Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No. 1559 OF 2019
(CNR No.MHCC010041822019)
IN
LONG CAUSE SUIT NO.940 OF 2019
Girnar Jain Charitable Trust ... Plaintiff
V/s.
1. The Designated Officer & Anr. ... Defendants
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH
CITY CIVIL COURT
GR.MUMBAI ( C.R.NO.06)
DATE : 02/05/2022
Adv. Mr. Kiran Jain for the plaintiff.
Adv. Ms. Meena Dhuri for the defendants.
ORAL ORDER
1. This Notice of Motion is taken out by the plaintiff to
restrain the defendants by a temporary injunction from taking any
action pursuant to the Notice under section 53(1) of MRTP Act dated
03.11.2018 and the order dated 26.03.2019 in respect of premises
being temple situated at Girnar Tower CHS, G.D.Ambekar Road,
Kalachowki, Mumbai 400 033.
2. The suit premises is an area in the basement of Girnar
Tower CHS, which is declared as a parking place in sanctioned plan,
which is now used by the residents as place of worship by installing idol
of the God. The defendant corporation has initiated the action against
the said change of use of the structure .
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3. The case of the plaintiff is that defendant corporation has
issued notice under section 53(1) of the MRTP Act dated 03.11.2018
and the order dated 26.03.2019. The plaintiff trust has challenged the
legality of this notice. As an interim relief plaintiff has prayed for
interim protection against the execution of the notice dated 03.11.2018
and the order dated 26.03.2019. The plaintiff has prayed that the said
temple should not be demolished till the decision of the suit.
4. The defendant corporation has filed affidavit in reply at
Exhibit No.4 to the notice of motion and contested the same. The case
of the defendant corporation is that plaintiff trust has converted parking
place into temple changing the sanction use of the premises. The
defendant corporation contended that this act of the plaintiff trust is
illegal and the temple in the same is unauthorised. The defendant
corporation prayed for dismissal of the notice of motion.
5. Points for determination alongwith my findings are as
under:
Sr.
No.
Points Findings
1 Whether the plaintiffs have made out
prima facie case?
Yes.
2. Whether balance of convenience lies in
favour of the plaintiff?
Yes.
3. Whether plaintiff would suffer
irreparable loss if order of temporary
injunction is not granted in his favour?
Yes.
4. What order and Decree? As per final order
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REASONS
As to Point No.1
6. Temporary injunction is a procedural relief, as it is
governed by Order 39 of the Code of Civil Procedure 1908 and not by
any other legislation governing substantive right. Primafacie case is a
fundamental parameter for deciding temporary injunction besides
balance of convenience and irreparable loss.
Primafacie the case has following two facets
(a) Whether the plaintiff has primafacie case on
merit, where he is likely to succeed in the suit
and grant of temporary injunction is necessary
to enable the successful litigant to enjoy the
fruits of decree.
(b) Whether the relief of temporary injunction as
prayed for is really the extend of interim
relief required to be granted in order to pass
an effective decree in favour of plaintiff.
7. At about the first facet , it is argued by the learned
advocate for the plaintiff that action initiated by defendant corporation
is without authority for the reason that, for the suit property defendant
corporation is not a Planning Authority. SRA is the special planning
authority over this property. The action under section 53 (1) of the
MRTP Act is therefore, nullity. It is argued by the learned advocate for
the plaintiff that plaintiff can prove this fact with evidence. Rather the
plaintiff's claim is supported by documents produced in the Court. This
Court is therefore, concludes that there are probable chances of the
plaintiff succeeding in this suit.
8. Undisputedly, this building is constructed under SRA
scheme. SRA has sanctioned the plan of the said building and OC has
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been issued in respect of the same. The builder/ promoter has
constructed the said temple in the parking place of the suit premises
and he himself has complaint about the illegality of the said Jain
Temple to the defendant corporation.
9. It clearly appears from the pleadings that there is a dispute
regarding the jurisdiction to issue a notice under section 53 (1) of the
MRTP Act in respect of the said suit premises i.e. Jain Temple. There is
a substantial question before the Court as to whether the defendant
corporation is a Planning Authority who has not sanctioned the plan in
respect of the said building in which the said temple is situated or as to
whether the SRA who has sanctioned the plan and issue notice in
respect of the said building has a jurisdiction or authority to issue notice
in respect of the said structure of the Jain temple. Therefore, this
substantial question has to be decided on evidence.
10. The second faste of primafacie case is about the extend of
interim relief claimed visavis interim relief required to protect the
interest of the plaintiff at interim stage to ensure that fruits of the
decree can be enjoyed if the suit is ultimately decreed. The plaintiff has
claim for declaratory decree seeking declaration that notice under
section 53 (1) of the MRTP Act is nullity and it be declared as illegal.
If the defendant corporation acts upon this notice dated 03.11.2018 and
the order dated 26.03.2019, the suit structure will be demolished and in
consequence the suit will become infructous. This is also another reason
to decide primafacie case in favour of the plaintiff.
11. The advocate for the defendant corporation relied on the
ratio laid down in the case of “High Court on its own motion ( In the
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matter of Jilani Building at Bhiwandi V/s. Bhiwandi Nizampur
Municipal Corporation & Ors.)” reported in Suo Motu Public
Interest Litigation No.1 of 2020 decided by the Honourable High
Court on 26.02.2022. In the present case, the building in which said
Jain Temple situated is not illegal. It is constructed with the sanctioned
plan, permission of the SRA and OC has already been issued by SRA.
The said building is not a slum. The said building is legal and
authorised. In the cited case law there existed an illegal structure. Later
on it was declared as slum. The ratio is if the corporation was in
position to take action over that structure before it was declared as
slum, then it can take action after it is declare slum . This case is
distinguished on facts. The building in the present case was not in
existence before implementation of SRA scheme. This change of user is
subject exclusively within SRA authority. Therefore, defendant
corporation cannot exercised its jurisdiction over any structure which
was not in existence prior to declaration of SRA Scheme, where special
Planning Authority is designated. Therefore, for this reason the ratio of
the above cited case is not applicable to the case in hand.
12. In view of above discussions, it is held that there is
substantial question of jurisdiction as to issuance of notice dated
03.11.2018 and the order dated 26.03.2019 in respect of the said Jain
Temple. The legality of the said notice and order is in question.
Therefore, it is held that plaintiff has a primafacie case for temporary
injunction to protect the suit structure mentioned in the notice dated
03.11.2018 and the order dated 26.03.2019. Hence, point No.1 is
answered in the affirmative.
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As to Point No.2.
13. Balance of convenience is comparison of hardship.
Temporary injunction is intended to seek restrain over defendant
corporation against doing a particular act. In this case, the defendant
no.s1 and 2, intends to demolish Jain Temple by enforcing notice dated
03.11.2018 and the order dated 26.03.2019. Therefore, if the
temporary injunction is issued , defendant corporation would be
restrained from the demolishing the said structure of the Jain Temple.
On the other hand, if the temporary injunction is refused to the plaintiff
trust, defendant corporation would demolish the said structure of the
Jain Temple. Each of the act will have its consequences. Comparative
hardship is comparing the hardship of the plaintiff on demolition with
that of the hardship of the defendant corporation when it is restraint
from taking action of demolition.
14. At this juncture , efforts of plaintiff to apply for
regularization becomes relevant. The plaintiff has already made an
application for regularization of the structure of the Jain Temple with
SRA and filed affidavit to that effect on 26.04.2022 . Illegal structure
can be classified in two of its main kind. First, is encroachment which
cannot be regularized at all. Second is illegal structure which are
unauthorised for the reason of breach of approved plan but which can
be regularized. First kind of unauthorised work cannot be protected by
interim order of injunction. However, where there is a possibility of
regularization, the structure requires protection till the proposal of
regularization is decided or till the decision of the suit. The structure i.e.
Jain Temple which is subject matter of the suit falls in the second
category i.e. structure which can be regularized. Therefore, Planning
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Authority should wait to ensure till the plaintiff exhausts its available
remedy for regularization of this part of building.
15. In this background, if the structure cannot be regularized ,
it will demolish by the competent authority one day. If the structure of
the said Jain Temple is demolished and it is subsequently regularized, it
will be of no use. Particularly, this is a place of worship, a Jain Temple
in a Jain dominated Housing Society and a lot of emotions are attached
to the place of worship. It is, therefore, held that the balance of
convenience is in favour of the plaintiff. Hence, point no.2 is answered
in the affirmative.
As to Point No.3
16. The third important compent is a probability of the plaintiff
suffering irreparable loss which cannot be compensated in terms of
money.
17. The proposition is simple, the defendant corporation can
either demolish the structure during the pendency of the suit or after
the decision of the suit, if the suit fails. It does not make any difference
to the defendant corporation. On the other hand, if the suit structure
i.e. Jain Temple is demolished and subsequently if the plaintiff trust
succeeds in the suit, it would place the plaintiff trust with just a paper
decree. The suit structure is a Jain Temple. It is not an encroachment
over a Government Land or Third party land. The only problem with the
defendant corporation is that this place was shown as a parking place
and now it is used as a Jain Temple. However, it appears that this is a
technical issue of FSI, which can be sorted out within the development
control bylaws.
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18. In this background, this Court is hold that demolishing this
Jain Temple at interim stage would result into irreparable loss to the
occupants of the society, which cannot be compensated in terms of
money. Hence, point No.3. is answered in the affirmative.
As to Point No.4
19. In view of discussion of point Nos.1 to 3 it is held that the
plaintiff has a primafacie case for temporary injunction. Balance of
convenience and irreparable loss are in favour of the plaintiff.
Therefore, the plaintiff is entitled for order of temporary injunction as
prayed for protecting the structure of the Jain Temple mentioned in the
notice under section 53 (1) of MRTP Act bearing Ref. No.FS/
DO2FN204/531 MRTP ACT/FS415NO1/3.11.2018 dated 03.11.2018
and the Order dated 26/03/2019 bearing Ref.No.ACFS/1907/OD/BA
against the suit premises i.e. Temple situated at Girnar Tower CHS,
G.D.Ambekar Road, Kalachowki, Mumbai 400 033 till disposal of this
suit. In consequence this Notice of Motion is deserves to be made
absolute in terms of prayer clause (a) and (b) of the same and following
order is passed.
ORDER
1. Notice of motion No. 1559/2019 is made absolute in terms of
prayer clause (a) and (b) of the same.
2. Defendants or any other persons on their behalf are restrained
by this order of temporary injunction from taking any action
or action of demolition in pursuance of notice under section
53 (1) of MRTP Act bearing Ref. No.FS/DO2FN204/531
MRTP ACT/FS415NO1/3.11.2018 dated 03.11.2018 and the
Order dated 26/03/2019 bearing Ref.No.ACFS/1907/OD/BA
against the suit premises i.e. Temple situated at Girnar Tower
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CHS, G.D.Ambekar Road, Kalachowki, Mumbai 400 033 till
disposal of this suit.
3. The Notice of Motion No.1559/2019 is disposed off.
(Smt. S.G.Shaikh)
Date 02/05/2022 Judge,City Civil Court,
Gr.Mumbai.
Dictated on : 02/05/2022
Typed on : 02/05/2022
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04/05/2022 02.45 p.m ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
02/05/2022
JUDGMENT/ORDER signed by
P.O.on
04/05/2022
JUDGMENT/ORDER uploaded on 04/05/2022
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