Order 1

Order Details: Notice of Motion
Pdf Text: L.C.Suit No.825/2018 1 N/M No.1206/2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1206 OF 2018
(CNR No.MHCC010038832018)
IN
L.C. SUIT NO. 825 OF 2018
(CNR No.MHCC010021082018)
Shamji Dayabhai Shah Educational Trust
Having their office at having their office at
Nanjishamji Shah English Medium School
Dnyandeep Vidyamandir,
Nehru Nagar, Parshuram Godbole Marg,
Kanjurmarg (East), Mumbai400 042. ...Plaintiffs
Versus
Municipal Corporation of Greater Mumbai
& another ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI G.B.GURAO.
(C.R.NO.17).
DATE : 25/04/2022.
Mr. Dalal Ld. Counsel for Plaintiff.
Mr. Walawalkar Advocate for Defendants / MCGM.
ORDER
1. Plaintiff, Public Charitable Trust has taken out this notice of
motion for the following relief;
a) Pending the hearing and final disposal of the present Suit,
that this Hon'ble court be pleased to Temporary restrain the
Defendants, their servant, agents, representatives or any other
person or persons claiming through or under them by an order
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of injunction from implementing, enforcing and / or taking any
action and/or demolition of the said suit structure, any part /
portion thereof in pursuant to the said notice Under Section 351
of MMC Act bearing No. S/DO45/117/351MMC
ACT/S59N01/01022018 dated 01.02.2018 Ref No. 55430 and
impugned order dated 14.03.2018 in Complaint No.
S/117/01.02.2018/59,Notice No. MMC ACT/S59N01/0102
2018 Ref No. 55430 issued Under Section 351 of MMC Act,
b) Pending the hearing and final disposal of the Present suit
this Hon'ble court be pleased to direct the Defendant No.3 to
consider the Application dated 17/03/2018 submitted by the
Plaintiff on the basis of NOC dated 25.06.1993 issued by the
Pariwar Cooperative Housing Society ( Proposed) Mumbai, and
without insisting further NOC from the Pariwar Cooperative
Housing Society Ltd. Kanjurmarg, East, Mumbai400042.
C) Interim/ adinterim relief in terms of prayer clause (a) and
(b) above be granted.
Cii) Pending the hearing and final disposal of the present suit,
the Defendants be directed to grant NOC to the Plaintiff for
running of the school Dnyandeep Vidya Mandir granted to the
plaintiff from the suit premises.
2. Facts in brief are as under;
Plaintiff is “Shamji Dayabhai Shah Educational Trust” registered
under the provisions of Maharashtra Public Trust. Plaintiff trust
running Marathi medium school by name Dnyandeep Vidyamandir
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School bearing Udise no. 27230400245 and Nanji Shamji Shah English
medium school bearing Udise No.27220600278 from the premises
situated at CTS No.1996E at Kanjurmarg East, Mumbai400042.
(Herein after referred as ‘suit premises’) Defendant no.1 is Municipal
Corporation, defendant no.2 is Assistant Municipal Commissioner and
defendant no.3 is Deputy Chief Engineer of Municipal Corporation for
Greater, Mumbai. The plaintiff trust was established by Deed of Trust
dated 01/11/1981. The said school are running since 1983. The
plaintiff trust has taken the said plot of land for the school on lease
agreement from Mrs. Clera Simon Mendonca. The lease period is for
the period of 99 from the date of agreement and rent was Rs.300/. The
said plot was to be used for the public purpose like school etc. The
plaintiff has occupied some structure on the said plot and said is
mentioned in city survey report. Thereafter, the said property was
purchased by Pariwar Cooperative Housing Society Ltd.. The Official
Liquidator was appointed. Office bearers of plaintiff had attended the
meeting by Official Liquidator on 31/1/1992. At that time, Chief
Promoter of Pariwar Cooperative Housing Society Ltd. made a
statement that they were buying the said property and there was no
need to demolish the school and they had permitted the school to be
run. The letter was also addressed to the concern Ward Officer. The
plaintiff has been in continuous possession of the premises since 1983
and the school has been running since then. The Pariwar Cooperative
Housing Society Ltd. has also acknowledged their existence and
permitted the school to run on the plot of land. Currently school has
about 400 student from KG to standard 10th. The school has teaching
staff of 16 and non teaching staff of 10. School building occupied an
area admeasuring 1940 sq.mtrs. and adjacent land there to which is
used for play ground by the school.
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3. According to plaintiff on 29/6/1986 the Commissioner was
appointed by this Court in L.C. Suit No. 3700/1986 and he filed his
report showing existence of the school. The Pariwar Cooperative
Housing Society Ltd. had given no objection to construct further five or
more rooms for the school and accordingly the Ward Officer gave
permission to construct five rooms for the school. Ms. Clera Simon
Mendonca had filed the suit bearing no. 3700/1986 in the City Civil
Court, Bombay and the said suit was dismissed.
4. Thereafter, on 14/10/1983 Ward Officer 'S' Ward addressed the
letter to the Chairman of plaintiff stating no objection to construct five
rooms for the school. The trust of the plaintiff was also called for some
hearing in the proceeding of Draft revised plan. Thereafter, the said
property has been reserved for private Primary school.
5. Plaintiff trust further contended that trust is in possession of
school premises since 1983 and since then defendant has been granting
permission from year to year. Thus, structure of the school is
authorized.
6. Letter on Pariwar Cooperative Housing Society Ltd. had claimed
to be the owner of the property CTS No. 1196/E, society submitted plan
requiring school premises to be demolished. Plaintiff had filed suit
bearing no. 3470/04 in the City Civil Court, Bombay and thereby
defendant were injected from dispossessing the plaintiff trust from the
suit premises. Plaintiff learnt that Pariwar Cooperative Housing Society
Ltd. and local Corporator of Ward with ulterior motive want to
dispossess the plaintiff and to demolish the school building and also
pressurize the defendant no.2 not to issue requisite renewal of NOC for
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plaintiff's school. On 20/7/2017 City Civil Court, Bombay partly
decreed the suit no. 3470/04 and restrained the defendant from
dispossessing the plaintiff trust from school premises without following
due process of law.
7. According to the plaintiff, the plaintiff trust is in possession of suit
premises since 1983. The possession of the trust is lawful. The structure
is also lawful, however, the officer of the defendant no.1 issued notice
to the plaintiff dated 01/02/2018 under section 351 of MMC Act. The
said notice is illegal and thus plaintiff has challenged the notice and
thereby sought interim relief by way of this notice of motion.
8. Defendant filed written statement. Defendant denied that the
notice under section 351 of MMC Act is illegal and void. Defendant
denied that structure is legal. Defendant denied that notice is issued at
the instance of Pariwar Cooperative Housing Society Ltd. and local
Corporator. Defendant denied that petitioner is entitled for temporary
injunction as sought.
9. Defendant raised preliminary objection that before institution of
the suit notice under section 527 of MMC Act was not given to
defendant. Plaint does not disclose the cause of action. The plaintiff has
challenged executive and administrative acts and order of the
defendant. Therefore, suit is not maintainable.
10. According to defendant, defendant received complaint from local
Corporator in respect of unauthorized construction of the suit premises.
Therefore, notice under section 488 of MMC Act was issued. On
6/1/2018 inspection was carried out. Again on 01/02/2018 the
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inspection was carried out by officer of Corporation and he found that
notice structure is unauthorized and illegal, therefore, the Designated
Officer issued notice to plaintiff dated 01/02/208.
11. The plaintiff has submitted an application for regularization of
the permission in physical format instead of online submissions. The
said application of the plaintiff was rejected on 19/3/2018. Plaintiff
could not produced documentary evidence to support the regularization
of the construction. Thus, officer of the defendant/ Corporation
followed due process of law. Hence among these grounds defendant
prayed to dismiss the notice of motion.
12. Initially, plaintiff has challenged the notice under section 351 of
MMC Act. At that time, speaking order was not passed. Therefore, my
learned Predecessor granted interim relief to the plaintiff and directed
to pass speaking order after hearing the plaintiff. The record shows that
plaintiff had filed reply to the impugned notice and documents. The
Designated Officer has passed speaking order. Thus, plaintiff made
amendments in the plaint and also challenged the speaking order.
13. From the rival contention of both the parties following points
arise for my consideration to which, I record my finding against them
for the reasons given below.
Sr.
No.
POINTS FINDINGS
1. Whether plaintiff has made out
the primafacie case ? No.
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2. Whether balance of convenience
lies in favour of plaintiff ? No.
3. To whom irreparable loss will be
caused if injunction is granted ?
To the
defendants
4. What order ? As per final.
order.
R E A S O N S
14. Mr. Dalal Learned Counsel for plaintiff has taken me through the
record of the suit. According to him, the said plot was reserved for
public purpose and therefore, plaintiff trust has come in possession of
the plot by lease agreement. The plaintiff Trust is Educational
Charitable Trust and at present plaintiff trust is running Marathi and
English medium schools in the suit premises. He further submitted that
from time to time the officer of Corporation have given renewal for the
structure of the premises. Plaintiff trust has also filed proposal for
regularization of the structure but the same is pending. He further
submitted that plaintiff trust is paying municipal taxes to the
Corporation. Near about 400 students are taking education in the
school. However, merely on the basis of complaint of local Corporator
the officer of the Corporation issued impugned notice to the plaintiff.
Thus, said notice and order are illegal and bad in law. He further
submitted that prior to this the defendant had tried to dispossess the
plaintiff from the suit premises. Therefore, plaintiff had filed suit
no.3470/2004. This Court has partly decreed the suit and restrained
defendant from dispossessing plaintiff from suit premises without
following due process of law. Thus, this false notice is issued to the
plaintiff. According to him the structure is old and if defendant
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succeeded in demolishing the structure then irreparable loss will be
caused to the plaintiff trust. Student will deprive from education. He
has invited my attention towards the various letters and tried to
convince that structure is legal. He further submitted that there are
triable issues between parties. Hence, it is necessary to protect the suit
premises till conclusion of trial. He prayed to make notice of motion
absolute till decision of the suit.
15. As against this, Mr. Walawalkar Advocate for defendant has
submitted that basically structure is illegal. Plaintiff has not carried
construction with prior sanction of the Commissioner. He admitted that
construction is tolerated by the then officer for year to year. However,
there was specific condition that plaintiff to submit plan, get sanction
the same plan or regularize the construction, but plaintiff did nothing.
The construction is not as per the provisions of MMC Act. He has also
invited my attention to the notice, speaking order and document filed
by plaintiff. According to him, Designated Officer has considered every
documents filed by the plaintiff. Therefore, it can not be said that the
notice and order are illegal. Merely, the construction is renewed for the
benefit of students can not be legalized by not taking any action by
plaintiff for regularization of the same. He thereafter, prayed to dismiss
the notice of motion. In support of his contentions he relied on,
1)Mohd. Imran Gulam Mohd. Gujarati & Anr. Vs. The Municipal
Corporation for Greater Mumbai, Appeal from order (ST)
No.25660/2019. 2) Feroze N. Dotivala Vs. P.M. Wadhwani and
others, (2003) 1 Supreme Court Cases 433, 3) Oliul Haque Shaikh
& Others in Tushar Guru Salien Vs. State of Maharashtra & Ors.,
Notice of Motion (L) No.495/2019 in Pulic interest litigation no.
67/2017, 4) Rasraj Restaurant Mumbai and others Vs. Municipal
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Corporation of Gr. Mumbai., (2018(6) Mh.L.J.916), 5) Seema
Arshad Zaheer and others, Vs. Municipal Corpn. of Greater Mumbai
and others, (2006) 5 Supreme Court Cases 282, 6) Smt. Sarojadevi
Adharsh Vidyalay and Ors. Vs. The Addl. Collector and Appellate
Officer, Bandra, and Ors., Writ Petition (L) No.2583/2016, 7) Smt.
Sarojinidevi Adharsh Vidyalay and Ors. Vs. Addl. Collector and
Appellate Authority and Ors., Notice of Motion No.436 of 2016 in
Writ Petition no. 2354 of 2016.
16. From the rival submissions and documents filed by both the
parties it emerges that plaintiff trust came in possession of the plot by
lease agreement from owner of the plot Ms. Clera Simon Mendonca.
Plaintiff is Educational Trust. Admittedly, there are class rooms on the
said plot and plaintiff trust is running Marathi and English medium
school. It is to be noted that structure of the plaintiff is renewed year to
year by the then Ward officer. I have carefully gone through the
correspondence. It is to be noted that in every letter the renewal
granted on certain terms and conditions. Plaintiff was specifically
directed that the said permission is purely on temporary basis. Plaintiff
was also directed to submit regularization proposal and on that account
the permission was temporarily renewed from year to year.
17. It is pertinent to note that till yet the suit premises is not
regularized by Municipal Corporation. It is to be noted that the
plaintiff's proposal of regularization of the suit premises is also not
pending with Corporation.
18. It is true that plaintiff pays Corporation taxes. The suit premises is
assessed by Corporation. However, as stated above the renewal was
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given only for year to year and every time the said order is renewed for
one year subject to the conditions. However, plaintiff did not fulfill the
said conditions. Even though merely paying taxes to the Corporation
does not confer legality of the structure.
19. There are specific provisions in Mumbai, Municipal Corporation
Act for construction of any premises, we will found these provision in
sections 342, 347 of the Act. If we have carefully perused these
provisions, it is clear that first the person who wants to carry the
construction has to file application alongwith plan with the
Commissioner of Corporation and when the Commissioner sanctions the
plan then the construction is to be started, strictly as per the sanction
plan. Here, in the present case, admittedly there is no sanction plan. It
is also not case of plaintiff that structure is prior to detumline and
hence, tolerable.
1) In Mohd. Imran Gulam Mohd. Gujarati & Anr. Vs. The
Municipal Corporation for Greater Mumbai, Appeal
from order (ST) No.25660/2019. The Hon'ble High Court
held that;
“ Even at the hearing of the present appeal from order, learned
Counsel for the Plaintifs is unable to point out any other
document in support of his case either that the structure existed
prior to the datum line or was constructed with permission from
the Planning Authority. He seeks to reply upon the provision of
Subsection (1A) of Section 351 and in particular, submits that the
particular officer of the Municipal Corporation, who had issued a
impugned notice in the present case, did not have the authority.
Once again, as noticed by the PIL Court, the only basis of making
this assertion is that no such authority was indicated and no
document in support of such authority was fled by the designated
ofcer. It is clear from the provisions of law, in particular the
explanation introduced into Section 351 by 1998 Amendments,
and also as clarifed by the Division Bench of this Court in the PIL
referred to above, that to show sufcient cause within the meaning
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of Section 351 the claimant before the court has to prove that the
work mentioned in the notice was carried out under a permission
issued by the Planning Authority. The explanation makes it clear
that the sufcient cause only meant that the work mentioned in the
notice under Section 351 was carried out in accordance with the
provisions of Section 337 or 342 and Section 347 of the MMC
Act.”
2) In Feroze N. Dotivala Vs. P.M. Wadhwani and others,
(2003) 1 Supreme Court Cases 433, The Hon'ble
Supreme Court held that;
“ The Legislature, while defending a word or a term, is fully
competent even to assign an artificial meaning to the word (see
Kishan Lal v. State of Rajasthan). It can also restrict the meaning
of a word by defining it in that manner. Generally, when
definition of a word begins with "means" it is indicative of the fact
that the meaning of the word has been restricted; that is to say, it
would not mean anything else but what has been indicated in the
definition itself. There can also be extensive definitions when the
definition starts with "includes". This Court, in the case reported
in P. Kasilingam and Ors. v. P.S.G. College of Technology
observed at AIR p. 1400:
"A particular expression is often defined by the Legislature by
using the word 'means' or the word 'includes'. Sometimes the
words 'mean and includes' are used. The use of the word 'means'
indicates that definition is a hardandfast definition, and no
other meaning can be assigned to the expression than is put down
in definition." (See Gough v. Gough, Punjab Land Development
and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court."
A reference may also be made to IRC V. Joiner All ER at p.1061.
Generally, ordinary meaning is to be assigned to any word or
phrase used or defined in a statute. Therefore, unless there is any
vagueness or ambiguity, no occasion will arise to interpret the
term in a manner which may add something to the meaning of
the word which ordinarily does not so mean by the definition
itself, more particularly, where it is a restrictive definition.”
3) In Oliul Haque Shaikh & Others in Tushar Guru Salien
Vs. State of Maharashtra & Ors., Notice of Motion (L)
No.495/2019 in Pulic interest litigation no. 67/2017.
The Hon'ble High Court held that,
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“ 13. The observations of this Court in the Appeal From Order
are extremely relevant and we reproduce the same:
Adinterim orders passed in those suits were
produced before the court and its attention was
drawn to the general pattern which such cases
followed. First protection orders were obtained from
the court visavis the initial construction, the matters
were prosecuted over time, and further constructions
were made under the protection of interim orders.
This court, taking cognisance on the grievance of the
PIL Petitioner, sounded a note of caution for the
benefit of all Judges in the State of Maharashtra
before whom such suits were instituted, clarifying
amply the legal position. This court made it clear that
whenever a suit to enforce or protect an interest in
the property which is governed by a municipal
statute was filed before the court, the interest
protected has to be with respect to a plea that prima
facie the structure which was sought to be targeted
by the municipal administration was an authorised
structure. The court made it clear that the plaint
must make an averment in respect of the sanction
obtained from the Corporation, showing that the
structure targeted was prima facie governed by the
sanction; merely by pointing out deficiencies in the
notice or the authority of the person issuing the
notice was not sufficient. The court, in other words,
made it clear that sine qua non of suits of this nature
was a positive assertion made with reference to the
sanctioned building plans. In particular reference to
the suit building with which we are concerned in the
present appeal,
5 It appears from the record of the case that both the
competent authority of the Municipal Corporation
and the trial court have considered in extenso all
documents filed by the Plaintiffs in support of their
case for protection of the suit building. None of the
documents showed that the building, as it exists at
site, had any sanction from the Planning Authority.
The only plan of the building filed before the
authorities and produced before the court was a
photocopy of a plan. The plan was a bare plan; it did
not contain any permission or approval of the
competent authority. There is no endorsement of any
permission or approval from the Planning Authority.
The trial court, in the premises, observed that
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admittedly, the Plaintiffs had not shown that the
notice structure was constructed with prior
permission of the Planning Authority.
The court, in the premises, noted that there was no
prima facie case for granting any protection to the
Plaintiffs.
6 Once again, as noticed by the PIL Court, the only
basis of making this assertion is that no such
authority was indicated and no document in support
of such authority was filed by the designated officer.
It is clear from the provisions of law, in particular the
explanation introduced into Section 351 by 1998
Amendments, and also as clarified by the Division
Bench of this Court in the PIL referred to above, that
to show sufficient cause within the meaning of
Section 351 the claimant before the court has to
prove that the work mentioned in the notice was
carried out under a permission issued by the
Planning Authority. The explanation makes it clear
that the sufficient cause only meant that the work
mentioned in the notice under Section 351 was
carried out in accordance with the provisions of
Section 337 or 342 and Section 347 of the MMC Act."
14. We do not think that we can grant any relief in this
notice of motion. It is misconceived and is dismissed.
4) In Rasraj Restaurant Mumbai and others Vs. Municipal
Corporation of Gr. Mumbai., (2018(6) Mh.L.J.916). The
Hon'ble Supreme Court held that,
“31] Thus, as regards the due procedure to be followed by the
respondent for passing the order of demolition, under Section
351 of the MMC Act, there is no grievance and otherwise also no
fault can be found therewith. Section 351 of the MMC Act,
empowers the Designated Officer to pass such order of
demolition if the construction is carried out in breach of the
provisions of Sections 352 or 342 and 347 of the MMC Act, after
issuing show cause notice to the person. The Explanation to
Section 351 is relevant. It provides that the words, "to show
sufficient cause", used in this sub section would mean to prove
that the work mentioned in the said notice is carried out in
accordance with provisions of Section 337 or 342 and 347 of the
Act. Sub Section 2 of section 351 of the MMC Act, mandates that
if such person fails to show the sufficient cause in the context of
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the "Explanation", to the satisfaction of the Designated Officer,
then the Designated Officer may pass the order of removal of
demolition of such structure.
32] Therefore, in order to show, "sufficient cause" for proving
the legality of the suit structure to the satisfaction of the
Designated Officer, it was incumbent upon the appellants to
show that they had carried out the same in accordance with the
provisions of section 337 or 342 and 347 of the MMC Act.
Section 337 of the MMC Act, mandates that person who intends
to undertake the construction shall give notice to the
Commissioner of his intention to do so in the prescribed
proforma. In this context, as per Sub Section 2 thereof, the
words, "to erect a building" includes, to newly erect a building,
to reerect the building by demolishing the existing building
entirely, or to erect a building by removing the roof of the
existing ground floor structure and adding one or more upper
floors
33] Section 342 mandates that every person who intends to
make any addition, alteration or repair to the building, required
to give such notice to the Municipal Corporation, in the
prescribed proforma alongwith requisite details.
34] Section 347 of the MMC Act, then mandates that no person
shall commence to erect any building or to execute any such
work as is described in Section 342 of the MMC Act, unless he
has given notice of his intention to do so and unless he has
intimated the respondent Corporation the proposed date of
commencement of work.
35] In this case, therefore when appellants were called upon to
prove the legality and validity of the suit structure, it was
necessary for them to show that they had complied with the
provisions of section 337 or 342 and 347 of the MMC Act. The
appellants have not done so. Hence, it follows that they have not
shown sufficient cause to challenge the Notice issued under
Section 351 of the MMC Act.
45] Much hue and cry is made by learned counsel for appellants
about these two conflicting affidavits, filed by the Designated
Officer of Respondent, by giving emphasis on the earlier order
passed by the Municipal Commissioner, holding the structure to
be protected and legalized. In respect of changing of stands by
the Officer of the Municipal Corporation, in considered opinion
of this Court, it has to be held that respondent Corporation
cannot be precluded from changing it's stand when it's own
action was contrary to the provisions of the law. In this respect,
the following observations made by the Apex Court, in the case
of M.I. Builders Pvt. Ltd vs Radhey Shyam Sahu and others
[(1999) 6 SCC], 464, can be relevant:
"Action of the Mahapalika in agreeing to the
construction of underground shopping complex in
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contravention of the provisions of the Act and then entering
into an agreement with the builder against settled norms
was wholly illegal and has been held to be so by the High
Court. No doubt Mahapalika is a continuing body and it will
be estopped from changing its stand in the given case. But
when Mahapalika finds that its action was contrary to the
provisions of law by which it was constituted there could
certainly be no impediment in its way to change its stand.
There cannot be any estoppel operating against the
Mahapalika".
46] As rightly submitted by learned counsel for respondent
Corporation, merely because the Municipal Commissioner says
that the shed is regularized or it is in existence prior to 1962, is
not sufficient to prove that the construction of the shed is
regularized legally. A detail procedure for regularization of the
construction, carried without authority is laid down in Section
44 of the Maharashtra Regional and Town Planning Act and
Rule 10 of the the Maharashtra Development Plans Rules. Rule
10 reads thus :
"10. Permission to retain development of land carried out
without proper authority Any person aggrieved by the notice
served by the Planning Authority under subsection (1) of
Section 53 and desiring to apply for permission under Section
44 shall write to the Planning Authority giving full details of the
development carried out on the land, explaining the reasons for
carrying out such development unauthorizedly and applying for
permission for retention on the land of any building or works or
for the continuance of any use of the land, to which the notice
relates. Such person shall also submit to the Planning Authority
the relevant particulars and documents that would have been
required to be submitted under subrule (2) of Rule 6, had he
applied for permission under Section 44 before the development
was carried out".
52] Thus, the documents produced by the appellants themselves
go to show that this shed was not in the original plan, which
was sanctioned for construction of the building and
subsequently also, it was merely an "awning" or a temporary
weather shed; whereas now the structure which is standing at
the site is of ground plus first floor. Hence, it follows that such
construction of the suit shed is illegal and unauthorized as no
permission for the same is produced and nor it is regularized by
following due procedure, complying the statutory mandates.
53] In view thereof, no fault can be found in the impugned
order issued by the Respondent Municipal Corporation under
Section 351 of the MMC Act for demolition of such unauthorized
shed.
54] The trial Court, has therefore, rightly dismissed the Notice
of Motion. In the Appeal from such discretionary order, no
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interference is warranted.
5) In Seema Arshad Zaheer and others, Vs. Municipal
Corpn. Of Greater Mumbai and others, (2006) 5
Supreme Court Cases 282, The Hon'ble Supreme Court
held that,
“30. The discretion of the court is exercised to grant a temporary
injunction only when the following requirements are made out
by the plaintiff : (i) existence of a prima facie case as pleaded,
necessitating protection of plaintiff's rights by issue of a
temporary injunction; (ii) when the need for protection of
plaintiff's rights is compared with or weighed against the need
for protection of defendant's rights or likely infringement of
defendant's rights, the balance of convenience tilting in favour of
plaintiff; and (iii) clear possibility of irreparable injury being
caused to plaintiff if the temporary injunction is not granted. In
addition, temporary injunction being an equitable relief, the
discretion to grant such relief will be exercised only when the
plaintiff's conduct is free from blame and he approaches the
court with clean hands.
31. It is true that in cases relating to orders for demolition of
buildings, irreparable loss may occur if the structure is
demolished even before trial, and an opportunity to establish by
evidence that the structure was authorized and not illegal. In
such cases, where prima facie case is made out, the balance of
convenience automatically tilts in favour of plaintiff and a
temporary injunction will be issued to preserve status quo. But
where the plaintiffs do not make out a prima facie case for grant
of an injunction and the documents produced clearly show that
the structures are unauthorized, the court may not grant a
temporary injunction merely on the ground of sympathy or
hardship. To grant a temporary injunction, where the structure
is clearly unauthorized and the final order passed by the
Commissioner (of the Corporation) after considering the entire
material directing demolition, is not shown to suffer from any
infirmity, would be to encourage and perpetuate an illegality.
We may refer to the following observations of this Court in M.I.
Builders Pvt. Ltd. v. Radhey Shyam Sahu [1999 (6) SCC 464]
made in a different context :
"This Court in numerous decisions has held that no
consideration should be shown to the builder or any other
person where construction is unauthorized. This dicta is now
almost bordering the rule of law. Stress was laid by the
appellant and the prospective allottees of the shops to exercise
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judicial discretion in moulding the relief. Such a discretion
cannot be exercised which encourages illegality or perpetuates
an illegality. Unauthorised construction, if it is illegal and cannot
be compounded, has to be demolished. There is no way out.
Judicial discretion cannot be guided by expediency. Courts are
not free from statutory fetters. Justice is to be rendered in
accordance with law. Judges are not entitled to exercise
discretion wearing the robes of judicial discretion and pass
orders based solely on their personal predilections and peculiar
dispositions. Judicial discretion wherever it is requires to be
exercised has to be in accordance with law and set legal
principles."
32. Where the lower court acts arbitrarily, capriciously or
perversely in the exercise of its discretion, the appellate court
will interfere. Exercise of discretion by granting a temporary
injunction when there is 'no material', or refusing to grant a
temporary injunction by ignoring the relevant documents
produced, are instances of action which are termed as arbitrary,
capricious or perverse. When we refer to acting on 'no material'
(similar to 'no evidence'), we refer not only to cases where there
are total dearth of material, but also to cases where there is no
relevant material or where the material, taken as a whole, is not
reasonably capable of supporting the exercise of discretion. In
this case, there was 'no material' to make out a prima facie case
and therefore, the High Court in its appellate jurisdiction, was
justified in interfering in the matter and vacating the temporary
injunction granted by the trial court.”
6) In Smt. Sarojadevi Adharsh Vidyalay and Ors. Vs. The
Addl. Collector and Appellate Officer, Bandra, and Ors.,
Writ Petition (L) No.2583/2016, The Hon'ble High Court
held that,
“ This Writ Petition is filed by the petitioners claiming to be
running a school and which is a secondary school.
The structure in which the school is housed is
unauthorizedly occupied by the petitioners and is now part
and parcel of a redevelopment project. This structure will
have to be pulled down or demolished so that the site is
cleared for redevelopment of the property.
Admittedly today, the petitioners may be running an aided
school but the premises in which that is being conducted,
are not authorized nor the petitioners' occupation thereof
can be held to be such as would make them eligible for the
permanent alternate accommodation. The petitioners are
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seeking an order to prove their claim in that behalf before
the Competent Authority. We are not impressed in the
least by such belated request as enough time and
opportunity was granted for that purpose. It is only for
shifting of the students and to make arrangement so that
the school equipment, staff and teachers etc. can vacate,
that we grant time of 15 days from today to the petitioners
to vacate and hand over peaceful possession of the
premises in their possession to the Competent Authority. If
possession is not handed over within 15 days from today,
the authorities shall be empowered to evict the petitioners
forcibly and by seeking assistance from nearest police
station. We are sure that the police station will render the
assistance and also take steps to ensure that there is no law
and order problem.”
7) In Smt. Sarojinidevi Adharsh Vidyalay and Ors. Vs. Addl.
Collector and Appellate Authority and Ors., Notice of
Motion No.436 of 2016 in Writ Petition no. 2354 of
2016, The Hon'ble High Court held that,
“ This Notice of Motion was moved seeking extension of time
to vacate and hand over the premises, more particularly
described in prayer clause (a) of the Notice of Motion.
This application for extension of time for 15 days is on the
ground that 1200 students would suffer as their exams are
going on and no alternate arrangement for their studies is
made by the State.
We dismiss the application for extension of time but direct that
let the Education Inspector visit the school premises on
21/10/2016 and take custody of all the original records,
papers and documents in relation to the students who have
been admitted and enrolled at the said school. It is only after
the custody of the records and documents is taken that
premises would be demolished. We would take action against
the educational officials in the event our orders are not
complied with. It is now for the Education Department and
after taking custody of the record to arrange for admission in
the nearby schools so that the parents and children asre not
inconvenienced.”
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20. Reverting to the factual score of the present case the structure is
unauthorized. Sufficient opportunity was given to the plaintiff before
passing speaking order. Therefore, considering the provision of MMC
Act and ratios laid down by Hon'ble Supreme Court and Hon'ble High
Court, I find that plaintiff has no primafacie case, balance of
convenience does not lie in favour of plaintiff and if the injunction is
granted then irreparable loss will be caused to the defendants.
Therefore, I answer points accordingly and pass the following order.
ORDER
1. Notice of Motion No.1206/2018 is dismissed.
2. Costs in cause.
(G.B.Gurao)
Judge,
City Civil & Sessions Court,
Date : 25/04/2021. Mumbai.
Dictated on : 25/04/2021.
Transcribed on : 26/04/2021.
Signed on : 27/04/2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
27.04.2022. Mrs. S.S.Sawant
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room
No.)
HHJ SHRI.G.B.Gurao,(C.R.No.17)
Addl. Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 25.04.2022.
Order signed by P.O. on 27.04.2022,
order uploaded on 27.04.2022.
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