Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
1) Notice of Motion No.4675 of 2018.
in
L.C.Suit No. 3280 of 2018.
Janmejai Bagrodia & Anr .....Plaintiff
V/s
MCGM & Anr. ..Defendants
2) Notice of Motion No.4676 of 2018
in
L.C. Suit no. 3281 of 2018
Janmejai Bagrodia & Anr ..Plaintiff
V/s
MCGM & Anr. ..Defendants
3) Notice of Motion No. 4677 of 2018.
in
L.C. Suit no. 3282 of 2018.
Janmejai Bagrodia & Anr
..Plaintiff
V/s
MCGM & Anr
..Defendants
4) Notice of Motion No.319 of 2019
in
L.C. Suit no. 204 of 2019
Ornate Exports (Mumbai) Private Ltd
...Plaintiff
V/s
..Defendants
MCGM & Anr
-- 1 of 42 --
2
5) Notice of Motion No. 1621 of 2019
in
St No. 4640 of 2019
M/s Sanketh Metal Private Ltd
..Plaintiff
V/s
Municipal Corporation of Gr. Mumbai ..Defendants
and Anr.
6) Notice of Motion No1620 of 2019
in
St No. 4641 of 2019
M/s Sanketh Metal Private Ltd
..Plaintiff
V/s
Municipal Corporation of Gr. Mumbai ..Defendants
and Anr.
Advocates:
Mr. Niranjan Bhadang i/b Tushar Goradia for plaintiff
Mr. D.K.Vyas,Mr Tavakkuli and Mr.V.P.Kumawat for
defendants.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 22nd April, 2019
(Court Room No.06)
COMMON ORDER
A) PRELOGDE.
Plaintiffs have taken out these notices of motion to restrain
the defendants i.e. Municipal Corporation, Gr. Mumbai and designated
-- 2 of 42 --
3
officer, Assistant Engineer (Building and factory dept.) G south ward,
MCGM, Mumbai from demolishing the suit premises on the basis of
notices U/s 351 of MMC Act and orders passed thereon more
particularly described in the plaints till decision of suits on merit.
2 All these notices of motion are in respect of the various
structures situated in the building known as 'Prathemesh Towers',
Raghuvanshi Mill Compound, Lower Parel, Mumbai 400 013. Issues in
all notices of motion are similar. Defendants have filed detailed reply to
the notices of motion. Hence, with the consent of both the parties they
are disposed of finally by this common order.
B) THE DESCRIPTION OF SUIT PREMISES.
3 All the premises are situated in building no.3 known as
'Prathemesh Towers', standing on the portion of land in Raghuvanshi
Mills compound bearing C.S.No. 107 of Lower Parel Division, situated
at 1112, Senapati Bapat Marg, Lower Parel, Mumbai 400 013 and
particularly as under:
(i) L.C.Suit No. 3280/18 ( Notice of motion no 4675 of 2018):
Unit Nos 601, A wing in Prathemesh Tower.
(ii) L.C.Suit no 3281/18 (Notice of motion No. 4676 of 2018):
Unit No.602,A wing in Prathemesh Tower.
(iii) L.C.Suit No. 3282/18 (Notice of motion No.4677 of 2018):
Unit no.603, A wing, in Prathemesh Tower.
(iv) L.C. Suit No 204 of 2019(Notice of motion no. 319 of 2019
unit no.205, B Wing in Prathemesh Tower.
-- 3 of 42 --
4
(v) St No. 4640 of 2019 (Notice of motion no.1621 of 2019):
unit Nos. 604 & 605, B Wing in Prathemesh Tower.
(vi) St No. 4641 of 2019 (Notice of motion no.1620 of 2019):
unit No.606,B Wing in Prathemesh Tower.
C) PLAINT AND WRITTEN STATEMENT
(PLEADINGS).
PLAINT:
4 L.C.Suit No. 3280 of 2018 ( Notice of motion no 4675 of
2018) Plaintiffs are the owners of and carrying on business at and
from the suit premises. Registered Agreement dated 10th December
2003 duly entered in to between M/s Chaitanya Developers and the
plaintiffs, the plaintiffs become the owner of the suit premises. Plaintiff
has licenses to run the business issued by defendant corporation and
competent authorities.
5 L.C.Suit no 3281 of 2018 (Notice of motion No.4676 of
2018): Plaintiffs are the owners of and carrying on business at and
from the suit premises. Registered Agreement dated 10th December
2003 duly entered in to between M/s Chaitanya Developers and the
plaintiffs, the plaintiffs become the owner of the suit premises. Plaintiff
has licenses to run the business issued by defendant corporation and
competent authorities.
6 L.C.Suit No 3282/18 (Notice of motion No.4677 of
2018) Plaintiffs are the owners of and carrying on business at and
from the suit premises. Registered Agreement dated 10th December
2003 duly entered in to between M/s Chaitanya Developers and the
plaintiffs, the plaintiffs become the owner of the suit premises. Plaintiff
-- 4 of 42 --
5
has licenses to run the business issued by defendant corporation and
competent authorities.
7 L.C. Suit No 204 of 2019 (Notice of motion no. 319
2019) Plaintiff is a company duly incorporated under the provisions of
the Companies Act, 1956.Registered Agreement dated 18th January
2008 duly entered in to between M/s Chaitanya Developers and the
plaintiffs, the plaintiff become the owner of the suit premises. Plaintiff
has licenses to run the business issued by defendant corporation and
competent authorities.
8 St No. 4640 of 2019 (Notice of motion no. 1621 of
2019)The plaintiff is a company duly incorporated under the
provisions of Companies Act, 1956. Registered Agreement dated 10th
December 2003, duly entered in to between M/s Chaitanya Developers
and the plaintiffs, the plaintiff become the owner of the suit premises.
Plaintiff has licenses to run the business issued by defendant
corporation and competent authorities.
9 St No.4641 of 2019 ( Notice of motion No.1620 of
2019) The plaintiff is a company duly incorporated under the
provisions of Companies Act, 1956. Registered Agreement dated 10th
December 2003, duly entered in to between M/s Chaitanya Developers
and the plaintiffs, the plaintiff become the owner of the suit premises.
Plaintiff has licenses to run the business issued by defendant
corporation and competent authorities.
COMMON CONTENTIONS IN ALL PLAINTS:
10 The suit premises are situated in Raghuvanshi Mill
Compound consisting several buildings which were at one point of
-- 5 of 42 --
6
time used for any ancillary purpose of the mill. Since last more than 20
years the said Raghuvanshi Mill was closed down and the Management
of the said mill sold their various buildings to various companies and
the companies have opened up their offices and business premises in
the mill compound. The user of the building were admittedly
recognized by the defendants and accordingly the defendants are
charging property tax of the suit building and recovering the property
tax without any objection and reservation. There is course of time, the
Raghuvanshi Mills Limited had come to the stage of liquidation and in
order to overcome the said liquidation, the management of the mill had
proposed a revival plan before the Board for Industrial and Financial
Reconstruction. Due to some dispute with BIFR, the Raghuvanshi Mills
Limited approached the appellate authorities and got the order to sell
the buildings in the Raghuvanshi Mills Compound in order to
overcome the debt of mill workers. In the course of said action BIFR
approved the proposal of the Raghuvanshi Mills Limited and many
buildings were sold by the said Raghuvanshi Mills Limited.
11 In fact the Raghuvanshi Mills Limited is the lessee of the
entire land of the mill compound by an Indenture of Lease dated
13/09/1889. There are several buildings on the land owned by the
said lessee for more than 100 years. Out of the said buildings one of the
building is building no.3 consisting basement, ground plus 6 upper
floors having different units therein. The Raghuvanshi Mills Limited
had assigned the rights in the said building no. 3 to M/s Chaitanya
Developers and the building is now known as 'Prathamesh Towers'
(Suit Building). Thereafter M/s Chaitanya Developers carried out
tenantable repairs to the suit building and further decided to sale of the
-- 6 of 42 --
7
various units in the building. Accordingly in suit building plaintiffs have
purchased the units from either with developers or the earlier owners
to whom M/s Chaitanya Developers had assigned the rights in a
particular unit.
12 The said building is occupied by different
owners/occupants and they have formed Prathamesh Tower Premises
Cooperative Society Ltd. The society has issued a share certificate in
the name of owner of the concerned respective unit. Plaintiffs are
paying the maintenance charges and other charges to the society.
Plaintiffs have taken electricity connection in the suit premises. The
defendant Municipal Corporation has assessed the suit premises long
ago and plaintiffs are paying property taxes to the defendants. None of
the buildings were used as a residential use. All the buildings in the
Raghuvanshi Mill Compound were assessed for non residential user by
the defendants right from the beginning.
13 According to plaintiffs, the Raghuvanshi Mills Limited have
serious dispute with the defendants with regard to the payment of the
property tax and the Raghuvanshi Mills Limited litigated with the
defendants in the issue of property tax and other related matters in
various courts. Therefore, defendants started disputing the internal
layout of the structure and issued a notice to the plaintiffs/occupants
U/s 351 of Mumbai Municipal Corporation Act 1888. The occupants
have filed suits against the defendant Municipal Corporation and
challenged the same notice U/s 351 of MMC Act. In all these suits this
Court has protected the occupants from unauthorized demolition by the
defendant.
14 All occupants of Raghuvanshi Mill Compound have formed
-- 7 of 42 --
8
an association by name Raghuvanshi Estate Welfare Association and
they have wrote a letter to the defendants and called upon to verify the
Assessment Tax. Earlier the defendants had granted repair permission
of the suit building by their letters dated 11/12/1984 and 17/05/1989.
When the said M/s Raghuvanshi Mills Pvt Ltd. was carrying out repairs
of the suit building and using a lot of water the defendants vide their
letters dated 3/07/1997 and 07/08/1997 asked the said Raghuvanshi
Mills Pvt Ltd to pay extra water charges for excess consumption of
water. When Raghuvanshi Mills Pvt Ltd was carrying out repairs to the
suit building as per repair permission, defendants issued notice U/s
354A of the MMC Act dated 18/08/1997 to the Raghuvanshi Mills Pvt.
Ltd. At at that time defendants had knowledge that the suit building
consisting basement and ground floor plus 6 upper floors. The
Raghuvanshi Mills Ltd had given reply to the above notice. Thereafter,
defendant seemed to have dropped their action under section 354 A of
MMC Act.
15 According to plaintiff, the suit building consisting ground
Plus 6 upper floors and there are various units in it. However,
defendants has given notice only to The Raghuvanshi Mills Limited
unifying all the units together. Thereafter, the defendants has issued a
notice to the Raghuvanshi Mills Ltd. u/s 351 of MMC Act 1888 dated
26/09/1997. The then owner of the Raghuvanshi Mills Ltd had given
reply to the notice. However, the Deputy Municipal Commissioner,
Zone II passed order dated 4/07/1998. The owners of the Raghuvanshi
Mills Ltd had challenged the said notice and order in a suit no. 3601 of
1998. After hearing both the sides and considering the evidence on
record this court by judgment and decree dated 20/04/2006 declared
-- 8 of 42 --
9
the said notice and order as illegal and bad in law. In that suit
defendants had filed their written statement and had clearly admitted
that the suit building is having basement, ground plus 6 floors. Thus,
there is no structural difference between the building no. 3 from
inception till today. In earlier suit the defendants are restrained from
taking any action u/s 351 of MMC Act. Thus, the defendant now
estopped from saying that the structure of suit building is
unauthorized. Defendants have not filed any appeal against the
Judgment and decree in L.C. suit no. 3601/1998 and thus the said
judgment and decree has attained finality.
16 Plaintiffs have further stated that during pendency of the
above suit the officers of the defendant inspected the site and they
opined that the structure is in existence prior to datum line and
accordingly the Municipal Commissioner recommended to drop the
earlier action which was initiated U/s 351 of MMC Act.
17 Inspite of the facts above defendants have started their
round of litigation and issued the notice to the occupants of the
buildings in Raghuvanshi Mill Compound. The said notices are issued
at the instance of one of the developers who intend to develop the land
of the Raghuvanshi Mills Ltd and also the land owners 'Khimji
Bhagwandas Charity Trust'. The said 'Khimji Bhagwandas Charity Trust'
have filed suit for possession against the owners of Raghuvanshi Mills
Ltd and the plaintiffs in Court of Small Causes Court, Mumbai bearing
number T.E. & R.Suit No 5/6 of 2008. The said suit is pending before
the Small Causes Court, Mumbai. Now this action
by the defendants to evict the plaintiffs from the suit premises by hook
and crook is with collusion of the said developer and M/s Khimji
-- 9 of 42 --
10
Bhagwandas Charity Trust.
18 Now the defendant no. 2 (Designated Officer) started mass
scale action in The Raghuvanshi Mill Compound. Defendant no. 2
demolished various premises without notice. The officer of G South
ward went upon to follow the direction of Municipal Commissioner and
having the support of the Government of Maharashtra and thus started
taking law in his hand by taking demolition of the premises in The
Raghuvanshi Mill Compound even without notice. Because of the said
illegal and high handed action, the association of occupants in
Raghuvanshi Mills Pvt Ltd had filed suit in the City Civil Court,
Mumbai. This Court had directed the defendants to follow the due
process of law. Defendants had withdrawn the notice issued U/s 354A
of MMC Act and thus those suits were disposed of by this Court.
19 Thereafter, defendants issued a notice to the plaintiffs U/s
351 of MMC Act. Plaintiffs had given reply to the notices. However,
defendant had passed order without gave an opportunity of hearing.
Therefore, plaintiffs had filed suits in this court and this court had
directed the defendants to supply the documents and also given an
opportunity of hearing to the plaintiffs.
20 However, the defendant no.2 has not given any
opportunity of hearing to the plaintiffs . Before issuance of the said
notice the officers of defendant namely Rohan Kumawat (Jr. Engineer)
visited the premises and he hurriedly prepared the inspection report.
Thereafter, the designated officer and Assistant Commissioner have
immediately issued notice to the plaintiffs. Notices and impugned order
are cyclostyled and stereotype. The defendants have not followed the
principles laid down in Sopan Maruti Thopte and another V/s Pune
-- 10 of 42 --
11
Municipal Corporation and another 1996(2) ALL MR 383
21 Plaintiffs further stated that defendants have initiated
fraudulent and malafide action at the behest of land owner and
developer who want to evict the occupants of The Raghuvanshi Mill
Compound including the plaintiffs by using the municipal machinery.
The suit notice issued U/s 351 of MMC Act is hopelessly time barred.
The issuance of said notice U/s 351 of MMC Act is discriminative action
under Art 14 of The Constitution of India and therefore the said notices
are bad and illegal. The defendant no. 2 has no authority and
jurisdiction to issue the suit notices. Thus the suit notices are illegal,
bad in law and liable to be set aside.
22 According to plaintiffs, the suit notices allege unauthorized
construction of R.C.C. Building and unauthorized change of user from
cotton textile mill to commercial use. However, the suit premises
consisting ground plus 6 floors. The plaintiffs have bonafidely acquired
the premises. Plaintiffs have not made any additions and alterations in
the suit premises. The alleged sanctioned plan of the year 1975 and
1977 and also Tikkaa sheet are subsequently prepared only with a view
to evict the plaintiffs from the suit premises. The suit building is
protected by the order of this court. Thus, in view of this the suit
premises are to be protected till the decision of suit.
WRITTEN STATEMENT:
23 Defendants admitted that earlier notice U/s 351 of the
MMC Act was issued in respect of building no.3 to the owner of The
Raghuvanshi Mills Pvt Ltd. Defendants admitted that the owners of
Raghuvanshi Mills Pvt. Ltd had filed L.C suit no. 3601 of 1998 and in
that suit this court has declared the earlier notice and order is illegal.
-- 11 of 42 --
12
However, defendants denied the remaining contentions made in the
plaint. Defendants denied that suit building is consisting basement plus
ground and upper 6 floors from inception. Defendants denied that the
suit building is in existence prior to the datum line. Defendants denied
that the owners of The Raghuvanshi Mills Ltd had followed the
directions of B.I.F.R and the building is developed as per the provisions
of law. Defendants denied that the notice and order are illegal and bad
in law.
24 According to defendants, defendant No. 1 is a Municipal
Corporation for Gr. Mumbai and planning authority. Defendant no. 1
performing the duties as per the MMC Act, 1888, Maharashtra
Regional Town Planning Act 1966 and Development Control
Regulation 1991. Defendant No. 1 is taking action against the
construction which are carried out in contravention of the provisions of
Municipal and other allied laws. Recently, because of irregularity and
unauthorized construction the incident of Kamla Mill took place and 14
innocent persons lost their lives because there was no way to rescue
due to unauthorized construction. Therefore, it needs to take
immediate action against unauthorized construction to avoid the
repeatations of untoward incident like Kamla Mill. The various
occupiers have filed suits in this court in respect of unauthorized
constructions in Raghuvanshi Mill Compound. They have suppressed
the facts and succeeded to obtain the orders from the court. The
defendants have challenged the said orders before Hon'ble High Court
in appeal and in appeal from order.
25 On 8/01/2007 the meeting was held by Deputy Municipal
Commissioner, Zone II and D.M.C. Zone II has instructed to proceed
-- 12 of 42 --
13
against change of user, additions and alterations,where action
remaining to be initiated in Raghuvanshi Mill compound. Therefore the
Assistant Engineer (B & F), G South Ward put up the proposal to
Assistant Commissioner, G South ward to accord sanction for taking
action against unauthorized construction. Defendants received office
note from Deputy Chief Engineer (B.P) City dated 8/11/2011
informing to take stern action against unauthorized work carried out in
the Raghuvanshi Mills Compound. It was learnt that in the year 2005
and 2007, G South ward office has already initiated action U/s 351 of
MMC Act against various unauthorized work at Mill compound. The
defendants also received a complaint of 'Khimji Bhagwandas Charity
Trust' (land owner) dated 18/01/2018 through Secretary of Hon'ble
Chief Minister, Maharashtra. In that complaint the land owners have
made allegations about the unauthorized structure carried out by the
owners of The Raghuvanshi Mills Ltd.
26 Accordingly the officers of the defendants Mr. Rohan
Kumavat , Jr Engineer (B & F) G South ward, visited the suit building
(Prathamesh Tower) on 11/04/2018, and found unauthorized
construction of R.C.C. building and also change of user from Cotton
Textile Mill building to Commercial use. He prepared the inspection
report. At that time the occupants have not shown any authenticate
documents in respect of the structure. Thereafter, the inspection report,
tikka sheet and two plans were forwarded to defendant no.2
designated officer. The defendant no. 2 after verifying the record of the
suit building issued a notice to the plaintiffs U/s 351 of the MMC Act.
Plaintiffs gave reply but they could not produced the documents to
show authenticity of the structure and therefore speaking order was
-- 13 of 42 --
14
passed. Plaintiffs had filed suits in this court. Upon hearing of both the
parties this court had directed the defendant no.2 to given an
opportunity of hearing to the plaintiffs and then pass speaking order.
Accordingly, defendant no. 2 supplied all the available documents to
the plaintiffs, gave them an opportunity of hearing and passed speaking
order dated 26/11/2018
27 Defendants further stated that the defendant no. 2 has
considered the each and every documents produced by the plaintiff but
that documents did not prove the authorization of structure. The suit
premises is in contravention as per the sanctioned plan of the year
1975,1977 and tikka sheet. The defendant no. 2 has also collected the
information from assessment department and other departments of the
defendants. It is resulted that the entire suit building (Prathamesh
Tower) is unauthorized.
28 In earlier suit no. 3601/1998, the subject matter was the
building having ground plus 6 floors. However, in the present suit the
building consisting basement ground plus 6 floors. The suit building is
different than earlier building. Thus, same cannot be protected.
29 Defendants further stated that the defendant no.2 has
given personal hearing to plaintiffs. Plaintiffs have produced the
documents however, those documents do not prove the authenticity of
structure and accordingly the defendant no.2 has passed speaking
order. The defendant no.2 has collected information from the
assessment department, building proposal department and water
supply department of defendant no.1. The suit building is not assessed
prior to datum line. The building proposal department has not
sanctioned the plan of building no.3 comprising basement, ground plus
-- 14 of 42 --
15
6 upper floors. The water supply department has also not given the
water supply to the suit building. Thus, the suit building is
unauthorized.
30 According to defendant, the suit building is in the
compound of Raghuvanshi Mills Pvt Ltd. Raghuvanshi Mills Pvt.Limited
is a sick industry. The AIFR has given permission to develop the
buildings in the compound of the mill. However, the owners of
Raghuvanshi Mills and developers have not got sanctioned the plans
from the Municipal Commissioner as per the provisions of rule 58 of
Development Control Regulations. The owners of the Raghuvanshi
Mills Ltd and developers have breached the provisions under the MMC
Act,MRTP Act 1966 and DCR 1991. Hence, amongst these grounds
defendants prayed to dismiss the notices of motion.
D) POINTS FOR DETERMINATION.
31- From the rival contention of both the parties following
points arise for my consideration to which I record my findings against
them for the reasons given below:
Sr.No Points FINDINGS
1. Whether plaintiffs have made out
prima facie case?
In the negative
2. Whether balance of convenience lies
in favour of plaintiff?
In the negative
3. To whom irreparable loss will be
caused if injunction is granted?
To the defendants
4 What order and Decree? As per final order
E) EVIDENCE ON RECORD.
32 Plaintiffs have filed their affidavits and documents in
support of notices of motion. Defendants have filed affidavit in reply of
-- 15 of 42 --
16
Mr. Sunil Tawde, Designated Officer (II) G south ward, and also
produced documents.
F) SUBMISSIONS.
33 Mr. Niranjan Bhadang advocate for plaintiffs has submitted
that plaintiffs have challenged the notice U/s 351 of MMC Act, 1888
and orders passed thereon. According to him, the defendants have
initiated malafide action on the basis of complaint of trust 'Khimji
Bhagwandas Charity,owner of land. In fact the said trust has filed suit
for possession in Small Causes Court, Mumbai against the owner of
Raghuvanshi Mills Ltd and plaintiffs. For speedy relief the trust filed
complaint to the Government of Maharashtra and the Hon'ble Chief
Minister , State of Maharashtra referred the complaint to defendants.
The defendants have not verified the record of the suit premises. The
suit building is in existence since long and subject to assessment by
Municipal Corporation. The suit building consisting basement, ground
plus 6 upper floors. Earlier in the year 1997, the defendants had
initiated similar action in respect of suit premises. At that time, notice
was issued to the owners of Raghuvanshi Mills Limited. The said notice
was challenged in suit no. 3601/1998. However, prior to this the
concerned ward officer had opined that the building may be authorized
and the Municipal Commissioner had recommended to withdraw the
suit. Thereafter, in that suit both the parties laid evidence and the suit
is decreed on merit. This court has declared the notice and order is
illegal. However, in para no. 22 of the said judgment liberty was given
to the defendants to take action in case of breach of provisions of MMC
Act. The suit is decreed in the year 2006. The defendants have not
initiated the proceeding within reasonable time. However, the findings
-- 16 of 42 --
17
and observations in that suit are binding on this court. The present
notice is barred by principle of resjudicata. The defendants have not
challenged the said judgment and decree in appeal. Therefore the said
Judgment and decree attained finality.
34 He further submitted that the suit building is facing on
Senapati Bapat Marg. The said area is highly crowded area. The office
of the defendant corporation is at walkable distance from suit building
therefore in any event it is impossible to demolish the earlier building
and reconstruct the new building thereon.
35 He has invited my attention towards the documents
produced by plaintiffs. According to him, if we perused the internal
correspondence of defendants it prima facie shows that the building is
in existence and plaintiffs or their predecessor have not violated any
provisions of law. According to him, now defendants relied on the
plans of the year 1975 and 1977 and also tikkaa sheet . But in the
earlier suit defendants have not produced the said plans and tikkaa
sheet. Thus, these documents are fabricated documents. Plaintiffs have
acquired the respective premises in the year 20022003 from Chaitanya
Developers for lawful consideration. Plaintiffs have registered
agreement in their favour. Plaintiffs have running business there. Thus,
these all documents show that plaintiffs have strong prima facie case.
His further submission is that there are serious triable issues between
the parties. At this stage it is not necessary for the plaintiffs to show
100% case. The present case requires evidence and arguable case. He
further submitted that at this stage court has to see the possession of
the plaintiff of the suit premises. If the injunction as prayed is refused
then irreparable loss will be caused to the plaintiff. Hence, he prayed to
-- 17 of 42 --
18
grant interim injunction till the decision of suit on merit. In support of
his contention he relied on:
1 Zenit Mataplast P. Ltd. V/s State of Maharashtra & Ors
Manu/SC/1626/ 2009,
2 M.P.Housing Board V/s Anil Kumar Khiwani
Manu/SC/0202/2005
3 Gujarat Bottling Co. Ltd and Ors V/s Coca cola Company and
ors. Manu/SC/0472/1995.
4 Parkash Singh V.s State of Haryana and Ors
Manu/PH/0592/2002 Hon'ble Punjab and Haryana High
Court
5 Joseph Dominic Dias & Anr V/s Municipal Corporation of
Greater Mumbai Appeal from Order no. 908 of 2014
6 Pali Hill Tourist Hotel Pvt Ltd V/s The Municipal Corporation
of Gr. Mumbai and Anr, Appeal from order No. 715 of 2014
7 Kamlabai Pandurang Sonawane (deceased) Thr LRs Ranjana
Bhagwan Lahane & Anr V/s Municipal Corporation of Greater
Mumbai & Anr Appeal from order (ST) No. 18179 of 2017.
9 Mahesh Nandlal Asrani V/s B.M.C and Others, Appeal from
Order St No.11708 of 2007
36 Whereas Mr.D.K.Vyas advocate for defendants has
submitted that the Municipal Corporation has statutory duty to take
action against all the constructions made in violation of law and rule.
Defendant no. 2 issued notice to plaintiff U/s 351 of MMC Act.
However, plaintiffs have not produced any authentic documents to
show authorization or legality of the suit premises. Plaintiffs have not
produced sanctioned plan, IOD, Occupation certificate in respect of the
-- 18 of 42 --
19
building comprising basement, ground floor plus 6 upper floors.
Plaintiffs have also not produced the assessment record of the building
prior to 1962.
37 In respect of the decree in L.C.suit no. 3601/1998, he
submitted that the said decree was in respect of the structure which
was ground plus 6 upper floors. There was no basement in the said
suit. It is common knowledge that basement is constructed at the
bottom of the building and cannot be added after completion of the
building or upper floors. Further the Predecessor of this court granted
liberty to the defendants to take action against the unauthorized
construction in future. In 1997, the notice was issued to the owner of
the Raghuvanshi Mills Pvt. Ltd. At that time plaintiffs were not in
possession of the units. The defendants have passed administrative
order and therefore the principle of resjudica is not applicable.
38 Mr.D.K. Vyas advocate for defendant further submitted
that in the year 1980 Raghuvanshi Mills Limited went in liquidation.
Many of the textile mills redeveloped their properties however with
previous approval of the Municipal Commissioner under BIFR as a sick
industries. Here in the present suit neither owners of Raghuvanshi Mill
nor M/s Chaitanya developers have submitted proposal of re
development and get sanctioned plan from Municipal Commissioner
as per rule 58 of Development Control Regulation. Thus, there is a
clear cut violation of section 337, 342 and 347 of MMC Act. The suit
building does not have sanctioned plan, IOD and C.C. U/s 3 of MOFA
Act, 1963 provision is made that a person desiring of purchasing a
premises can obtain a copy of plan from the developer prior entering
into any agreement. In the present suit no such procedure is adopted
-- 19 of 42 --
20
either by M/s Chaitanya Developers or plaintiffs. Even plaintiffs have
not produced the agreement between The Raghuvanshi Mills Ltd and
Chaitanya Developers on record.
39 He further submitted that the defendants have two
sanctioned plans of the year 1975 and 1977 and also Tikkaa sheet. The
building no. 3 was used by The Raghuvanshi Mills Pvt. Ltd for holding
and binding etc. From the sanctioned plan it is seen that the area of
ground floor was 9085 sq ft and that the area of first and 2nd floor
was 9085 sq ft each. Thus the total area of the building no. 3 as per
sanctioned plan is 27000 sq ft. Now there is basement, ground plus 6
upper floors and total area is 72514 sq ft. Thus, this fact itself shows
that the massive unauthorized construction has been done by the
developer and the premises are illegally sold to the various persons.
40 He has invited my attention towards the assessment
record. According to him, in the year 2004, the building was under
construction and the assessor made entry to that effect. The owners of
the Raghuvanshi Mills Ltd had dared to construct the building inspite of
pending of the suit no.3601/1998. Thus, redevelopment has been
carried without procuring sanctioned plan from MCGM and accordingly
same is illegal therefore no protection can be granted in favour of
plaintiffs.
41 He further submitted that now a days in a city like Mumbai
there is rise in unauthorized construction. Recently, incident of Kamla
Mill occurred. Due to unauthorized construction in the premises of
Kamla Mill there was no way to rescue in case of emergency. Fourteen
innocent persons have lost their lives. The defendant no. 1 being a
planning authority has initiated action against the unauthorized
-- 20 of 42 --
21
construction. Here in the present case, too, the defendant corporation
has not supplied water connection to the suit building. The Chief fire
Officer has also not issued NOC. Thus, the building is unauthorized.
42 According to him, the burden is on the plaintiff to prove
prima facie case, balance of convenience and irreparable loss. Prima
facie case means there should be triable issues between the parties.
Here in the present case apparently the entire building is unauthorized.
Therefore, the same cannot be protected till the decision of suit. It is
true that the relief of injunction is an equitable relief and court has to
see hardship. However, in such case like this no hardship can be
considered and the unauthorized construction can not be protected on
any count. Hence, he prayed to dismiss the notices of motion. In
support of his contention he relied on:
1 Sidharam M Yanagandul & Anr V/s The State of Maharashtra
& Anr Appeal from order no. 506 of 2006,
2 Namdev Pandurang Panchal V/s MCGM,
Manu/MH/0787/2005
3 Esha Ekta Apartment Coop Hsg Society Ltd and ors V/s
Municipal Corporation of Mumbai and Ors 2013 (2) ALL MR
901 (S.C)
4 Dipak Kumar Mukherjee V/s Kolkata Municipal Corporation
and Others (2013) 5Supreme Court Cases 336
5 Seema Arshad Zaheer and Others V/s Municipal Corporation
of Gr. Mumbai(2006 (5)Mh.L.J.218
6 Shri Savji Bhavan Bera & Anr. V/s The Municipal Corporation
Gr. Bombay & Anr, MANU/MH/0250/2001
43 Mr. Tawakkuli advocate for defendants supported the
-- 21 of 42 --
22
contentions of Mr. D.K.Vyas. According to him the defendant no. 2 has
passed the order after considering the material on record. Plaintiffs
have challenged the administrative orders of defendant corporation,
therefore principle of resjudica is not applicable the case in hand.
Plaintiffs have purchased the suit premises in cheaper prices. He has
invited my attention towards the then market value of the premises in
the vicinity. Thus, plaintiffs had known that the suit premises are
unauthorized. He further submitted that as the suit building is
unauthorized, same cannot be protected by the order of injunction.
Hence, he prayed to dismiss the notices of motion.
G) REASONS AND FINDINGS.
44 Plaintiffs have come with a specific case that they are unit
holders in building no. 3 (Prathemesh Tower) situated in Raghuvanshi
Mill Compound, Senapati Bapat Marg, Mumbai. The suit mill is in
existence prior to datum line. The suit building is authorized by the
Municipal Corporation and subject to assessment. Whereas according
to defendants suit building is unauthorized and not as per the
sanctioned plan of the year 19751977. In the sanctioned plans the suit
building consisting ground plus two floors and the building was for the
folding and blending process of Raghuvanshi Mills Ltd.
45 Admittedly, in the year 1980, Raghuvanshi Mill closed
down and went in liquidation. During that time other textile mills in
Mumbai City also went in liquidation. Therefore, to pay the dues of
workers and others the owners of the mills redeveloped the land and
sold the buildings to various persons.
46 Now, in this scenario at the out set it is necessary to
consider the law on this point. Admittedly, Brihan Mumbai Municipal
-- 22 of 42 --
23
Corporation is statutory body governed under the provisions of MMC
Act, 1988. Brihan Mumbai Municipal Corporation is the planning
authority for city of Mumbai. One of the function of the BMC is to
detect and remove unauthorized construction within its jurisdiction.
47 As per section 337 of MMC Act notice is to be given to the
Commissioner of intention to erect a building. Thereafter, as per
section 342 of the MMC Act notice is mandatory in case of intention to
make additions etc or to change of user of building to the
commissioner. As per section 347 of the MMC Act no person shall
commence to erect any building or execute any such work as is
descried in section 342 unless he gives notice to the Municipal
Commissioner and he receives approval from the Commissioner. These
scheme of section provides erection of building in the Municipal Area of
City of Mumbai. These sections includes submission of plans ,
documents to the Municipal Commissioner for approval of construction.
48 The consequences for not abiding the scheme of these
sections is given in section 351 of MMC Act. As per this section if the
designated officer came to the conclusion that the erection of building
is contrary to the provisions of MMC Act then he shall give show cause
notice to the concerned persons. Thereafter, the burden is on the said
person to show that the erection of the building is as per the provisions
of MMC Act.
49 As discussed above The Raghuvanshi Mills Ltd is a sick
industry and therefore the Government has in certain cases given
permission for development or redevelopment of lands of cotton textile
mills. As per rule 58 of the Development Control Regulation if the
Board of Industrial and Financial Reconstruction (BIFR) approves the
-- 23 of 42 --
24
proposal for redevelopment of the land of cotton textile mills then the
plan and layout are to be submitted to the Municipal Commissioner for
approval of redevelopment of the land. Therefore, the owners of the
mill have to observe the provisions of MMC Act 1888 and Development
Control Rules 1991.
50 Here in the present suit admittedly the BIFR refused the
proposal of the owners of Raghuvanshi Mills Ltd.to redevelop the land.
Thereafter in appeal, AIFR granted permission for redevelopment
of the land. Hence, the owners of Raghuvanshi Mills Ltd ought tohave
complied the provisions of MMC Act, DCR 1991 and MRTP Act 1966.
51 From the documents produced by the plaintiffs it appears
that the suit building is having building no. 3. Earlier the Raghuvanshi
Mills Ltd had carried out certain repairs and those repairs were carried
as per sanctioned by defendant Municipal Corporation. However, on
18/08/1997, the defendant no.1 issued notice to the director of
Raghuvanshi Mills Ltd U/s 354 A of MMC Act alleging unauthorized
repairs to the existing building nos. 15,17 and 3 in Raghuvanshi Mills
Compound. The owners of the Raghuvanshi Mills Compound had given
reply to the notice but thereafter Deputy Municipal Commissioner
Zone II issued notice dated 26/09/1997 U/s 351 of MMC Act alleging
that unauthorized additions and alterations with R.C.C work and brick
to the structure no. 3,15 and 17 at Raghuvanshi Mills Compound. In
the said notice the sketch is given and the suit building is described as a
ground plus six floors.
52 Admittedly, the owners of Raghuvanshi Mills Ltd had
challenged the said notice and order in suit no. 3601/98. Admittedly
my Ld Predecessor decreed the suit and declared the notices and order
-- 24 of 42 --
25
as illegal. However, liberty is granted to the defendant to take any
action in future in respect of unauthorized construction.
53- Accordingly defendant no. 2 issued a notices to the
plaintiffs dated 11/04/2018 U/s 351 of MMC Act. In the notice it has
specifically alleged unauthorized construction of entire building i.e.
basement, ground and 6 upper floors. It is also alleged unauthorized
change of user from cotton textile mills used to commercial use.
Plaintiffs have given reply to the notices. The defendant no. 2 had
passed orders. Thereafter, plaintiffs had approached this court and
alleged that defendant no. 2 has violated the principles of natural
justice and accordingly the defendant no. 2 was directed to give an
opportunity of hearing to the plaintiffs and passed fresh orders and
thus defendant no. 2 has passed impugned order.
54 The contention of the plaintiffs is that the subject matter in
the earlier suit i.e. L.C.Suit no. 3601/98 and the present suit is the
same. The judgment and decree in that suit has attained finality and
therefore defendants have no any authority to reopen the matter.
55 To identify the structure in the earlier suit and the present
suit, it is necessary to consider the documents on record. The plaint in
the earlier suit no. 3601/98 do show that the same suit was filed by
Raghuvanshi Mills Ltd. against the defendant no.1. In that suit plaintiff
had come with a specific case that building no. 3 is having ground plus
6 floors. Defendant filed written statement and contested the suit.
56 The present notice is in respect of basement plus ground
plus 6 upper floors. Further in the present notice the defendant no.2
has mentioned various units which plaintiffs in this suits and other suits
are in possession. From the perusal of documents produced by the
-- 25 of 42 --
26
defendants particularly the assessment record, I find that the assessor
and collector of the defendant not visited the suit site in the year 2004
and found that the work of the building was in progress. It was
specifically mentioned against bldg no. 3 that ground floor basement
and other floors are incomplete and thus he determined the rateble
value of the building. It is to be noted that the building proposal
department of the defendant vide letter dated 7/06/2018 informed to
the defendant no.2 that as per available record in this office there is no
building proposal filed, recorded with respect to Prathemesh Tower
Building and this office has not approved any plans for Prathemesh
Tower. On the contrary, he has noted that the office of building
proposal department has already furnished copy of plan dated
20/04/1977 approved for generator use in bldg no. 2 of Raghuvanshi
Mills compound by letter dated 28/05/2018. The executive Engineer
Building Proposal department has noted that this office has not
approved any development proposal under DCR 58 till date. Therefore,
from the comparative study of building in L.C.suit no. 3601 of 1998
and the building in the present suit I find that these both buildings are
different. The building in L.C. suit no. 3601/98 was consisting ground
plus 6 upper floors without having any units there in. Whereas the
building in the present suit consists basement plus ground plus 6 upper
floors having separate units therein. Therefore, in such a circumstances,
though the decree in earlier suit has attained finality but the subject
matter is all together different and therefore defendant no.1, Municipal
corporation Gr. Mumbai has every right to initiate action against
unauthorized construction. Further, while deciding the suit no.
3601/98 my Ld Predecessor has given liberty to defendant MCGM to
-- 26 of 42 --
27
take action against unauthorized construction in respect of the suit
building in future.
57 It is to be noted that on 11/04/2018, the officer of the
defendant namely Rohan Kumawat, Jr. Engineer visited the suit
premises and he observed the unauthorized construction. Therefore, he
prepared inspection report and submitted the same to his superior
officers. The defendant no. 2 after considering the inspection report,
sanctioned plan of year 19751977 and Tikkaa sheet issued notices to
the plaintiffs U/s 351 of MMC Act.
58 Therefore, now burden is on the plaintiffs to show that the
notice structure is authorized and constructed as per the provisions of
MMC Act as well Development Control Regulation 1991.
59 Plaintiffs have produced their respective agreement of sale
in respect of the suit premises. From the perusal of agreement it
appears that the owners of Raghuvanshi Mills Ltd have assigned their
rights to M/s Chaitanya Developers and in turn Chaitanya developers
sold the units to the plaintiffs. In the agreement it has noted that there
are several structures standing on the lands erected and owned by mill.
M/s Chaitanya Developers has made additions and alterations and
renovation work in the building. Thus, M/s Chaitanya Developers,
vendor of the plaintiffs have erected the buildings and sold units to the
plaintiffs. Except the agreement and the proceeding in the suit no.
3601/98, plaintiffs have not produced any cogent and reliable
evidence to show that the suit premises is constructed as per the
sanctioned plan and the provisions of the Municipal law.
60 It is true that the suit units are assessed by the defendant
no.1. Therefore, whether by this it can be said that the suit premises is
-- 27 of 42 --
28
authorized. Plaintiffs pays the property taxes to the defendants.
However, in Sidharam M Yanagandul & Anr V/s The State of
Maharashtra & Anr Appeal from order no. 506 of 2006, Hon'ble
High Court held that:
In my view, any structure, whether authorized or
unauthorized, constructed on a property within the
limits of a municipal corporation can be assessed to
municipal taxes. Mere fact that a structure which is
erected without the permission of the planning
authority and unauthorisedly is subsequently
assessed to the property tax by the municipal
corporation would not change the unauthorized
character of the structure nor would make the
structure authorized from the date of assessment.
Thus, as discussed above, plaintiffs have not produced any
sanctioned plan of the building. Plaintiffs have not produced any
documentary evidence to show that the building consisting basement
plus ground plus 6 floors is in existence prior to datum line i.e prior to
1962. or authorized one . As discussed above the structure in the
earlier suit no 3601 of 1998 and the present suit is totally different.
Therefore, plaintiffs can not get benefit of earlier decree in L.C.Suit no.
3601 of 1998.
61 Now, I shall consider the documents produced by
defendants. It has come to the notice of Deputy Municipal
Commissioner , Zone II that there are unauthorized construction in the
compound of Raghuvanshi Premises and accordingly on 15/01/2007
BMC, Zone II hold meting and directed the concerned departments to
initiate action as per the MMC Act. Acordingly, the minutes of the
-- 28 of 42 --
29
meeting were recorded. In view of this, G south ward initiated action
against the unauthorized structures in the Raghuvanshi Mills
Compound. Admittedly, the occupiers have filed suit and they obtained
order of ad interim injunction from this court.
62 Particularly the present action is initiated on the basis of
the above directions and the complaint of 'Khimji Bhagwandas Charity
Trust' land owner of Raghuvanshi Mill Compound. The said trust has
given complaint to the Hon" Chief Minister, State of Maharashtra
alleging about unauthorized construction of the suit building and other
buildings. Admittedly, Raghuvanshi Mills Ltd is the lessee of the trust.
The defendant no. 2 after inspection and before passing of the order
called information from the concerned departments of the defendant
no.1. As discussed above, defendant no. 2 found that the suit building
is constructed without approval from Municipal Commissioner. The suit
building has assessed from the year 2004 and thereafter. The suit
premises has no water connection and the NOC of Chief fire officer is
also not obtained and thus the impugned order is passed.
63 From the perusal of documents produced by defendant
particularly the assessment extract and the letter of Executive Engineer
Building Proposal, I find that the owners of the Raghuvanshi Mills Ltd
inspite of pendency of the suit no. 3601/98 assigned the building no.3
to M/s Chaitanya Developers and the said Chaitanya developers
developed the building and thereby constructed units therein. The
assessment extract do show that in the year 2004, when the site was
inspected the construction of the entire building was incomplete. If
there was building of ground plus 6 floors then the same must have
been reflected in the assessment extract. Further, the building proposal
-- 29 of 42 --
30
department has informed that they have not sanctioned any plan or
proposal for redevelopment of suit building under rule 58 of
Development Control Regulation.
64 I have perused the sanctioned plan of building no.3 of the
year 1975 and 1977. The said sanctioned plan is in respect of the
structures in the compound of Raghuvanshi Mills Ltd. In the Tikkaa
sheet and the sanctioned plan the structures no. 3 (Suit building) is
shown as a ground plus two floor. Plaintiffs have not produced any
documentary evidence to rebut the said fact.
65 The contention of plaintiffs is that only to evict the
plaintiffs from the suit premises, the defendant corporation has
prepared these bogus sanctioned plans. However, earlier suit is filed in
the year 1998. Present suits are filed in the year 2018. The plans are
prepared in the year 1975 and 1977. Thus, therefore, it is hardly to
believe that the said plans are prepared only to evict the plaintiffs from
the suit premises. Further, defendant no.1 is a Municipal Corporation,
public body hence it is presumptions that all the acts are done in the
official capacity. Hence, from the evidence of both the parties, I find
that the suit building is recently constructed and that too without the
permission of Municipal corporation as mandatory under the MMC Act
and relevant laws.
66 The main contention of the plaintiffs is that there are
triable issues between the parties and the defendant acted malafidly.
Therefore, trial is necessary and the suit structures to be protected till
the decision of suit. It is true that if there are triable issues then the suit
property is to be preserved till the decision of the suit. Hence, in such a
circumstances it is necessary to consider the guidelines issued by
-- 30 of 42 --
31
Hon'ble Supreme Court and Hon'ble High Court.
In Zenit Mataplast P. Ltd. V/s State of Maharashtra & Ors
Manu/SC/1626/ 2009, Hon'ble Supreme Court held in para no. 24 &
25 that:
24 Grant of an interim relief in regard to the nature and
extent thereof depends upon the facts and
circumstances of each case as no straitjacket
formula can be laid down. There may be a situation
wherein the defendant/respondent may use the suit
property in such a manner that the situation
becomes irretrievable. In such a fact situation,
interim relief should be granted.
25 Grant of temporary injunction, is governed by three
basic principles, i.e prima facie case, balance of
convenience; and irreparable injury, which are
required to be considered in a proper perspective in
the facts and circumstances of a particular case. But
it may not be appropriate for any court to hold a
mini trial at the stage of grant of temporary
injunction.
In M.P. Housing Board V/s Anil Kumar Khiwani
Manu/SC/0202/2005 Hon'ble Supreme Court held that:
The developer has no absolute right to increase the
cost of flats initially announced as estimated cost.
The final cost should be proportionate to the estimated
cost mentioned in the offer keeping in mind the rate of
inflation, escalation of the prices of inputs, escalation in
the price of the construction material and labour charges.
These factors have got to be taken into account on the
-- 31 of 42 --
32
basis of the evidence which may be considered at the
time of final hearing of the suit.
In Gujarat Bottling Co. Ltd and Ors V/s Coca cola Company
and ors. Manu/SC/0472/1995 Hon'ble Supreme Court held that:
" The grant of an interlocutory injunction during the
pendency of legal proceedings is a matter requiring the
exercise of discretion of the court. While exercising the
discretion of the court applies the following tests (i)
whether the plaintiff has a prima facie case (ii) whether
the balance of convenience is in favour of the plaintiff;
and (iii)whether the plaintiff would suffer an irreparable
injury if his prayer for interlocutory injunction is
disallowed. The decision whether or not to grant an
interlocutory injunction has to be taken at a time when
the existence of the legal right assailed by the plaintiff
and its alleged violation are both contested and uncertain
and remain uncertain till they are established at the
trial on evidence. Relief by way of interlocutory
injunction is granted to mitigate the risk of injustice to
the plaintiff during the period before that uncertainty
could be resolved. The object of the interlocutory
injunction is to protect the plaintiff against injury by
violation of his right for which he could not be
adequately compensated in damages recoverable in the
action if the uncertainty were resolved in his favour at
the trial. The need for such protection has, however, to
be weighed against the corresponding need of the
defendant to be protected against injury resulting from
his having been prevented from exercising his own legal
rights for which he could not be adequately
-- 32 of 42 --
33
compensated. The court must weigh one need against
another and determine where the" balance of
convenience" lies. In order to protect the
defendant while granting an interlocutory injunction in
his favour the court can require the plaintiff to furnish an
undertaking so that the defendant can be
adequately compensated if the uncertainty were
resolved in his favour at the trial.
In Parkash Singh V.s State of Haryana and Ors
Manu/PH/0592/2002 Hon'ble Punjab and Haryana High Court held
in para 24 that:
Plaintiff has a prima facie case. Prima facie case
means that he has a case which is not liable to be
thrown at the out set but which requires to be given
consideration. Prima facie case does not mean that
the plaintiff should have a cent percent case which
will in all probability succeed at the trial, prima facie
case means that the contentions which the plaintiff
is raising merit consideration and are not liable to
be rejected summarily. Balance of convenience is
also in favour of the plaintiff. Plaintiff is in
possession. If he remains in possession for some time
more on the strength of the grant of injunction,
heavens are not going to fail. Plaintiff will suffer
reparable loss, if he is thrown out of possession now
inasmuch as he will be on the road.
In Joseph Dominic Dias & Anr V/s Municipal Corporation of
Greater Mumbai Appeal from Order no. 908 of 2014 Hon'ble High
Court held in para no. 6 that:
-- 33 of 42 --
34
As stated earlier the plaintiff had purchased the
structure in the year 2000 and there is no prima facie
material to show that the plaintiff had extended the
said structure. Under such circumstances, the question
whether the predecessor of the plaintiffs had constructed
the structure with permission or whether it is an illegal
structure are the questions which are required to be
decided on merit. Until such time status quo needs to be
preserved. Even otherwise it is stated that the matter is
now fixed for evidence. Considering these peculiar facts
and circumstances, it would be in the interest of justice
that the subject matter of the suit is preserved. The
appeal is allowed. The impugned order is set aside. Both
parties are directed to maintain status quo in respect of
the suit structure till disposal of the suit.
In Pali Hill Tourist Hotel Pvt Ltd V/s The Municipal
Corporation of Gr. Mumbai and Anr, Appeal from order No. 715 of
2014 Hon'ble High Court held in para no. 3 that
The notice is far from satisfactory. It proceeds on the
assumption, and it is only an assumption, that
everything that is noted is entirely new. Prima facie
this does not seem to be correct. There may in a
given case be a very old structure that has been
there for decades together. An opportunity must be
given to the party involved to show if this is so. A
party may not have retained or be able to readily
trace the relevant permission. That does not mean
that the structure is automatically 'new' or
even 'unauthorised'.Whether this satisfies the
-- 34 of 42 --
35
requirements of the MMC Act must be left open at
this stage.
In Kamlabai Pandurang Sonawane (deceased) Thr LRs
Ranjana Bhagwan Lahane & Anr V/s Municipal Corporation of
Greater Mumbai & Anr Appeal from order (ST) No. 18179 of 2017
Hon'ble High Court held in para no. 5 that:
5 Yet again, I also find that the entire approach
of the MCGM seems to be to assess only documents
submitted by the noticee, with no reference at all to
the MCGM's own records. This practice borders on
the bizarre. The MCGM is the planning authority. It
simply cannot be that it has no records at all for any
structure in this city. This is especially so since here,
the MCGM says that at least one of these three
structures is a tolerated or permissible structure. The
MCGM's order does not anywhere say whether any
of these three structures correspond or conform to
the MCGM'S own records. It is about time that the
MCGM realized that it is quite unreasonable to
accept every person to retain documents in
perpetuity for half a century or more, without being
under my corresponding obligation as to its own
recordkeeping.
In Mahesh Nandlal Asrani V/s B.M.C and Others, Appeal from
Order St No.11708 of 2007 Hon'ble High Court held in para no. 5
that:
There is some material on record to show that there
was a pending litigation between the Appellant and
the second respondent. This is not a case where even
-- 35 of 42 --
36
according to the stand taken by the contesting
Respondents, structure has been recently
constructed. Even according to their case, the structure
was in existence in the year 1971. The action has been
initiated against the Appellant in the year 2003. The
Appellant is admittedly not the original owner of the
structure. Whether the structure was in existence on the
prescribed datum line or not is a matter of evidence.
Since the material on record discloses that the action
was initiated more than 30 years after the year 1971
when the structure was constructed according to the first
respondent, this is a case where the suit structure
ought to have been protected till the final disposal
of the suit.
However, as discussed in Supra for the relief of temporary
injunction plaintiffs have to prove prima facie case, balance of
convenience and irreparable loss in case of refusal of injunction.
67 Here in the present suits the entire building no. 3( Suit
building) is unauthorized. Plaintiffs have purchased the units without
following the sanction plans and other documents from Chaitanya
Developers. Thus, there is breach of the provisions of particularly
section 3 of Maharashtra Ownership of Flats Act as the building is
unauthorized hence same cannot be tolerated by the order of
injunction. Therefore, I most respectfully submit that in the present
case the plaintiffs are not entitled for interim relief.
68 The Hon'ble Supreme Court and Hon'ble High Court in
series of cases held that the unauthorized constructions cannot be
tolerated in any event.
-- 36 of 42 --
37
In Namdev Pandurang Panchal V/s MCGM,
Manu/MH/0787/2005 Hon'ble High Court held in para no. 38 that:
Counsel for the BMC and defendant no. 2 submitted
that even if all the documents of the plaintiff are
accepted, they do not firstly prove that the structure
was in existence prior to datum line, that this
documents do not prove that the new structure
erected by the plaintiff was with the permission of
the BMC or on on the basis of any approved plan.
My attention was drawn to the order of the
Commissioner, which is a detailed order, wherein
each document of the plaintiff is considered by the
Commissioner. In any case, what ultimately comes
before the court is important and therefore when
plaintiff has miserably failed to prove his title over
the property and failed to prove existence of the
structure prior to 1972, has failed to prove that
when he reelected the structure in 2001, it was done
by him with the permission of the BMC on the basis
of sanction and approved plans, then the trial
court was fully justified in dismissing the suit and
rejecting the claim and contention of the plaintiff.
In Shri Savji Bhavan Bera & Anr. V/s The Municipal Corporation
Gr. Bombay & Anr, MANU/MH/0250/2001 Hon'ble High Court held
that:
Resort to the datum line is a residuary 'catch all' and
'protect all ' to which recourse is taken when proof is not
forthcoming in the form of documentary evidence to show
the authorization of construction.
-- 37 of 42 --
38
Hon'ble High Court further held that, in the present case
there is abundant material on record to show that the
notice under section 351 issued by the Municipal
Corporation and the order of the competent authority
are valid and correct and the challenge preferred by
the appellants is without any basis.
In Esha Ekta Apartment Coop Hsg Society Ltd and ors V/s
Municipal Corporation of Mumbai and Ors 2013 (2) ALL MR 901
(S.C) Hon'ble Supreme Court held that :
Mumbai Municipal Corporation Act (1888) Ss.351, 354 A Stop
work notice issued Builder inspite of rejection of revised
building plans continued construction of additional floors Flat
purchasers knowing full well that construction was
unauthorized Flat Purchasers cannot seek mandamus for
regularization of unauthorized/illegal constructionMunicipal
Authorities cannot encourage violation of sanctioned plans by
not taking any action and courts are also expected to refrain
from exercising equitable jurisdiction for regularization of
illegal/unauthorized constructions Flat buyers can take
appropriate remedy against developers/builders.
In Dipak Kumar Mukherjee V/s Kolkata Municipal
Corporation and Others (2013) 5Supreme Court Cases 336 Hon'ble
Supreme court held that:
Illegal and unauthorized constructions of buildings and
other structures not only violate the municipal laws and
the concept of planned development of the particular
area but also affect various fundamental and
constitutional rights of other persons. The common man
-- 38 of 42 --
39
feels cheated when he finds that those making illegal and
unauthorized constructions are supported by the people
entrusted with the duty of preparing and executing
master plan/development plan/zonal plan. The failure of
the State apparatus to take prompt action to demolish
such illegal constructions has convinced the citizens
that planning laws are enforced only against poor and all
compromises are made by the State Machinery when it is
required to deal with those who have money power or
unholy nexus with the power corridors. Therefore, there
should be no judicial tolerance of illegal and
unauthorized constructions by those who treat the law to
be their subservient.
In Seema Arshad Zaheer and Others V/s Municipal
Corporation of Gr. Mumbai(2006 (5)Mh.L.J.218 Hon'ble Supreme
Court held in para no. 31 that:
It is true that in cases relating to orders for demolition
of building, irreparable loss may occur if the structure is
demolished even before trial and an opportunity to
establish by evidence that the structure was authorized
and not illegal. In such, where prima facie case is made
out, the balance of convenience automatically tilts in
favour of the plaintiff and a temporary injunction will be
issued to preserve status quo.
But where the plaintiffs do not make out a prima facie
case for grant of an injunction and the documents
produced clearly show that the structures are
unauthorized, the Court may not grant a temporary
injunction merely on the ground of sympathy or
-- 39 of 42 --
40
hardship. To grant a temporary injunction, where the
structure is clearly unauthorized and the final order
passed by the Commissioner (of the Corporation) after
considering the entire material directing demolition, is
not shown to suffer from any infirmity would be to
encourage and perpetuate an illegality. We may
refer to the following observations of this Court in
M.I.Builders (P) Ltd V/s Radhey Shyam Sahu (1999)6 SCC
464 made in a different context:
"This court in numerous decisions has held that no
consideration should be shown to the builder or any
other person where construction is unauthorised. This
dicta is now almost bordering the rule of law. Stress was
laid by the appellant and the prospective allottees of the
shops to exercise judicial discretion in moulding the
relief. Such a discretion cannot be exercised which
encourages illegality or perpetuates an illegality.
Unauthorised construction, if it is illegal and cannot be
compounded, has to be demolished. There is no way out.
Judicial discretion cannot be guided by expediency.
Courts are not free from statutory fetters. Justice is to be
rendered in accordance with law. Judges are not entitled
to exercise discretion wearing the robes of judicial
discretion and pass orders based solely on their personal
predilections and peculiar dispositions. Judicial
discretion wherever it is required to be exercised has to
be in accordance with law and set legal principles".
69 Reverting to the factual score of the present suits and the
ratio laid down in the above rulings, I find that plaintiffs are not
-- 40 of 42 --
41
entitled for interim injunction. The suit building (Prathemesh Tower) is
prima facie appears unauthorized building and if the suit premises are
protected by the order of injunction then irreparable loss will be caused
to the defendant no. 1 and 2 in particular and to the public in general.
Hence I answer the points according and pass the following order:
ORDER
1 Notice of motion nos .4675/18,4676/18,4677/18 319/19
1620/19 and 1621/19 are dismissed.
2 Costs in cause.
3 Copy of this order be kept in L.C. suit nos.
3281/18,3282/18,204/19,St No 4640/19 and St No
4641/19.
( G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 22/04/2019
Typed on : 26/04/2019
Signed by HHJ. :3/05/2019
-- 41 of 42 --
42
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
12/04/2019
4/05/2019 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
22/04/2019
JUDGEMENT/ORDER signed by
P.O. on
3/05/2019
JUDGEMENT/ORDER uploaded
on
4/05/2019
-- 42 of 42 --