Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1493/2020 in Stamp No. 4779/2020. 1 Order.
MHCC010045442020
Presented on : 20-10-2020
Registered on : 20-10-2020
Decided on : 03-11-2020
Duration : 0 years, 0 months, 14 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1493 OF 2020
IN
STAMP NO. 4779 OF 2020
Mr. Phoolchand Lalta Prasad Jaiswal ...Plaintiff
Versus
The Municipal Corporation For Greater Mumbai ...Defendant
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 3rd NOVEMBER, 2020.
Mr. Mukesh Dubey, Advocate for Plaintiff.
Mrs. Tondwalkar, Advocate for Defendant / MCGM.
ORDER
This is a motion preferred by plaintiff to challenge legality
of notice issued under Section 354A of MMC Act dated 25/09/2020,
speaking order dated 29/09/2020 and second speaking order dated
13/10/2020.
-- 1 of 10 --
N/m No. 1493/2020 in Stamp No. 4779/2020. 2 Order.
2. Suit premises is Gala No.10, admeasuring 330 sq.ft. at
Ground Floor and 330 sq.ft. at mezzanine floor situated at J.M.Temple
Road, Ghatkopar (West).
3. As per schedule of the notice dated 25/09/2020, the
description of unauthorized structure runs as follows :
“Schedule (Description of work)
Unauthorised vertical extension to the above
ground floor structure admg. (9.0 x 3.0 x
5.4ht.) mtr., approx., using B.M. Walls, M.S.
Channels/Angles, Ladi Coba Ladi Slab, G.I.
Sheet Roof located at Gala No.10, Aziz
Estate, Near Jangleshwar Mahadev Mandir,
J.M.M. Road, Asalpha, Ghatkopar (W),
Mumbai-400 084.”
4. Ld. Adv. Mukesh Dubey for plaintiff submits that plaintiff
has replied the notice on 26/09/2020, however it was not considered in
speaking order dated 29/09/2020. Therefore, in view of order of this
Court, a fresh speaking order dated 13/10/2020 came to be issued by
the MCGM. Plaintiff has purchased the suit premises as per Agreement
for Sale on notarized document dated 20/10/2005 from Inamulla
Chaudhary and Mustakin Chaudhary and others for the consideration of
Rs.3,00,000/- (Rupees Three Lakhs Only). As described in Sale Deed,
page no.15 alongwith the suit, it is specifically mentioned the
description of premises i.e. area admeasuring 11 x 35 ft., consisting of a
mezzanine floor thereon. According to plaintiff, there is no
independent or fresh construction. There was minor repairing,
-- 2 of 10 --
N/m No. 1493/2020 in Stamp No. 4779/2020. 3 Order.
plastering during rainy season. The impugned structure is within slum
area. Therefore, it is requested to declare the notice as void-ab-initio.
5. It is added by ld. Adv. Dubey for plaintiff that considering
photographs annexed with plaint, impugned structure is completed.
Therefore, no action could be initiated under Section 354A of MMC Act.
However, it require to invoke the action under Section 351 of MMC Act.
It is requested to protect the structure.
6. Perused documents in support of notice submitted by
MCGM. Perused reply submitted by MCGM vide Exh.2 and 5.
7. Ld. Adv. Tondwalkar for MCGM submits that plaintiff has
committed gross mistake in describing the first floor as mezzanine floor.
In view of details narrated in plaint, how there can be equal area of
ground floor and mezzanine floor i.e. 330 + 330 sq.ft. On the contrary,
there is a mezzanine floor of 10 x 10 sq.ft. annexed with first floor
having independent staircase from ground floor to first floor and iron
ladder from first floor to mezzanine floor. It is requested to peruse
documents annexed with Exh.2, 3 and affidavit in reply vide Exh.5
which clearly indicate detection of ongoing construction. It is picturized
with photos of some working labours. There is no authenticity of the
structure nor appropriate permission in writing for vertical extension.
Therefore, it would not attract Section 351 of the MMC Act as
impugned structure came to be completed upon issuance of notice by
the MCGM. It is requested to dismiss the motion.
-- 3 of 10 --
N/m No. 1493/2020 in Stamp No. 4779/2020. 4 Order.
REASONS FOR ORDER
8. It is pertinent to note that the description of suit property
as mentioned in para no.1 of the plaint do not match with the
description as mentioned in Sale Deed dated 20/10/2005. It is not
specifically mentioned in the Sale Deed that ground floor is 330 sq.ft.
and alleged mezzanine floor is also 330 sq.ft. It is important to note
that the area of mezzanine floor cannot be equal to the ground floor. If
it is equal, then it cannot be the mezzanine floor.
9. There is no supportive affidavit on behalf of plaintiff that
there was no visit of the concern engineer who has detected the
ongoing construction. On the contrary, there are photographs on page
no.5 and 6 with Exh.2 submitted by the MCGM that three labours were
working. It clearly shows alleged roof top came to be withdrawn and
there is vertical extension of around 6 to 8 ft.
10. The inspection report dated 25/09/2020 was carried out by
L 1 Beat Officer 159 who has taken photograph with date alongwith
latitude and longitude of the location in respect of ongoing
construction. Upon minute comparison of the photographs submitted
by the MCGM and photographs of present site titled as ‘Shree Ganesh
Constructions’ bear two shutters in red colour. It belongs to suit
premises i.e. Gala No.10, J.M. Road, Ghatkopar.
11. For appropriate reference and sake of convenience, a
consolidate diagram of suit premises is drawn as follows :
-- 4 of 10 --
N/m No. 1493/2020 in Stamp No. 4779/2020. 5 Order.
Mezzanine
10 x 10
® Ladder
33 x 10 = 330 sq.ft.
33 x 10 = 330
sq.ft.
A to B – Small shutter, B to C – Big shutter
12. Undisputedly ground floor is 330 sq.ft., first floor is 330
sq.ft. and mezzanine floor is 10 x 10 sq.ft. The first floor appear 10 x
10 sq.ft. with iron ladder. It is contended by ld. advocate for plaintiff
that 330 sq.ft. first floor is not first floor but it is mezzanine floor. In
such event, he could not describe there is independent staircase from A
to B with separate shutter thereon. There is a separate shutter on
ground floor from B to C. As described above, the height of ground
floor is 10 ft. and the height of first floor including mezzanine floor
from D to E is 17 ft.
13. In view of aforesaid discussion, it is beyond imagination
that how first floor can be concluded as mezzanine floor. Ld. advocate
for plaintiff has skillfully avoided to describe status of mezzanine floor
attached to the first floor admeasuring 10 x 10 ft.
14. It would be appropriate to peruse roznama dated
E
D
C	B	A
Stairs
10
17 First Floor
Ground Floor
-- 5 of 10 --
N/m No. 1493/2020 in Stamp No. 4779/2020. 6 Order.
07/10/2020, wherein, this Court has directed the plaintiff to submit
some photographs of outside and inside from all angles alongwith
unscaled map of each and every floor with its HLW (Height, Length &
Width). Ld. advocate for plaintiff has avoided to submit photographs
from inside and replied that from 07/10/2020 plaintiff is out of station.
It is matter of record to note that meanwhile plaintiff has preferred a
chamber summons. Upon order of chamber summons, plaintiff has
carried out amendment in plaint on 19/10/2020. However, when he
was directed to submit photographs of the suit premises from the inside,
it is replied that plaintiff is out of station. It clearly indicate intentional
concealment of material facts. The possibility cannot be ruled out,
there might be one mezzanine floor attached to ground floor.
15. At this juncture, it would be appropriate to refer scope of
mezzanine floor. In view of rules regarding mezzanine floor as per
circular of the MCGM dated 08/08/2005, its scope is described as
follows :
“The aggregate area of mezzanine floor in any room
shall not exceed 50% of the built up area of that
room. The size of mezzanine floor shall not be less
than 9.5 sq.mt.”
“Lofts having head room more than 1.5 mtrs. above,
it shall be treated as mezzanine floor.”
16. Accordingly, the area of mezzanine floor shall not exceed
50% of the built-up area of that area. In present area in that event, it
shall not be more than 165 sq.ft. There is no supportive affidavit of
-- 6 of 10 --
N/m No. 1493/2020 in Stamp No. 4779/2020. 7 Order.
then landlord to fortify the submission of plaintiff that suit structure
was handed over to plaintiff in present situation on 20/10/2005.
Accordingly there is no prima facie case in favour of plaintiff.
17. In view of aforesaid discussion, important points runs as
follows :
a) There cannot be equal area of ground floor 330
sq.ft., first floor 330 sq.ft.; and first floor be
described as ‘mezzanine floor.’
b) Plaintiff has skillfully avoided to submit photographs
from inside the structure despite specific directions
by this Court on 07/10/2020.
c) There is no supportive affidavit of previous landlord
in respect of present structure was handed over by
him to the plaintiff on 20/10/2005.
d) There is no supportive affidavit of plaintiff that there
was no visit of MCGM Ward Officer when three
labours were working with ongoing construction of
brick masonry work as shown in the photographs.
e) There are independent two shutters as shown in
diagram with stairs from A to B and a shop from B
to C.
f) If ground floor is 10 ft. in height, then why first floor
is 17 ft. in height ? It clearly establish a space for
mezzanine floor is created on first floor.
g) There is one iron ladder on first floor for
approaching to mezzanine floor.
18. Ld. advocate for plaintiff relied over Muni Suvrat-Swami
-- 7 of 10 --
N/m No. 1493/2020 in Stamp No. 4779/2020. 8 Order.
Jain S.M.P. Sangh V/s. Arun Nathuram Gaikwad and others [2007(2)
Mh.L.J. 8] and various circulars of MCGM. Admittedly, one cannot
invoke notice under Section 354A of MMC Act to the old structures
which were completed long back. However, in present case, it is clearly
established that plaintiff has completed the construction upon issuance
of notice under Section 354A of MMC Act.
19. In Mohd. Zuber V/s. Municipal Corporation for Gr. Mumbai
[MANU/MH/2130/2016], in Para 13 it is observed that,
"The burden was on the appellant to show
that this construction, which he has undertaken,
was with proper permissions and authority from
the Municipal Corporation. Though the
opportunity was given to the appellant to prove the
legality of the said construction, he has failed to
prove the same, either before the Assistant
Municipal Commissioner or even before the Trial
Court or this Court. Merely saying that he has not
carried out the construction and he has only
changed the A.C sheet roof is not sufficient.
Hence, in the absence of any evidence proving the
permission or the plan sanctioned for such
construction, the Trial Court has rightly held that
the said construction is illegal and unauthorized
and the Municipal Corporation was perfectly
justified in taking action against the said
construction. Therefore, no interference is
warranted in the final order passed by the
-- 8 of 10 --
N/m No. 1493/2020 in Stamp No. 4779/2020. 9 Order.
Assistant Commissioner and by the Trial Court."
20. Considering aforesaid discussion, there is no balance of
convenience lies in favour of plaintiff. There is clear vertical extension
as described in notice dated 25/09/2020. It was completed by the
plaintiff upon issuance of notice. It clearly establish plaintiff has
completed the construction without paying any heed to the notice and
mechanism of local authority. Therefore, no irreparable loss would
cause to the plaintiff. In short, motion deserves to be dismissed. Hence
the order :
- ORDER -
1. Notice of Motion No. 1493/2020 stands dismissed, no
order of cost.
2. N/m No. 1493/2020 is disposed off accordingly.
3. In view of application submitted by plaintiff vide Exh.7,
three weeks time is given to prefer appeal from uploading
the order. MCGM will be at liberty to initiate action as per
rules, after three weeks.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 03/11/2020. Mumbai.
1. Dictated on : 02/11/2020.
2. Transcribed on : 03/11/2020.
3. Signed on : 04/11/2020.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
-- 9 of 10 --
N/m No. 1493/2020 in Stamp No. 4779/2020. 10 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
05/11/2020. 11.06 a.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 03/11/2020.
Judgment/Order signed by P.O. on 04/11/2020.
Judgment/Order uploaded on 05/11/2020.
-- 10 of 10 --