apart from this he placed reliance on the authority in the case of
Vasant S. Naik V/s. Municipal Corporation of Greater Mumbai and
another passed in Criminal Revision Application No. 244/1999. It
this authority it has been held that the proceeding for eviction or
removal of unauthorized construction are to be initiated by the
designated officer to whom the powers of commissioner are delegated
under section 68 of the MMC Act. In the said authority it has been held
that there was no material on record to prove the delegation of
authority and therefore it has been held that the notice is not valid
under section 381 of the MMC Act.
12. Further, the Ld. advocate for the plaintiff placed reliance on
the authority in the case of Gopal Rai K. Sharma V/s. The Municipal
Corporation of Gr. Mumbai and others in W.P.no. 570/2008. In this
authority it has been held that admittedly the encroachment was not on
public road and public street or public property but it was entirely on
the private land. The remedy available to the petitioner was to take
appropriate steps by way of proceedings before the appropriate forum.
With the said findings the petition came to be dismissed. Taking
recourse of this authority it is pointed out that in this particular case
also the property is owned by the private person ie the alleged proposed
intervenor/caveator and the corporation is taking action in respect of
said private property of which the plaintiff is a tenant. The
intervenor/caveator ought to have taken steps before the appropriate
-- 6 of 15 --
7 Draft NM in L.C. Suit No.795/2022
forum and not by making complaint before the corporation authority.
Therefore, the notice action is bad in law.
13. Interalia to this Ld. Advocate for the plaintiff placed
reliance on the authority in the case of Radha Vithal Shetty , through
PoA Vishwananth V Shetty V/s. Municipal Corporation of Greater
Mumbai & ors. In Appeal Form Order St. no. 18832 Of 2017 with
Civil Application St No. 18834 Of 2017. In this authority it is held that
the proviso of section 43 of the MRTP Act, make it unnecessary to seek
permission of appropriate authority for nonload bearing internal
partitions, which are meant only to optimize the existing internal space
usage. Therefore, such partition do not require any permission from the
competent authority.
14. Relying upon the said authority it is said that the plaintiff
also made internal alteration by constructing bathroom in his premises ,
so it is not the permanent structure requiring permission of authority.
The same comes within the purview of internal work affecting interior
of the flat, hence do not require any permission. Therefore, the notice
action regarding the said fixtures is bad in law.
15. It is pertinent to note that the defendant has specifically
pointed out in the reply that plaintiff have constructed unauthorized
addition constructing bathroom and W.C. which is permanent
structure. It transpires from the record that after issuance of notice, the
defendant has given sufficient time to the plaintiff to produce
authenticated documents of approved plan of permission of the
competent authority of MCGM for proved authorization of the notice
work. They have placed certain documents on record such as, the copy
-- 7 of 15 --
8 Draft NM in L.C. Suit No.795/2022
of complaint received from the M/s. Mellona Developers Pvt. Ltd. Vide
letter dtd. 7.12.2021, the copy of notice under section 488 of the MMC
Act dtd. 11.10.2022, copy of inspection report dtd. 29.1.2022, the copy
of disputed notice under section 351 of MMC Act dtd. 29.1.2022, the
reply given by the plaintiff's advocate to the said notice dtd. 8.2.2022,
and copy of speaking order dtd .22.3.2022, copy of letter sent to
MHADA dtd. 3.1.2021 and copy of warning notice issued by MHADA to
all tenants and land lords under No. EE/D3/892/2021 dtd. 12.4.2021.
It is argued that the authorities so cited by the plaintiff are not
applicable to present case.
16. It transpires that on the basis of complaint by caveator
owner which is supported by the sanction plan of the disputed property,
the corporation has issued notice to the owner/occupier/tenant of the
suit premises for inspection of the premises. The inspection report
shows the disputed unauthorized addition and alteration in the suit
premises. Therefore, the notice under section 351 of MMC Act has been
given to the plaintiff. Section 351 of the MMC Act authorizes the
designated officer to issue notice to the owner /occupier or the tenant
of the premises so the notice is valid.
17. I have gone through the authority in the case of Vasant S.
Naik as a cited supra. Undoubtedly the notice action is to be taken by
the designated officer who appointed under the MMC Act or by the
officer to whom powers are delegated by the Commissioner. In this
particular matter the defendant have produced the copy of the
notification of dtd. 11.3.2019 through which the Executive Engineer of
D ward is authorized to take action against the unauthorized
construction and he is appointed a designated officer under the
-- 8 of 15 --
9 Draft NM in L.C. Suit No.795/2022
provisions of MMC Act by the Commissioner of MCGM. Said notification
is sufficient to show that the notice action has been taken by the duly
appointed designated officer. Therefore, I hold that prima facie there is
no substance in the submission made by the plaintiff, that the notice is
nullity and ultra virus .
18. So far as, the notice action against the private property is
concerned, I have gone through the authority cited supra by the plaintiff
in the case of Gopal Rai Sharma. In this authority it is held by Hon'ble
High Court that the remedy available to the petitioner is to take
appropriate steps by way of proceeding before appropriate forum and
not by challenging the notice action by way of Writ Petition. Here, it is
pertinent to note that the appropriate forum for taking action regarding
unauthorized construction either on the public property or private
property lies with the Municipal Corporation and therefore the caveator
has rightly opted the Appropriate Forum of Municipal Corporation to
take appropriate action regarding unauthorized construction. Hence,
considering the said aspect, with all respects I hold that the authority
cited supra is not applicable to the present case and not going to
support the case of the plaintiff.
19. So far as, the authority on the point of internal partition is
concerned , I have gone through the authority in the case of Radha
Vithal Shetty cited supra by the plaintiff's the advocate. On the said
issue involved in the matter, the Ld. Advocate for defendant and the
caveator has submitted that the partition is made in the residential
premises and aforesaid authority is in respect of the commercial
premises. The notice action is taken in respect of the unauthorized
construction in the bathroom which essentially requires permission of
-- 9 of 15 --
10 Draft NM in L.C. Suit No.795/2022
the authority for such changes. Therefore, the aforesaid authority will
not support the case of the plaintiff. The said contention appears to be
correct to me, as the internal partition in the aforesaid authority was in
respect of restaurant premises which is a commercial premises and
specifically it was the non load bearing internal partition. In the present
matter it is not specified by the plaintiff that the alleged construction is
not a permanent structure.
20. In fact, as per the provisions of Indian Evidence Act the
burden of proof lies on the shoulder of plaintiff. It is for the plaintiff
who comes before the court to seek relief against the defendants, to
prove prima facie that the construction is not unauthorized. He cannot
throw out his burden of proof on others. It is for him to prove that said
construction of notice structure is within the purview of section 43(1) of
MRTP Act. The record shows that there is no document to prima facie
establish that the construction made by the plaintiff is non load bearing
construction or of temporary nature. Further, it is not specified that said
construction without permission is authorized under any provisions of
law. Per contra the proviso to section 43(1) of the MRTP Act exempts
only the work for carrying out work for the maintenance, improvement
or other alteration of any building, being work which affects only the
interior of the building or which do not materially affect the external
appearance thereof. Therefore, I hold that the plaintiff prima facie
failed to establish that his construction comes within the purview of
internal repairs which are exempted from the permission of Planning
Authority. Hence, I humbly opine that the authority cited supra is not
applicable to the present case.
21. It is pertinent to note that the plaintiff has challenged the
-- 10 of 15 --
11 Draft NM in L.C. Suit No.795/2022
impugned notice under section 351 of MMC Act, in order to seek
protection of equitable ad interim relief, it is necessary for the plaintiff
to prima facie show that either the notice structure as it exists today at
the site was in existence prior to datum line or it is inaccordance with
the permission granted by the Competent Authority or as per the
sanction plan. On perusal of the notice of motion it reveals that it is
nowhere pleaded by the plaintiff that the alleged structure under notice
is inaccordance with the permission of competent authority or it exists
prior to the datum line and therefore is the tolerable structure. The
plaintiff simply went on saying that the notice is ultra virus and nullity
and the structure do not require permission of Competent Authority.
However, to my mind, as stated above there is nothing on record to
show that plaintiff's construction is either a tolerable structure or a
structure exempted from any permission from the competent authority
as per section 43(1) of the MRTP Act. The plaintiff has to establish at
least that the construction is inaccordance with the provisions of
sections 337, 342 and 347 of MMC Act or it is a tolerable structure. The
plan is produced by the defendant alongwith the reply to the notice of
motion. The plan admittedly shows that the area of bathroom
constructed in the premises. The photographs of the disputed premises
are produced by the defendant. The same shows notice structure. The
copy of the sanction plan produced by the defendant prima facie
substantiates the contention of defendants that such bathroom
construction was not exist at the time of sanction of plan. It means that
the construction is not as per the sanction plan. I have already pointed
out that it is not the case of the plaintiff that the structure exists on the
suit premises prior to datum line or is in accordance with the sanction
plan to Competent Authority. Therefore, prima facie it appears that the
plaintiff miserably failed to prove sufficient cause, as per explanation of
-- 11 of 15 --
12 Draft NM in L.C. Suit No.795/2022
sufficient cause in section 351 of the MMC Act. The nature of notice of
structure is just that the prima facie it does not come within the purview
tenantable repairs. Therefore, prima facie I do not find any substance
in the submission made by the plaintiff that the notice structure do not
require any permission from the competent authority. Therefore, it
follows that the same is unauthorized construction.
22. The inspection report is placed on record by the defendant.
It appears that the defendant has given sufficient opportunity to the
plaintiff to file reply and explain the authorization to his unauthorized
construction. Due process of law is followed by the defendant, and they
have given reasonable opportunity to the defendant to establish the
bonafied and lawful construction over the suit premises. In such
circumstances the notice issued by the defendant cannot said to be
arbitrary, unreasonable or ultra virus. In the present matter the caveator
has appeared before the court and opposed the notice of motion
Chamber Summons for addition of party is pending before court.
However, as stated earlier being a caveator, he is entitled to be heard.
The caveator has submitted that on the basis of the complaint moved by
them to the Municipal authority the notice action has been taken. The
advocate for the caveator has supported the notice action taken by the
defendant stating that the notice is reasonable and issued by following
due process of law. It is pointed out by the caveator that the suit
structure do not come within the purview of construction as per section
342(c) (c) of the MMC Act. The plaintiff has made the brick wall
construction for which permission is necessary. The plaintiff miserably
failed to prove prima facie case by showing authorization of
construction . Therefore, notice under section 351 of MMC Act has
been rightly issued by the defendant.
-- 12 of 15 --
13 Draft NM in L.C. Suit No.795/2022
23. In such circumstances I hold that the notice action can not
be said to be arbitrary or perverse to the provisions of law.
24. On perusal of all the documents produced on the record by
the respective parties, I have arrived at the conclusion that plaintiff
miserably failed to establish prima facie case by establishing authorized
construction of the notice structure with the permission of competent
authority. At the same time balance of convenience also do not lie in
favour of plaintiff and therefore question of irreparable loss do not
arise. Hence, considering the aforesaid discussion, I hold that no case is
made out by the plaintiff for grant of interim relief and protection
against the notice action. Prima facie it reveals that the plaintiff
miserably failed to establish that he is entitled for the equitable relief.
Above all it transpires that the alleged demolition of notice structure
will not cause irreparable injury to the plaintiff as notice structure is a
part of residential premises which would not affect residential amenities
of plaintiff. Therefore, the plaintiff is not entitled for the relief of
interim protection. Accordingly, I have answered point nos.1 to 3 in the
negative.
As to point no. 4
25. In view of the negative findings as to point nos.1 to 3, I
hold that the notice of motion do not stand and it is liable to be
dismissed. Hence, following order is passed:
ORDER
1. Draft Notice of Motion stands dismissed.
2. The prayer for grant of interim relief stands dismissed.
3. Draft Notice of Motion is disposed off accordingly.
-- 13 of 15 --
14 Draft NM in L.C. Suit No.795/2022
4. Draft Notice of Motion may be registered for the statistical
purpose.
Date: 7.4.2022.
(A.H.KASHIKAR)
ADHOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.05)
Dictated on : 7.4.2022
Typed on : 8.4.2022
Signed on : 8.4.2022
-- 14 of 15 --
15 Draft NM in L.C. Suit No.795/2022
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12.4.2022 3.30 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H. Kashikar (C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
7.4.2022
JUDGMENT/ORDER signed by
P.O.on
8.4.2022
JUDGMENT/ORDER re uploaded on 12.4.2022
-- 15 of 15 --