Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No. 1259/2018 in Suit no. 655-2018
CNR MHCC010040052018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION No. 1259 of 2018
IN
L.C. SUIT NO. 655 OF 2018
Hasmukhray Harilal Vora ]...Plaintiff
Versus
Municipal Corporation of
Greater Mumbai. ]... Defendant
Coram : M. S. Deshpande, Judge
(Court Room no. 05)
Date : 31st March, 2018.
Mr. Y.K. Tiwari with Sahim D. Ansari, advocate for plaintiff.
Mrs. Chandramore, advocate for defendant.
ORDER
1. The plaintiff has taken out this notice of motion seeking
interim protection to the suit premises, viz. ground plus two upper
floors located at gala no. 22 E, 221, Ansari Estate, Ansari compound,
M. S. Ali Road, Grant Road (East), Mumbai from demolition in
furtherance of notice issued under section 351 of MMC Act and order
passed consequently.
2. The facts, in nut shell, are that the plaintiff claims to be
tenant in respect of premises consisting of ground floor plus two upper
floors admeasuring about 39 ft. X 11 ft. having 35 ft. height. According
to plaintiff he runs a factory unit in the suit premises since beginning for
about 60 years.
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2 Notice of Motion No. 1259/2018 in Suit no. 655-2018
3. However, the defendant corporation issued a notice dtd.
05.01.2018, under section 351 of MMC Act contending that the plaintiff
has carried out unauthorised vertical extension of height by
constructing three upper floors above existing shop by using M.S.
angles/sections, G.I. Sheets and wooden ply (as flooring), G.I. sheet
roof top and constructing M. S. stair case for access to unauthorised
upper floors as shown in the sketch.
4. According to plaintiff, he has replied the notice on
12.01.2018. However, the defendant without giving opportunity of
hearing and considering the documents passed order dtd. 22.02.2018,
directing the plaintiff to remove the notice work and restore to its
original position within seven days.
5. The defendant has opposed the motion by contending that
it received a complaint from a journalist and consequently, on
04.01.2018, the officers of the defendant inspected the suit premises,
took photographs and found that the plaintiff had carried out
unauthorized construction. The plaintiff did not show documents
relating to authorization the construction so raised. Therefore, the
notice was issued on 05.01.2018 directing the plaintiff to show cause.
The plaintiff replied the same and produced various documents.
Considering the same a reasoned order was passed on 22.02.2018.
According to defendant, as the plaintiff failed to show authorization of
the suit premises/notice structure, the notice of motion is liable to be
dismissed. The plaintiff by filing an affidavit in rejoinder has denied all
the contentions raised by the defendant.
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3 Notice of Motion No. 1259/2018 in Suit no. 655-2018
6. Considering the submissions made by respective advocates
and the copies of documents placed on record the following points are
decided for the reasons stated below :
SR.
NO.
POINTS FINDINGS
1. Whether the plaintiff has made out a prima
facie case ?
In the negative
2. Whether the points of balance of convenience,
irreparable loss and hardship lie in favour of
the plaintiff ?
In the negative
3. Whether the plaintiff is entitled to an interim
relief of injunction as prayed for ?
In the negative
REASONS
12. It is necessary to look into the documents placed on record.
The copies of rent receipts dated 01.10.1961 and 01.01.1979 show that
they are issued only in respect of ground floor premises. They do not
show that the tenancy was created in respect of ground as well as upper
floors. The plaintiff has also filed various documents relating to M/s.
Dilip Tin Factory, a metal cutting unit, which are not relevant to the
matter in dispute. However, these documents nowhere indicate that the
said shops consist ground plus upper floors.
13. Copies of inspection reports for the year 1994, 1998 show
that the plaintiff was found using excess area of wooden loft for storage
of goods and he was directed that the wooden loft should not be used
as work place or for storage of flammable goods. However, a loft
cannot be equated with the upper floors. Thus, there is nothing on
record to show prima facie that the said shops were consisting of upper
floors at any time and were assessed for municipal taxes.
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4 Notice of Motion No. 1259/2018 in Suit no. 655-2018
14. The notice dated 05.01.2018 issued under section 351 of
MMC Act shows the alleged work as under :
"unauthorised vertical extension of height by constructing three upper
floors above existing shop by using M.S. angles/sections, G.I. Sheets
and wooden ply (as flooring), G.I. sheet roof top and constructing M. S.
stair case for access to unauthorised upper floors as shown in the sketch
annexed to the notice".
15. The plaintiff by filing reply dated 12.01.2018 has denied of
carrying out such unauthorised structure. According to him the notice
structure is very old. More than 60 years no action has been initiated.
The order dated 22.02.2018, shows that the concerned designated
officer has considered all the documents filed by the plaintiff and come
to a conclusion that none of the documents show authorization of the
notice structure or even that it is tolerated one. The said order has been
passed after a period of more than one month after filing reply dated
12.01.2018. The Learned Advocate for plaintiff submitted that personal
hearing was not given to the plaintiff. However, in view of ratio laid
down in the case of Sopan Maruti Thopte, such personal hearing is not
at all compulsory but allowing it is at the discretion of the concerned
authority. Thus, it appears that the designated officer has given
sufficient opportunity to the plaintiff to file reply and documents. The
plaintiff has not clarified prima facie as to which documents he could
not file before the designated officer for want of sufficient time. The
order shows that in all 37 documents were placed before the designated
officer and all were considered by him.
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5 Notice of Motion No. 1259/2018 in Suit no. 655-2018
16. Under such circumstances, there is no document to show
the existence of upper floors prior to the date of notice or datum line.
There are no document to show the legality/authorization of the
construction. The photographs on record show that commercial activity
is being carried on at the upper floors. Prima facie the construction
appears to have been raised by using the material mentioned in the
notice. The plaintiff has not produced the plan/ permission/ approval
regarding the construction of suit premises.
17. Under such circumstances intervention of this Court is not
warranted. The plaintiff has failed to make out prima facie case. The
points of balance of convenience, hardship and irreparable loss do not
lie in favour of the plaintiff. Therefore the plaintiff is not entitled to
interim reliefs as prayed for. Therefore the point nos. 1 to 3 are
answered accordingly in the negative.
18. At this juncture the Ld. Advocate for plaintiff prays for stay
to this order or continuation of earlier order for protection of the suit
premises. The Ld. Advocate for defendant is not present when called
out. The present order being rejection of interim relief, would not itself
be executable and in strict sense it cannot be stayed. However as held
in the case of Kranti Mohan vs. Fatehchand, reported in A.I.R. 1982
Bombay 263, " a laudable principle is implicit in the system to give a fair
deal to each litigants, who is aggrieved by order of court and has
legitimate right to move the higher court to ask for redress, and therefore
a reasonable opportunity should normally be given, provided that the
prayer on the face of it does not appear vexatious or frivolous. The
principle is essential so as to instil a sense of confidence in the system of
administration of justice". The plaintiff has prayed for continuing the
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6 Notice of Motion No. 1259/2018 in Suit no. 655-2018
earlier order of statusquo for the period of eight weeks. However, such
blanket extension cannot be granted. In the interest of Justice the
earlier order of statusquo can be extended till 16.04.2018, so as to
facilitate the plaintiff to approach the Hon'ble High Court. Thus, the
following order is passed :
ORDER
1. The Notice of Motion No. 1259 of 2018 is dismissed.
2. Parties to bear their respective costs.
3. The earlier order of statusquo is extended till 16.04.2018 with a
direction that it will not be extended on any count.
Sd/
(M.S. Deshpande)
Ad Hoc Judge,
City Civil Court, Mumbai.
Directly typed on : 31/03/2018.
Signed by HHJ on : 04/04/2018.
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7 Notice of Motion No. 1259/2018 in Suit no. 655-2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.04.2018 At 12.30 p.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
31.03.2018
JUDGMENT/ORDER signed by
P.O. on
04.04.2018
JUDGMENT/ORDER uploaded
on
05.04.2018
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