Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.1509 OF 2020
CNR NO. MHCC01-004615-2020
IN
L.C.SUIT NO.260 OF 2021
Mr. Javed Arif Agwan …. Plaintiff
V/s.
The Municipal Corporation of
Gr.Mumbai. ...Defendants
CORAM: HIS HONOUR JUDGE
SHRI. R. B. PARVEKAR
CITY CIVIL COURT
GR. MUMBAI
DATE : 30/09/2024
Adv. Kudalkar alongwith Adv.Vaibhavi Pawar for plaintiff.
Adv. Amar Patil for the defendants/BMC.
ORAL ORDER
This notice of motion is taken out by the plaintiff
under Order XXXIX Rule 1 and 2 of r/w. Section 151 of the
Code of Civil Procedure for directing defendants/BMC to
allot a commercial shop admeasuring about 225 sq.ft.as an
Permanent Alternate Accommodation within the vicinity of
N.M.Joshi Marg or Elphiston (now called Prabhadevi) in lieu
of high handedely demolition of authorized commercial
structure i.e. commercial shop No.7 “M/s. Sagar Oil shop
and General store, plot No. 20/22, Jamnadas Prabhudas
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Chawl, Opposite, Vinayak Sadan, situated at Survey No. GS-
16 situated at survey No. GS-14, N. M. Joshi marg, G/south
Ward, Mumbai.
Description of the suit Premises:-
“ M/s. Sagar Oil shop and General store, plot No.
20/22, Shop No.7, Jamnadas Prabhudas Chawl,
Opposite Vinayak Sadan, situated at Survey No.
GS-16, situated at survey No.GS-14, N. M. Joshi
Marg, G/south Ward, Mumbai-13.
( hereinafter called as Suit premises).
Case of plaintiff.
2. The plaintiff is in exclusive use and occupation of
the suit premises. Erstwhile tenant Manmal Ugamraj Jain
acquired suit premises prior to 1960 from original landlord
Jamnadas Prabhudas. Erstwhile owner Manmal Ugamraj Jain
carrying on business of gold and silver ornaments in the suit
premises. Premises covered under cess. Suit building was in
dilapidated and reunion condition. Hence, required to be
redeveloped immediately. MHADA issued acquisition notice
for entire building Jamnadas Prabhudas Chawl including
suit shop. In 1976 MHADA officers issued vacation notices
to the occupants of the suit shop,which was neither received
by erstwhile tenant. On 19.01.1984 Executive Engineer
Bombay housing and development board addressed to
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erstwhile tenants Mr. Erstwhile owner Manmal Ugamraj Jain
and informed that vacant land available after demolition of
7 shops is to be handed over to the defendant/MCGM.
Further informed that shop No.1 to 3 from north side is to
be kept as it is and hence, you should shift your shop in any
one out of two i.e. shop No.1 or 3 as an alternative till
permanent shop, which was allotted to you.
3. Defendant corporation carried out inspection of
the suit premises on 27.05.1994. Officer of defendant
corporation again carried out inspection on 25.08.2003.
Prabhudas Manmal Chawl was demolished and constructed
new building known as Vinayak Sadan. Shop Nos. 1 to 3 was
not demolished and same was kept as it is then in front of
Vinayak Sadan. The two shops were occupied by erstwhile
tenant Ugamraj Jain. Erstwhile tenant shifted to the shop
kept for alternative temporarily accommodation i.e. shop
Nos. 1 and 3. Suit premises was in existence prior to 1961-
1962. Original suit premises was tenanted premises and
acquired by MHADA for redevelopment and widening of
road. Plaintiff is holding necessary licenses for running
business of Kirana Store and Oil Depot.
4. Defendant corporation issued notice on
09.04.2016 for removal of structure and stall come under
bottle neck on footpath. Again new notice dated 02.08.2017
was issued to the plaintiff for removal of suit premises.
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Plaintiff comes to know that the public notice issued
declared that suit premises is not eligible hence, he gave
reply to the notice on 20.11.2017. Defendant passed final
order on 20.01.2020 alleging that the suit structure is
authorized one. Defendants without any notice and
intimation visited suit premises and demolished suit
premises on 05.02.2020.
5. In additional affidavit it is the contention of the
plaintiff that as per letter dated 19.01.1984 when MHADA
and MMC jointly carried out demolition of the old shop and
suit site, it was requested by erstwhile owner to shift his
shop on the north side. In the said letter defendant
department has permitted to keep only three shops from
North side and the remaining land to be handed over to the
defendant. Officer of defendant illegally and fraudulently
demolished structures without providing Alternate
Accommodation. Defendant demolished suit shop and
caused heavy loss to the plaintiff. It is falsely alleged the
suit structure is unauthorised and constructed on footpath.
Impugned notice and order is issued with malafide
intention.
Case of Defendants/BMC :
6. Suit is hit by provisions of Section 527 of the
BMC Act. Suit is not maintainable. Suit notices are
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executive acts and order, they are not open to challenge in
the Court of law. Suit is not maintainable. Defendant
followed due process of law.
7. On usual round of inspection, officer of
defendant observed that unauthorised construction/
extension of stall admeasuring approximately 2.7 X 7. sq.
mtrs made of Brick Masonry/wooden partition/MS partition
on municipal road/footpath situated at GS-16 N.M.Joshi
Marg without permission of the competent authority. Suit
premises is on footpath and for use of pedestrian and affect
the use of footpath public at large. As per policy no one is
permitted to keep any structure on road line. Upon inquiry,
plaintiff fails to produce any document i.e. permission
obtained from competent authority for constructing said
shop on footpath. After inspection u/s. 314 r/w. 394 of the
MMC Act issued to owner/ occupier of said unauthorised
stall. Considering the reply dated 20.11.2017 by following
due process of law detailed order dated 20.01.2020 is
passed by defendant/BMC and its copy served on plaintiff
on 21.01.2020. Notice structure/ suit premises removed by
defendant on 05.02.2020 by following due process of law.
Plaintiff have not right to erect any structure on footpath.
Plaintiff is not entitled for Alternate Accommodation against
demolished suit premises as plaintiff illegally constructed
notice structure on footpath without permission of the
competent authority. Plaintiff has not come with clean hand.
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Rest of the contents in plaint, notice of motion and
additional affidavit are denied by answering toto.
8. Both the parties consented to decide the present
Notice of Motion finally and ready to advance argument.
Read Notice of motion, reply filed by the defendants/BMC.
Heard both the sides finally on the NM.
9. From the rival pleadings following points arise
for my determination to which I have recorded my findings
for the reasons stated herein below:-
Sr.
No.
Points Findings
1 Whether the plaintiff has
prima-facie case?
Negative.
2 Whether balance of
convenience lies in favour of
plaintiff.?
Negative.
3 Whether plaintiff will suffer
irreparable loss if injunction
is not granted?
Negative
4 What order ? As per final
order.
REASONS
10. At the very outset, it is necessary to mention here
that plaintiff has called notice under section 314 of the
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MMC Act in question by filing suit for declaration,
injunction alongwith Permanent Alternate Accommodation.
Section 312 of the Act prohibits erecting of any structure or
fixture of any nature such as wall, fence, rail, post, step,
booth upon any street or over any open channel, drain, well
or tank in any street which causes obstruction or
encroachment or projection or to occupy portion of such
street, channel, drain, well or tank as the case may be. Only
those structures/ fixtures are saved from Section 312 of the
Act which are erected with the permission of the
Commissioner granted under Sections 310 and 317 of the
Act. In other words, Section 312 has no application to those
structures/ fixtures which are erected by the person with
the permission of the Commissioner under sections 310 and
317 of the Act. Section 314 (1) confers power on the
Commissioner to remove any wall, fence, rail, post, step,
booth or other structure or fixture which is found erected or
setup on any street, open channel, drain, well or tank
contrary to the provisions of Sub-section (1) of Section 312
of the Act after coming into force the provisions of Bombay
Municipal (Extension of limits) Act, 1950 or in the extended
suburbs after coming into force Further Extension of Limits
and Schedule BBA (Amendment) Act, 1956. In other words,
in order to exercise the power under Section 314 (1) of the
Act, two conditions must be present. First the disputed wall,
fence, rail, post, step, booth or any other type of structure
or fixture, as the case may be, is erected or set up on any
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public street or open channel or drain or well or tank; and
Secondly, any such structure or fixture, as the case may be,
is erected or set up in the city or suburbs contrary to the
provisions of Section 312 (1) of the Act after coming into
force the two Acts specified in Sub-section (1).
11. In the present case, it is not disputed that suit
premises is demolished by the defendant. It is further not
disputed that notice u/sec. 314 r/w. Sec.394 of the MMC Act
dated 02.08.2017 was issued to the plaintiff. By this notice
of motion plaintiff seeks directions against defendants for
allotment of commercial shop admeasuring 225 sq.ft. as an
Permanent Alternate Accommodation on the count that suit
premises was illegally with malafide intention demolished
by defendant/BMC. It is settled principle that relief of
interlocutory injunction are granted generally to preserves
or restore the status quo of the last non contested status
which proceeded the pending controversy till the final
hearing. The plaintiff must have strong case i.e. shall be of
higher standard than prima-facie case or seeking prohibitory
injunction. It is necessary to prevent irreparable or serious
injury which normally cannot be compensated in terms of
money. The exercise of such discretion should be limited to
rare and exceptional cases. In the light of settled position
and facts, I would like to discuss rival contention,
documents placed on record by both the parties.
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12. It is the case of the plaintiff that suit premises
exists prior to 1961-1962. He came in possession of the suit
premises from erstwhile tenant Ugamraj Manmal Jain by
executing GPA, affidavit and agreement for sale. On the
other hand, defendant denied the said condition and come
to the case that plaintiff erected unauthorised structure i.e.
suit premises on footpath.
13. In support of contention plaintiff placed reliance
on receipts, certificate of enrollment, certificate of
registration, Bombay Shops and Establishment License
(Shop Act License), Electricity Bill, Water bill, extract of
property tax assessment for the year 2004-2005 and 2007-
2008, 1994.
14. On perusal of receipt dated 30 t h July, 1969 it
appears that the said receipt is in respect of payment of
membership fee for the month of May 1969 standing in the
name of Manmal Ugamraj in respect of room No.7. In the
said receipt description of the suit premises is not
mentioned. It is not in respect of shop no.7. Enrollment
certificate is also in the name of Manmal Ugamraj without
mentioning the detail address of the suit premises. The
certificate of registration is also silent about the address/
location of the suit premises standing in the name of
Manmal Ugamraj. Shop Act License placed on record are for
the year 1972. On perusal of Shop Act licenses for the year
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1979 to 1982 it appears that address of establishment is
mentioned as 22A Jamnadas Prabhudas Chawl, Delisle Road,
Bombay which is different from the description of the suit
premises. It is settled principle of law that shop act license
issued by the department of defendant/BMC is not a
document to prove the authenticity of structure were
privilege to run business is granted vide said license.
Therefore, the Shop Act License is not helpful to the
plaintiff. Apart from this, water bill cannot authenticate or
legalize the suit premises. The extract of property tax
assessment for the year 2004-2005 shown the existence of
Goldsmith shop and Grain shop in the suit premises found
after demolition of first and second floor of the suit
building. The General Power of Attorney, Affidavit and
Agreement for Sale are not registered documents. These
documents are only notarized documents. Therefore, there
is no document on record to prima-facie shows that suit
premises exists prior to datum line.
15. Plaintiff gave emphasis on undated letter (Exh.E)
which was not having any signature and contended before
Court that suit shop should not be disturbed and building
may demolished is reported to the MHADA. But, this
contention of the plaintiff is contrary to the document
placed on record by him i.e. letter dated 19 t h January, 1984.
On minute perusal of letter dated 19 t h January, 1984, it
appears that executive engineer MHADA addressed a letter
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to the erstwhile occupier Manmal Ugamraj mentioning
therein that shop Nos.1 , 2 and 3 from north side is to be
kept as it is and you should shift your shop in any one out
of two i.e. shop Nos.1 or 3 as an alternative till a permanent
shop is allotted to you. From this letter, it is clear that the
suit shop No.7 is not reported to be kept as it is in the
course of development of the suit building. Hence, prima-
facie plaintiff fails to establish existence of suit premises
prior to datum line.
16. Secondly, it is the contention of the plaintiff that
illegally and malafidely defendant/BMC demolished suit
premises. Learned advocate for the plaintiff relied on the
following citations:-
a] Dilip Kumar Sutaria and other Vs. M.
Karthik and others (AIR 2000 Madras 512)
b] Baban Narayan Landge Vs. Mahadu Bhikaji
Tonchar and others (AIR 1989 BOMBAY 247)
c] Dorab Cawasji Warden Vs. Coomi Sorab
Warden and others ( AIR 1990 Supreme
Court 867)
d] Emperor Vs. Dhanka Amara (AIR 1914
Bombay 41)
e] Circular dated 20.03.2017
17. On the other hand, defendant/BMC come with the
case that suit premises demolished after following due
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process of law. Defendant/BMC also relied on following case
laws:-
A] Municipal Corporation of Greater Mumbai
and others Vs. Rafiqunnisa M. Khalifa
(2019) 5 Supreme Court Cases 119.
B] Mumbai Municipal Corporation of Greater
Mumbai Vs. Sushilaben I. Patel 2001 SCC
Online Bom 954.
18. Considering the rival contentions, it is necessary
on the part of plaintiff to prima-facie establish that suit
premises was erected with due permission of Commissioner
under Section 310 and 317 of the MMC Act. But in the
present suit. Plaintiff has not filed permission issued by
Commissioner of BMC for erection of suit premises. On the
other hand, on perusal of photocopy of notice U/sec. 314 of
the MMC ACT , 02.08.2017, it appears that notice is in
respect of suit premises issued by BMC to the plaintiff.
Photocopy of report dated 05.02.2020, it is clear that
proposed demolition of suit premises was arranged on
05.02.2020. On perusal of colour photographs filed on
record by defendant having date and time, it is clearly seen
that notice structure/suit premises was in existence on the
pedestrian way/footpath. It also clear from these
photographs suit premises was demolished on 05.02.2020.
As mentioned above, plaintiff has not placed permission
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issued by Commissioner BMC for erection of suit premises.
The case laws relied by the plaintiff are settled position of
law. Therefore, no equities are in favour of plaintiff. Apart
from this, no exceptional circumstances are made out by the
plaintiff. As per circular/policy guidelines for removal bottle
necks/missing links of DP Roads TP Road and RL dated
20.03.2017 only authorized structure/ tolerated structure,
residential existing prior to 17.04.1964 and Commercial
existing prior to 01.04.1962 are eligible for Permanent
Alternate Accommodation. But, as mentioned above, prima-
facie plaintiff fails to establish existence of the suit
structure prior to datum line. Therefore, plaintiff fails to
made out prima-facie case of Higher Standard which is
necessary to prevent irreparable or serious injury. In effect,
as plaintiff fails to show permission in respect of the alleged
illegal construction, hence, not having sufficient reason or
cause to raise fair question as to the existence of the alleged
rights. Plaintiff will not suffer relative inconvenience by
refusal of prohibitory relief. There are no equities in favour
of plaintiff. If discretionary relief of temporary injunction is
refused, plaintiff will not suffer irreparable loss.
Accordingly, I answer all point in the negative and proceed
to pass following order.
ORDER
1. Notice of motion No. 1509 of 2020 is rejected.
2.Both the parties to take note of this order.
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3.Cost in cause.
2.Notice of motion No.1509 of 2020 is disposed off.
Date-30/09/2024 (R. B. Parvekar)
Judge, City Civil Court
Gr. Mumbai
Dictated on:30/09/2024
Typed on :30/09/2024
signed on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
01.10.2024 11.45 a.m. ( Mayuresh
P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R. B. Parvekar (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
30/09/2024
JUDGMENT/ORDER signed by
P.O.on
01/10/2024
JUDGMENT/ORDER uploaded on 01/10/2024
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