Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 144419 IN L.C.SU 95419
CNR NO.MHCC01-003773-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1444 OF 2019
IN
L.C. SUIT NO.954 OF 2019
Mr. Dinesh Kumar Rathi ]...Plaintiff.
Versus
The Mumbai Corporation of Greater ]
Mumbai & Ors. ]...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 30th April, 2019.
Mr. S.K. Dubey, Advocate for plaintiff.
Ms. Tondwalkar, Advocate for MCGM/Defendant.
O R D E R
1. The plaintiff has taken out this Notice of Motion to restrain the
defendant Corporation from enforcing the Notice under Section 488 of
the BMC Act dated 27.3.2019 and a Notice under Section 53(1) of
M.R.T.P. Act dated 4.8.2014 in respect of the suit premises i.e. Office /
shop No.L38, Dream Malls, near Gate No.2, Bhandup (West), Mumbai
400 078 measuring 289 sq. ft. (hereinafter referred to as the "suit
shop").
2. In brief plaintiff's case is that, he is in use, occupation and
possession of the suit shop on the basis of an Agreement dated
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31.12.2015 executed by the erstwhile vendors. Plaintiff and his wife are
the occupants of suit shop. The vendors were also the occupiers. The
earlier occupiers have acquired the suit shop from M/s. Satra Property
Developers Private Limited by virtue of Agreement dated 5.3.2012. The
owner of the suit shop is M/s. Automobile Products of India Limited.
The revenue record does not stand in plaintiff's name as he and his wife
are mere occupiers. The plaintiff has not carried out any construction in
the suit shop. On 29.3.2019 the officers of defendant Corporation pasted
a notice dated 27.3.2019 in front of the suit premises and threatened to
take action of demolition on 3.4.2019 or any time thereafter. The
plaintiff replied said notice. The notice dated 27.3.2019 is illegal, null
and void and is not served upon the plaintiff personally. The plaintiff
never received the notice mentioned in Notice dated 27.3.2019. The
notice dated 27.3.2019 is contrary to the provisions of Section 485 of the
BMC Act. Said notice is not served on the true owner. The notice dated
27.3.2019 has reference to notice under Section 53(1) of M.R.T.P. Act
dated 4.8.2014 which is time barred and is sought to be enforced after a
gap of to five years. Though the plaintiff has filed reply and documents,
the officers of defendants are not ready to consider it. They are trying to
implement the notice and demolish the suit premises. The notice is
issued at the instance of some complainant. The Officers of 'S' ward have
no jurisdiction to issue the alleged notice. On 30.3.2019 the Officers of
defendant visited the suit premises and threatened to demolish the suit
shop pursuant to the notices. Hence, the Notice of Motion is taken out.
3. The defendant has opposed the Notice of Motion by reply dated
18.4.2019 challenging the maintainability of the suit. It is contended that
in view of several complaints from Dream Malls Company, Dreams the
Malls shop owners Association (proposed) and other complainants the
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suit in respect of unauthorized construction carried out by the shop
owners beyond the plan. The site was inspected by the concerned staff
and it was noticed that 428 shop owners have carried out unauthorized
development beyond sanctioned plan in the form of construction of
mezzanine floor and amalgamation of shops. Therefore, defendant
issued notice to the owners and occupiers of all shops under Section
53(1) of M.R.T.P. Act. Some shop owners had filed Writ Petition Lodging
No.2513 of 2014, and Writ No. Lodging No.2517/2014 in which the
Hon'ble High Court directed the occupants to apply for regularization.
The defendant was directed to consider the applications for
regularization in accordance with law. Some shop owners submitted
regularization applications. The proposals were rejected as those were
not properly submitted. Thereafter, the unauthorised structures in 7
shops were demolished. The shop owners thereafter filed Writ Petition
Lodging No.1116 of 2015 stating that they have filed Appeal before the
State Government and during pendency of Appeal action of demolition is
being taken, therefore, the Hon'ble High Court directed the Petitioner
therein to appear before the Appellate authority and directed the
Appellate authority to decide the application within stipulated time. Till
then the defendant was restrained from acting upon the notice. The
Appellate authority rejected the Appeal on 6.5.2015. Thereafter, the
mezzanine floors in few shops were removed by the defendants and 22
shop owners removed the mezzanine floors on their own. The FIR is also
lodged by the defendant against the defaulter. On 3.4.2019 again the
action of demolition was taken in respect of 14 shops and few more shop
owners informed that they have voluntarily removed the unauthorized
structures. The plaintiff has not submitted any order or documents in
respect of regularization of the notice structure and so is not entitled to
injunction. The plaintiff has not come with clean hands. Plaintiff has
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obtained ad interim injunction and did not comply with the order of the
Hon'ble Court directing him to file an affidavit of predecessor in title.
The plaintiff is well aware of the proceedings in respect of the notice
structure. The action initiated by the defendant is legal and valid. Hence,
Motion be dismissed.
4. Following points arise for determination against which findings are
recorded for the reasons to follow:
Sr. No. POINTS FINDINGS
1. Does plaintiff prove a prima facie case
in his favour?
In the negative.
2. Whether the balance of convenience lies
in plaintiff's favour?
In the negative.
3. Whether the plaintiff will suffer
irreparable loss if injunction as sought
is refused?
In the negative.
4. What Order ? Notice of motion is
dismissed.
REASONS
As to point Nos.1 to 4.
5. The plaintiff has come with a case that the original owner is
M/s. Automobile Products of India Limited and the plaintiff as well
as his predecessors are mere occupants. Therefore, the notice dated
4.8.2014 issued under Section 53(1) of the M.R.T.P. Act is illegal
and void as it is not served on the owner as required by sub Section
(1) of Section 53 of the M.R.T.P. Act.
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6. The Plaint, the Notice of Motion and the Affidavit in its
support as well as the rejoinder, came to know that the alleged
owner is not served with Notice under Section 53(1) of the
M.R.T.P. Act. The sources of plaintiff's knowledge is probably
purposely not disclosed. Thus the only conclusion that can be
drawn is that plaintiff got knowledge of alleged non service of
impugned notice under Section 53(1) of MRTP Act on the original
owner due to the inquiries made by the plaintiff with the alleged
owner. In such a case it is not only difficult but rather impossible to
believe that the activities in respect of the entire mall were not
known to the plaintiff. These activities are the serving of notice
under Section 53(1) of the M.R.T.P. Act on similarly placed more
than 400 shop owners, challenging of such notices by some of them
before the Hon'ble Bombay High Court in Writ Petition Lodging
No.2513 of 2014 and others, directions of the Hon'ble High Court
to apply for regularization not only to the Petitioners therein but to
all similarly placed shop owners, filing of regularization
applications and the Appeal arising therefrom. Thus the knowledge
of these facts is attributable to the plaintiff in given circumstances.
If this is so, then here is the plaintiff who has approached this Court
suppressing all these events. This badly reflects on the conduct of
the plaintiff. On this count alone the plaintiff is liable to be non
suited.
7. If at all the plaintiff's case is accepted that he is not the
original owner, within the meaning of provisions of Section 2(18)
of the M.R.T.P. Act, then the locus of the plaintiff to file the suit
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challenging validity of such notice is questionable. Even he can not
come before the Court on the ground that Notice is not served on
the true owner. That plea may be available only to the owner. Thus
on this count the locus of the plaintiff to maintain present suit is
questionable. Therefore, if the plaintiff's story is accepted as it is,
the maintainability of the suit and consequently the grant of main
relief is doubtful. In such circumstances, plaintiff is not entitled to
the interim relief as sought.
8. Plaintiff has produced on record the copy of Agreement
between the Satra Properties Developers Private Limited as
promoters, M/s. Suvarna Sachchidanand Kambli & Sachchidanand
Balkrishna Kambli as purchaser and Housing Development and
Infrastructure Company Limited as a third party. The Agreement for
sale is dated 5.3.2012 mentioning Automobile Products of India
Limited as the owner of the land on which the mall was to be
constructed. Said Agreement further reveals that Clause “O” of said
Agreement provides that the purchasers have agreed to acquire
from the promoters on ownership basis shop No.38. Said fact is
again confirmed in subsequent paragraph 4. Thus it is clear that as
per Sale Agreement the predecessor in title of the plaintiffs have
purchased shop No.38 on ownership basis. The subsequent
agreement to Sale dated 31.12.2015 between the plaintiff, his wife
and their predecessors in title further reveals that the shop is
purchased by the plaintiff and his wife on ownership basis against
consideration. In such circumstances, the plaintiff's theory fails that
neither the plaintiff and his wife nor their predecessors in title are
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the owners of the suit shop.
9. My predecessor has directed the plaintiff to file an affidavit
revealing whether the notice under Section 53(1) of M.R.T.P. Act is
served or not upon them. In response to said order dated 2.4.2019
the plaintiff has produced on record affidavit of Mr. Sachchidanand
Kambli.
10. A bare perusal of said affidavit reveals that it is not verified in
consonance with the provisions of rule 3 of Order 19 of CPC. Such
an affidavit cannot be accepted and acted upon. It cannot be
considered for any purpose. The defendant Corporation has
produced on record a copy of notice dated 4.8.2014 issued under
Section 53(1) of M.R.T.P. Act revealing that the owners of shop
No.38 have received said notice. Thus, in absence of anything to the
contrary, prima facie, it is proved that a notice under Section 53(1)
of the M.R.T.P. Act is served upon the owners of the suit shop i.e.
the predecessors in title of the plaintiff. In such circumstances, the
plaintiff's case is not acceptable that the notice is not served upon
the owners of the shop as required by law and therefore, he can
challenge the notice on said ground.
11. The plaintiff has come with a case that after purchase of the
suit shop he has not raised any construction in it. However, he has
nowhere averred a positive case that the mezzanine floor is
authorized and is constructed as per the sanctioned plan. Merely
pleading that he has not constructed anything is not enough for the
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plaintiff. In absence of any positive pleadings that the mezzanine
floor is as per sanctioned plan, it has to be considered as a structure
constructed unauthorizedly.
12. The sanctioned plan appended to the Agreement entered into
by any predecessors in title of the plaintiff at plaint page 127 does
not indicate that a mezzanine floor was a part of it. Likewise, the
description of the property in both the agreements produced on
record does not mention existence of mezzanine floor. In these
circumstances, the construction of mezzanine floor is apparently
unauthorized.
13. The plaintiff cannot take the benefit of his plea that a
notice issued in the year 2014 is sought to be implemented in the
year 2019. This is so because meanwhile many proceedings were
filed by the other shop owners in the said mall. Considering above
circumstances, viewed from any angle, the plaintiff has measurably
failed to make out a prima facie case in his favour.
14. In view of above discussion therefore, the balance of
convenience does not lie in favour of the plaintiff as his conduct
disentitles him from seeking any relief from this Court. The plaintiff
will not suffer any irreparable loss as apparently the construction of
mezzanine floor is unauthorized. The plaintiff also cannot plead
absence of observing of principles of natural justice as the notice
was duly given to the owner and no steps were taken to challenge
said notice. Hence, I answer point Nos.1 to 3 in the negative and in
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response to point No.4 passed the following order:
ORDER
1. Notice of Motion No.1444 of 2019 is dismissed with costs.
Sd/
(A.N. MARE)
Judge,
30/04/2019 City Civil Court, Mumbai.
Dictated On : 30.04.2019
Transcribed on : 02.05.2019
HHJ Signed on : 02.05.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
03.05.2019 03.10 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
30.04.2019
JUDGEMENT /ORDER signed by
P.O. on
02.05.2019
JUDGEMENT /ORDER uploaded
on
03.05.2019
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