Final Order 1

Order Details: Notice of Motion
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IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1716 OF 2019
IN
L.C. SUIT NO.1542 OF 2019
1. Mohd. Ismail Allabax Hirapure ]
& Ors. ]...Plaintiffs.
Versus
1. The Municipal Corporation for ]
Greater Mumbai & Anr. ]...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 26th June, 2019.
Mr. Pal h/f. Pratap Singh, Advocate for plaintiffs.
Mr. Giri h/f Ms. Mhatre Advocate for MCGM/Defendants.
O R D E R
1. By this Notice of Motion the plaintiffs have sought a direction to
the defendants to consider the reply dated 2.4.2019 filed by the
plaintiffs and to pass fresh speaking order in the interest of natural
justice and fair play.
2. The affidavit in support of Notice of Motion states that the
plaintiffs rely upon the plaint pleadings in support of Notice of Motion.
3. In brief the plaintiff's case in the plaint is that, they are the
tenants in room Nos.2 to 10 and 12 in House No.46 situated on CTS
No.223, 2231 to 27, Survey No.276 at village and Taluka Kurla, known
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as Piran Buddhan chawl. The landlord has constructed said chawl prior
to 1960 consisting of ground plus five floors. The plaintiffs and other
tenants along with Landlord are residing in the said chawl. The plaintiffs
are having all documents pertaining to the chawl and their residence
therein from the year 1960. The chawl (hereinafter termed as the "Suit
Premises") is existing since prior to the datum line and is duly assessed
since then. The plaintiffs have Electricity bills, Rent Receipts, Ration
Cards, water bills, Electoral Roll and Aadhar Cards reflecting their
residence in the suit premises. The suit premises is also reflected in the
Revenue Records. It is located in a declared Slum area. The plaintiffs
have not carried out illegal construction. On false complaints, a Notice
dated 28.4.2017 under Section 351 of the MMC Act was issued to the
landlord. The plaintiffs were unaware of such Notice. Suddenly on
2.3.2019 the plaintiffs came to know about the demolition of the suit
premises proposed on 5.3.2019 or any time thereafter. Neither plaintiffs
nor the landlords have carried out unauthorized construction. The
landlord, however, has carried out essential repairs prior to March, 2016.
On a false complaint, a Notice under Section 351 of MMC Act dated
28.4.2017 is issued to the landlord which is replied by the landlord on
15.5.2017. The speaking Order is passed by defendants on 6.5.2017 i.e.
within 15 days from the date of Notice. This is contrary to the directions
given by the Hon'ble Bombay High Court in Sopan Maruti Thopte's
case. Plaintiff's landlord herself submitted the reply on 18.5.2017 to the
defendants. The Notice dated 28.4.2017 and the speaking Order dated
6.5.2017 is not served on the plaintiffs and therefore, is not replied by
them. The Notice and Speaking Order both are illegal and not binding
on the plaintiffs. Plaintiffs came to know about those when on 1.3.2019
Officer of defendants Mr.Torane threatened demolition of the suit
premises on 5.3.2019 or any time thereafter. The plaintiffs have shown
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documents to the defendant's Officer. The defendant should pass a fresh
Speaking Order.
4. In the Affidavit in support of Notice of Motion. The plaintiffs have
further stated that the landlord has shown all the necessary documents
in reply to the impugned Notice under Section 351 of the MMC Act. In
view of the circular of the defendants no action can be taken against the
suit premises without passing reasoned order. The plaintiffs have filed a
detail reply through their Advocate dated 2.4.2019 to the defendants.
The defendants therefore, need to pass a Speaking Order deciding their
reply dated 2.4.2019.
5. The Notice of Motion is opposed by the defendants contending
that on an inspection on 8.11.2016 unauthorized erection of 9 R.C.C.
columns on open land was detected. On inquiry with the owner Ismail
Allabax Hirapure, he failed to produce the permission. Therefore, a
Notice under Section 354A of the MMC Act was issued. In response to
said Notice the construction permission was not produced. Therefore, the
Notice structure was demolished on 28.11.2016. The disputed site was
again inspected on 28.4.2017 and a huge unauthorized construction of
ground plus five floors was found. The owner was asked about the
permission for such structure or building. The owner failed to produce
such permission. Therefore, Notice under Section 351 of MMC Act dated
28.4.2017 was issued. No reply was filed. Therefore, a Speaking Order
dated 6.5.2017 was passed. The addressee in the Notice, i.e. owner, filed
a suit bearing No.1610 of 2017. This Court refused to grant adinterim
relief. The order was challenged by the addressee in Appeal From Order
No.554 of 2017. By an order dated 19.7.2017 the Hon'ble Bombay High
Court disposed the Appeal from Order permitting the addressee to apply
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for regularization on or before 18.8.2017 through the Licensed Surveyor
or Architect and in the prescribed manner. The owner, did not apply as
directed by the Hon'ble High Court. He had filed Civil Application
No.733 of 2017 wherein the Hon'ble High Court granted extension of
three weeks for filing regularization application. The owner thereafter,
filed Civil Application No.799 of 2017 wherein three weeks time was
granted by the Hon'ble High Court as last chance. The information was
sought from the Executive Engineer (Building & Proposal) to know
whether application of regularization is submitted. Vide reply dated
11.10.2017 it was informed that no such application is received.
Therefore, the suit premises is partly demolished. Meanwhile, the owner
again approached the Hon'ble High Court in Civil Application No.949 of
2017. The Hon'ble High Court directed to decide the regularization
application and till then not to carry out further demolition. By letter
dated 19.11.2018 information was sought from Executive Engineer
(Building and Proposal) on the status of regularization application. Vide
a letter dated 12.2.2018, the Executive Engineer informed that no such
application is received. He informed that the regularization application
is still at the Architect Console stage and is not forwarded to MCGM.
Therefore, Notice under Section 488 was issued. The demolition action
was started on 27.11.2018. Two rooms were demolished. However, the
women occupying said building agitated and restrained the staff from
further demolition of suit premises. Therefore, the further demolition
was called off. The owner again filed Civil Application No.1013 of 2019.
By an order dated 25th /26th February 2019, the Hon'ble High Court has
dismissed said Civil Application. The impugned Notice and order is
subject matter of challenge in Suit No.1610 of 2017. After the order of
Hon'ble High Court in Civil Application No.1013 of 2018 the plaintiffs
have filed the present suit. The plaintiffs have suppressed filing of Suit
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No.1610 of 2017 by the landlord. This Court has vacated the adinterim
injunction granted earlier. Said order is not challenged by the plaintiffs.
6. Perused. Heard.
7. Considering the pleadings and submissions advanced before this
Court, following is an admitted position:
That a Notice under Section 351 dated 28.4.2017 was issued to
the owner of the suit premises and a speaking Order dated 6.5.2017 is
also passed. Said Notice and Speaking Order is challenged by the owner
in Suit No.1610 of 2017 pending before this Court. In said suit the ad
interim relief was not granted to the owner of the suit premises. The
owner had challenged said Order in Appeal From Order No.554 of 2017
wherein the Hon'ble Bombay High Court has permitted the owner to file
a regularization application in the prescribed manner through licensed
Surveyor/Architect on or before 18.8.2017. If such application is not
filed by that day, the MCGM is not required to consider any application.
If the application is refused for any reason, the MCGM will not take any
action for a period of two weeks thereafter to enable the plaintiffs
therein to approach the Court. Thereafter, the owners have filed Civil
Application No.733 of 2017 and sought extension of time. Three weeks
time was granted to them. The owners had again filed Civil Application
No.910 of 2017 however, the Hon'ble High Court did not extend the
time. Later on another Civil Application No.949 of 2017 was filed
wherein a statement was made that applicant's online application for
regularization of the structure was tabled before the Commissioner of
Corporation. Therefore, the Hon'ble High Court directed to decide said
application on or before 8.12.2017 and restrained the defendants from
further demolition of the suit premises. The landlords have filed another
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Civil Application 1013 of 2018 seeking interim relief. The Hon'ble High
Court has dismissed said application holding that it has no merits. It is
also admitted that this Court had granted adinterim exparte relief by an
order dated 4.3.2019. Said relief is vacated by this Court by an order
dated 7.3.2019 after hearing the defendants. Said Order dated 7.3.2019
vacating the adinterim injunction is not challenged by the plaintiffs
though extension was granted to challenge the said order. It is also an
admitted position that the Notice of Motion seeking injunction against
defendants to restrain them from acting upon the impugned Notices on
and order is still pending.
8. The advocate for plaintiffs drawn the attention of this Court to the
documents attached to the plaint and submitted that these documents do
establish existence of the suit premises since prior to the datum line.
9. It needs to be mentioned here that, it is the plaintiffs' case that all
the documents pertaining to the suit premises were submitted by the
landlord to the defendants to establish the authenticity of the suit
premises however, still the speaking Order is passed. It is also not
disputed that the correctness, legality etc of the impugned Notice and
Order is already considered by this Court in Suit No.1610 of 2017. In
view of this, the documents attached to the plaint need not be reassessed
when those are already considered by this Court in Suit No.1610 of
2017. The documents of plaintiffs pertaining to their occupation in said
building will not change the picture.
10. The documents placed on record by the defendants reveal that, on
open land a new construction was started and it was demolished after
issuing a Notice under Section 354A of the MMC Act. Thereafter, a new
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construction of ground plus five floors was raised and hence a notice
under Section 351 of the MMC Act was issued. The challenge to said
impugned Notice and Order by the Landlord has failed. Even the
landlord could not obtain any relief from the Hon'ble High Court since
the Civil Application No.1013 of 2018 is dismissed. Considering these
circumstances, the documents submitted by the plaintiffs along with
plaint are not going to help them to establish that the existing structure
of ground plus five floors is the said old building in which they started
residing as tenants.
11. Advocate for plaintiffs submitted that the Speaking Order is illegal
since it is passed within a period of 15 days from the date of impugned
Notice. He relied upon the observations of the Hon'ble High Court in the
case of Sopan Maruti Thopte Vs. Pune Municipal Corporation,
1996(1)Mh.L.J. and Jaiprakash Vishwanath Jaiswal Vs. Municipal
Corporation, 2018 (5) Bom.C.R.431. He also relied upon circular dated
12.4.2013 issued by the defendant Corporation. Relying upon these
judgments and circular the plaintiffs are contending that the impugned
Speaking Order is illegal and therefore, fresh speaking Order needs to be
passed by defendants.
12. At the costs of repetition it needs to be mentioned that said aspect
is already considered by this Court in Suit No.1610 of 2017 and even by
the Hon'ble High Court in the Appeal From Order No.554 of 2017.
There is no question of reopening these issues at the instance of the
plaintiffs.
13. It is the plaintiff's case that they were unaware of the impugned
Notice and Order. It is also their case that the building of ground plus
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five floors is existing since prior to the datum line.
14. A bare perusal of the documents submitted by the defendants
reveal that the old building is not existing as on today. What is existing
is an entirely new construction of ground plus five floors. Naturally it
can come up only when the old building is demolished and a new
construction is put on. The plaintiffs claim that they are the residence of
said building since past many years. In such circumstances, the pulling
down of the old construction and raising of new construction of five plus
floors cannot be carried out without they vacating the premises and
reoccupying the same in the new building. This reveals that plaintiffs
have come with an absolutely false version before this Court. In such
circumstances, the plaintiffs' statement of absence of knowledge of the
impugned Notices and order is not reliable and believable.
15. Advocate for plaintiffs submitted that if the ongoing construction
was demolished after issuing a Notice under Section 354A of the MMC
Act, and a new construction is raised within one year after demolition of
old construction, why a notice under Section 351 of the MMC Act is
given instead of issuing a short notice of 48 hours.
16. As already discussed this issue need not be gone into by this Court
at the instance of the plaintiff when the landlord has already
unsuccessfully challenged the impugned Notice and order.
17. Advocate for plaintiffs also submitted that the regularization
Application is still pending and is not yet decided by the defendants.
Therefore, in view of the order dated 19.7.2017 in Appeal From Order
No.554 of 2017, the plaintiffs are protected.
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18. When the landlord had moved Civil Application No.1013 of 2018,
in its Order dated 25th / 26th February 2019, the Hon'ble High Court has
recorded a finding that the landlord had not submitted the application
for regularization as per the Order dated 19.7.2017 and on a false
pretext of filing such application had sought injunction. Thus the
arguments advanced by the Advocate for plaintiffs are devoid of merits.
19. Advocate for plaintiffs submitted that the suit premises exist in
declared slum area. Therefore according to him the defendants cannot
act against the suit premises. He relied upon Shri Ramawatar Babulal
Jajodia Vs. Municipal Corporation of Greater Mumbai, 2014(2)ALL
M.R. 303.
20. It is the plaintiff's case that the suit premises exists in Survey
No.276. The Notification of the Slum declaration at page 79 of the plaint
reveals that Survey No.275 is the area declared as Slum. Survey No.276
has no mention in such notification or gazette. Faced with this situation
the advocate for plaintiffs submitted that there is typographical error in
mentioning the survey number in the plaint. However, this argument is
not acceptable in view of the statement in the reply dated 2.4.2019,
submitted by the plaintiffs to the office of defendants, which also
mentions that the suit premises exist in survey No.276. Thus, there is
nothing on record to indicate that the suit premises is situated in
declared slum area. Considering the above discussion, the authority cited
supra i.e. Shri Ramawatar Babulal Jajodia's case will not help the
plaintiff in any manner.
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21. The discussion made above reveals that after failure of landlord to
seek relief from this Court as well as from the Hon'ble High Court the
tenants i.e. plaintiffs have filed present suit. They are not pressing the
Notice of Motion seeking temporary injunction but have invented an idea
of filing present Notice of Motion seeking direction to the defendants to
pass a fresh Speaking Order considering their reply dated 2.4.2019. This
is an idea to stop the defendant's action which is not halted by the
Hon'ble High Court. In such circumstances, neither in law nor on facts
the plaintiffs have made out a case that the direction as sought in the
Notice of Motion is necessary. Such direction cannot be given when the
landlord has failed into all his attempts in seeking injunction against the
implementation of said impugned Notice and order.
22. It is also clear from above discussion that the plaintiffs have come
with a false version that the suit premises is existing since prior to the
datum line. Considering their conduct and the circumstances in this case
no case at all is made out by the plaintiffs.
23. During the dictation of the order, Advocate Mr. Pal holding for
Advocate Mr. Pratap Singh submitted that he intends to rely upon two
judgments on the point that the Notice issued under Section 351 of the
MMC Act is also required to be served on the tenants.
24. In support of his submission he relied upon Adam A. Sorathia and
anr. Vs. Municipal Corporation of Greater Mumbai, 2002(4) Bom CR
419. I have gone through the authority cited supra. In it, the City Civil
Court has rejected a Chamber Summons and the prayer to join the
applicants as party defendants to the suit was turned down. The Hon'ble
Bombay High Court allowed the Revision Application and directed the
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plaintiff to add the names of applicants as party defendants to the suit.
25. The Advocate for plaintiffs also relied upon Milind Dattatreya
Sugavkar Vs. Municipal Corporation 2006(1) Mh.LJ. 385, wherein the
order of City Civil Court allowing the Chamber Summons of the Society
to add as a party defendant to the suit was upheld.
26. The authorities cited supra are on the point as to whether the
applicants therein were the necessary and proper parties to the suit.
27. In view of this, the authorities cited supra do not lay down the
proposition as submitted by advocate for plaintiff that the Notice under
Section 351 of the MMC Act, impugned in this suit, also has to be served
on the tenants. Thus the submission advanced is not acceptable,
moreover, when the plaintiffs have not come with clean hands before
this Court. Hence, the order:
ORDER
1. Notice of Motion 1716 of 2019 is dismissed.
Sd/
(A.N. MARE)
Judge,
26/06/2019 City Civil Court, Mumbai.
Dictated On : 26.06.2019
Transcribed on : 27.06.2019
HHJ Signed on : 28.06.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
28.06.2019 11.25 a.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
26.06.2019
JUDGEMENT /ORDER signed by
P.O. on
28.06.2019
JUDGEMENT /ORDER uploaded
on
28.06.2019
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