Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion1289 of 2018
In
L.C.Suit No.1846 of 2017
MHCC010041082018
M/s.S.K. & S.K. Developers Pvt. Ltd ...Plaintiff
V/s
1Asst Engineer (Bldg and Factories
MCGM 'E' ward and Anr. ..Defendants
Advocate P.D.Gandhy for plaintiff
Advocate B.S.Sutar for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 4th March, 2019
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this notice of motion for the
following relief:
a) That this Hon'ble Court be pleased to pass a temporary
injunction restraining the defendants, their servants,
agents, representatives and/or person or persons claiming
through or under him from taking any action pursuant to
the Notice U/s 55 of MRTP Act; (i) E/BF/VI/55
MRTP/4624, 1516 dated 1/10/2015, (ii)
E/DO2E/210/55MRTP Act/E179 NO 1/2.8.2017 dt
2/8/2017, order bearing no. ACE/619/SF/Bldg, 3/8/2017
and order bearing reference no. 37912 dated 3/10/2017 in
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respect of premises situated at C.S.No. 3d/124,
Mazgaon, Mumbai 400 010, pending hearing and
final disposal of the above suit.
2 Defendants have filed detailed reply. Hence, notice of
motion is disposed of finally.
Facts in brief are as under:
3 Plaintiff is a private limited company registered under the
Indian Companies Act,1956. Defendant no. 2 is the Municipal
Corporation of Gr. Mumbai. Defendant no. 1 is the Assistant
Engineer(B & F), E ward of defendant no.2. Plaintiff has acquired the
property i.e land bearing C.S.No. 3(d)/124 including 11 shops and one
factory there in of Mazgaon Division for valuable consideration from
the Collector of Mumbai vide lease dated 18/11/2007. There are 11
shops and one grain factory admeasuring 5000 sq.ft. in the said plot of
land and tenants have occupied the said premises and they paid rent to
the plaintiff.
4 On 4/10/2010, defendants issued notice to plaintiff U/s
354A of MMC Act and alleged that plaintiff has constructed shed in the
said property. Plaintiff has filed suit bearing no.2244 of 2010 and in
that suit this court has granted orders in favour of plaintiff. Thereafter,
again with malafide intention defendants issued a notice U/s 354A of
MMC Act dated 11/05/2015 and asked the plaintiff to stop work which
was imaginary . Plaintiff has filed L.C.suit no. 1312 of 2015 and therein
also orders have been granted in favour of plaintiff. Defendants also
issued a another notice. Plaintiff has challenged the said notice in
L.C.Suit no. 1554 of 2015 and this court has granted orders in favour
of plaintiff.
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5 Thereafter, plaintiff applied under R.T.I. Act and obtained
copies of repair application/permission and plan from the defendants.
Plaintiff is also in possession of letter dated 2/03/2017 received from
defendants confirming that the structure is assessed prior to datum line
of 196162.
6 According to plaintiff thereafter defendants issued a notice
to plaintiff U/s 55 of MRTP Act dated 1/10/2015 alleging unauthorized
construction of C.I.Shed without permission by using C.I Patra and
mundas (sides and top). Plaintiff gave reply to the said notice vide
letter dated 14/10/2015. Plaintiff has received the order dated
3/08/2017, on the above said notice and defendant directed the
plaintiff to comply with the requisitions therein.
7 Now again defendants issued a notice to the plaintiff U/s
55 of the MRTP Act dated 2/08/2017. Plaintiff gave reply to the said
notice. Thereafter, plaintiff has filed this suit. This court vide order
dated 18/08/2017 directed the defendants to consider the reply and
documents of the plaintiff and pass appropriate order. This court also
granted ad interim relief in favour of plaintiff.
8 According to plaintiff, plaintiff received the order dated
3/10/2017. However, the notice and order are nullity. There is non
application of mind. Officers of defendants have not prepared
panchnama and also not taken photographs. An opportunity of hearing
was not given to the plaintiff. Hence, plaintiff prayed to grant interim
relief till disposal of suit.
9 Defendants filed affidavit in reply of Mr. Piyush Kharche,
Jr. Engineer, B & F, E ward. According to defendants, plaintiff has not
given notice U/s 527 of the MMC Act. Plaintiff has challenged the
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executive and administrative act of the defendant. Plaint does not
disclose the cause of action. Hence, suit is not maintainable. Plaintiff
has challenged the notice U/s 55 of MRTP Act and therefore this court
has no jurisdiction to try and entertain the suit.
10 According to defendant, defendants received a complaint
from Mr. Afzal Pani regarding unauthorized construction in the suit
premises i.e C.S.No 3d/124, Mazgaon Division. The officers of
defendants verified the record and found that already the notice dated
1/10/2015 U/s 55 is given to the plaintiff. Thereafter, the officer Mr.
Piyush Kharche inspected the site and it is found that plaintiff has
made unauthorized construction of C.I.Shed therefore again notice was
issued to the plaintiff. Thereafter, as per the order of this court, the
officer of the defendant considered the reply and documents produced
by the plaintiff. However, the notice structure is unauthorized. Hence,
directed the plaintiff to remove the notice structure. Thus, defendants
have followed the due process of law and prayed to dismiss the notice
of motion.
11 From the rival contention of both the parties following
points arise for my consideration to which I record my findings against
them for the reason given below:
Points Findings
1 Whether the plaintiff has made
out prima facie case?
In the affirmative
2Whether balance of convenience
lies in favour of plaintiff?
In the affirmative
3 To whom irreparable loss will
be caused if injunction is refused.
To the plaintiff.
4 What order? As per final order
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REASONS
16 Mr. P.D.Gandhy advocate for plaintiff has submitted that
plaintiff has acquired the suit premises by registered deed dated
18/11/2007 from the Collector of Mumbai. Already there are 11 shops
and one big grain factory admeasuring 5000 sq ft in the land. There are
tenants and they pay rent to the plaintiff. Earlier defendants have
issued a notices to the plaintiff U/s 354 A of MMC Act. Plaintiff has
challenged the said notice by filing the suits and in that suit this court
has temporarily restrained the defendants from taking action on the
basis of notice. Now defendants have issued a notice in respect of the
same structure U/s 55 of the MRTP Act. Plaintiff had given reply to the
notice and thereafter as per the order of this court defendant passed
order. However, an opportunity of hearing was not given to the
plaintiff. The officer of the defendants has not applied his mind while
passing the order. Thus, the order is nullity. He further submitted that
plaintiff is the lessee and Collector of Mumbai is the lessor.
However,defendants have not given notices to the owner of land.
Therefore, the notice and order are bad in law. He has invited my
attention towards the documents on record. According to him, earlier
occupier had sought permission to repair the said shops and are in
existing. Therefore the notices and order are not sustainable. If the
defendants demolished the premises then certainly irreparable loss will
be caused to the plaintiff. Hence, he prayed to grant ad interim relief.
10 Mr.B.S.Sutar advocate for defendants has submitted that
the alleged notice structure is unauthorized. Plaintiff has not produced
any documents . Earlier notices are in respect of another structure. The
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officers of the defendants considered the documents and reply filed by
plaintiff and then passed speaking order. Therefore, in view of section
149 of MRTP Act this court has no jurisdiction to try the present suit.
He further submitted that the officer of the defendant visited the
premises. There he found that plaintiff has constructed C.I.Shed and
accordingly proceeding is initiated under the MRTP Act. Defendants
have followed the due process of law. Hence, he prayed to dismiss the
notice of motion.
11 It is true that U/s 149 of the MRTP Act the civil court has
no jurisdiction in respect of the orders passed under this Act, as they
attain finality. However, in the present suit plaintiff has specifically
contended that the officer of the defendant has not considered the
reply and documents and order is passed without application of
mind .Plaintiff has specifically contended that the notice and order are
nullity. Therefore, in view of the pleadings it prima facie appears that
the plaintiff has challenged the notices and order on the ground of
nullity. Therefore, at this juncture, the contention of defendants that
this court has no jurisdiction cannot be considered.
12 From the documents on record, I find that earlier
defendants issued a notices to the plaintiff U/s 354A of the MMC Act.
Plaintiff has filed L.C.Suit nos 2244/2010, 1312/2015,1554/2015.
Admittedly, in all these suits this court has granted interim order in
favour of plaintiff.
13 In the present suit, the defendants alleged that plaintiff has
constructed C.I. Patra and Mundas and thus the notice U/s 55 of MRTP
Act is issued to the plaintiff. However, from the perusal of repair plain
filed by plaintiff, it appears that the said sheds are mentioned in the
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plan. Further, from the documents alongwith plaint it reveals that
earlier occupier had carried out repairs in the structures with the
permission of defendant Municipal corporation. It is to be noted that
plaintiff has acquired the land alongwith 11 shops and one big grain
factory admeasuring 5000 sq ft. In the lease deed in the schedule of the
property there is a mention that the land is having building and
structure standing thereon. Thus, from the documents produced by the
plaintiff, I come to the conclusion that there are already in existence of
shops and big grain factory.
14 Now, I shall consider the contention of defendants. It
appears that defendants received a complaint from one Afzal Pani and
thereafter the officer visited the site. He prepared inspection report and
issued notice to the plaintiff. It also appears that the officer has not
verified the documents of the corporation. He has also not verified the
repair plan produced by the plaintiff. Hence, the notice is issued
merely on the basis of complaint and the spot inspection. From the
perusal of the order it appears that the designated officer mentioned
that the notice structure is different that the structures in other sides.
However, he has not given any reason in support of his contention.
Defendants have not produced any documents such as repair plan and
assessment record etc to establish their contention.
15 Thus, from the above discussions, I find that there are
triable issues between the parties. Hence, in such a circumstances it is
necessary to preserve the suit premises as on today. I found that
plaintiff has prima facie case, balance of convenience lies in favour of
plaintiff and if ad interim injunction is refused then irreparable loss will
be caused to the plaintiff. Therefore, I answer the points accordingly
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and I pass the following order:
ORDER
1 NM no. 1289/2018 is hereby made absolute in
terms of prayer clause (a) of the notice of motion.
2 Notice of motion is disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 4/03/2019
Typed on : 5/03/2019
Signed by HHJ. :6/03/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
7/03/2019 S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
4/03/2019
JUDGEMENT/ORDER signed by
P.O. on
6/03/2019
JUDGEMENT/ORDER uploaded
on
7/03/2019
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