Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1289-2020
MHCC010037702020
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.1289 OF 2020
IN
L.C. SUIT 1087 OF 2020
Shantilal C. Doshi & Another ]...Plaintiff/s
Versus
MCGM ]..Defendant/s
Appearance:
Advocate Shri. Bharat Joshi for Plaintiff/s.
Advocate Smt. Rawde for defendant (MCGM).
Advocate Shri. S.N. Mungle for third party CS applicant.
CORAM : S.C. Pathare, Judge
(Court Room no.5)
DATED : 24th December, 2020.
ORAL ORDER
1. Plaintiffs have taken out this draft notice of motion
against the notice issued u/s. 351 of the MMC Act.
2. Plaintiffs prayed to issue temporary injunction restraining
defendant (corporation) from taking any action against the notice
structure, “unauthorised construction of L shaped shop (as shown in
sketch) known as Shanti Metal supply corporation adjoining of
Jethwa building admeasuring total size 24Mx5Mx2.6M approx by the
way of using Brick Mesonary Wall and slopping patra shed at 204B,
-- 1 of 12 --
2 NM No.1289-2020
floor gr. Plot-176, JN Jethwa building, Dr. Mitrasen Mahimtura Marg,
Durgadevi Udyan, 3rd Kumbarwada, Mumbai-400004”.
3. On behalf of plaintiffs it is argued that they are in
exclusive use and possession as Joint tenants with Hitesh Doshi of two
adjacent premises bearing No.202 & 204B in a corrugated sheets roof,
CI shed of L shaped etc.
4. That, prior to 1990 one Ramji Prajapati was tenant in
that premises. Then the brother of plaintiff No.1 had acquired tenancy
rights in the suit premises since 8/8/90.
5. It was earlier Padmavati Steels & Engineering Co. Now
plaintiffs are carrying their businesses on the suit premises under
name and style as “Shanti Metals Supply Co”.
6. In the year 1972 suit premises came to be assessed. Since
then plaintiffs are paying taxes.
7. Since 1980 plaintiffs obtained Gumasta license/shops and
establishment certificates. They also paid sales tax and GST.
8. The legal heirs of deceased J N Jethwa are the landlords
of suit building. The predecessor in title of plaintiffs acquired their
tenancy rights from deceased landlord since 8/8/90.
Earlier history of the litigation:-
9. The then tenant R.A. Prajapati had previously filed suit
No.656/79 by challenging show cause notice issued u/s. 351 of the
Act dated 8/3/78. In that suit they had sought declaration and
injunction. Plaintiff had got ad interim injunction. However,
subsequently on 14/9/79 then Dy. Law Officer had made statement in
the court that the said sheds under impugned notice is regularized by
Municipal Commissioner vide Memo No.WOC/24311/SEVI dated
6/9/79. Said plaintiffs had based on that statement and withdrew
said suit.
-- 2 of 12 --
3 NM No.1289-2020
10. Thereafter, the order of regularization was challenged
before the Hon’ble Lokayukta of the State by a politician and it was
upheld. Thereafter, in the state assembly the then MLA Mrs.
Jaywantiben Mehta had raised a question about said structure.
11. According to plaintiffs the defendant No.1 in the year
2019-20 assessed said structure as shops. Moreover, the shop
Inspector on 16/4/92 verified documents and issued shop
establishment certificates to the then Padmavati Steel Engineering Co.
which is in said structure.
12. Moreover, according to plaintiff after the regularization
the structure was assessed by defendant from 1/4/72. Plaintiff is
having assessment bill of 1980.
13. On 7/7/20 plaintiffs moved RTI application for the
purpose of obtaining said memo of regularization dated 6/9/79.
However, defendant has not provided yet said information.
14. That, on 20/6/2020, 30/7/2020 and 18/7/2020 officers
of MCGM visited suit premises and demanded documents of
authorization of structure. Hence, Ld Advocate of plaintiffs sent letter
(alongwith documents) dated 14/7/2020 to the MCGM.
15. Despite that MCGM issued present show cause notice
u/s.351 of the Act dated 21/7/2020. Then again plaintiff sent reply
through Advocate on 31/7/2020 to MCGM.
16. Thereafter, plaintiff rushed to this court by filing present
suit. On 14/8/2020 the court directed MCGM to consider reply and
documents of plaintiffs and to pass speaking/final order by following
due procedure of law.
17. Thereafter, on 9-12-2020 the designated officer passed
speaking/final order by holding that the notice structure is
unauthorised and the same needs to be removed by the plaintiffs.
-- 3 of 12 --
4 NM No.1289-2020
18. MCGM submitted reply affidavit. It is admitted that show
cause notice u/s. 351 of the Act was issued to plaintiffs and thereafter
by considering reply and documents speaking order came to be passed
against the plaintiffs. MCGM denied all other adverse allegations.
19. On behalf of plaintiff Ld Counsel Mr. Joshi vehemently
argued that in the year 1990 one Ramji Prajapati was tenant in the
said premises. Then brother of plaintiff No.1 had acquired tenancy
rights in suit premises since 8-8-90. The legal heirs of deceased
Jethwa are the landlords of said building. On behalf of plaintiffs it is
further argued that the previous tenant Mr. Prajapati had filed suit
No.656/79 and challenged notice issued u/s.351 dated 8-3-78. In that
suit on 14-9-79 law officer had made statement orally in the court
that the said sheds are regularized by municipal commissioner vide
memo No.WOC 24311/SEVI dated 6-9-79. Therefore, said suit was
withdrawn by the said earlier tenant. On behalf of plaintiff Ld Counsel
further argued that said order was challenged before Lokayukta and
the same was upheld. Thereafter, question was asked in Assembly in
that regard too. Further said structure has been assessed. According to
him action of MCGM is unlawful.
20. On the other hand, Ld Advocate on behalf of MCGM
strenuously supported action taken by the corporation stating that
said unauthorized construction should not be protected at any cost. It
is further argued on behalf of defendant that the structure mentioned
in earlier suit is different than the present suit. She further argued
that present plaintiffs erected structure between two buildings
therefore, the open passage has got blocked and if any incident of fire
etc occurs in future then the notice structure will prove fatal. She
further argued that in the assessment bills plaintiff has not produced
assessment remarks and the said assessment bills are not having
-- 4 of 12 --
5 NM No.1289-2020
specific version that the notice structure in question was existing prior
to the datum line or whether it has been carried out by obtaining
sanction from MCGM i.e. the competent authority. She further argued
that the two maps relied by the plaintiffs are showing that those are
pertaining to MHADA and not issued by the MCGM i.e. the competent
authority. On behalf of defendant Ld Advocate pointed out that before
the designated officer plaintiffs had produced only few documents.
On the other hand in this court plaintiff party produced so many
documents with malafide intention.
21. Perusal of documents submitted today alongwith
compilation, it shows that the previous tenant Mr. Prajapati had filed
LC suit No.656-79. Then on 14-9-79 in the court Advocate of
defendants had made a statement that the dispute pending in the suit
is regularized by the commissioner in Memo dated 6-9-79. In view of
that Advocate of plaintiffs had submitted that he withdraws the suit.
Perusal of page No.122 of compilation of plaintiffs shows that in the
earlier suit premises was consist of two shops made up of iron pillars
and corrugated CI sheets. In the prayer clause of that suit area of said
sheds is shown 13 mtrs X 3 mtrs and 8 mtrs X 3.80 mtrs situated at
170A/176, Dr. M.G. Mahimtura Marg, 3rd Kumbharwada, Bombay-4.
Thus, it is crystal clear that this notice structure and the materials are
not properly matching with the earlier suit.
22. Plaintiffs produced undated photographs at pg. No. 5 to 7
showing that huge area is under occupation of the same. Perusal of
photographs submitted by MCGM alongwith list dated 14-8-2020
shows that said photographs are having dates and time. Said
photographs of MCGM are showing that between the two buildings
the disputed structure is standing. It further appears that due to
notice structure the open space between two adjoining buildings got
-- 5 of 12 --
6 NM No.1289-2020
blocked. Plaintiffs could not show to this court as to under which
provision of law he is entitled to block such open space reserved
between two buildings.
23. On behalf of plaintiffs at pg no.8 reliance is based on a
copy which does not appear to be certified copy. Advocate of plaintiffs
argued that question was raised in the State Assembly regarding
notice structure and it was replied in the Assembly that the after
earlier notice u/s. 351 the concern owner of sheds had produced
documentary evidence in the form of assessment record, income tax
certificate, letters received from customers, leave and license
agreement with the owner in the year 1962. On behalf of plaintiffs
the Ld counsel argued that he is mainly pressing on the point that in
the earlier suit the notice structure came to be regularized. It was
replied in the Assembly that said documents were conclusive to prove
that the said sheds were existing prior to 1961, hence, dropped the
action. It was replied in the assembly that the said case was examined
by Lokayukta and decision of MCGM was upheld. However, it is
surprising that despite sufficient opportunities plaintiffs have not
placed on record the alleged order of regularization of said structure.
Further plaintiffs failed to bring on the record certified copies of R & P
and order passed by the Lokayukta.
24. Plaintiffs placed on the record rent receipts vide pg No.9
to 14 of the compilation, those are in Gujrathi language. Certainly
these documents are not authorization of MCGM.
25. At pg. No. 15 to 23 plaintiffs produced agreement dated
8-8-90. It appears between Jethwa i.e. the landlord and Shri. Shantilal
Doshi and Jayantilal Doshi i.e. the plaintiffs. It is pertaining to shed
No.202-204A situated at 170/176, Dr. Mahimtura Road wherein it is
contended that said premises shed No.202 & 204A has been
-- 6 of 12 --
7 NM No.1289-2020
constructed by the landlord and other tenant according to sanction of
BMC. It is said that man can tell lie but documents cannot. This
agreement says that said sheds were constructed with the “sanction”
of the BMC then plaintiffs are under obligation to produce such
sanction for perusal of designated officer or for perusal of the court
but they have not produced such “sanction” of said structure. In this
agreement it is contended that said structure is authorised, but such
authorization is not produced on the record. In this agreement four
boundaries of notice structure are not mentioned for identification of
the same. Further, in the agreement area, length and width of the
structure is not mentioned.
26. On behalf of plaintiffs reliance is placed on letter issued
by inspector of shops and establishment dated 16-4-92 whereby he
had demanded certain documents from plaintiffs for his perusal.
Plaintiffs produced letter issued by the same authority to the plaintiffs
dated 2-7-93 whereby various documents were again demanded.
Plaintiff produced registration certificates of establishment vide pg
No. 27 to 30 and intimation receipt at pg No. 31. However, these
documents are not documents of “sanction” issued to the notice
structure by the competent authority. Said certificates have clause that
said documents do not bestow any legality on the notice structure or
confer any right on the employer so far as the date and time of
existence of the structure.
27. Plaintiffs produced capital value calculations/assessment
bills/tax payment receipt etc of the year 2020. During the course of
arguments the Ld counsel could not show whether notice structure is
mentioned specifically therein. There is mention of only account
number etc. There is difference between the earlier existing building
and disputed notice structure. Therefore, when notice structure is not
-- 7 of 12 --
8 NM No.1289-2020
shown in said documents and assessment remarks are not produced
for perusal of the court in that event I have to say that these
documents are not helping the plaintiffs at this stage. Further, merely
due to payment of assessment tax unauthorised structure does not
become authorised.
28. Perusal of record it shows that on 14-7-2020 plaintiffs
through their Advocate informed MCGM about the earlier suit and
allegedly regularization of notice structure etc.
29. Plaintiffs produced notice issued by MCGM u/s. 488
dated 18-7-2020 for visiting the said place. It means MCGM first
visited said space/structure then after carrying out inspection
carefully proceeded against the notice structure.
30. Plaintiffs produced repairs maps of MHADA (MBR).
Admittedly, these maps are not issued by the MCGM i.e. the
competent authority regarding sanctioning the structure. Plaintiffs are
silent in their reply to MCGM about it. Parties are not expected to
carryout unauthorized construction by misusing maps of MBR.
Therefore, it is clear that these maps are not helpful to show that the
notice structure is legal or authorized.
31. Perusal of documents produced by the defendant it shows
that after following due procedure legal action has been taken by
MCGM against the said unauthorized structure. Perusal of order
passed by court dated 14-9-79 shows that memo of regularization was
not actually submitted in the court and only oral statement was made
in that regard. Further as per said order “dispute” pending in the suit
was regularized. It means “unauthorized construction” was not
regularized. Regularization of pending dispute in the suit and
regularization of unauthorised construction are totally different terms,
particularly when plaintiffs failed to produce order of Commissioner,
-- 8 of 12 --
9 NM No.1289-2020
application of regularization, necessary payment receipts for
regularization.
32. On behalf of plaintiffs Ld Advocate argued that as per
Sec.101 of the MHADA Act procedure is given for giving notice and
obtaining permission for building to be repaired or reconstructed by
board. However, defendant is denying MBR maps relied by plaintiffs.
Furthermore, in say given before BMC plaintiffs did not contend
anything about said maps and said repairing. In this Notice of Motion
also there is no pleading regarding said maps and the said repairing.
Apart from that repairing is never permits any unauthorized
construction, this aspect also cannot be overlooked.
33. Vide Sec. 56 & 57 of the Evidence Act regarding supra
unauthorized construction, 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 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
-- 9 of 12 --
10 NM No.1289-2020
case of
Mohd. Zuber V/s. MCGM, AFO 27460 dated 25/10/2016 (HC
Bom.)
34. Apart from that in the case of
Sopan Thopte V/s. PMC
AIR 1996 Bom 34 and in the case of
MCGM V/s. Sunbeem Hightech
Developers Pvt. Ltd. 2019 SCC Online 1389 (SC), it is held that the
injunctions cannot be granted casually in such suits.
35. 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.
36. In my humble view plaintiffs are not having a prima facie
case or balance of convenience in their favour. If temporary injunction
is rejected in that event they are not going to suffer any irreparable
loss which cannot be compensated in terms of money by defendant.
37. Considering peculiar facts and circumstances, I proceed
to pass the following order in the interest of justice:
ORDER
1) Notice of Motion No.1289/20 stands
dismissed and disposed off accordingly.
2) Parties are requested to avoid delay on
their part in the main suit.
-- 10 of 12 --
11 NM No.1289-2020
3) Authenticated copy of this roznama be
given to plaintiffs and defendant (MCGM)
if requested.
(S.C. Pathare)
Ad-hoc Judge
City Civil Court
Direct typed on :24/12/2020.
Checked on :24/12/2020.
Signed on :24/12/2020.
-- 11 of 12 --
12 NM No.1289-2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
24/12/2020 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
24/12/2020
JUDGEMENT/ORDER signed by
P.O. on
24/12/2020
JUDGEMENT/ORDER uploaded on 24/12/2020
-- 12 of 12 --