Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 1274-18 in L.C.SUIT no.867-18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 1274 OF 2018
(CNR no. MHCC010040532018)
IN
LONG CAUSE SUIT NO. 867 OF 2018
(CNR no. MHCC010038222018)
Mr. Altaf Haji Sayyed ]
Altaf Pan Bidi Shop, Opp. R. K. Studio ]
CTS no. 667, Sion Trombay Road ]
Chembur (East), Mumbai 400071. ]....Plaintiff
V/s
The Municipal Corporation of ]
Gr. Mumbai, having their Head office at ]
Mahapalika Bhavan, Mahapalika Marg ]
Fort, Mumbai400 001. ]....Defendant
Appearances:
Ld. Advocate Mr. Pratap Singh for the Plaintiff.
Ld. Advocate Mrs. Bhoir h/f Adv. Mrs. Vyavhare for defendant/BMC.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 5th July, 2019
O R A L O R D E R
1. This is an application by Notice of Motion under O.XXXIX R.1 of
The Code of Civil Procedure, 1908.
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2 NM no. 1274-18 in L.C.SUIT no.867-18
2. The plaintiff's case in nutshell is as under:
The plaintiff is in peaceful possession of a structure admeasuring
200 sq.ft. made up of brick masonry walls and cement sheet roof at Opp
R. K. Studio, CTS no. 667, Sion Trombay Road, Chembur (East),
Mumbai400 071. (hereinafter referred to as "suit premises" for brevity).
Mr. Hansraj Pawa was the lessee of the suit premises and the
plaintiff was tenant of the former. Subsequently, said Mr. Hansraj Pawa
transferred his rights in favour of Mr. Gulu Dharmani and therefore, the
plaintiff started paying rent to Mr. Gulu Dharmani, being new owner of
the suit premises. The suit premises is in existence much prior to 1961
62. It is assessed by defendant MCGM for taxes. The plaintiff has
obtained License under Maharashtra Shops And Establishments Act,
1948. Electricity and telephone connection are given to the suit
premises. The suit premises is also shown in the City Survey Plan.
Despite that defendant MCGM has issued notice no.
MW/DOM1MW/153/55MRTPACT/MW49N01/10012018 under
Section 55 of the Maharashtra Regional and Town Planning Act,1966
(hereinafter referred to as "MRTP Act") at the behest of Mr. Gulu
Dharmani. The plaintiff filed his reply dated 17.01.2018 to the said
notice. Ignoring the said reply designated officer of MCGM has passed
cryptic order without application of mind having no.
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3 NM no. 1274-18 in L.C.SUIT no.867-18
MW/DO1MW/153/55MRTP ACT/MW49N01/10012018 dated
09.03.2018. The suit premises is an old and tolerated structure, being in
existence prior to datum line, therefore, temporary injunction be
granted restraining the defendant MCGM from enforcing the notice
dated 10.01.2018 and speaking order dated 09.03.2018 till final
disposal of the suit.
3. The defendant MCGM has filed reply contending as under:
The contentions made in the plaint and notice of motion are
totally false. Description of the suit premises is not given properly. The
plaintiff failed to produce any document showing that the suit premises
is erected with previous permission of defendant MCGM as required
under Section 342 and 347 of the MMC Act. The Designated officer has
passed speaking order after considering documentary evidence filed by
the plaintiff. The defendant MCGM has followed due process of law and
therefore, the notice of motion be dismissed.
4. Considering rival contentions, following points arise for my
determination. Findings on those points for the reasons mentioned
thereunder are as follows:
Sr.No. POINTS FINDINGS
1. Whether plaintiff proves that the suit
premises is a tolerated structure?
In the negative.
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4 NM no. 1274-18 in L.C.SUIT no.867-18
Sr.No. POINTS FINDINGS
2. Whether plaintiff has made out 3
ingredients required for grant of
temporary injunction ?
In the negative.
3. What order ? Notice of motion is
dismissed.
R E A S O N S
AS TO POINTS NOS. 1 & 2:
5. The plaintiff is challenging notice and proceedings under Section
351 of the MMC Act. Such notice is issued and proceedings is taken out
in respect of building contrary to Section 347 of the MMC Act which
requires commencement of building with prior permission of defendant
MCGM. It is true that as per the policy of defendant MCGM the
commercial structure prior to 01.04.1962 and residential premises prior
to 17.04.1962 are tolerated structures. In that background, the plaintiff
has to prove that either the structure is tolerated or erected with prior
permission of defendant MCGM. In this matter, the contention of the
plaintiff is that the suit premises is in existence prior to 01.04.1962 but
he has not produced any documentary evidence showing its existence
prior to the year 196162. The documents in the form of electricity bills,
telephone bills, rent receipts, intimation of conveyance, deed of
conveyance, letters of revenue officers are showing long occupation of
the plaintiff. But none of these documents support his case that the suit
premises is in existence prior to 1962. The plaintiff has relied up on one
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5 NM no. 1274-18 in L.C.SUIT no.867-18
letter issued by Tahasildar, attachment and encroachment, dated
06.02.1962 in the name of the plaintiff. However, there are no
documents in support of the case that tenancy of the plaintiff
commenced prior to 1962. The plaintiff has not filed affidavit of Mr.
Hansraj Pawa who is alleged to be lessee of the suit premises to show
that the latter was in possession thereof since prior 1962. Therefore, it
is not safe to rely upon the letter dated 06.02.1962, genuineness of
which is also under question. For the reasons given above plaintiff has
failed to prove that the suit premises is erected with permission of
defendant MCGM or it is tolerated structure.
6. The documentary evidence filed by the defendant MCGM shows
that before initiating proceedings under Section 351 of MMC Act, the
officers of the defendant MCGM visited the suit premises, carried out
inspection, prepared inspection report and thereafter, the proceedings
was initiated. Moreover, an opportunity is given to the plaintiff to file
his reply and the same is considered in the speaking order dated
09.03.2018. After careful reading of the said speaking order, the
designated officer has assigned the reasons for rejecting each and every
document filed by the plaintiff. From this, it is clear that the defendant
MCGM has followed due process of law.
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6 NM no. 1274-18 in L.C.SUIT no.867-18
7. The learned advocate for the plaintiff has pointed out that in view
of judgment of the Hon'ble High Court of Bombay in the case of
Sopan Maruti Thopte and another vs. Pune Municipal Corporation
and another reported in [1996(1) Mh.L.J. 963] the defendant MCGM
should had given 15 days notice and in this matter the notice is given
for 7 days only. However, the record clearly shows that the designated
officer passed order after around 2 months from the issuance of notice
and that too, after considering the reply of the plaintiff. Therefore, the
notice is not vitiated for the reason that it gave 7 days period to file
reply. In the case of Jaiprakash Vishwanath Jaiswal & ors. vs.
Municipal Corporation of cities of & ors. reported in [2018(5) Bom.
C.R. 431] the action of the defendant MCGM contrary to order of
Division Bench of Honourable Bombay High Court has been held illegal
as Shop of petitioner therein was demolished on the ground that he did
not remove his illegal construction within 24 hours after receipt of
notice of demolition and order in question was never served upon
petitioner therein. In that backdrop, action of the defendant MCGM was
declared illegal. In this matter, as discussed earlier, the defendant has
followed due process of law and therefore, the plaintiff has failed to
establish 3 ingredients required for grant of temporary injunction. As
such, points no. 1 and 2 are answered in the negative and the following
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7 NM no. 1274-18 in L.C.SUIT no.867-18
order is passed:
ORDER
1. Notice of Motion No. 1274 of 2018 is dismissed.
2. Costs in cause.
sd/
(C. V. Marathe)
Judge,
Date : 05.07.2019 City Civil Court, Gr. Mumbai.
Dictated on : 05.07.2019
Transcribed on : 05.07.2019
Signed by HHJ on : 08.07.2019
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8 NM no. 1274-18 in L.C.SUIT no.867-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 10.07.2019 at 5.30 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
05/07/2019
JUDGMENT/ORDER signed by
P.O. on
08/07/2019
JUDGMENT/ORDER uploaded
on
10/07/2019
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