Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion no.1256-10 in Suit no.1194-2010
CNR MHCC010048792010
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1256 OF 2010
IN
L.C. SUIT NO. 1194 OF 2010
Maqsud Nawaz Chasmawalla ]... Plaintiff.
Versus
The Municipal Corporation of ]
Greater Mumbai, Mumbai & others ]... Defendants.
Coram : M. S. Deshpande, Judge
(Court Room no. 05)
Date : 12th April, 2018.
Mr. Mahadik, advocate for plaintiffs.
Ms. Rawade, advocate for defendants.
ORDER
1. The plaintiff has moved this motion seeking temporary
injunction for restraining the defendant no.1 Corporation from
demolishing the notice structure pursuant to the notice dated 19.3.2009
issued under Section 351 of the Mumbai Municipal Corporation Act,
(for short, “M.M.C. Act”).
-- 1 of 9 --
2 Notice of Motion no.1256-10 in Suit no.1194-2010
2. According to the plaintiff, his wife is tenant in respect of
shop no.2 (in short, “suit premises”) located on the first floor of the
building bearing street no.273/273A (for short, “suit building”), Abdul
Rehman Street. The suit building consists of ground plus five upper
floors. The defendant no.2 Trust is the landlord of the suit building.
3. According to the plaintiff, the suit building is assessed to
municipal taxes since prior to 196162. The ratable value of the suit
building is not changed from 19951996 to 2007 2008.
4. In or around December, 2007 the plaintiff wanted to carry
out tenantable repairs to the suit premises, and therefore, the plaintiff
by letter dated 26.12.2007 informed the defendant no.2 to permit the
repairs. The defendant no.2 permitted to carry out the repairs.
However, one of the trustees demanded Rs.15,00,000/ to the plaintiff,
failing which further threatened to complain with the defendant no.1.
The plaintiff carried out the tenantable repairs.
5. At the instance of trustee Atik Aagbotwala, the defendant
Corporation issued impugned notice alleging that the plaintiff has
carried out unauthorised extension of the suit premises. On 31.3.2009
the plaintiff replied the same by contending that the MHADA has
already repaired the entire suit building including the suit premises.
Apprehending the demolition, the plaintiff instituted the suit no.1717 of
2009 wherein the defendant was directed to pass final order.
6. The defendant Corporation after hearing the plaintiff and
verifying the report of measurement of the suit premises submitted by
the architect of plaintiff passed an order on 30.4.2010, holding that the
-- 2 of 9 --
3 Notice of Motion no.1256-10 in Suit no.1194-2010
front portion of the suit premises admeasuring above 4.78 meters x 1.1
meters appears to be extended unauthorizedly and directed the plaintiff
to remove the same within 15 days or to face for an action for its
demolition. According to the plaintiff, the action initiated by the
defendant no.1 is illegal, void and done with malafide intention and
without application of mind and by extending their jurisdiction. It is
contended that the concerned officer of MHADA also informed that the
suit premises were repaired twice in 1984 and 1992.
7. The defendant no.1 opposed the motion by contending that
on 12.3.2009 its officers inspected the suit premises and found that the
plaintiff has unauthorizedly extended the construction of the suit
premises. The plaintiff did not show the documents in support of the
said construction. The said construction being contrary to the provisions
of Section 342, 347 of the MMC Act, the impugned notice was issued.
Thereafter, personal hearing was given to the plaintiff. However, the
plaintiff failed to produce documents showing authorization of the
notice structure and therefore, by following due process of law
reasoned order was passed on 30.4.2010. According to the defendant
the notice structure cannot be protected.
8. On the other hand, the defendant no.2 contested the
motion on the ground of locus standi by contending that the wife of the
plaintiff is a tenant. The plaintiff has no nexus with the suit premises.
According to the defendant no.2, the notice structure was not in
existence prior to 196162. The plaintiff without seeking any
permission illegally extended the suit premises. The defendant no.2 has
denied that it has demanded Rs.15,00,000/. Similarly, it denied that
the suit building was so repaired by MHADA. According to the
-- 3 of 9 --
4 Notice of Motion no.1256-10 in Suit no.1194-2010
defendant no.2 it was repaired in 1970. Thus, it has prayed for
dismissal of the motion.
9. The learned advocate for the plaintiffs submitted that the
Designated Officer is not confident about the dimensions of the alleged
extension. On the other hand, learned advocate for the defendant
Corporation submitted that by following due process of law a reasoned
order for demotion has been passed. On the other hand, the learned
advocate for the defendant Trust submitted that the plaintiff has no
locus standi to institute a suit and seek reliefs as he is not the tenant.
He relied on the following authorities.
1. 2001(3) Bombay Case Reporter 787
Savji Bhavan Bera & another vs. M.C.G.M.
Ratio: Municipal policy cannot be allowed to degenerate into
legitimizing unauthorised constructions.
2. 2006(1) Bombay Case Reporter 680
Namdev Pandurang Panchal vs. M.C.G.M.
Ratio: When the plaintiff miserably failed to prove his title
over the property, existence of structure, the suit is
liable to be dismissed.
3. 2006(2) Bombay Case Reporter 631
Shriram Ramphal Patel vs. M.C.G.M.
Ratio: A person to seek relief against demolition has to prove
that the structure as constructed was legal and he had
acquired a right to it.
4. 2006(4) Bombay Case Reporter 46
Seema Arshad Zaheer & Ors. vs. M.C.G.M.
Ratio: Court may not grant a temporary injunction merely on
the ground of sympathy or hardship. To grant a
temporary injunction where structure is clearly
unauthorised and final order has been passed after
considering the entire material, directing demolition,
would be to encourage and perpetuate an illegality.
-- 4 of 9 --
5 Notice of Motion no.1256-10 in Suit no.1194-2010
5. 2007(4) Bombay Case Reporter 444
Sidharam M. Yanagandul & Anr. vs. State of
Maharashtra.
Ratio: If a structure is constructed after 17.4.2016 without
permission is assessed to Municipal tax it does not
alter its status as unauthorised structure.
10. Considering the rival submissions, the copies of documents
placed on record and the ratios under citations, the following points are
decided for the reasons stated below :
SR.
NO.
POINTS FINDINGS
1. Whether the plaintiff has made out a prima
facie case ?
In affirmative.
2. Whether the points of balance of convenience,
irreparable loss and hardship lie in favour of
the plaintiff ?
In affirmative.
3. Whether the plaintiff is entitled to an ad
interim relief of injunction as prayed for ?
In affirmative.
REASONS
AS TO POINT NOS.1 TO 3.
11. It is necessary to look into the copies of documents placed
on record. The copy of impugned notice prima facie shows an
allegation about the raising unauthorised extension of shop at the first
floor by using R.S.J. ladi coba admeasuring 15' 8” x 18' x 8' with glass at
the front road side. The reply dated 31.3.2009, prima facie shows the
denials made by the plaintiff with contention that the MHADA had
carried out the repair of the suit building twice.
-- 5 of 9 --
6 Notice of Motion no.1256-10 in Suit no.1194-2010
12. The copy of letter dated 8.5.2009 issued by the Executive
Engineer, Mumbai Building Repairs & Reconstruction Board to the
Assistant Engineer of the defendant Corporation, prima facie shows that
the premises portion marked A,B,C,D, in the plan was repaired by the
board in the year 1984 and 1992 as per the records available with that
office.
13. It appears that during the personal hearing given to the
plaintiff, the Designated Officer directed the plaintiff to submit the exact
measurements of the premises and accordingly, the plaintiff by letter
dated 15.12.2009 forwarded copy of report of an architect with map
showing the dimensions and carpet area of the suit premises.
14. It appears that by replying on that report, the defendant by
order dated 30.4.2010 held that the front portion of 4.78 meters x 1.1
meters appeared to be extended unauthorizedly and further directed
the plaintiff to remove the same.
15. The assessment extracts of the suit building for 19951996
and 20072008 prima facie shows the existence of two rooms on the
first floor and their rateable value is not changed.
16. On the other hand, the copy of block plan issued by the city
survey office prima facie shows the structure of the suit building having
different floors. It is not much useful for drawing any inference at this
stage. Similarly, the copy of repairs plan of the suit building issued by
the M.B.R & R. Board shows the existence of terrace in front of the
room no.1. However, the said plan does not show any date and
therefore, it is a part of evidence to conclude whether the said plan
-- 6 of 9 --
7 Notice of Motion no.1256-10 in Suit no.1194-2010
pertains to alleged repairs carried out to the suit building in 1970 or
1984 or 1992.
17. The said plan shows the dimensions of the terrace 14'0” x
16'6”. It also prima facie shows dimensions of the room no.1, 23'0” x
16'6”. It is alleged in the impugned notice that the plaintiff has carried
out construction having dimensions 15'8” x 18'0”, whereas in the
impugned order it is held that the extension is of 4.78 meters x 1.1
meters. On the other hand, it appears that in May 2009 the matter was
referred to M.B.R. & R. Board by the defendant Corporation with a
specific remark about the portion marked A,B,C,D, and it was informed
by the said board that the said portion has been reflected in the plan for
repairs carried out by the board in 1984 and 1992. At the same time,
the report of the concerned architect shows different dimensions of the
entire suit premises.
18. Under such circumstances, prima facie it appears that the
Designated Officer has not personally verified the extent of alleged
unauthorised construction. He is not confident about the dimensions of
unauthorised structure. Therefore, the fact of alleged unauthorised
extension is required to be verified on the touch stone of the evidence.
19. So far as the point of locus of the plaintiff is concerned,
prima facie it appears that the impugned notice has been issued in the
name of owner/ occupier or the tenant and by including the plaintiff
Maqsud Nawaz Chasmawalla and therefore, the plaintiff has the locus
standi to challenge the impugned notice.
-- 7 of 9 --
8 Notice of Motion no.1256-10 in Suit no.1194-2010
20. Consequent upon the facts and circumstances, the plaintiff
has made out prima facie case. The points of balance of convenience,
hardship and irreparable loss lie in favour of the plaintiff as if the
protection is not granted, the defendant will definitely demolish the
notice structure. Therefore, point nos.1 to 3 are answered in the
affirmative and the following order is passed :
ORDER
1. Notice of Motion no.1256 of 2010 is made absolute in
terms of prayer clause (a).
2. The parties to bear their respective costs.
Sd/
(M.S. Deshpande)
Ad Hoc Judge,
City Civil Court, Mumbai.
Dictated on : 12/04/2018
Typed on : 25/04/2018.
Signed by HHJ on : 02/05/2018.
-- 8 of 9 --
9 Notice of Motion no.1256-10 in Suit no.1194-2010
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNE
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 03.05.2018 At 11.50 a.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
12.04.2018
JUDGMENT/ORDER signed by
P.O. on
02.05.2018
JUDGMENT/ORDER uploaded
on
03.05.2018
-- 9 of 9 --