Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. : MHCC01-004830-2018 Notice of Motion No. 1555/2018.
in L.C. Suit No. 1030/2018.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1555 OF 2018.
IN
L.C. SUIT NO. 1030 OF 2018.
Vishwanath Shankar Mathpathi. …....…… ….. PLAINTIFFS.
V/s.
M.C.G.M. …..…......................................... ….. DEFENDANT.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 03rd October, 2022.
APPEARANCES :
Ms. Vaibhavi Pawar, Ld. Advocate for the Plaintiff.
Mr. Sunil C. Khandagale, Ld. Advocate for the Defendant/MCGM.
*****
01. The plaintiff has taken out this Notice of Motion (for short
the NM), to restrain the defendant from demolishing/taking any action
as against the suit premises, described in para Nos.3 and 4 of the plaint,
in pursuance of the notice dtd. 06.04.2018, issued vide Section 354-A of
the MMC Act. Perused the NM, his accompanying affidavit, reply of the
defendant and reply-rejoinder of the plaintiff. Heard both the sides.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in his favour ? ...…...........................
Common Finding :
Yes, till the
defendant follows
the due process of
law.
(ii). Whether balance of convenience lies in
favour of the plaintiff ? ..…...................... ...
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CNR NO. : MHCC01-004830-2018 Notice of Motion No. 1555/2018.
in L.C. Suit No. 1030/2018.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted ?......................
(iv). What Order ? …..............….................... …As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3.
03. As these points are interconnected, to maintain the brevity,
I am taking the same for joint discussion. By this suit, the plaintiff came
with a case that since long, he is in possession of the suit premises. His
late father Shankar Mahadev Mathpathi, on receiving possession of plot
from Rajaram Sakharam Ohol, erected structures upon the said plot and
therefore, the then Addl. Tehasildar (NA) Kurla, issued notice U/s. 44 of
the MLRC Act, to have converted the said plot for non-agricultural use,
without obtaining any previous permission of the Competent Authority.
As such, the plaintiff's father paid the NA Taxes. He died on 03.07.2015,
leaving behind the plaintiff, as his only legal heir, to succeed his estate.
The land, where the suit premises is situated, is declared as a slum area.
Still, on 06.04.2018, the defendant issued this notice U/s. 354-A of the
MMC Act, alleging interalia that he was found carrying an unauthorized
construction of 02 ground floor rooms, with B.M. Walls and A.C. Sheets.
In fact, this notice is issued under influence of some interested persons.
He replied the same on 09.04.2018 however, without considering this
reply, the defendant passed the Speaking Order on 02.06.2018. The said
notice and Order are bad in law, as the defendant didn’t follow the due
process of law. To support his contentions, the plaintiff relied upon the
documents viz. the State Notification dtd. 30.06.1977, declaring land of
CTS No. 09 as Slum area, PR Card, Conveyance Deeds, pertaining to the
suit premises, the notice, his reply and the Order. The defendant denied
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CNR NO. : MHCC01-004830-2018 Notice of Motion No. 1555/2018.
in L.C. Suit No. 1030/2018.
this NM on the counts that the suit is bad for want of notice U/s. 527 of
the MMC Act. On 06.04.2018, during the site inspection, the defendant
observed that the said construction was ‘in progress’ and when inquired,
its occupier/owner could not furnish the documents of its authenticity.
As such, the notice was issued. The plaintiff replied this notice and after
considering the same, the Speaking Order came to be passed. This way,
the defendant followed due process of law and therefore, this NM needs
to be dismissed. To support his contentions, he relied upon photocopies
of the inspection report, panchnama, photograph, the suit notice as well
as the Speaking Order.
04. Considering the rival stands, it is notable that it is nowhere
the plaintiff's case that this notice structure - unauthorized structure of
two ground floor rooms, made up of B.M. Walls A.C. sheets and channel
sections on open land, was carried after securing due permission of this
defendant or as per the sanctioned plan. On the contrary, he is trying to
justify this notice structure on the grounds that it existed since long and
the land, where it is situated, is declared as a slum area. To substantiate
this position, he filed the said Notification of Slum area and the other
documents, as per the plaint compilation. However, even if this record is
taken into account as it stands, the same is falling short to establish the
authenticity of this notice structure. As regards declaration of this land
as the slum area, the record is silent to assume that the notice structure
is a censused structure and accordingly, the photo-pass is issued to the
plaintiff. Much less, the Lease Deed dtd. 27.07.1997, filed at Exhibit D
whispers about the notice structure and its long standing existence. On
this background, one thing is clear that the plaintiff couldn't prima-facie
prove its authenticity nor even he could justify that it existed since long.
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CNR NO. : MHCC01-004830-2018 Notice of Motion No. 1555/2018.
in L.C. Suit No. 1030/2018.
05. Assailing this NM, the defendant contended that during the
site inspection dtd. 06.04.2018, it revealed that this construction was in
progress and therefore, he issued the notice U/s. 354-A of the MMC Act,
which contemplates 'on-going' status on the alleged construction work.
Being so, certainly, it was for the defendant to show that at the relevant
time, the said construction was 'in progress'. To fortify this fact, he filed
photocopies of the inspection report, panchananma and a phonograph.
However, perusal of this record nowhere confirms the on going status of
the alleged construction. The sketch, incorporated in the site inspection,
is vague whereas, photocopy of phonograph is lacking in digital details
like date, time and place of the said construction activity. Here, it would
not be out of place to mention that there are various Circulars issued by
the defendant as guidelines for his Officers while proceeding against the
illegal structures. The said Circulars re-iterate the guidelines laid in the
case of Sopan Maruti Thopte Vrs. Pune Municipal Corporation,AIR 1996
Bom.304. However, here, the defendant did not follow this procedure to
show that the said construction work was in progress. Moreover, it is the
settled position of law that provisions of Sect. 354-A of the MMC Act are
nothing to do with the demolition of a construction, which is complete.
On this backdrop, in my opinion, even the defendant did not follow due
process of law before proceeding against the notice structure. However,
it doesn’t mean that therefore, the notice structure is legalized. It simply
means that the defendant could not justify issuance of the notice of dtd.
06.04.2018, vide Section 354-A of the MMC Act, which pre-requires on-
going status of the construction activities. Therefore, I am of the opinion
that till he follows the due process of law, the notice structure deserves
to be protected. Hence, I answered point Nos. 1 to 3 accordingly and in
answer to point No.4, I pass the following Order:
-: O R D E R :-
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CNR NO. : MHCC01-004830-2018 Notice of Motion No. 1555/2018.
in L.C. Suit No. 1030/2018.
(i). Notice of Motion No. 1555/2018 is partly allowed.
(ii). The defendant, its agents, its servants and anybody
else claiming through him are hereby restrained from
proceeding against the notice structure, in pursuance
of the suit notice dtd. 06.04.2018, except by following
the due process of law.
(iii). Notice of Motion No. 1555/2018, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai Ad-hoc Judge,
Dated : 03.10.2022. City Civil Court, Mumbai.
Dictated on : 03.10.2022.
Transcribed on : 04.10.2022.
Checked and Signed on : 06.10.2022.
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CNR NO. : MHCC01-004830-2018 Notice of Motion No. 1555/2018.
in L.C. Suit No. 1030/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
07.10.2022 at 4.35 p.m.
Name of the Stenogrpher
Mrs. S.R.Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 03.10.2022.
Judgment/Order signed by P.O. on 06.10.2022.
Judgment/Order uploaded on 07.10.2022.
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