Final Order 1

Order Details: Other
Pdf Text: NM No.1318/2020 ..1.. L.C. Suit (St.No.) No.4240/2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1318 OF 2020
(CNR NO. : MHCC010040142020)
IN
L.C. SUIT (ST) NO. 4240 OF 2020
Shri. Dinesh Gopinath Dubey )
Age : 44 years, OccBusiness )
Indian Inhabitant of Mumbai )
Carrying on the business of Panpatti, )
Pan Shop No. 5A, Biradar Manzil, )
Gandhi Chowk, Morbaug Road, Naigaon, )
Dadar, Mumbai – 400 014. )....Plaintiff
Versus
Municipal Corporation of Greater Mumbai )
A body incorporated under the provisions )
of MMC Act, 1888, Mahapalika Bhavan, )
Mahapalika Marg, Mumbai – 400 001. )
Through Assistant Engineer )
(Designated Officer E.E & D.O.(B&F) F/S )
F/S Ward Office Building )
Jagganath Bhatankar Marg & Dr. B.A. Road )
Junction, Parel Naka, Mumbai400 012 )....Defendants
APPEARANCE:
Ld. Adv. Anil Mishra for plaintiff.
Ld. Adv. Meena Dhuri for defendant/MCGM.
CORAM : HIS HONOUR ADHOC JUDGE
DEEPAK D. ALMALE (C.R. NO.06)
DATED : 18th AUGUST, 2021.
ORDER
Read the Notice of Motion and reply. Perused the
documents produces on record by the parties.
2. By this Notice of Motion plaintiff has sought relief of
temporary injunction restraining defendant its servants, agents, persons
-- 1 of 8 --
NM No.1318/2020 ..2.. L.C. Suit (St.No.) No.4240/2020
claiming through it for enforcing and/or acting upon the notice bearing
no. FS/DO1FS/200/351 MMC Act/FS19/NO1/01072020 dated
02/07/2020 bearing reference no. 109325 issued U/s. 351 of MMC Act
and Impugned Order bearing Complaint No. : FS/200/01072020/19
Notice No. 02/07/2020 bearing reference no. 109325 dated
31/07/2020 passed by the Designated officerE.E and D.O. (B&F),
F/South Ward of the defendant, in respect of premises admeasuring
1.22 Mtr. x 0.61 Mtr. X 0.90 Mtr. height bearing shop no. 5A part of
shop no. 5, Plot No. 165, Brader Manzil, S.S. Wagh Marg, Mahatma
Jyotiba Phule Junction, Dadar Naigaon Estate Scheme No. 60, Dadar
(W), Mumbai 400014, hereinafter record as suit property.
3. Notice of Motion is strongly resisted by the
defendant/BMC by filing affidavit in reply cum written statement and
prayed for rejection of Notice of Motion.
4. Considering the rival contention of the parties, following
points are arise for my determination and I have recorded my finding
thereon with reason as under
S.N. POINTS FINDINGS
1 Whether plaintiff proves that prima facie case
lies in his favour ? Negative
2 Whether plaintiff proves that balance of
convenience lies in his favour ? Negative
3 Whether plaintiff proves that irreparable loss
will be caused to him, if the application is not
allowed ?
Negative
4 What order ? As per final
order.
-- 2 of 8 --
NM No.1318/2020 ..3.. L.C. Suit (St.No.) No.4240/2020
R E A S O N S
AS TO POINTS NO.1 TO 3
5. I have heard arguments advanced on behalf of both parties
at length. The learned advocate of plaintiff submits that he is
possession of suit property since long and running pan shop therein.
He also submits that suit property is very old and plaintiffs father
Gopinath Dube was original tenant and running hotel. Later on started
pan shop in the suit property. Defendant/MCGM also issued license
under Shop and Establishment Act in year 1960 and Renewed the same
time to time. Plaintiff also obtained electricity connection in the shop
no. 5A. The learned advocate of plaintiff also submits that impugned
notice dated 02/07/2020 issued by the defendant/MCGM u/s. 351 of
MMC Act and order passed by the Designated Officer of
Defendant/MCGM is illegal, void and not binding upon the plaintiff.
Learned advocate for the plaintiff submits that, there is a primafacie
case coupled with balance of convenience so plaintiff will suffer
irreparable injury if injunction is refused.
6. In support of contention the learned advocate of plaintiff
has relied upon relief Shri Dashrath Sahadeo Khade v/s The
Municipal Corporation of Greater Mumbai and others. All MR 2004
(4) 688, Masood ahmed Siddiqui V/s. Mumbai Municipal
Corporation and others Appeal for Order No. 57 of 2013 dated
23/01/2013 and Vijay Bhau Chalke V/s. The Municipal Corporation
of Greater Mumbai and others Civil Application (St.) No. 24564 of
2015 in Appeal From Order (St.) No. 24562 of 2015.
-- 3 of 8 --
NM No.1318/2020 ..4.. L.C. Suit (St.No.) No.4240/2020
7. Per contra, the learned advocate of Defendant/MCGM
Mumbai that the already notice came to be issued by the
defendant/MCGM to the owner of suit property and Demand Note for
Breaches dated 02/04/2019 also communicated to the said owner
Abhul Shamim Khatri. She also submits that in compliance of order
passed by the Hon'ble High Court in Writ Petition No. 402 of 2020
dated 02/03/2020, impugned notice came to be issued by the
defendant/BMC to the plaintiff therefore same is legal and proper. She
also submits that noting on record to show that suit property is an
authorized structure. She also submits that no primafacie case is made
out by the plaintiff therefore, Notice of Motion is liable to be dismissed.
8. In support of contention she has relied upon Tushal Guru
Salien V/s. State of Maharashtra and Others, Public Interest to
Litigation no. 67 of 207 wherein Their Lordship have observed that,
“a suit to enforce or protect an interest in the property which is governed
by Municipal Statue, the interest protected has to be with respect to the
plea that primafacie, the structure which is being targeted is an
authorized structure. Meaning thereby, the plaint must make an averment
of the sanction obtained by the corporation and must make an averment
that the structure targeted is primafacie governed by the sanction.
Merely pointing out deficiencies in the notice or the authority of the
person issuing the notice is neither here nor there.”
9. I have considered submission made on behalf of both the
parties and gone through the relevant documents produced on record.
10. Before going to discuss merits of the case, it would be
appropriate to narrate certain history of the matter. Admittedly,
-- 4 of 8 --
NM No.1318/2020 ..5.. L.C. Suit (St.No.) No.4240/2020
Defendant/ MCGM on dated 02/04/2019 has issued Demand Note of
Breaches to the Abdul Shamim Khatri, the owner of the Plot no. 165 i.e.
C.S. NO. 48/62 , Dadar, Naigaon. Thereafter, the said owner Abdul
Khatri filed Writ Petition No. 402/2020 before Hon'ble High Court
against the defendant MCGM for seeking direction for taking action in
accordance with said notice of Breaches dated 02/04/2019. Their
Lordship have disposed of the said Writ Petition by order dated
02/03/2020 with observation that, the Corporation is therefore
directed to forthwith take action pursuant to its notice, in accordance
with law and to also consider complaints filed by the petitioner and if
any prima facie case is made out, initiate action within period of two
weeks by following due process of law.
11. Pursuant to the said order the Defendant/MCGM caused
inspection of suit property and prepared First Inspection Report.
Thereafter, Defendant/MCGM issued show cause notice dated
02/07/2020 to the present Plaintiff in view of section 351 of MMC Act.
Upon considering the reply filed by the present plaintiff, the
Defendant/MCGM on dated 31/07/2020 passed speaking order for
removal/demolition of suit structure/Pan shop admeasuring 1.22 meter
X 0.61 meter X 0.90 meter hight. Thereafter, Plaintiff has challanged
said notice dated 02/07/2020 and order 30/07/2020 the filing present
suit.
12. Reverting back to the main controversy defendant parties ,
I have considered the documents produced by the plaintiff. On
considering the receipt of LIC Exh. C Shop Act License dated
06/09/1963 and 01/12/1964 Exh.C and Exh. D respectively it appears
that, there is a existence of Panpatti (Pan shop) which was run by the
-- 5 of 8 --
NM No.1318/2020 ..6.. L.C. Suit (St.No.) No.4240/2020
father of the plaintiff. So also, further documents Electricity receipt
(Exh. H and I) registration certificate issued by Food and Drug
Administration (Exh. J) also shows existence of Pan shop. All the
documents were duly considered by the designated officer of
Defendant/MCGM. Before passing speaking order dated 31/07/2020.
According the said designated officer these documents does not prove
authenticity of suit structure. Accordingly the said designated officer
passed speaking order to demolish suits structure.
13. On considering all the documents it appears that the
aforesaid documents relied upon the Plaintiff shows existence of Pan
shop but the said pan shop is named as shop no. 5 and not shop no. 5 –
A which is subject matter of the present suit. On reading of plaint it
clearly appears that the suit structure i.e. pan shop bears shop no. 5 A.
Primafacie nothing is on record to show that the said suit structure pan
shop no. 5A is authorized structure raised with prior permission of
Defendant/MCGM. The speaking order passed on dated 31/07/2020 is
also pertains shop no.5. So in such situation I find that primafacie
nothing is on record to show that the suit structure is authorized
structure. Therefore, the ratio laid down by Hon'ble High Court in the
ruling of Tushar Salian cited supra can be made applicable.
14. So far ruling relied upon Defendant/MCGM, in case of Mr.
Vijay Chalke cited supra in that case suit structure was in existence
prior to 1968. However, in the case at hand Leave and License executed
in favour of plaintiff is of year 2006. So with due respect the ratio laid
down in the said only cannot be made applicable to the case at hand.
-- 6 of 8 --
NM No.1318/2020 ..7.. L.C. Suit (St.No.) No.4240/2020
15. In case of Shri. Darshan Khade cited supra, in that matter
shop/stall was in existence prior to 19611962. In the case at hand
nothing on record to show that suit property shop no. 5A was in
existence prior to 1962. Therefore, the ratio laid down in the aforesaid
ruling cannot be made applicable.
16. In case of Mansood Ahmed Siddiqui cited supra suit
structure was in existence at least from 1983. In the case at hand
nothing on record to show that suit shop no. 5A was in existence prior
to 1962. Hence, the ratio laid down in aforesaid relief cannot be made
applicable.
17. Thus, considering the aforesaid reasons and discussions I
find that, plaintiff has failed to show primafacie case and balance of
convenience in his favour. Taking to account all the facts, no
irreparable injury could caused to the plaintiff if injunction is refused.
Therefore, I answer my negative finding on point no. 1 to 3 and
proceed to pass following order in reply to point no. 4.
ORDER
1. Notice of Motion no. 1318 of 2020 is hereby dismissed.
2.Notice of Motion no. 1318 of 2020 is hereby disposed of.
(Deepak D. Almale)
Adhoc Judge, (C.R.No.06)
Date : 18.08.2021 City Civil Court, Gr. Bombay
Directly Dictated on Com : 18.08.2021
Checked on : 18.08.2021
Signed on : 18.08.2021
-- 7 of 8 --
NM No.1318/2020 ..8.. L.C. Suit (St.No.) No.4240/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 18.08.2021, 5.30 pm.
NAME OF STENOGRAPHER : Mrs. S.R.Mejari
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
18.08.2021
JUDGMENT/ORDER signed by
P.O. on
18.08.2021
JUDGMENT/ORDER uploaded on 18.08.2021
-- 8 of 8 --