Order 2

Order Details: Notice of Motion
Pdf Text: MHCC010048902018
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.1572 OF 2018
IN
L.C. SUIT NO. 1183 OF 2018(St. No. 5277/2018)
CNR No. MHCC010048902018
Mrs.Dina Rajesh Sosa
an adult, aged about 44 years,
Indian Inhabitant of Mumbai,
presently residing at 906, “D” Wing ,
Janata Nagar CHS Ltd., B.B. Nakashe Marg,
Tardeo, Mumbai 400 034. and having
address also at Room No. 10, 262264 & 149153,
K.N. Trust Building, Rajaram Mohan Roy Road,
Near H. N. Hospital, Prarthana Samaj,
Mumbai 400 004.
.. Plaintiff
V/s.
Municipal Corporation of Greater Mumbai,
through the Municipal Commissioner,
having his office at BMC Building,
Mahapalika Marg, Opp. CST Railway Station,
Mumbai 400 001(through the office of A.E. (B &
F). “D” Ward, Designated OfficerII attached to the
office of Asstt. Commissioner, “D” ward Municipal
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Office, Jobanputra Compound, Nana Chowk, Grant
Road (West) , Mumbai 400 007.
.. Defendants
Appearance:
Adv.Smt. Shah I/b Vibhav Mehta & Associations for the Plaintiff.
Adv.Soraan for the MCGM/ defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 05.05.2022
ORDER
1. The plaintiff has taken out this notice of motion for grant of
temporary injunction, thereby restraining the defendants and all
persons acting through and on behalf of the defendants from
demolishing, pulling down, removing or damaging the suit premises ie.
Room No. 10, admeasuring about 180 sq. fts. Situate at 262264 &
149153 , Carsandas Natha Girgaon Sanitorium Trust Building, Rajaram
Mohan Roy Road, Near H.N. Hospital Prarthana Samaj, Mumbai 400
004 in pursuance of the notice bearing no.D/DO2D/216/351MMC
ACT/ D222NO1/24.11.2016 bearing reference no. 16231 issued by the
Designated Officer II/Asstt. Engineer (Building & Factories) Department
of “D” Ward and the consquent order dtd. 4.4.2018 ie the impunged
speaking order .
2. The plaintiff has come up with the case that she is the
monthly tenant in respect of residential premises bearing Room No. 10
admeasuring about 180 sq. ft. situated in the disputed premises cited
which is the subject matter of the impugned notice. The trustees of said
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Carsandas Natha Girgaum Sanatorium Trust is the landlord of said
building. It is said that the premises is used by the plaintiff for self
occupation as an Out House. As per the Trust Deed the suit premises,
which was in the nature of a covered room and not in the nature of
place open to sky, was meant to be used for common washing place, but
now it is not used as common washing place. The suit premises is
assessed by the concerned department of defendant as Out House and
said fact is clear from TWR dtd. 31.1.2007 prepared by the concerned
department of the defendant. In order to defend the impugned notice,
the plaintiff has come up with the case that the notice structure is in
existence over the suit premises since 1908 and the assessment thereof
as “ Out House” is corroborated by the latest assessment bill dtd.
5.3.2018. The plaintiff has not erected any unauthorized or illegal
structure as alleged in the suit notice. The suit premises exists since the
inception of suit building which was constructed about 100 years ago.
Said period is much prior to the datum line of the year 196162 as laid
down by the defendant. The approved plans of said building are not
available with the landlords and defendants , therefore they cannot say
that the suit premise or notice structure is unauthorized. The suit notice
has been issued and impugned order has been passed in violation of the
principles of natural justice which requires that the plaintiff have been
heard of before issuance of notice or passing of impugned order.
Therefore, the notice is bad in law and deserves to be set aside.
3. The plaintiff has submitted that approved plans of suit
premises are placed on record showing permitted existence of notice
structure . Further, the notice has been issued for the structure which is
in big size than the size narrated in the impugned notice. Therefore,
prima facie case and balance of convenience lies in favour of plaintiff.
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Hence, notice structure may be protected by way of grant of interim
relief making the notice of motion absolute.
4. The defendant has opposed the motion by placing the affidavit in
reply below Exh.6 as well as the documents below Exh.7. It is
contended that the defendants have received 6 complaints dtd.
8.4.2018, 10.5.2018, 2.7.2018, 4.7.2018, 11.7.2018, 19.10.2018 from
one Narendra Wallakar regarding unauthorized construction of room in
open space admeasuring 4.5 mtr X 1.8 m and construction of room
below staircase and open space behind staircase admeasuring 2.2 m X
4.0 m at ground floor Room No. 10. The defendants issued notice
under section 488 of MMC Act on dtd. 23.8.2016 to the plaintiff
/owner/ occupier of the said premises in order to inspect the premises.
Accordingly, on dtd.24.11.2016 the officer of defendant inspected the
cite and detected the above complained structure. The defendant's
officer asked the owner/occupier for the permission of said
development from the competent authority or any document showing
authorization of the unauthorized development. However, plaintiff
failed to produce the same. The defendant's officer took measurement
and photographs of the structure and thereafter the Designated Officer
issued impugned notice under section 351 of MMC Act to the plaintiff.
The plaintiff has submitted reply to said notice on dtd. 26.11.2018
alongwith the copy of approved plan and C.S Sheet No.175. After
considering the same the Designated Officer held that the notice
structure in open space admeasuring 1.60 m X 1.80 m is unauthorized .
Hence, the impugned speaking order dtd.4.4.2018 for removing said
extended portion of notice structure came to be issued to the plaintiff.
As such the notice and order are legal and issued by following due
process of law. Hence, it is prayed that the notice of motion may be
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dismissed as plaintiff is not entilted for any interim relief.
5. From the facts and circumstances of the case and material
produced on record following points arose for my determination and
my findings there on are as under for the reasons stated therein :
POINTS FINDINGS
1 Whether Prima facie case is
established by the plaintiff ?
No
2 Whether balance of convenience lies
in favour of plaintiff?
No
3 Whether plaintiff proves that in the
event of failure to grant interim
injunction, Irreparable loss would be
caused to him?
No
4. What Order? Notice of motion is
dismissed as per final
order.
R E A S O N S
As to Point nos. 1 to 3:
6. All these points are interlinked with each other, hence for
the sake of convenience and to avoid repetition of certain facts, all are
discussed simultaneously.
7. While deciding the issue of grant or refusal of temporary
injunction which is a equitable relief, it is necessary to consider whether
plaintiff has proved prima facie case. If the prima facie case is
established, the balance of convenience naturally lay in favour of
plaintiff.
8. It is pertinent to note that the notice of motion is not heard
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on the side of plaintiff as the plaintiff and his Ld. Senior Advocate
remained absent. The Junior advocate appeared and filed the copy of
one order passed in Civil Application S.T. No. 12747/2018 in Appeal
from order (S.T. ) No. 12746/2018. However, it is not made clear as to
how and on what point it is applicable to present case. Heard Ld.
Advocate for defendant at length. Though the oral arguments of
plaintiff side could not been heard, I have gone through the plaint,
notice of motion as well as the documents produced on record by the
plaintiff’s side. I have also considered the affidavit in reply of defendant
and the documents produced by them.
9. It is pertinent to note that as per the term ' Sufficient Cause'
used in section 351 of MMC Act, said sufficient cause must be
explained by the plaintiff, which means that he has to show that his
structure is made in consonance with the provisions of section 342 and
347 of the MMC Act and therefore deserves to be saved from the
demolition action proposed by the defendants. In order to explain such
sufficient cause, it is the duty of plaintiff to produce sanctioned plan or
any authentic permission from the Competent Authority for
construction/erection of the notice structure. Further, if the noticee i.e
plaintiff comes with the case of the notice structure being in existence
prior to the datum line and is tolerated structure, he must establish that
the structure as existed today is in existence since from the beginning
i.e prior to datum line. Here it appears from the record that the plaintiff
has taken two fold defence i.e the notice structure is tolerated structure
and secondly, the structure is constructed as per the approved plan
sanctioned by the Competent Authority.
10. At the backdrop of these circumstances I have perused the
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pleadings and the documents. The plaintiff has produced the
correspondences exchanged between the parties and the copies of
approved plan. He also produced the TWR of suit premises.
11. The copy of Trust Deed dtd. 21.7.1908 is perused .
According to the plaintiff it shows the existence of notice structure i.e
two rooms for watchman and third room as a common washing place.
He further relied on the extract of cadestral survey sheet issued by the
office of City Survey and land records Mumbai to show Block Plan of
the suit building and the portion where the suit premises is located.
Prima facice, it shows that the suit premises is shown in rectangular
shape indicated by letter “R” and open space between the said structure
and portion of main building. The TWR i.e tabulated ward report dtd.
31.1.2007 prima facie shows existence of two rooms on the ground
floor and one room as a room for common water supply with hall. It is
also visible that the suit building was assessed for Municipal Taxes on
dtd. 31.3.1961 .The rent recipts are also filed by the plaintiff but the
same are not of any evidential value in the present suit as the subject
matter of the suit is restricted to unauthorized construction only.
12. The record shows that the plaintiff has produced copies of
two repair plans for the year 1981 and 1999 . The plan of the suit
building for the year 1981 shows the suit structure ad measuring about
2.90 m X 1.80 m and described as covered washing place. It’s location is
near the staircase. A room below staircase is also shown . On the west
side of the said structure there is one open space between the suit
premises and part of the main building. Said portion has been shown in
the repair plan of the year 1999 and the measurement of the suit
premises as shown in the plan is 9.6 fts x 6 fts.
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13. I have gone thorough the impugned speaking order dtd.
4.4.2018 also. Undoubtedly, the size of the structure for which the
notice under section 351 of the MMC Act has been given is different
then the size of the structure for which the speaking order has been
passed. It transpires that the Designated Officer has rightly considered
all the documents produced by the plaintiff including the approved
repair plains of the year 1981 and 1999. The photo copy of C.S Sheet
no. 175 is also considered while passing said order. After considering
said documents it has been seen by the Designated Officer that the
room blow the staircase reflects in the said plan as well as C.S. plan .
However, the dimensions / area of room under notice reference i.e in
open space does not tally . There is a difference in length of structure i.e
4.50 mtr – 2.90 mtrs = 1.60 mtrs. Further, it has been noticed that in
the room below staircase there is difference in length of structure i.e
4.50 m – 2.90m = 1.60 mts which also does not reflect in the C.S. plan .
After considering the documents , the Designated Officer has arrived at
the conclusion that the extended area admeasuring 1.60 m X 1.80 m is
unauthorized and therefore liable to be demolished. With said findings
the speaking order came to be passed. It reveals that the Designated
Officer has given elaborate clarification as to why the impugned notice
has been issued for the structure having different size and order is
passed for the size smaller than the size mentioned in the impugned
notice.
14. On perusal of these documents prima facie it is crystal clear
that in the impugned notice the measurement of the entire premises has
been mentioned to the tune of 4.5 mts X 1.8 mts. Room below staircase
has also been shown admeasuring 2.2 mtrs X 4 mtrs. Considering the
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measurement shown in the repairs plan it prima facie appears that the
suit premises is extended by 1.60 mts X 1.80 mtrs. Therefore, the
impugned speaking order appears to be rightly and legally passed by
the Designated Officer. The plaintiff miserably failed to shows that the
said structure is tolerated structure and was in existence prior to datum
line. Hence, I hold that the plaintiff miserably failed to establish
existence of prima facie case and balance of convenience in her favour.
15. The sine quo non of such suit is the positive assertion made
with regard to sanction of building plan. The plaintiff has utterly failed
to justify the compliance of sections 56 and 57 of Indian Evidence Act.
It is not established that the disputed notice structure is covered under
the approved plan. Therefore, at the backdrop of these circumstances, I
hold that injunction cannot be granted casually overlooking the facts
which came on record.
16. Hence, from the facts and circumstances of the case, I have
arrived at the conclusion that prima facie there is no serious bonafide
question which requires adjudication at the present juncture. The
plaintiff seeking equity must come with clean hands, however here the
plaintiff failed to establish his entitlement for equity. The prima facie
case does not lie in favour of plaintiff. The notice action does not appear
to be perverse or against the principles of natural justice. Therefore, I
hold that neither balance of convenience lies in favour of plaintiff nor
the question of irreparable loss arise, if the notice of motion is not made
absolute. Hence, considering all these facts I have answered point nos. 1
to 3 in negative.
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As to point no. 4
17. In view of the negative findings as to point nos.1 to 3, I
hold that the notice of motion do not stand and it is liable to be
dismissed. Hence, following order is passed:
ORDER
1. Notice of Motion No. 1572/2018 stands dismissed.
2. The prayer for grant of interim relief stands dismissed.
3. Notice of Motion No. 1572/2018 is disposed off accordingly.
Date: 05.05.2022.
(A.H.KASHIKAR)
ADHOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.05)
Dictated on : 05.05.2022, 11.5.2022
Typed on : 05.05.2022, 11.5.2022
Signed on : 13.05.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13.05.2022. 12.30p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar (C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
05.05.2022.
JUDGMENT/ORDER signed by
P.O.on
13.05.2022
JUDGMENT/ORDER uploaded on 13.05.2022
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