Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1402/2020 L.C. Suit (St) No.3804/2020
CNR NO.MHCC01-004346-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1402 OF 2020
(CNR NO.MHCC01-004346-2020)
IN
L.C. SUIT (ST) NO. 3804 OF 2020
Madhukar Pundalik Kalokh )
of Bombay, adult, indian Inhabitant, )
Residing at House No.95 and 95A )
Kalokh House, Near Electric Pol, WK 14/2, )
behind Hanuman Temple Near Sea Shore, )
Koliwada, Worli, Mumbai )...Plaintiff
Vs.
Mumbai Municipal Corporation of )
Greater Mumbai through Designated Officer)
C South Ward A body incorporated under )
the provision of MMC Act having its office )
situated at Mahapalika Marg, Opp. CST, )
Mumbai )...Defendant
APPEARANCE:-
Ld. Adv. Mr. Arjun Kode for the plaintiff.
Ld. Adv. Mrs. Dipali Patil for the defendant/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 7th JANUARY, 2021.
O R D E R
This Notice of Motion is moved by plaintiff praying to
restrain defendant from enforcing /implementing the notice dated
05.06.2020 issued u/sec.354 A of MMC Act with respect to suit
premises.
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Description of suit premises -
House No.95 and 95A Kalokh House, Near Electric Pol, WK
14/2, behind Hanuman Temple Near Sea Shore, Koli wada, Worli,
Mumbai which is ground + mezzanine and attic floor.
Notice structure -
Unauthorized construction of Ground floor RCC structure
by construction of RCC Frame, Brickwork, Ladi Coba slab over it
admeasuring 14.6m x 13m x 2.4m in height at 95/A, Kalokh House,
Near Electric Pole WK 14/2, behind Hanuman temple, Kesarinath Buva
Bhaye Marg, Near Sea Shore, Worli Koliwada, Mumbai – 30.
4. Heard, Ld. Advocate Mr. Suraj Kudalkar for Plaintiff,
Ld. Advocate Mr. Vilas Gavai for defendants corporation. On hearing
the parties and on going through entire record of the case, following
points arise for my determination with its findings and for reasons to
follow :
S.N. POINTS FINDINGS
1 Whether plaintiff proves that prima facie
case lies in his favour ? In Negative.
2 Whether plaintiff proves that balance of
convenience lies in his favour ? In Negative.
3 Whether plaintiff proves that irreparable
loss will be caused to him, if the
application is not allowed ?
In Negative.
4 What order ? As per final order.
R E A S O N S
AS TO POINTS NO.1 TO 3
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As all the points are interlinked with each other, they are
discussed together.
5. Plaintiff has filed present suit challenging the impugned
notice u/sec.354 A of MMC Act. Therefore, plaintiff has to prima-facie
show that there was no ongoing construction as is described in notice
structure on the date of issuance of notice i.e. 05.06.2020 or that notice
structure is authorized structure.
6. Learned advocate for plaintiff has relied upon the
assessment bill of period 2012-2013 filed along with the plaint.
7. This assessment bill prima-facie shows the existence of
premises of C.I. Shed with tiled roof at the address of suit premises
since 01.04.1964. Defendant BMC is not disputing the existence and
authorization of C.I. Shed at the address of suit premises. They are
objecting that on the date of inspection by the officers of defendant
BMC i.e. 04.06.2020, there was ongoing construction for which
impugned notice dated 05.06.2020 is issued.
8. In order to substantiate their defence, defendant BMC has
relied upon the copy of impugned notice, panchanama, the inspection
report along with photographs.
9. The copy of photograph which is appearing in the
inspection report prima-facie shows the ongoing construction as is
described as notice structure in the impugned notice. The coloured
photograph tendered by defendant BMC on 24.12.2020 which is
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coloured photograph of photograph appearing in inspection report is
prima-facie substantiating this fact. Any prudent person upon going
through this photograph will prima-facie conclude that there is ongoing
construction of the ground floor RCC structure by construction of RCC
Frame, brickwork, ladi coba slab i.e. the description of the notice
structure. In rebuttal to this evidence tendered by defendant BMC,
there is no evidence adduced by plaintiff to show that on 04.06.2020,
there was no ongoing construction on the address of suit premises. The
existence of C.I. Shed on the address of suit premises since 01.04.1964
is not in dispute. What is disputed is the ongoing RCC construction, of
RCC Frame, brickwork, ladi coba slab. There is not a single piece of
evidence on record tendered by plaintiff to rebut the position appearing
in the photograph in inspection report tendered by defendant BMC on
record.
10. It is pertinent to note that the energy bills tendered by
plaintiff on record are showing the suit premises as ground + three
storeyed. There are three energy bills of 24.07.2019. These three
energy bills are independently issued for separate floors i.e. first,
second and third floor on the address of suit premises. Therefore, the
documents of plaintiff are against the case made out by him on record.
If there was ground + mezzanine + attic floor as is described by
plaintiff as suit premises as the only structure, how the three energy
bills are separately issued for each floor. Besides the assessment and the
energy bills, no documents are tendered on record to substantiate the
case of plaintiff.
11. On the directions given by the court on 16.06.2020 to
tender photographs of suit premises on record, plaintiff had filed the
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photograph on 17.06.2020. On basis of this photograph i.e. filed on
17.06.2020 plaintiff had obtained status-quo order. However, on
23.12.2020 learned advocate for plaintiff was denied the photograph
filed on 17.06.2020 to be of suit premises. Therefore, plaintiff was
directed to file the photographs of suit premises existing on 23.12.2020
on record. Plaintiff has filed the photograph on same day. However,
from the photographs which are filed by plaintiff on 23.12.2020, one
cannot conclude about the existence of total structure on the address
of suit premises. The photographs are depicting the picture only of
ground floor. Not a single photograph is showing the total structure on
the address of suit premises. These photographs either show the
internal or the external position on the ground floor. The total structure
is not depicting in any of the photograph. Considering defence made
out by defendant BMC and description of notice structure enumerated
in impugned notice it was expected from plaintiff to give clear picture
of roof and above floors construction if any. But plaintiff failed to file
photograph showing entire structure standing on address of suit
premises. Therefore, though opportunity was given to plaintiff on
23.12.2020, plaintiff failed to show that there was no ongoing
construction as is described in the notice structure. On the contrary the
photographs of demolition carried out by defendants prima-facie reflect
the ongoing construction on address of suit premises.
12. The fact that the defendant BMC has demolished the major
portion of the upper floor is not in dispute. The picture appearing in
these photographs in itself shows that there was ongoing construction
on the address of suit premises as is described in the notice structure.
There are several photographs of demolition of the upper floor on the
address of suit premises on record. All this evidence is against plaintiff.
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13. Learned advocate for plaintiff has throughout his
arguments has vehemently submitted that the defendant BMC has
taken different stands in written statement as well as in oral
arguments.
14. In written statement, defendant BMC has contended that
the unauthorized construction is demolished. In paragraph-10F, they
have contended that 60% unauthorized construction is demolished.
During argument, learned advocate for defendant BMC orally
submitted that 80% unauthorized construction is demolished. If the
photographs and the arguments are given minute scrutiny, it will not
help plaintiff in any manner. On the contrary, what it is pointing out is
that there was ongoing construction, which is fatal to plaintiff. Learned
advocate for plaintiff is arguing that plaintiff has learnt that defendant
has passed the order of demolition. This submission is without any
base. Neither there is any affidavit on this point nor there is any
material on record. Furthermore, when plaintiff has not brought
anything on record to substantiate his case, how this argument will
have force.
15. It was also argued by learned advocate for plaintiff that
defendant has not complied Sec.351 (1A) (a) (b) of MMC Act. This
argument has no force. I have already discussed above, that defendant
has brought on record that there was ongoing construction on
04.06.2020. There is no evidence on record that construction is
completed to invoke Sec.351 of MMC Act. The legal position is settled
one on this point. As there was ongoing construction on 04.06.2020,
rightly the notice is issued u/sec.354 A of MMC Act of 24 hrs. Plaintiff
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has replied the notice as per his case. There is no allegation that there
is any violation of rules of natural justice.
16. It was also argued by learned advocate for plaintiff that
whether there is tin shed or construction of RCC make on the address
of suit premises will be decided at the time of final hearing. As plaintiff
has shown that the structure of tin shed in suit premises is prior datum
line, plaintiff needs to be protected. I do not find any substance in this
arguments. I have already discussed above that upon going through the
photographs placed on record by defendant BMC, any prudent person
can conclude that the construction was of RCC make and no longer the
description of suit premises i.e. tin shed is found. Therefore, plaintiff
failed to make out prima-facie case. Therefore, the question of
concluding at the time of final hearing as is argued by learned advocate
for plaintiff does not arise. As discussed above, there is no dispute
about existence of tin shed but this is not the notice structure. Plaintiff
has to satisfy about the authorization of notice structure which he has
failed to show. Therefore, the arguments of learned advocate for
plaintiff do not have any merits.
17. For all discussion above, plaintiff failed to satisfy that there
was no ongoing construction on 04.06.2020 or that the construction
rather the notice structure on the address of suit premises is authorized
one by any prima-facie evidence on record. Therefore, I do not find any
force in the arguments of learned advocate for plaintiff. Plaintiff failed
to make out prima-facie case. Therefore, both the other factors do not
tilt in favour of plaintiff. Therefore, plaintiff is not entitled to interim
relief as is prayed by him. Therefore, I answer point No.1 to 3 in
negative.
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18. Having arrived at aforesaid findings, the notice of motion
of plaintiff deserves to be dismissed. Accordingly, I proceed to answer
point No.4 by following order -
ORDER
1. Notice of Motion No.1402/2020 is hereby dismissed with costs.
2. Notice of Motion No.1402/2020 is accordingly disposed of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 07.01.2021 City Civil Court, Gr. Bombay
Directly Dictated on Com :07.01.2021.
Checked on :08.01.2021.
Signed on :11.01.2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 12.01.2021, 11.42 am.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
07.01.2021
JUDGMENT/ORDER signed by P.O.
on
11.01.2021
JUDGMENT/ORDER uploaded on 12.01.2021
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