Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1401/2020 in Stamp No. 4427/2020. 1 Order.
MHCC010043452020
Presented on : 05-10-2020
Registered on : 05-10-2020
Decided on : 07-10-2020
Duration : 0 years, 0 months, 2 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1401 OF 2020
IN
STAMP NO. 4427 OF 2020
Alwyn Jerome Dias ...Plaintiff
Versus
Municipal Corporation of Greater Mumbai ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 7th OCTOBER, 2020.
Mr. Dinesh Shah, Advocate for Plaintiff.
Mrs. Tondwalkar, Advocate for Defendants / MCGM.
ORDER
This is a motion taken out by plaintiff to challenge legality
of notice under Section 351 of MMC Act dated 14/05/2018 and
speaking order dated 11/03/2020. There was inspection visit by the
concern officer over the suit property, Survey No.14, C.T.S.No. 27,
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N/m No. 1401/2020 in Stamp No. 4427/2020. 2 Order.
situated at Vihar Lake Road, Village Paspoli, Powai, Mumbai-87. There
is a sketch / diagram of unauthorized construction to the overleaf of
notice dated 14/05/2018. The schedule in respect of unauthorized
construction runs as follows :
“Unauthorized Construction of Ground Floor having
size 50 x 11 mtrs. with Brick work & A.C. sheet roof
as shown in sketch.”
2. Perused documents with supportive affidavit submitted by
‘S’ Ward Officer Mr. Sachin Uike and numerous photographs submitted
by both side vide Exh.2 and 4.
3. Ld. Adv. Dinesh Shah for plaintiff submits that it is not
disputed that plaintiff runs a hotel-cum-lodging boarding in the name
and style as ‘Xpress Inn’ containing 26 rooms in total on ground floor.
Plaintiff has received all three structures from his predecessor namely
Jorom John Dias. There is a licence issued by MCGM which has been
renewed from time to time and valid upto 31/12/2020. In response to
the notice issued by the MCGM, plaintiff has replied on 28/05/2018
and supported with various documents i.e. Census Certificate, City
Survey Plan, photo-pass, hotel licence, verification etc. However,
according to plaintiff, in view of stereotype speaking order dated
11/03/2020, the designated officer has uphold the legality of notice
and all documents submitted by plaintiff are considered as useless. It is
vehemently submitted that impugned notice and speaking order are
void ab initio. It is requested for temporary injunction.
4. Ld. Adv. Tondwalkar for MCGM submits that prima facie it
appears the structure mentioned in impugned notice and three
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structures shown by plaintiff are different. Obviously, the measurement
of all different three structures do not match with notice structure
described in the schedule supported with inspection sketch. It is crystal
clear that plaintiff himself has demarcated three different structures.
There is a continuous and complete slab over entire premises picturized
in various photographs wherein plaintiff runs a hotel in the name and
style of ‘Xpress Inn’. In view of some photographs of elevation and
detail map submitted by the plaintiff, it shows 13 + 13 = 26 rooms in
total. In said diagram itself it shows 10 ft. is height of ground floor and
5 ft. is height of the first floor. There are numerous photographs
submitted by MCGM and thereafter submitted by plaintiff clearly
indicate iron staircase with support of compound wall installed to the
backside corner of the suit premises for approaching to the first floor.
There is no permission at all, either for amalgamation or for
construction of roof of slab on the ground floor, therefore it is claimed
to reject the motion.
REASONS
5. Before adverting to the question in controversy, it is to note
that in view of different three photo-passes and Census Certificate dated
08/12/1980, it establish that plaintiff has possession of independent
three structures. It is not disputed that there are 26 rooms in total and
plaintiff runs a hotel in the name and style of ‘Xpress Inn’. For
appropriate discussion and for sake of brevity, details in respect of three
structures as per photo-pass and census is summarized in following
table :
Sr.No. Census No. Certificate No. Area
1 97/1/1A 2847/80 36 x 55 = 1980 sq.ft.
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2 97/1/2A 2849/80 35 x 57 = 1995 sq.ft.
3 97/1/3A 2848/80 35 x 60 = 2100 sq.ft.
6. According to ld. advocate for plaintiff, there is no first floor.
On perusal of various photographs, it clearly indicate the staircase is
installed from the backside corner for approaching to the first floor
above the slab of ground floor and there is a tin shed over the first floor.
In unscaled map vide Exh.3 submitted by plaintiff, it shows the tin shed
over first floor bear the height 5 ft. from backside and 3 ft. towards the
front side. Upon query raised by this Court, ld. Adv. Mr. Shah for
plaintiff replied that to protect ground floor from leakage during the
rainy season, plaintiff has installed a tin shed. The obvious questions
would occur :
a) Is there permission of continuous slab above 26 rooms ?
b) Is there any permission obtained for a big hall bearing size
172 ft. in length (and height 5 ft. from one side and 3.5 ft.
from another side) ?
Ld. advocate for plaintiff has skillfully avoided to reply these questions.
7. On perusal of hutment counting of unauthorized
constructions bearing No. 102411, 102412, 102413, it bear
endorsement of business is of sand and bricks godown. It is narrated in
following table :
Sr. No. Census No. Nature of Business
1. 102411 jsrh foVkaps xksMkÅu & ikp dkexkj
2. 102412 Ckkjnku xks.kh xksMkÅu & nksu dkexkj
3. 102413 ‘kgkGh ukjG xksMkÅu & pkj dkexkj
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8. There is no reply on behalf of ld. advocate for plaintiff that
when plaintiff has amalgamated three properties and under what
permission. If it was a slum and unauthorized illegal construction
which has been censused, whether any permission was obtained for
conversion of business from sand and bricks godown to lodging and
boarding-cum-hotel. As mentioned above, ld. advocate for plaintiff has
skillfully avoided to reply.
9. At this juncture, it would be appropriate to note the ratio
laid down in Tushar Guru Salien Vs State of Maharashtra (PIL 67/2017,
order dated 28/08/2019) . Para no.5 is reproduced as follows :
“Concerning a property, a suit to enforce or protect an
interest in the property which is governed by a Municipal
Statute, the interest protected has to be with respect to a
plea that prima-facie, the structure which is being
targeted is an authorized structure. Meaning thereby, the
plaint must make an averment of the sanction obtained
from the Corporation and must make an averment that
the structure targeted is prima-facie governed by the
sanction. Merely pointing out deficiencies in the notice or
the authority of the person issuing the notice is neither
here nor there. Thus, the
sine qua non of such kinds of
suits is a positive assertion made with reference to the
sanctioned building plans.”
10. In Namdev Pandurang Panchal V/s. MMC (indiankanoon
256413 dated 16/09/2005) it is observed by the Hon’ble Lordship of
Bombay High Court that,
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“There cannot be any substitute for written
permission of the BMC for construction nor there
cannot be any substitute for approved plan before
construction.”
11. In view of aforesaid discussion, the object of staircase and
installation of tin roof above the slab is not clarified by the plaintiff.
Naturally a godown or workers’ room appears to be prepared by
plaintiff without any permission. It clearly indicate there is no prima
facie case in favour of plaintiff.
12. There are following important points to note :
a) The notice structure and structure shown in various photographs
do not match with structure shown in photo-pass and census.
b) Plaintiff has converted all three structures in a single premises
without any permission from appropriate authority.
c) The amalgamation of all three structures and conversion of
business is without any permission.
d) The installation of staircase from the backside and created access
for first floor i.e. a big godown having length of 172 ft. on first
floor.
e) There is no positive assertion in the plaint in respect of
sanctioned building plan.
f) The impugned construction of 26 rooms as a lodging and
boarding cannot be urgent work. In fact, it is a commercial
premises. There is no express permission in respect of
construction of 26 rooms.
13. No doubt, demolition is a drastic action. However, there is
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increase of the tendency of the citizens of making illegal construction in
the city of Mumbai. It is not hutment or structure created for
livelihood, but it is premises of sand and coconut godown converted to
posh hotel. Therefore a drastic action is necessary to curtail illegal
constructions. The behaviour of people like plaintiff reflect that they do
not bother or hesitate to the action of government machinery. In short,
there is no balance of convenience lies in favour of plaintiff. No
irreparable loss would be caused to the plaintiff as entire construction
appears to be unauthorized.
14. This is not a stage to consider, whether plaintiff is paying
the taxes by showing the suit premises as commercial or residential. It
is upto MCGM to consider this aspect as per law. Hence the order :
- ORDER -
1. Notice of Motion No. 1401/2020 stands dismissed.
2. MCGM is at liberty to obtain appropriate action after ten
days from uploading the order on website.
3. Plaintiff to register the suit within three days.
4. N/m No. 1401/2020 stands disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 07/10/2020. Mumbai.
1. Dictated on : 07/10/2020.
2. Transcribed on : 14 & 15/10/2020.
3. Signed on : 16/10/2020.
4. Delivered to Certified :
Copy Section on
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/10/2020. 1.54 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 07/10/2020.
Judgment/Order signed by P.O. on 16/10/2020.
Judgment/Order uploaded on 16/10/2020.
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