Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No. 1286-18 in L.C. Suit No.844-2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 1286 OF 2018
(CNR No. MHCC010040982018)
IN
LONG CAUSE SUIT NO.844 OF 2018
(CNR No.MHCC010039572018)
Mr Sohail Bashir Wazifdar ]... Plaintiff
Versus
1. MCGM and 2 others ]... Defendants
Coram : M. S. Deshpande, Judge
(Court Room No. 5)
Date : 20th August, 2018.
Ms. Eventa A. Gonsalves, advocate for the plaintiff.
Mr. D.K. Vyas with Mr. Dhumale, advocates for the defendants
O R D E R
1. The plaintiff has taken out this motion seeking interim
injunction for restraining the defendants from acting in pursuance of
notice dated 01.01.2018 and order dated 13.03.2018 passed under
section 351 of Mumbai Municipal Corporation Act(''MMC Act'').
2. The facts, in brief, are that the plaintiff claims to be an
owner of the property viz., Jamna building(''Suit Building'') located at
C.S. no.6, Bhuleshwar Division, 292 L. T. Marg Mumbai. The suit
building is constructed in 1929. It is occupied by some tenants. The
plaintiff purchased the suit building on 06/07/2001. The suit building is
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2 NM No. 1286-18 in L.C. Suit No.844-2018
assessed to municipal taxes prior to 1961.
3. According to plaintiff in July, 2017 Ms. Santosh Balichwal
in order to extort money from plaintiff, filed a false complaint with the
defendant corporation alleging that the plaintiff has unauthorizedly
constructed rooms on the open terrace of the fourth floor of the suit
building. Consequently, on 13/12/2017 an officer of the defendants
inspected the suit building and took photographs. On 01/01/2018 the
defendants issued notice under Section 351 of MMC Act alleging that an
unauthorized construction of various rooms(''Suit Premises'') in the
open terrace at the fourth floor of the suit building has been carried out
by the plaintiff. The plaintiff replied the same and filed documents.
However, without considering the reply and the documents the
defendants passed an order directing the plaintiff to remove the
construction of suit premises or to face an action for its demolition.
4. The defendants opposed the motion by contending that
Ms. Santosh Balichwal, an occupant of shop no.1 of the suit building
filed a complaint. Accordingly, the junior engineer of the defendants
corporation inspected the suit building and found unauthorized
construction of the suit premises. Therefore, the impugned notice was
issued. However, the plaintiff failed to produce approved plan or
permission in support of the construction of the suit premises or even to
show that the said construction existed since prior to datum line and
therefore, the impugned order was passed.
5. The Ld. Advocate for plaintiff submitted that the suit
premises exist since prior to the date of purchase. The defendants have
not properly maintained the assessment record. When the officers of the
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3 NM No. 1286-18 in L.C. Suit No.844-2018
defendants inspected the suit premises they have given report contrary
to the complaint made by Ms. Santosh Balichwal. Considering the age
of the building its plans are not available. Thus, she prayed for granting
interim protection of the suit premises and allowing the plaintiff to
prove its legality by leading evidence.
6. On the other hand the Ld. Advocate for the defendants
submitted that the plaintiff constructed five rooms on the open terrace.
The plaintiff has not filed any documents in support of the same. He
has relied on copy of building repair plan and submitted that it does not
show the existence of suit premises in 1994. According to him due
process of law has been followed by the defendants. He placed reliance
on the following authority :
2006 (5) Mh. L. J. 218
Seema Arshad vs. MCGM.
Ratio : ''It is true that in cases relating to orders for demolition of
buildings, irreparable loss may occur if the structure is demolished even
before trial, and an opportunity to establish by evidence that the structure
was authorised and not illegal. In such cases, where prima facie case is
made out, the balance of convenience automatically tilts in favour of the
plaintiff and a temporary injunction will be issued to preserve status quo.
But where the plaintiffs do not make out a prima facie case for grant of an
injunction and the documents produced clearly show that the structures
are unauthorised, the Court may not grant a temporary injunction merely
on the ground of sympathy or hardship''.
7. Considering the rival submissions and copies of the
documents the following points are decided for the reasons stated
below:
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4 NM No. 1286-18 in L.C. Suit No.844-2018
Sr.
No.
Points Findings
1. Whether the plaintiff has made out
primafacie case ? In the negative.
2. Whether the points of balance of
convenience, hardship and irreparable
loss lie in favour of the plaintiff? In the negative.
3. Whether the plaintiff is entitled to
temporary prohibitory injunction ? In the negative.
REASONS
As to point nos. 1 to 3 :
8. It is necessary to look into the documents placed on record.
The copy of notice dated 01/01/2018 describes the suit premises as
under:
''Unauthorized construction of various rooms in open
terrace at fourth floor as shown in accompanying sketch without prior
permission of Competent Authority of MCGM''.
9. On 17/01/2018, the plaintiff replied that there are 10
rooms on the fourth floor bearing numbers 53 to 61 and 72. It is also
contended that in order to settle previous disputes Ms. Santosh
Balichwal filed false complaint.
10. The copy of order dated 13/03/2018 primafacie shows
that the concerned designated officer considered the documents like
deed of conveyance, assessment bills, electricity bills, police complaints
and reply filed by the plaintiff and came to the conclusion that the
plaintiff failed to show the legality of the suit premises or even that the
same are tolerable one.
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11. Primafacie, it is undisputed that the suit building is
assessed to municipal taxes prior to 1961. The copy of deed of
conveyance dated 06/07/2001 consists a list of tenants and their rooms
in the suit building. However, the room numbers are not given floor
wise.
12. The copy of report of Medical Officer of Health dated
06/07/2015 primafacie shows that it was informed to Ms. Santosh
Balichwal that upon inspection of the suit building no girls hostel was
found at the fourth floor of the suit building and the complaint
regarding unauthorized construction was forwarded to Assistant
Engineer (Building and Factory) 'C' ward for further action.
13. The report of inspection dated 21/08/2017 submitted by
the Dy. ECCB (Complaint) primafacie shows that on inspection of the
suit building on 16/08/2017 it was found that there were 10 rooms on
the fourth floor of the suit building and that, each rooms was having
separate electric meter and that, each room was being used for
residential purpose and that, no business or commercial activities were
found to be conducted at the time of inspection. Similarly, the name
board of any hostel or presence of any employee appointed for services
did not find at the time of inspection. It was also reported that no
unauthorized extension/distribution of electric supply, direct supply
and change of usage/purpose of supply was observed in the premises.
However, primafacie, the report does not throw light on existence or
non existence of rooms on open terrace.
14. The extract of description and details of capital value for
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6 NM No. 1286-18 in L.C. Suit No.844-2018
the purpose of calculation of property taxes of the suit building dated
22/12/2012 and 14/09/2017 primafacie shows that room no. 72
existed on the ground floor. Whereas room no. 53 to 61 existed on the
fourth floor. It nowhere shows existence of room no.72 on the fourth
floor. On the other hand the copy of leave and license agreement dated
25/03/2008 executed between the plaintiff and M/s. K. G. Marketing
primafacie shows that the said licensee was permitted use of room
nos.60, 61 and 72 located on the fourth floor. The plaintiff has not
primafacie explained the existence of room no. 72 on the fourth floor
when the existence of the room no. 72 is not shown on fourth floor in
assessment record as well as building repair plan for year 1994.
15. On the other hand the first inspection report dated
30/12/2017 primafacie shows that the concerned engineer at the
relevant time found unauthorized construction of room on the open
terrace of fourth floor. He has also filed certain photographs of the
rooms out of which one bears room no.72. The copy of building repair
plan for the year 1994 shows existence of room nos.53 to 61 at the
fourth floor alongwith an open terrace. The plaintiff has not primafacie
disputed the position of rooms shown in this plan.
16. The copies of assessment extract for the years 199293,
199697 and 2000 primafacie shows existence of room no.72 on the
ground floor and room nos.53 to 61 at the fourth floor of the suit
building. The plaintiff has made averments that the discrepancy in
respect of room numbers in the assessment record came to his
knowledge in 2001. Under such circumstances, it is a question before
this Court as to why the plaintiff kept quite for so many years and
thereafter, in 2017 complained with Assistant Assessor and Collector of
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7 NM No. 1286-18 in L.C. Suit No.844-2018
the concerned ward about such discrepancy. Primafacie the plaintiff
has not given any explanation for the same. The plaintiff has only
complained about the discrepancies about the user and location of
rooms. The plaintiff has not placed any material on record to show that
the suit premises were in existence at least prior to 1994 and the same
were reflected in building repair plan.
17. Even otherwise the plaintiff has not made averments about
the existence of open terrace at the fourth floor as depicted in the
building repair plans. Thus, primafacie there is no material in support
of notice structuresuit premises to show their legality or even that the
same are tolerable. Therefore, the plaintiff has failed to make out
primafacie case. Consequently, 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 relief of interim injunction.
Accordingly, point nos. 1 to 3 are answered in the negative.
18. At this juncture the Ld. Advocate for plaintiff submits that
the plaintiff wishes to challenge the order and therefore, the same may
be stayed for a period of 6 weeks. On the other, hand the Ld. Counsel
for the defendants opposed to grant such stay. Considering the
submissions and the ratio in the case of Kranti Mohan vs. Fate Chand
reported in AIR 1982 Bombay 263 to the effect that a laudable
principle is implicit in the system to give a fair deal to each litigant 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. Principle is essential so as to
instill a sense of confidence in the system of administration of justice, it
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is necessary to grant stay in order to facilitate the plaintiff to challenge
the order. Therefore, stay is granted till 17/09/2018 with a direction
that it will not be extended further on any count. Thus, the following
order is passed:
ORDER
1. The Notice of Motion No. 1286 of 2018 is dismissed.
2. Parties to bear their own costs of the motion.
3. Stay is granted till 17/09/2018 with a direction that it will
not be extended further on any count with a further
direction that in case the plaintiff is preferring an appeal,
minimum 48 hours notice be given to the defendants.
(M.S. Deshpande)
AdHoc Judge,
Dated: 20.08.2018 City Civil Court, Mumbai.
Directly typed on : 20/08/2018
Checked by HHJ on : 20/08/2018
Corrections carried out on : 20/08/2018
Signed by HHJ on : 20/08/2018
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9 NM No. 1286-18 in L.C. Suit No.844-2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 21.08.2018 at 1.30 p.m.
NAME OF STENOGRAPHER : Mrs. Rupali S. Bhor
Name of the Judge
(With Court Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
20/08/2018
JUDGMENT/ORDER signed by P.O. on 20/08/2018
JUDGMENT/ORDER uploaded on 21/08/2018
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