Order 1

Order Details: Notice of Motion
Pdf Text: 1 Draft Notice of Motion in Suit no. 871-2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO. 871 OF 2018
Bikram Mohansingh Butola ]...Plaintiff
Versus
1. Municipal Corporation of
Greater Mumbai and Anr. ]... Defendants
Coram : M. S. Deshpande, Judge
(Court Room no. 05)
Date : 31st March, 2018.
Mr. R.D. Thorat, advocate for plaintiff.
Mrs. Chandramore, advocate for defendants.
ORDER
1. The plaintiff has taken out this notice of motion seeking
interim relief for restraining the defendants from demolishing
mezzanine floor (for short, the suit premises) situated at shop nos. 10
and 10 A (for short, the said shops ) located on ground floor of Vijay
Chambers, Grant Road (East), Mumbai, without following due process
of law.
2. The facts, in brief, are that the plaintiff runs business of
hotel, viz. Shine Punjab hotel at the said shops. The original owner of
the said shops and the hotel business, Mr. Mansinghani was doing the
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said business since 1978. He sold the said shops and business to
plaintiff on 20.07.2011.
3. Earlier on 12.12.1979, the defendant issued a notice to the
effect that the suit premises are unauthorised. Mr. Mansinghani applied
for regularisation and paid requisite fees by January 1980. The
defendant regularized the construction of suit premises. Further the
suit premises were included in the area of hotel under eating house
license in or about 1994.
4. Prior to 20.07.2011, Mr. Mansinghani handed over
possession of the said shop to the plaintiff. On 07.07.2011, the plaintiff
applied for permission to carry out tenantable repairs to flooring,
plastering, reconditioning walls of W.C. etc. However, the defendant
did not respond. The Vijay Chamber Co. Op. Housing Society, where
the said shops are located consented for such repairs. Accordingly, the
plaintiff started repairing the said shops.
5. However, on 15.09.2011, the defendant issued a notice
under section 354 A of the Mumbai Municipal Corporation Act (for
short, “MMC Act”), contending that the plaintiff was carrying on illegal
construction of mezzanine floor with I section, ladi coba slab without
seeking approval from the defendant. The plaintiff replied the notice on
16.09.2011, submitting that the suit premises were in existence since
1974 and that the plaintiff has not made any changes. Thereafter,
plaintiff again filed detailed reply on 23.09.2011 and 10.10.2011 and
prayed for personal hearing. However, it was not given. According to
plaintiff even final order was also not passed by the defendant.
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6. Consequently, the plaintiff instituted L. C. Suit No. 2276 of
2011, seeking declaration that the aforesaid notice is bad in law. An
order of statusquo was granted earlier, and thereafter on 12.09.2014,
interim injunction was granted restraining the defendant from
demolishing the suit premises. However on 16.01.2016, the said suit
was came to be dismissed for default. According to plaintiff the
defendant did not initiate further action.
7. However, Mr. Mohammed Rafiq Bagwan, a customer
claiming himself to be a social activist, started harassing the plaintiff for
free hoteling services and on refusal, on 01.02.2018 filed a complaint
with defendant pertaining to the suit premises and plywood cabin.
According to plaintiff he has removed the plywood cabin. However, on
23.03.2018, a Junior Engineer of the defendant with staff members, at
the instance of Mr. Bagwan came to the said shops and threatened to
demolish the suit premises. According to plaintiff the defendant has no
authority to initiate such action without following due process of law
and passing necessary order.
8. The defendant filed a reply and opposed the notice of
motion by contending that on 15.09.2011, stop work notice under
section 354 A of the MMC Act was issued. The plaintiff instituted a suit.
However the same was dismissed. According to defendant, it has partly
demolished the notice structure on 18.02.2016. At that time the
plaintiff issued a letter to the defendant by submitting that there were
electricity wires below the suit premises and if the suit premises were
demolished, there was possibility of short circuit. Further the plaintiff
showed his willingness to demolish the remaining suit premises on his
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own accord within a period of two days. Therefore, the defendant did
not take further action. However the plaintiff failed to demolish the
same, and therefore on 23.03.2018 the defendant again partly
demolished the suit premises. According to defendant nothing survives
in the suit as the structure is demolished by following due process of
law. It is also contended that the present suit is barred by principle of
res judicata.
9. Both, the Ld. Advocates representing the respective parties
have made submissions in consonance with the contentions raised by
the respective parties. The Ld. Advocate for plaintiff submits that the
defendant has not followed the mandate given in the case of Sopan
Maruti Thopte. He has further relied on the ratio laid down by the
Hon'ble High Court of Bombay in the case of Sub Vijay International
Pvt. Ltd. vs. Commissioner and Anr. reported in 2007 (3) Bom. C. R.
337 to the effect that the Commissioner could demolish the structure
only after giving short notice of 24 hours and after drawing
punchanama at the site and taking photographs of the structure.
10. On the other hand the Ld. Advocate for defendant has
submitted that the defendant has followed the due process of law.
According to her the present suit itself is not tenanble and therefore no
relief can be granted under notice of motion.
11. 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 :
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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 are lie in favour
of the plaintiff ?
In the negative
3. Whether the plaintiff is entitled to the ad
interim relief of injunction as prayed for ?
In the negative
REASONS
12. It is undisputed that the L.C. Suit No. 2276 of 2011, which
was filed by the plaintiff on service of notice dated 15.09.2011 issued
under section 354 A of the MMC Act, has been dismissed for default. It
is also undisputed that the plaintiff has not taken any steps for the
restoration of the said suit. Therefore, all the interim orders passed in
the said suit are not in existence.
13. It is also prima facie undisputed that on the application of
the original owner Mr. B. P. Mansinghani, the defendant corporation by
accepting fees, regularised the structure of unauthorised wooden
mezzanine floor located in the said shops. Copy of letter dated
19.12.1979, issued by the defendant to Mr. Mansinghani prima facie
shows that the structure of mezzanine floor was made of wooden
material.
14. The copy of notice dated 15.09.2011, prima facie shows
that the following work was in progress at the relevant time :
"Construction of mezzanine floor with Isection ladi coba slab without
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approval from MCGM". It is supported by the copies of photographs
placed on record by the defendant.
15. The copies of replies dated 16.09.2011 and 23.09.2011
show that the plaintiff had contended that he had never carried out any
alterations to the mezzanine floor and it remained the same from the
day it was built at the time when the building was constructed.
However, the plaintiff has not filed photographs to show that the
structure of mezzanine floor is still made of wooden material.
16. The copy of letter dated 10.10.2011 issued by the
defendant to the plaintiff prima facie shows that the plaintiff was again
directed to stop the work at the site immediately. The copy of letter
dated 10.10.2011 issued by advocate for the plaintiff to the defendant
shows that it was informed that the plaintiff stopped the work since
15.09.2011.
17. Thus, it appears prima facie from the aforesaid
correspondence that the work which was in progress at the said shops
was stopped by the plaintiff. It also appears that the construction of the
suit premises were originally made in wooden material and it is alleged
that subsequently it is being carried on by using Isection and other
material.
18. In the case of Sub Vijay International Pvt. Ltd. (Supra) it
was held that even after the substitution to sub section (2) of section
354 A of MMC Act and introduction of sub sections (3) and (4), the
guidelines given in the case of Sopan Maruti Thopte are well applicable.
The paragraph no. 19 (iii) in the case of Sopan Maruti Thopte vs.
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Pune Municipal Corporation reported in A.I.R. 1996 Bombay 304,
would be applicable to the present set of facts, which can be read as
follows :
" 19 (iii) In case the staff of the corporation detects the building which is
in the process of being constructed and/or reconstructed and/or extended
without valid permission from the Corporation, it would be open to the
Commissioner to demolish the same by giving a short notice of 24 hours
after drawing a panchanama at the site and also by taking photographs of
such structure and/or extension. The photographs should indicate the
date when the same were taken".
19. It appears from the aforesaid directions that the purpose
behind the same would be to ensure that the action taken should only
be in respect of the work in progress and not in respect of the work
already completed for which the notice under section 351 of MMC Act
is required to be issued.
20. The documents on record prima facie show that the
construction of the mezzanine floor suit premises was originally of
wooden material. It was necessary on the part of the plaintiff to show
prima facie, his bonafides by filing photographs to show the suit
premises are still made of wooden material and not of the material as
alleged in the notice. The plaintiff has not placed anything on record to
show prima facie that how it became the work made in Isection and
ladi coba etc. The plaintiff has also not produced any plan or
permission or approval on record to show prima facie that the work of
construction of the suit premises was authorised.
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21. By letter dated 18.02.2016, prima facie the plaintiff himself
has admitted that the work of mezzanine floorsuit premises was illegal
and unauthorised. The plaintiff has not stated anything in the suit
about the letter dated 18.02.2016. The said letter prima facie shows
that the plaintiff sought time from the defendant corporation for
demolition of the remaining suit premises within a period of two days.
It prima facie appears that the plaintiff has suppressed the said fact.
The defendant corporation has placed on record the copy of demolition
report dtd. 23.03.2018 and photographs. The earlier suit has been
dismissed. The presence suit has been instituted on the same cause of
action and thus, it would not be maintainable.
22. Under such circumstances due to suppression of material
fact, 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 adinterim relief as prayed for.
23. 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 adinterim relief, would not itself be
operative 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
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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". However, considering the facts of the present
case that the earlier suit has been dismissed in default and considering
the suppression of material document i.e letter dtd. 18.02.2016 by the
plaintiff, it is not expedient to direct the continuation of protection
given to the suit premises. Therefore, the point nos.1 to 3 are answered
accordingly and the following order is passed:
ORDER
1. The adinterim relief in respect of draft Notice of Motion is
rejected.
2. The notice of motion be registered as early as possible.
Sd/
(M.S. Deshpande)
Ad Hoc Judge,
City Civil Court, Mumbai.
Directly typed on : 31/03/2018.
Signed by HHJ on : 02/04/2018.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 02.04.2018 At 05.30 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
02.04.2018
JUDGMENT/ORDER uploaded
on
02.04.2018
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