Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1552/2020 1
MHCC010046652020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
GREATER BOMBAY
NOTICE OF MOTION NO. 1552 OF 2020
(CNR NO. MHCC01-004665-2020)
in
L.C. SUIT (ST.NO. 5286 OF 2020)
Vijay D. Popat
....Plaintiff
Versus
Municipal Corporation of Greater Mumbai,
& Others
.
... Defendants
CORAM: H.H.THE AD-HOC & ASST.
SESSIONS JUDGE,
S.C. PATHARE,
(C.R. No.05).
DATE : 29th OCTOBER, 2020.
Appearance:-
Shri. Anupam Surve i/b S.K. Legal: Advocate for Plaintiff.
Shri. Vikram Valavalkar: Advocate for MCGM/defendant.
ORAL ORDER
1) Plaintiff moved this Notice of Motion for temporary injunction
against defendant.
2) (1) unauthorized additions, alterations and subdividetion of
mezzanine floor work carried out at M/s. Creative Tex Shop 1 mezzanine
floor, 115 Umrigar Building, 354 Abdul Rehman street, opp Crawford
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Market, Mumbai 400 003 by way of using brick mansonry walls, M S Angle,
ladicoba ladi slab admeasuring 4.60ml X 4.60ml X 2.20ml @ mezzanie
floor; (2) unauthorized horizontal extension of mezzanine floor beyond
existing building line, removed the window and made the storage room on
the shop name sign board by way of using M S angle and ladicoba enclosed
with aluminium cladding admeasuring 3.87ml X 1.70ml X 2.20ml; (3)
unautorizedly creation additional opening to access the mezzanine floor in
the house gulley with M S rolling shutter towards north side of building
admeasuring 2.10ml X 2.10ml X 0.30ml above mentioned unauthorized
work carried out beyond/contradictory to approved plan issued by MCGM
u/no EEBP/8385/dtd.17.10.1987, for the sake of brevity the same is
hereinafter referred to as the 'suit structure'.
3) Advocate of plaintiff argued that since long plaintiff is having
possession/user of suit structure as a tenant. Even said structure has been
mentioned in shop and establishment licence dated 15/11/1979. According
to Advocate of plaintiff the said notice struture is also reflecting in rest of
the documents annexed with the plaint by the plaintiff. Advocate of
plaintiff is denying the alleged construction of notice structure. According
to him without hearing defendant passed said order by issuing show cause
notice by violating legal provisions.
4) On the other hand, advocate of defendant strongly opposed the
Notice of Motion by submitting reply affidavit. It is further argued that
defendant/corporation followed due procedure of law by issuing one
month notice u/s. 53 of the MRTP Act and after considering reply speaking
order is came to be passed. According to defendant plaintiff has made
unauthorized developments/alterations/changes as mentioned in show
cause notice.
5) In this regard it is necessary to consider the law laid down by
the Hon'ble High Court Bombay in the case of Tushar Salian V/s. State of
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Maharashtra PIL No.67/2017 (DB) judgement dated 28/08/2019 and
further judgement passed in the same case by the Hon'ble High Court dated
23/09/2019. The Hon'ble High Court held that (i) when the property is
governed under Municipal Statute the interest protected has to be with
respect to plea that prima facie the structure being targeted is unauthorized
structure (ii) the plaint must make averment of sanction obtained from
corporation and must make the averment with the structure targeted is
prima facie governed by sanction (iii) merely pointing out deficiencies in
the notice or the authority of a person issuing the notice is neither here nor
there (iv) thus, sine quo non of such suits is positive assertion made with
reference to the sanction of building plans. If any plan is produced then the
same must have endorsement of approval of the corporation. Plaintiff must
produce such permission or the approved plan in support of the plaint.
Furthermore, the similar view was taken in the case of Mohd. Zuber V/s.
MCGM, AFO 27460 dated 25/10/2016 (HC Bom.)
Apart from that in the case of Sopan Thopte V/s. PMC AIR 1996
Bom 34 and in the case of MCGM V/s. Sunbeem Hightech Developers Pvt. Ltd.
2019 SCC Online 1389 (SC), it is held that the injunctions cannot be granted
casually in such suits.
Moreover, as per the provisions of Section 106 of the Evidence
Act burden of proving fact which is specially within knowledge of any
person lies upon such person. For example if any person is traveling in
railway without a ticket, then burden of proving that he had ticket is on
him. Similarly, if a person is found having unauthorized structure then such
person is duty-bound to produce permission of corporation or approved
plan in that regard. If such person fails to make said legal compliance then
the same has to face the legal consequences.
6) So far as this matter is concerned show cause notice was issued
on 24/2/2020 by giving one month time to plaintiff. Plaintiff replied the
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same on 16/3/2020 by stating that he removed the store room. In the reply
plaintiff kept mum regarding remaining points mentioned in the show
cause notice. Thereafter, in due course speaking order dated 23/10/2020
came to be passed whereby plaintiff was directed to remove notice
structure within 24 hours. However, record shows that till today plaintiff
neither removed said structure voluntarily nor submitted online application
to BMC for regularization of the same.
7) I have gone through the record which shows that the said
structure is not in existence prior to the datum line i.e. 1962/1964.
Furthermore admittedly plaintiff is not having permission or sanction to the
said additions/changes/notice structure. In this regard plaintiff has not
placed on record the tenancy agreement for perusal of the court. Therefore,
it appears that there is no mention of said structure in the tenancy
agreement therefore, the same is not placed on record.
8) Plaintiff relied on shop and establishment license dated
15/11/1979 and establishment registration certificate dated 16/4/1992,
assessment order of Income Tax, copy of assessment and tax bill etc.
However, these documents are not documents of authorization of notice
structure. According to advocate of plaintiff the plaintiff paid taxes
pertaining to notice structure and such assessment and collection document
dated 06/02/2020 is produced on the record. However, merely payment of
tax /assessment does not amount that it is an authorization or acceptance
of the notice structure.
9) On behalf of corporation alongwith list original approved plan
dated 17/10/1987 is produced for showing that notice structure was not
permitted and the same came to be constructed/altered/changed
subsequently. Defendant also produced first inspection and second
inspection reports alongwith photographs, etc. Perusal of said documents it
goes to show that there are changes/additions/developments to said
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structure as pointed out in show cause notice and order passed by
designated officer.
10) On behalf of plaintiff reliance is placed on the case of A1 Fateh
Chsl Vs. MCGM WP No.900/2020 dated 19/3/2020 (High Court Bombay)
regarding general directions during Covid 19. Plaintiff further relied on the
case of Syed Muzaffar Vs. Municipal Corporation Delhi 1995(4) SCC 426
wherein it is urged that in such cases to consider whether violations could
be compounded or regularized and to resort to demolition only in serious
and grave breaches of building regulations etc. In this regard I am going to
pass necessary orders in the operative part of this order.
11) Thus in view of above discussions I am of the humble view that
plaintiff is not having a prima facie case or balance of convenience. Further
if Notice of Motion is dismissed in that event plaintiff will not suffer any
irreparable loss which can not be compensated in terms of money.
12) Considering peculiar facts and circumstances I procced to pass
following order in the interest of justice.
ORDER
1) The Notice of Motion No.1552/20 is hereby
dismissed with costs.
2) In view of above judgment of Hon'ble Apex
Court plaintiff is given one week time to
complete online process of regularization,
subject to provisions of the law. However, for
causing delay till today for said procedure
plaintiff shall pay cost of Rs.5,000/- (Five
Thousand) to defendant within four days
excluding holiday.
3) After receipt of online application if any, the
defendant shall consider the same on merits, as
per law as early as possible.
4) However, in view of directions of Hon'ble High
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Court in above referred order/judgment in W.P.
No.900/2020 defendant will be at liberty to
remove said notice structure when effect of said
order/judgment of Hon'ble High Court will
come to an end.
5) Authenticated copy of this order be given to
parties if prayed for.
(S.C. Pathare)
Ad-hoc Judge
C.R.No.5
City Civil Court
Gr. Bombay
Direct typed on : 29/10/2020
Checked on : 29/10/2020
Signed by HHJ on :29/10/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
NAME OF STENOGRAPHER : MRS. SHOBHA A. SHEKADE
Name of the Judge (With Court
Room no.)
HHJ Shri. S.C. Pathare
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
29/10/2020
JUDGMENT/ORDER signed by
P.O. on
29/10/2020
JUDGMENT/ORDER uploaded on 12/11/2020 (Due to CIS problem could
not uploaded on time)
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