Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1569/2020 in Suit No. 3189/19. 1 Order.
MHCC010047082020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1569 OF 2020
(CNR NO. MHCC01-004708-2020)
IN
L. C. SUIT NO. 3189 OF 2019
(CNR NO. MHCC01-012450-2019)
Mohanraj Bangaruswamy Naidu
Age – 63, Indian habitant,
Residing at Room No.1,
Rosy Mary D’Souza Chawl,
Ghatla Village Road, Chembur,
Mumbai – 400071 ]...Plaintiff
Versus
1. Designated Officer,
Exe.Engineer (B&F), M/West Ward
Officer Building, Sharadbau
Achrekar Marg, Chembur
Mumbai 400 071
2. Mumbai Municipal Corporation of Greater
Mumbai, a Body Corporate
Constituted under the Mumbai
Municipal Corporation Act, 1988
Having its address at
Mahapalika Bhavan, Mahapalika
Marg, Opp. C.S.T, Fort,
Mumbai 400 001 ]...Defendants
CORAM : SHRI U.J.MORE
(C.R.NO.08).
DATE : 07th NOVEMBER, 2020
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N/m No. 1569/2020 in Suit No. 3189/19. 2 Order.
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Appearance:-
Mr. P.D.Gandhi, Advocate for Plaintiff.
Mr. Khandagale, Advocate for Defendants
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ORDER ON NOTICE OF MOTION NO.1569 OF 2020
1. This is a Notice of Motion taken out by plaintiff challenging
notice Under Section 351 of MMC Act, 1988 bearing No. MW/DO1MW/
153-351-MMC ACT/MW334NO1/4.11.2019 dated 04.11.2019, Orders
bearing Ref. No.100712 dated 22.11.2019, 02.12.2019 and dated
07.03.2020 and also seeking injunction restraining the Defendants,
their, agents, representative and/or person or persons claiming through
or under them from taking any action pursuant to the said Notice Under
Section 351 of MMC Act bearing No. MW/DO1MW/153-351-MMC
ACT/MW334NO1/4.11.2019 dated 04.11.2019, Orders bearing Ref.
No.100712 dated 22.11.2019, 02.12.2019 and dated 07.03.2020 in
respect of premises Room No.1, Rosy Mary D’Souza Chawl, Ghatla
Village Road, Chembur, Mumbai 400071.
2. The defendants filed affidavit in reply to the said Notice of
Motion. It is stated that, plaintiff has filed the present suit for declaring
the Notice issued Under Section 351 of MMC Act, 1988, bearing No.
MW/DO1MW/153-351-MMC ACT/MW334NO1/4.11.2019 dated
04.11.2019, as well as speaking order dated 22.11.2019 passed in
pursuant to Under Section 351 of MMC Act, 1988, notice in the respect
of notice premises situated at Room No.1, adm. 850 Sq.ft, Rosy Mary
D’Souza Chawl, Ghatla Village Road, Chembur, Mumbai – 4000071, as
illegal, bad in law, inoperative and in colourable exerciser of powers,
nullity and jurisdictional error and is liable to be withdrawn revoked
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and canceled.
3. It is further stated that, after the receipt of complaint No.
MW/153/04.11.2020/334 about u/a construction of ground structure
at Rosy Mary D’Souza Chaw, Room No.08, Ghatla Gaon Road, Chembur
( E ) Mumbai 71, therefore, the officer of this defendant visited the site
under reference and observed that unauthorized construction of ground
structure adm. 9.45 X 5.33 M X 3.81 mtr. approx. height using bricks,
M.S. Angles, A.C. Sheet Roof was constructed without any valid
permission and sanction plan. During the visit to site under reference
the officer of this defendant enquired about the owner/occupier name.
4. It is stated that, on enquiry it came to know that
Owner/occupier is Mohanraj B. Naidu. Further stated that, officer of
this defendant inquired about the permission or sanction plan from the
competent authority to owner/occupier. Thereafter the officer of the
corporation took the measurement of the said unauthorized
construction and accordingly prepared the inspection report and rough
sketch and the same was forwarded to the superior office of the
corporation and who in turn put up before the Designated Officer i.e.
Asst. Engineer (B&F) M/W-Ward for consideration and further action.
5. It is stated that, the Designated Officer after going through
the inspection report and rough sketch prima- facie came to the
conclusion that the plaintiff has carried out unauthorized construction
without the permission of the corporation and, came to conclusion that
show cause notice is required to be issued. Accordingly, the designated
officer issued a show cause notice Under Section 351 of MMC Act,
bearing No. MW/DO1MW/153-351-MMC ACT/MW334NO1/4.11.2019
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dated 04.11.2019, Ref. No. 100712. Thus, defendant prayed for
rejection of Notice of Motion.
6. I have heard learned Adv. Mr. P. D. Gandhi for plaintiff. He
submitted that; the defendant corporation has issued notice dated
04.11.2019 to room No. 08 rather room No.1 which is suit property. The
plaintiff has purchased suit property from one Mr. Ramkrishna Pillay in
06.06.1987, he has filed rent receipt dated 01.01.1965 to 30.06.1965.
He further submitted that, the notice dated 04.11.2019 and first
speaking order dated 22.11.2019, transpires reference of room No.08
rather room No.01. Therefore, there is non application of mind while
issuance of notice as well as passing the speaking order against suit
premises and while rejecting reply alongwith the documents filed by
plaintiff. The defendant corporation has not applied judicial mind being
quasi-judicial authority. This is classic case of tolerated structure before
datum line. The description of suit is room No.1 not room No.08. As per
the assessment record, there is no change in R.V. (Ratable Value) to C.V
(Capital value). Hence, the suit property is protected. It is in possession
of plaintiff’s predecessor title before datum line.
7. I have heard learned Adv. Mr. Khandagale for defendants,
He submitted that, considering said order, plaintiff has started over the
construction before inspection report dated 04.11.2019. It is
unauthorized construction in suit premises by the plaintiff. The
defendant corporation has passed speaking order thrice, there are some
additional structure near the structure own by the plaintiff. Hence, it is
calculated as room No.8.
8. Heard, both the sides at considerable length.
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9. In view of aforesaid rival contention, following points arise
for determination and findings thereon are narrated as follows:
SR.NO. POINTS FINDINGS
1. Whether plaintiff prove a prima facie
case ? Yes
2. Whether balance of convenience lies in
favour of plaintiff ? Yes
3
Whether it will cause irreparable loss to
plaintiff, if injunction as claimed is
refused ?
Yes
4 What order? As per final order
REASONS FOR ORDER
AS TO POINT NO.1 and 3:
10. I would like to focus light on the section 351 of MMC Act.
Section 351 – (1A) the Commissioner Shall, by
notification in the Official Gazette, designate an
officer of the corporation to be the Designated Officer
for the purposes of this section and of sections 352,
352A and 354A. The Designated Officer shall have
jurisdiction over such local area as may be specified in
the notification and different officers may be
designated for different local areas. If the erection of
any building or the execution of any such work as is
described in section 342, is commenced contrary to
the provisions of [section 342 or 347] the [Designated
Officer], unless he deems it necessary to take
proceedings in respect of such building or work under
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section 354. Shall -
(a) by written notice, require the person who is
erecting such building or executing such work, or has
erected such building or executed such work, [or who
is the owner for the time being of such building or
work][within seven days from the date of service of]
such notice, by a statement in writing subscribed by
him or by an agent duly authorized by him in that
behalf and addressed to the [Designated Officer] to
show sufficient cause why such building or work shall
not be removed, altered, or pulled down ; or
(b) shall require the said person on such day
and at such time and place as shall be specified in
such notice to attend personally, or by an agent duly
authorized by him in that behalf, and show sufficient
cause why such building or work shall not be
removed, altered or pulled down.
[Explanation.- “To show sufficient cause” in this
sub-section shall mean to prove that the work
mentioned in the said notice is carried out in
accordance with the provisions of sections 337 or 342
and section 347 of the Act.]
(2) If such person shall fail to show sufficient
cause, to the satisfaction of the commissioner, why
such building or work shall not be removed, altered or
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pulled down, the [Designated Officer] may remove,
alter or pull down the building or work and the
expenses thereof shall be paid by the said person. [In
case of removal or pulling down of the building or the
work by the Commissioner, the debries of such
building or work together with other building
material, if any, at the sight of the construction,
belonging to such person, shall be seized and disposed
of in the prescribed manner and after deducting from
the receipts of such sale or disposal, the expenditure
incurred for removal and sale of such debris and
material, the surplus of the receipts shall be returned
by the [Designated Officer], to the person concerned.]
(3) No Court shall stay the proceeding of any
public notice including notice for eviction, demolition
or removal from any land or property belonging to the
State Government or the Corporation or any other
local authority or any land which is required for any
public project or civil amenities, without first giving
the Commissioner reasonable opportunity of
representing in the matter.]
11. After perusal of the plaint allegations shows that, the
defendant corporation has issued notice for alleged unauthorized
construction in a suit premises with using bricks, M.S. Angles, A.C.
Sheets admeasuring 9.45 m X 5.33 m. X 3.81 mtr approx. height.
Plaintiff is relied upon that he has purchased suit property from Mr.
Ramkrishna Pillai. The allegations of structure have been set out with
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great details in the plaint. The plaintiff has annexed documents such as
rent receipts and electricity bills in the name of R.K. Pillay of 1968-
1969, rent receipts of Ramkrishan Pillai dated 01.01.1965, agreement
dated June 1987, property tax receipt dated 10.10.1980 and water tax
receipt dated 03.02.1969 paid by Ramkrishna Pillai, Electricity Bills in
the name of Plaintiff, Ration card, P.R. Card etc.
12. The documents prima facie shows that, there is a structure
which appears to the in existence for number of years and from where
the said plaintiff was residing there only. The rent receipt dated
01.01.1965, prima facie indicate that it is issued in favour of Mr.
Ramkrishan Pillai towards Room No. 1, Rosy Mary D’Souza Chawl. The
electricity bills also transpires in the name of R.K. Pillai for room No.
01, Rosy Mary D’Souza Chawl. Plaintiff predecessor title was possession
in the suit property since 1965 and subsequently since 1987 this
plaintiff is in possession of property. There is no doubt of the
genuineness and authenticity of these documents.
13. The crucks of this case is that, as per the corporation policy
the datum line for tolerated commercial structure, is 01.04.1962 and for
residential structure is 17.04.1964. It is expected from plaintiff to show
that the notice structure is in existence from 17.04.1964, big residential
structure. It is not disputed that, the plaintiff is owner of 5 shades which
shown in City Survey record of C.C. No. 608, 1 to 5. I have perused City
Survey extract which nowhere transpires in a red colour. It is in black
colour. On this point learned Adv. Mr. P. D. Gandhi has submitted that, if
it was encroachment or unauthorized construction. It should be marked
in red colour by the City Survey Authority. There is substance in the
argument advanced by learned Adv. Mr. Gandhi for the plaintiff. One
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more thing is required to show at here that this extract with a map
shows the five structures 1 to 5 situated at North South side having face
towards road side (East side). It nowhere transpires that room No. 6, 7
and 8 are situated near suit premises; which is alleged encroachment
with the help of unauthorized construction by the plaintiff. The
inspection report dated 04.11.19 is without panchnama. It is made in
cyclostyle manner at it was nowhere transpires that, whether structure
is huge or small as per column No.26.
14. In this particular case the corporation was pleased to issue
notice on 04.11.2019 and passed speaking order on 22.11.2019/
02.12.2019/ 07.03.2020. Nowhere the corporation designated officer
has given justifiable reasons for rejecting the documents filed by the
plaintiff. It seems reply with documents were rejected in a casual
manner without justifiable reasons. Now, from which document is
Municipal Corporation expects a party like the plaintiff to prove
existence of the structure prior to the datum line. Learned advocate has
place reliance on the citation
“Massod Ahmed Siddique Vs. Mumbai
Municipal Corporation & Ors. In Appeal from order 57 of 2013, decided
on 23rd January, 2013, by Hon’ble Bombay High Court”, when His
Lordship observed in para 13 as follows:
“Now, from which document does the Authority
expects a party like the Appellant/Plaintiff to prove
existence of the structure prior to the datum line has
not been clarified and that is my experience in every
matter.”
It is further observed that, it is for this reason that trial courts
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are required to step in and not put their seal of approval on the
conclusions of the Assist. Municipal Commissioner.
15. Considering the facts and circumstances of this genuine
case, I am of the opinion that, the corporation has not considered
properly documents which are in possession of the plaintiff to held the
plaintiff guilty. The defendant corporation itself confused while issuance
of notice and order transpires the allegations against room No. 8 and
not room No.1. where is the suit property is room No.1 and not room
No. 8. This is also blatant error on the part of the designated officer of
defendant corporation who has issued notice and who has passed
speaking order. It is not expected for clean hands at the instance of
plaintiff always but other side i.e. defendants who should also come
with clean hands.
16. Learned Adv. Mr. Khandagale tried to clarify that, there
were illegal construction of structures i.e. 6, 7 and 8 continue with
structure No. 1 to 5, these documents cannot be considered because
once it is stated by the defendant that there is unauthorized
construction at room No.1 only in last speaking order i.e. 07.03.2020,
again the stand changed by Advocate for the defendant by saying that,
there were some additional structures; hence, room No.8 has been
mentioned in the notice Under Section 351 of MMC Act, 1988, as well
as in speaking order dated 22/11/2019 and 02/12/2019. Thus, out of
three speaking order the two speaking orders dated 22/11/2019 and
02/12/2019 respectively speaks about Room No.08. Whereas last
speaking order speaks about Room No.01; it certainly makes
corporation story suspicious. Therefore, the defendant corporation itself
has not come with clean hands while issuing notice Under Section 351
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of MMC Act, 1988, against the plaintiff.
17. Learned Adv. Mr. P. D. Gandhi for plaintiff submitted that,
only designated officer is authorized to issue notice and passed speaking
order which does not happened in this case. He brings my attention to
section 68 of MMC Act.
“SECTION 68 – Any of the powers, duties and
functions conferred upon, assigned to or vested in the
Corporation, the [Mayor] Commissioner or the
General Manager, Brihan Mumbai Electric Supply and
Transport Undertaking, by or under this Act, may be
exercised, performed or discharged by any municipal
officer to whom such power, duties or functions are
delegated by the concerned authority by general or
special order made, from time to time, in this behalf.”
In short the acts provide with the power are delegated that certain
power duties and functions can be exercised, perform or discharge to
who such power, duties or functions and delegated by the concerned
authority by general or special order made from time to time in this
behalf.
18. He places reliance on the Standard Operating Procedure
(SOP) for detection and demolition of unauthorized structures.
“Jurisdiction, control, reporting shall exercise
powers under MMC Act, 1988, sections 351, 352,
352A and under MRTP Act sections 53 – 56 within the
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jurisdictions notified for them. They will be
responsible on behalf of the Planning Authority, the
MCGM, for all categories of unauthorized
constructions, irrespective of the ownership of land. In
respect of slums, the officers appointed/designated as
Competent Authority under Sec. 3 of the Maharashtra
Slum Areas (Improvement, Clearance and
Redevelopment Act, 1971 (MAH.XXVIII of 1971)
under gazette notification no. Gavasu. 1301/CR-375/
Zopasu-1 dt. 25th October, 2001 and 21st September
2004 will be responsible for taking action in respective
declared slum area. If any complaint is received
pertaining to the areas of Competent Authorities
mentioned above, The Designated Officer should send
the complaint to concerned authorities with suitable
letter for taking necessary action under Slum Act and
get it acknowledged.”
19. It provides that assistant Engineers are appointed as
designated officer Under Section 351 of MMC Act, 1988 and Notices
were issued by Executive Engineer and speaking order passed by
Executive Engineer. On this point Adv. Khandagale submitted that, he is
ready to file additional reply on this point which is objected by advocate
of the plaintiff that no one shall allow to rectify mistake by filing new
reply / additional reply. In this particular case BMC has prima facie not
proved unauthorized construction in suit structure as per notice Under
Section 351 of MMC Act, 1988. The BMC designated officer has failed
to assign proper reason while rejecting rent receipt issued in favour of
it’s predecessor in title at Rose Mery D’Souza Chawl dated 20/07/1965
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and other material documents. He does not hold that these documents
are suspicious in such circumstances impugned order can’t be sustained.
The argument advanced by plaintiff advocate is accepted considering
the fact and circumstances of the case and discussion has made above.
20. Thus, as per SOP it is only Asst. Engineer who is designated
officer for initiation action Under Section 351 of MMC Act, 1988. Thus,
the documents states that, the plaintiff is in possession of structure since
long which was never doubt. Each and every document provided by
plaintiff was discarded by corporation officer without given any
justifiable reasons. At this stage the rent receipts are not suspicious.
Accordingly, the plaintiff deserves an opportunity to prove his case at
the trial and, particularly as to whether suit structure was existence
prior to the datum line.
21. The Learned advocate for plaintiff placed reliance on
following case laws:
1) “Mr. Arvind Pradhanbhai Dama Vs. The
Municipal Corporation of Greater Mumbai in Appeal
from Order No. 361 of 2013, decided on 30/08/2013
by Hon’ble Bombay High Court.”
2)
“Massod Ahmed Siddique Vs. Mumbai
Municipal Corporation & Ors. In Appeal from order 57
of 2013, decided on 23rd January, 2013, by Hon’ble
Bombay High Court”
With due respect above facts of the both case laws are
applicable to this case in hand.
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22. Therefore, considering the documents filed by the plaintiff
which are discussed as above. The plaintiff is entitled for injunction that
interim injunctions in terms of the prayer in Notice of Motion is deserve
to be granted. As prima facie case is made out. Balance of convenience
is in favour of plaintiff. Considering documents filed on record and
serious lapse of part of defendant corporation. It is settled law that, one
who seeks equity shall stands on his own legs. Plaintiff in this case has
come with clean hands.
23. It is the plaintiff who would suffer irreparable loss and
injury. As a result of the above discussion at lastly, I answer point No. 1
and 3 in affirmative. As I answered point No.1 and 3 in affirmative; I
am inclined to pass following order.
- ORDER -
1. Notice of Motion No. 1569/2020 in terms of prayer clause
(a) is made absolute.
2. Notice of Motion No. 1569/2020 is disposed off
accordingly.
(U.J.More)
Judge,
City Civil & Sessions Court,
Mumbai.
Date : 07.11.2020
1. Dictated on : 07.11.2020
2. Transcribed on : 09.11.2020
3. Signed on : 09.11.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/11/2020. at 12:55 p.m. Mr.G.R.Suryawanshi
Name of the Judge (with Court Room no.) HHJ Shri U.J.More.
(Court Room No.08).
Date of Pronouncement of Judgment/Order 07.11.2020
Judgment/Order signed by P.O. on 09.11.2020
Judgment/Order uploaded on 10.11.2020
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