Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1327-2020
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.1327 OF 2020
(CNR NO. MHCC01-004079-2020)
IN
SUIT NO.1158 OF 2020
M/s. Rishi Enterprises & Others ]...Plaintiff/s
Versus
MCGM ]..Defendant/s
Appearance:
Advocate Shri. A.R. Pandey for Plaintiffs.
Advocate Shri. Gajanan Shinde a/w Smt. Seema Rawde for defendant
(MCGM).
CORAM : S.C. Pathare, Judge
(Court Room No.5)
DATED : 28th January, 2021.
ORAL ORDER
1) Plaintiffs have taken out this notice of motion against the
notice issued u/s. 351 of the MMC Act.
2) Plaintiffs prayed to issue temporary injunction restraining
defendant (corporation) from taking any action against the notice
structure, “construction of 4 rooms found beyond approved plan by
Dy. Ch. E. Building proposal (City) department of MCGM at Building
no.159/2, 4th floor, cavel X lane no.6, Kalbadevi, Mumbai-400002 by
way of using material cement blocks for walls, roof made up with
M.S.I. Section, A.C. Sheet, M.S. Angle, wooden doors and windows
admeasuring (size) of room no.1)L-5.39m X W-4.56m X H3.38m,
room No.2) L-5.65m X W-4.53m X H-3.38m, room No.3) L-6.40m X
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W-3.62m X H3.38m, room No.4) L-5.41m X W4.25m X H-3.38m
without taking any prior permission from competent authority i.e.
MCGM”.
(This unauthorized structure was already demolished
twice by the office under notice no. C/DOC/222/354(A)MMC
ACT/C53NO1/02.03.2020 dt.04.03.2020 Ref. No.-107122 further
noticee approached to City Civil Case No.3541 of 2020 and Hon’ble
High Court Writ petition E filling no. 996 of 2020 as per the Hon’ble
High Court judgment (writ petition) that the corporation would be at
liberty to take appropriate action against the impugned structure in
accordance with law).
3) Perused written notes of arguments submitted by
plaintiff. On behalf of plaintiff it is argued that the suit building is a
cess building having ground + 4 upper floors. The building is in
existence much prior to 1940. Therefore, as per MHADA it is in A
category.
4) Further on 21/9/2010 plaintiffs took suit building under
Deed of Conveyance dated 21/9/2010 registered on 23/9/2010.
Therefore, plaintiffs are the purchasers of the building, which is
authorized & shown in the sanction plan. Suit building is shown in
city survey plans of MCGM.
5) Ld Counsel of plaintiff further argued that in the extracts
the building is shown ground + 4 floors and fully authorized. In the
year 2010 MBR/MHADA also passed repairing plan/map to that
effect.
6) On behalf of plaintiff it is argued that on 4/3/2020
MCGM issued show cause notice u/s.354A of the Act for stopping
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alleged ongoing structure falsely. However, it was actually served on
plaintiff on 12/3/2020 deliberately. Then reply was given to MCGM
on 13/3/2020 in which ongoing construction was explained.
However, on 16/3/2020 MCGM without passing speaking/final order
u/s.354A removed roofs and partition walls of said structure and
damaged it. Therefore, law suit No.1042/2020 was filed. Then on
19/3/2020 defendants brought to the notice of the court that they
have demolished the said structure, without speaking/final order.
According to plaintiff at that time said structure was demolished
partly and not fully on 16/3/2020. After service of notice u/s.354A
reply was given within 24 hours to MCGM. Despite that without
speaking order it was demolished.
7) On 19/3/2020 plaintiffs moved the court against the
notice u/s.354A in suit No.1042/2020. Thereafter, on 20/3/2020
there was lock-down due to Covid-19, hence plaintiff could not take
any further action.
8) In the first week of June 2020 on 4/6/2020 there was
forecast of Cyclone, hence in order to protect the building on
4/2/2020 plaintiffs put cemented roofs on the 4th floor of said
premises and further repaired partition walls which were earlier
removed and demolished by MCGM.
9) It is further argued that for putting cemented roof & for
repairing partition walls does not require permission.
10) It is argued that MCGM passed order on 15/6/2020 in
respect of said notice u/s.354A dated 4/3/2020. Thereafter,
17/6/2020 MCGM demolished the entire suit premises on the 4th
floor. However, only by way of formality order dated 15/6/2020 was
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passed, by ignoring documents of plaintiffs & by falsely alleging about
ongoing construction.
11) According to arguments of plaintiffs said structure is
existing prior to the datum line plaintiff purchased said building in
the year 2010-11, therefore they cannot produce documents of 1961-
62.
12) According to plaintiffs Hon’ble High Court during
Pandemic Covid passed order dated 19/3/2020 & 26/3/2020 by way
of general directions to MCGM. Despite that in violation of said
general guidelines said structure was demolished during Covid 19,
hence plaintiff had filed w.p. No.996/2020 before Hon’ble High Court,
in which orders were passed dated 30/6/2020. Hon’ble High Court
found that despite general directions during the period of Covid 19
said structure was demolished by using Sec.354A of the Act, hence
plaintiff was permitted to construct said premises.
13) Thereafter, in the meantime plaintiff carried out said
reconstruction. W.P. NO.996/2020 came up before the Hon’ble High
Court on 16/7/2020 in which MCGM was permitted to take
appropriate action as per law. Further, Hon’ble High Court gave liberty
to plaintiffs to plead any such other action will not be according to
law. Further, Hon’ble High Court held that as to whether any further
action is as per law or not is to be decided by the court in appropriate
proceeding.
14) On behalf of plaintiff it is argued that MCGM again
issued show cause notice u/s. 351 of the Act dated 27/7/2020. It was
replied along with documents to MCGM on 5/8/2020. The concern
officer passed speaking/final order on 21/8/2020.
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15) According to Ld Advocate of plaintiff, the said building
including notice structure is in existence since long i.e. prior to the
datum line. Despite that MCGM has taken action u/s. 351 of the Act
unnecessarily.
16) MCGM submitted reply. Ld Advocate on behalf of MCGM
vehemently supported action taken by the corporation stating that
said unauthorized construction should not be protected at any cost. It
is not disputed that notice u/s. 354A of the Act was issued and then
said structure was demolished by MCGM during Covid 19 period. It is
also admitted position that said structure is reconstructed as per the
order of Hon’ble High Court. According to arguments of defendant
when previous notice structure was unlawful then even if the same is
reconstructed it cannot be termed as the structure having
sanction/authorization of MCGM.
17) Along with index plaintiff produced various documents so
also along with reply MCGM produced various documents. Therefore,
it is necessary to consider the documents whether those are showing
authorization or unauthorization of the notice structure.
18) Perusal of order of Hon’ble High Court dtd.30/6/2020 it
shows that initially corporation had issued show cause notice
u/s.354A dated 4/3/2020. It was replied on 13/3/2020. The
designated officer passed speaking order on 15/6/2020. Thereafter,
demolition was effected on 17/6/2020. According to Hon’ble High
Court said action is contrary to the law laid down by Hon’ble Apex
Court in the matter of Sunbeam Hightech Developers. Furthermore,
Hon’ble High Court found that despite orders of Hon’ble High Court
dated 26/3/2020, 15/4/2020 & 15/6/2020 MCGM took coercive
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steps and demolished the earlier structure on 17/6/2020. Therefore,
Hon’ble High Court permitted plaintiff to reconstruct the roof of 4th
floor of the premises and also to reconstruct the internal walls of the
4th floor tenanted premises.
19) Perusal of further order dated 16/7/2020 passed by the
Hon’ble High Court it shows that by that time said reconstruction was
carried out. Hon’ble High Court kept open all contentions of the
parties. Further, it is held that corporation would be at liberty to take
appropriate action in accordance with law and whether such action
would be in accordance with law or not would be decided by the
court in appropriate proceedings.
20) Perusal of documents produced by MCGM it shows that
inspection was made on 23/7/2020 and report is dated 25/7/2020.
Further, show cause notice was issued on 27/7/2020 u/s. 351 of the
Act.
21) Perusal of speaking/final order dated 21/8/2020 shows
that plaintiff had submitted reply and documents dated 5/8/2020. In
the said order documents of plaintiff near about 21 are considered. In
the speaking order plaintiff failed to produce authentic documents
regarding notice structure such as permission/approval plan from
competent authority i.e. executive Engineer(Building Proposal) III of
MCGM. Plaintiff also failed to produce document showing existence of
structure prior to 1/4/62, which is datum line for commercial
structure to be considered in tolerated category for notice structure.
The designated officer found that the construction of said four rooms
is beyond the approved plan of competent authority, by using material
cement blocks for walls, roof made up with M.S. I Section, A.C. Sheet,
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M.S. Angle, wooden doors and windows admeasuring size of
mentioned in the order without permission/authorization of
competent authority of MCGM.
22) Admittedly, there are allegations & counter allegations.
However, at the outset it is to be noted that on behalf of MCGM copy
of Ex-Engineer (B & P) City Plan dtd.3/8/1985 is shown in which it is
mentioned that it has been approved by the competent authority.
Further, perusal of this authorized plan it shows that said building is
having three floors & thereafter there is mezzanine floor. There is no
mention expressly regarding existence of 4th floor as claimed by
plaintiff. On behalf of plaintiff after getting disclosed this fact effort is
made to argue that mezzanine floor & 4th floor are the similar words.
However, when said two words are carrying two different meanings in
that event it cannot be said that said both the words are one & the
same. Therefore, it is crystal clear that this sanction plan of said
building is going against plaintiff.
23) Plaintiff relied on copy of registered deed of conveyance
dtd. 23/9/2010 & MOU of said transaction dtd. 15/4/2010, wherein
there is mention of piece or parcel of land or ground admeasuring
195.65 sq. mtrs. bearing C.S. No.778. In MOU there is mention of
purchase of godown No.5 & shop No.1 on ground floor & entire 3rd &
4th floors. However, there is absence of specific mention of the present
disputed notice structure & material etc. whenever documents of
property are executed in that event it is a duty of seller/transferer to
give specific details of such property in such document. It is also duty
of purchaser/transferee to get incorporated such details of the
property in the document. When there is no mention of notice
structure specifically in said documents in that event it is difficult to
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say that said documents can establish a prima facie case.
24) Plaintiff further relied on copy of Index II dtd.
23/9/2010. However, the same also is not having mention of the said
notice structure. Plaintiff produced electricity bill regarding the said
4th floor, however it also does not show whether notice structure is
authorized.
25) On behalf of plaintiff Ld Counsel invited my attention on
the photocopy of plan issued by Supdt. Bombay City Survey & Land
Records. However, perusal of the same reveals that it has only said
CTS number & it is having no mention of the notice structure & its
authorization. Plaintiff further produced copy of plan dtd. 24/9/1975
issued by City Survey department. Perusal of the same it shows that it
is also not having details of notice structure.
26) On behalf of plaintiff reliance is placed on copy of
inspection extract of 2010. Perusal of the same it shows that in said
extract it is mentioned that it is pertained to 1995-96. In this
document 4th floor Room No.401 to 403 are mentioned. Therefore, it
appears that in 1995-96 assessment tax of said rooms are paid,
however merely for that reason it cannot be said that the notice
structure has been authorized.
27) Plaintiff relied on copy of repairing plan issued by
MHADA regarding the said building. Perusal of the same makes it
clear that it has not been sanctioned by the competent authority.
Apart from that if any permission was given by MHADA for repairing
in that event nobody is permitted to carryout such extended
construction as mentioned in show cause notice.
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28) Plaintiff produced copy of letter dtd. 1/8/2021 issued by
Ex-Engineer of said board to the C ward. Perusal of the same shows
that it is dtd. 1/8/2011. However, it does not denote that specific
notice structure has been sanctioned by the competent authority of
MCGM.
29) It is true that the Ld Counsel of plaintiff shown photocopy
of the certificate issued by Architect Patidar Alliance dtd. 30/7/2020
wherein he tried to say that the 4th floor in question is not
unauthorized. However, in view of authorized plan of 1983 this
certificate is found unconvincing/unreliable at this stage.
30) In view of the various documents it is necessary to
consider whether in the month of March 2020 plaintiff party was
carrying out unauthorized construction. Perusal of the inspection
report (first) dtd.2/3/2020 it shows that in the image therein there is
construction material etc. In this report status of work is mentioned as
ongoing by using brick masonry wall, M.S. Angle, cement sheet. In
the report it is clarified that it was addition & alteration to the
existing structure & it was non occupied. Furthermore, perusal of
photographs produced by MCGM it shows that on 27/2/2020 said
photographs are taken. In the photographs availability of
labours/workers & construction material can be seen. Therefore, it is
clear that on 2/3/2020 said activity of plaintiff was going on without
sanction of the MCGM. In this regard it is necessary to peruse
photographs annexed by plaintiff to this suit at pg. No.232 & 233.
These are photocopies of the photographs dtd. 13/3/2020, perhaps
taken in the afternoon. Perusal of the same it shows that new type of
material came to be used/removed. Plaintiff did not show
photographs with date whether said notice structure was existing
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“prior to the datum line”. Moreover, plaintiff did not take efforts to
produce original photographs with dates for showing that said notice
structure was existing prior to the said first inspection or at the time
of his conveyance. On behalf of defendant it is argued that whenever
unauthorized extension/addition is carried out in the old building the
same is likely to invite some incidents. Admittedly, when the main
building is very old in that event plaintiff etc were not justified in
beginning such addition/alteration etc without sanction in writing
from the competent authority.
31) The Hon’ble High Court on 30/6/2020 pleased to hold
that corporation had issued notice u/s.354A on 4/3/2020, thereafter
petitioner had submitted reply to BMC on 13/3/2020. Thereafter
designated officer passed speaking order dtd. 15/6/2020 &
demolished said work on 17/6/2020. It means after passing speaking
order it was mandatory on the part of MCGM to wait for 7 days, but
just after 2 days they started demolition of said structure by violating
law. Apart from that in the said order Hon’ble High Court pleased to
observe that during Pandemic Covid 19 from time to time Hon’ble
High Court had restrained authorities not to take any coercive steps
despite that MCGM carried out said demolition on 17/6/2020. It
means said prohibitory orders were ignored by the concerned officers
etc of MCGM. Therefore, Hon’ble High Court permitted the said
specific reconstruction. (Needless to mention that as per the settled
position of law in the main suit plaintiff is entitled to plead & prove
cost/damages/compensation for said conduct of officers etc of
MCGM).
32) Thereafter, on 16/7/2020 the Hon’ble High Court held
that the order dtd. 30/6/2020 was complied, therefore interim
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application and WP came to be disposed of. However, Hon’ble High
Court kept open all contentions of the parties. Hon’ble High Court
gave liberty to corporation to take appropriate action in accordance
with law. Hon’ble High Court held that whether such action would be
in accordance with law or not would be decided by the court in
appropriate proceedings. Therefore, thereafter again on 25/7/2020
inspection report was prepared, I have perused it. Defendant
produced inspection report dtd. 23/7/2020 regarding said notice
structure. Thereafter, MCGM issued show cause notice u/s. 351 of the
Act dtd. 27/7/2020. Perusal of the same it shows that said notice is
having allegations of said unauthorized structure. Through said notice
plaintiff was given 7 days time to reply it & to produce documents.
Perusal of the record it shows that show cause notice was replied
along with documents. Perusal of speaking/final order dtd.
21/8/2020 goes to show that the designated officer followed due
process. He considered near about 21 documents & reply of plaintiff.
He came to the conclusion that the said notice structure is not existing
since prior to the datum line. He further found that said notice
structure is unauthorized. He gave 15 days time to plaintiff. On behalf
of plaintiff it is argued that personal hearing was not given. However,
recently in the case of Sunbeam in the year 2019 Hon’ble Apex Court
made it clear that in each & every case personal hearing is not
mandatory. Thus, it is clear that subsequent to Hon’ble High Court’s
order dtd. 30/6/2020 & 16/7/2020 the MCGM followed due process.
In view of above discussion, it is crystal clear that the notice structure
is not authorized by the competent authority of MCGM.
33) Advocate of plaintiff submitted following citations:
a)
Zenith Mataplast vs. State of Maharashtra & Ors. SC-
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2009, wherein application for allotment of land was rejected.
However, the present matter is on different footing u/s.451 of the
MMC Act. Hence, due to different facts & circumstances in my humble
view said ruling is not helpful to the plaintiff.
b)
Joseph Dominic & Anr. vs. MCGM, A.o. No.908/14
(BHC) dtd.12/3/18, wherein plaintiff had purchased the structure &
there was no prima facie material to show that the said plaintiff had
extended said structure. Therefore, the order of status quo was
continued by holding that the question whether plaintiff constructed
said structure with permission or whether it is illegal structure are the
questions which are required to be decided on merits. However, in the
present matter number of documents and photographs are going
against plaintiff. Therefore, in my humble view due to different facts
& circumstances said ruling is not helpful to plaintiff.
c)
Pali Hill Tourist Hotel Pvt. Ltd. vs. MCGM,A.o. No.714/14
(BHC) dtd. 6/6/2017, wherein date was not fixed for hearing & final
disposal of the motion. Therefore, in the meantime interim relief was
granted. It is held that opportunity must be given to the party
involved to show authorization of the structure. In the present matter
repeated & sufficient opportunities are given to plaintiff to show
sanctioned plan/authorization. Hence, these guidelines due to
different facts & circumstances are not appearing helpful to plaintiff.
d)
Kamlabai Pandurang Sonawane vs. MCGM, A.o. No.(St)
18179/17 (BHC), wherein it is held that MCGM is required now to
produce its own record relating to said property. In addition the
plaintiff will be entitled to tender further documents. To the extend
possible the plaintiffs will identify which portion of their documents
pertain to which of said structures. It is further held that the trial
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court may also consider appointing a commissioner for local
investigation if thought fit & whether or not sought by the plaintiff.
Hon’ble High Court directed trial court to fix a schedule for
completing all filings & for disposal of NM. In the present matter both
parties shown no interest in appointment of commissioner in any way.
In the present matter by giving sufficient opportunities pleadings are
completed. According to MCGM they have submitted documents
whatever available. Therefore, in my humble view due to different
facts & circumstances this citation is not appearing helpful to plaintiff.
e)
Masood Ahmed Siddiqui vs. MCGM, A.o. No.57/13
(BHC), wherein it is held that conclusion of the Asst. Municipal
Commissioner should not be upheld at interlocutory stage. However
trial judge has to apply mind independently & impartially. It was held
that appellant/plaintiff is entitled to interim injunction. However, in
the present matter this court had granted ad interim injunction which
is continued yet. Now this court is deciding Notice of Motion by
considering the record independently & impartially. Therefore, in my
humble view due to different facts & circumstances this citation is not
appearing helpful to plaintiff.
f)
Suresh Shankar Rokade vs. MCGM, A.o. No.276/2018
(BHC-2018), wherein it is held that prima facie case must not be
misunderstood that it is an iron cask cake. What is required for party
to make out a case for inquiry. The trial court has to see documents
available on record which goes to the root of the matter if structure is
standing from 1961-62 then it has to be protected. However in the
present matter after carefully perusing documents it does not prima
facie shows that the specific notice structure was existing prior to
datum line. Therefore, in my humble view due to different facts &
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circumstances this citation is not appearing helpful to plaintiff.
g)
Ramawatar Babulal Jajodia vs. Municipal Corporation of
Greater Mumbai, A.o. No. 1162/2013 dtd. 03/12/2013, wherein it is
held that the authorization of structure specifically when there are
assessment bills of the year 1995-96 referring to the year 1/4/1996 &
other supporting documents such as electricity bills, DP remarks & the
conversion of the land for commercial purpose since 1990 cannot be
overlooked to deny the protective relief. However, in the present
matter I have minutely perused the available documents whether they
are showing existence of notice structure prior to the datum line.
Therefore, in my humble view due to different facts & circumstances
this citation is not appearing helpful to plaintiff.
34) On behalf of MCGM reliance is placed on the case of
Mohd Abdul Rashid Hamidani in the matter of
Tushar Salian vs. State
of Maharashtra PIL No.67/17 & IA No.1/19 dtd 4/10/19 wherein it is
held by Hon’ble High Court that the law recognizes distinction
between a right requiring to be protected vis-a-vis technical pleas
challenging demolition notices. Unless a prima facie case is shown the
court should not grant injunction with reference to deficiencies in
notices.
35) On behalf of MCGM reliance is placed on
Seema Zahir vs.
MCGM, SLP 9479/05 dtd 5/5/06(SC) wherein the trial court had
granted temporary injunction without material and without a prima
facie case. The Hon’ble High Court in Appellate jurisdiction was
justified in interfering in the matter and vacating temporary
injunction.
36) Vide Sec. 56 & 57 of the Evidence Act regarding said
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unauthorized construction, it is necessary to consider the law laid
down by the Hon'ble High Court Bombay in the case of
Tushar Salian
V/s. State of Maharashtra PIL No.67/2017 (DB) judgment dated
28/08/2019 and further judgment passed in the same case by the
Hon'ble High Court dated 23/09/2019. The Hon'ble High Court held
that (i) when the property is governed under Municipal Statute the
interest protected has to be with respect to plea that prima facie the
structure being targeted is unauthorized structure (ii) the plaint must
make averment of sanction obtained from corporation and must make
the averment with the structure targeted is prima facie governed by
sanction (iii) merely pointing out deficiencies in the notice or the
authority of a person issuing the notice is neither here nor there (iv)
thus, sine quo non of such suits is positive assertion made with
reference to the sanction of building plans. If any plan is produced
then the same “must have endorsement of approval” of the
corporation. Plaintiff must produce such permission or the approved
plan in support of the suit.
37) Apart from that in the case of
Sopan Thopte V/s. PMC
AIR 1996 (H.C.Bom) 34 and in the case of MCGM V/s. Sunbeam
Hightech Developers Pvt. Ltd. 2019 SCC Online 1389 (SC), General
guidelines are provided. It is held that the injunctions cannot be
granted casually in such suits. Intentional or unintentional lapses,
which do not affect the substantive rights ought not to result in
protection of unauthorized construction. More particularly, in the case
of Sunbeam in para No.2 Hon’ble Apex Court held that, “rule of Law
also envisages that illegal constructions which are constructed in
violation of law must be demolished and there can be no sympathy
towards those who violate law. It is further observed that, “the courts
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must not be hidebound by old decisions and law must develop in
accordance with changing times”.
38) Furthermore, in the case of
Mrs. Paramjit Kaur Bansal vs.
MCGM W.P. No.1828/19 dtd. 7/1/2020, the Hon’ble High Court
Bombay held that while granting stay to such structure trial court has
to find out the permission/sanction in that regard and to examine a
prima facie case. Thus, in the present matter these guidelines are also
appearing against plaintiff.
39) Moreover, as per the provisions of Section 106 of the
Evidence Act burden of proving fact which is especially within the
knowledge of any person lies upon such person. For example if any
person is traveling in railway without a ticket, then burden of proving
that he had ticket is on him. Similarly, if a person is found having
unauthorized structure then such person is duty-bound to produce
permission of corporation or approved plan in that regard. If such
person fails to make said legal compliance then such unauthorized
structure cannot be protected.
40) In view of above thorough discussion in my humble view
plaintiff is not having a prima facie case or balance of convenience in
his favour. Further, if Notice of Motion is rejected in that event
plaintiff will not suffer any irreparable loss which cannot be
compensated in terms of money by MCGM.
41) Considering peculiar facts and circumstances etc, I
proceed to pass the following order in the interest of justice:
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ORDER
1) Notice of Motion No.1327 of 2020 stands
dismissed.
2) Said Notice of Motion stands disposed of.
3) Authenticated copy of this roznama be
given to parties, if requested.
4) Matter be posted for W.S, if any.
5) The point of cost/compensation/damages
will have to be decided after recording
evidence in the suit, noted.
(S.C. Pathare)
Ad-hoc Judge
City Civil Court
Dictated & directly typed on : 28/1/2021.
Checked by PO : 28/1/2021.
Signed by HHJ on : 28/1/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
5/2/2021. Mrs. S.A. Shekade.
Name of the Judge (With Court
room no.)
SHRI S.C. Pathare (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
28/1/2021.
JUDGMENT/ORDER signed by
P.O. on
28/1/2021.
JUDGMENT/ORDER uploaded on 5/2/2021.
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