Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 Draft Notice of Motion in Suit no. 930-2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO. 930 OF 2018
Ashraf Ahmed Majal & Ors. ]... Plaintiffs.
Versus
The Municipal Corporation of ]
Greater Mumbai, Mumbai & others ]... Defendants.
Coram : M. S. Deshpande, Judge
(Court Room no. 05)
Date : 5th April, 2018.
Mr. Jamshed Ansari, advocate for plaintiffs.
Ms. Patil, advocate for defendants.
ORDER
1. The plaintiffs have moved this motion seeking adinterim
relief of injunction for restraining the defendant nos.1 and 2 from
demolishing the notice structure pursuant to the notice dated 27.3.2018
issued under Section 488 of the Mumbai Municipal Corporation Act,
(for short, “M.M.C. Act”).
2. The facts, in nut shell, are that the plaintiff nos.1 to 3 are
the partners of plaintiff no.4, whereas the defendant nos.3 and 4 are the
owners / landlords of the premises admeasuring 940 sq.ft. of area
located on the 2nd floor of the Green Stone Heritage building, 52/60
Block Palton road, Crawford Market, Mumbai.
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2 Draft Notice of Motion in Suit no. 930-2018
3. By an agreement dated 2.11.2016 the aforesaid premises
were given by the defendant nos.3 and 4 to the plaintiffs on leave and
license. The plaintiffs started business of lodging and boarding under
the name and style of M/s. Noble Lodge. However, at the dictates of
local politicians, the defendant nos.1 and 2 (for short, “defendants”)
issued notice under Section 488 of M.M.C. Act on 27.3.2018 to the
plaintiffs, directing the plaintiffs to remove the notice structure or to
face an action for its demolition.
4. According to the plaintiffs, they have never received any
notice prior to the aforesaid notice. However, the defendants are bent
upon to demolish the suit structure without following due process of
law.
5. The defendants filed reply and opposed motion by
contending that the suit itself is not tenable. Upon receipt of complaint
about raising an illegal construction by the plaintiffs, notice under
Section 53(1) of M.R. & T.P. Act was issued. Thereafter, by following
due process of law an order was passed. The plaintiffs did not comply
with the said notice and therefore, an action under Section 488 of MMC
Act has been initiated.
6. Heard respective advocates. The Learned advocate for the
plaintiff has submitted that the notice dated 25.9.2017 issued under
Section 53(1) of the M.R. & T.P. Act is never served on the plaintiffs. An
order pursuant to the said notice is also not passed. The notice was
required to be issued to the defendant nos.3 and 4 who are the
landlords / licensors. Therefore, the action initiated by the defendant is
illegal. He has placed reliance on the following authorities:
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3 Draft Notice of Motion in Suit no. 930-2018
(1) A.O. No.712 of 1996
Mohamed Yusuf Abdul Sattar
vs. M.C.G.M.
date of decision 19.6.1996.
Ratio: It is not expected from a tenant to produce
documents to show existence of the disputed
structure prior to datum line.
(2) A.O. No.101 of 2001
Date of decision 12.2.2001.
Ratio:Notice about unauthorised structure is necessary to
be issued to owner/ landlord in addition to the
occupant /tenants of the suit premises.
7. On the other hand, the Learned advocate for the
defendants submitted that in spite of the service of the notice the
landlord as well as plaintiffs have not filed reply. Therefore, order was
passed. They have not complied with the orders and therefore, notice
for demolition of the offending structure is issued. She further
submitted that on 28.3.2018 the part of the offending structure is
demolished. The part of premises was found locked and thus, action
for demolition could not be completed.
8. 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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4 Draft Notice of Motion in Suit no. 930-2018
SR.
NO.
POINTS FINDINGS
1. Whether the plaintiffs have made out a prima
facie case ?
In the negative
2. Whether the points of balance of convenience,
irreparable loss and hardship lie in favour of
the plaintiffs ?
In the negative
3. Whether the plaintiffs are entitled to an ad
interim relief of injunction as prayed for ?
In the negative
REASONS
AS TO POINT NOS.1 TO 3.
9. It is necessary to look into the documents placed on record.
The plaintiffs have filed copies of leave and license agreement,
registration certificate etc. The copy of notice/ letter dated 26.5.2017
issued by the defendants to the plaintiffs prima facie show that upon
inspecting the said premises on 22.5.2017 and detecting various
additions and alterations, the plaintiffs were called upon to the submit
approved plan and other relevant documents to show authorization of
the additions and alterations made in the said premises. By reply dated
30.5.2017 the plaintiffs denied of carrying out such additions,
alterations and further contended that the notice structure exists prior
to the datum line on 1.4.1962 etc.
10. The copy of notice dated 27.3.2018 prima facie shows that
earlier notice under Section 53(1) of the M.R. & T.P. Act was issued to
the plaintiffs and an order was passed on 8.12.2017, however, on
failure of the plaintiffs to comply with the same, the notice for
demolition of the offending structure was issued.
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5 Draft Notice of Motion in Suit no. 930-2018
11. The copy of first inspection report dated 25.9.2017 prima
facie shows that the officers of the defendants found unauthorised
construction of rooms and running lodging and boarding business
which was beyond approved plan of building dated 3.2.2015.
12. The copy of notice dated 25.9.2015 issued under Section
53(1) of M.R. & T.P. Act shows that the same was issued in the name of
defendant no.4 as well as the plaintiff nos.1 to 3. The said notice prima
facie shows the signature of plaintiff no.1 which can, prima facie, be
compared with his signature on the copy of registered leave and license
agreement which is placed on record by the plaintiffs. It also shows
that the said notice was served on the licensor / landlord Mr. Khatib.
Therefore, there is no substance in the submissions made on behalf of
the plaintiffs that the said notice was not served / issued to them and
landlord. Similarly, the plaintiffs have made false statement that notice
was not served on them. Considering such false statement, the
plaintiffs are not at all entitled for any equitable relief.
13. However, it is necessary to look into the remaining
documents placed on record. The order dated 8.12.2017 passed by the
Designated Officer prima facie shows that the plaintiffs on 20.11.2017
submitted the reply alongwith plan of Nobel Lodge signed by the
architect and after considering the same, it was concluded that the
notice work was unauthorised and further it was directed to remove the
same. Here, also it appears prima facie that the plaintiffs have
suppressed the fact of filing reply dated 20.11.2017.
14. The copy of demolition report dated 28.3.2018 prima facie
shows that the room nos.207, 208 and 209 were demolished and the
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6 Draft Notice of Motion in Suit no. 930-2018
action was stopped as the remaining rooms were found locked. The
copies of photographs show the action for demolition. The defendants
have also filed copy of building plan dated 3.2.2017 which shows prima
facie that the construction of the entire building is new one. There is
nothing placed on record by the plaintiffs that the construction of notice
structure was in existence since prior to the datum line, i.e. 1.4.1962.
15. Considering the aforesaid facts and circumstances, it prima
facie appears that the plaintiffs have failed to make out prima facie
case. The points of balance of convenience, hardship and irreparable
loss do not lie in favour of the plaintiffs. Therefore, the plaintiffs are
not entitled for the adinterim reliefs. Therefore, the point nos.1 to 3
are answered in the negative and the following order is passed :
ORDER
Adinterim relief is rejected.
Sd/
(M.S. Deshpande)
Ad Hoc Judge,
City Civil Court, Mumbai.
Dictated on : 05/04/2018
Typed on : 09/04/2018.
Signed by HHJ on : 11/04/2018.
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7 Draft Notice of Motion in Suit no. 930-2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 11.04.2018 At 02.40 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
05.04.2018
JUDGMENT/ORDER signed by
P.O. on
11.04.2018
JUDGMENT/ORDER uploaded
on
11.04.2018
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