Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice Motion No. 1579 of 2018 1 L.C. Suit No. 895/2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION No.1579/2018
IN
L.C.SUIT NO.895/2018
Mohammed Rizwan s/o Mohammed Riyaz .. Plaintiff
V/s.
Municipal Corporation of Gr. Bombay .. Defendants
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.11)
DATE : 05.05.2018.
Ld. advocate Mr.Wasim R. Khan for plaintiff.
Ld. Adv. Mrs. Giri for BMC.
ORAL ORDER
1. This Notice of motion is taken out by plaintiff for grant of
temporary injunction restraining the Municipal Corporation of
Greater Mumbai (short in ''MCGM'') from initiating any action of
demolition.
2. This Notice of Motion is supported by an affidavit of the
plaintiff. The MCGM has strongly opposed the Notice of Motion by
filing reply on affidavit being executed by the officer of Municipal
Corporation Shri Alankar Uddhav Veer. I have heard the learned
advocates for both the sides. Perused the record and documents.
3. The MCGM has inspected the premises and found that
there is unauthorized construction on terrace having an area of 4.5
meters x 7.6 mts and height 3 mts approximately. (herein for referred
-- 1 of 7 --
Notice Motion No. 1579 of 2018 2 L.C. Suit No. 895/2018
as ''notice structure'') The Plaintiff's case is that he is in occupation
and possession in room premises consisting the terrace bearing room
no. 3 situated at first of a Chawl known as Anuj House, Pailipada,
Trombay, Mumbai 400 086 for the purpose of brevity (herein and
after record as ''Suit Premises''). It is the case of plaintiff that the
father of the plaintiff had purchase the said premises by registered
agreement of sale deed dated 16 February 2005 and the notice of
structure is in existence since then. According to the plaintiff the
notice structure is in use, occupation and possession of his family
since inception of the building. The officer of the MGCM has found
that there is an unauthorized construction on terrace and therefore,
they have issued notice under section 351 of the Municipal
Corporation Act, 1988. (in short MMC Act). To this notice the
plaintiff has filed reply alongwith certain documents. After
considering these documents, the MCGM has passed the speaking
order on 10.03.2018, thereby, they have come to the conclusion that
there is an unauthorized construction of terrace having area
admeasuring 4.5 mt x 7.6 mt. and height 3 mts. approximately. The
plaintiff has challenged the said notice and speaking order in the suit
and prayed for the grant of temporary injunction, restraining the
MCGM for taking action of the demolition of notice structure.
4. The MCGM has strongly opposed the notice of motion by
filling reply on affidavit thereby submitting that they have a followed
due process of law and after giving an fair opportunity and
considering the reply and documents, they has passed the speaking
order. It is submitted that the plaintiff has failed to produce any
sanction plan of the premises proving authenticity of the notice
structure. As the plaintiff has not submitted any documentary
-- 2 of 7 --
Notice Motion No. 1579 of 2018 3 L.C. Suit No. 895/2018
evidence to prove the validity of the notice structure, therefore, no
interim injunction should be granted in favour of the plaintiff. Heard
learned advocates of both the sides.
In view of aforesaid pleadings, following points arise for my
determination and I have recorded my decisions against each of the
points for the reasons stated below:
Points Decisions
1. Whether the plaintiff has made out
prima facie case for grant of temporary
injunction ?
In the negative
2. In whose favour balance of convenience
leans?
In favour of the MCGM
3. Whether the plaintiff will suffer
irreparable loss, if injunction is refused? No
4. What order? Notice of Motion is
rejected as per final
order.
REASONS
AS TO POINTS NO.1 :
5. I have carefully gone through the documents on record.
There is no doubt about the fact that the MCGM has followed due
process of law and also has given fair opportunity to plaintiff for
proving the authorization of the alleged unauthorized notice
structure. The plaintiff has neither produced any documents before
the concerned authority nor has produced documents before this
-- 3 of 7 --
Notice Motion No. 1579 of 2018 4 L.C. Suit No. 895/2018
court proving any authorization of the notice structure. I have also
perused the sale agreement dated 16th February, 2005. This
documents neither proves the legality of notice structure nor does it
show that the notice structure was tolerated or protected one as per
the policy of the MCGM. The assessment bill does not show that the
notice structure was in existence prior to 19611962. More so on
perusal of the photographs which are placed on record by the MCGM,
it prima facie shows that notice structure was erected with the help of
iron material. On perusal of the photographs, it cannot be said that
the notice structure is very old one or prior to datum line 19611962.
The MCGM has passed detailed order considering the reply and
documents. On perusal of the speaking order, it is very clear that the
officer had considered all the documents produced by the plaintiff
and has given his reasons for not accepting the documents by making
specific remarks against each documents. The learned advocate for
the plaintiff strenuously urged before me that the sale agreement is in
favour of the plaintiff. Though the learned advocate for the plaintiff
has placed much reliance on the agreement, the said agreement does
not given detailed description of the property and there is no mention
about the notice structure. In the case in hand an opportunity was
given to the plaintiff to prove the legality and validity of the alleged
unauthorized notice structure. Neither before the MCGM nor before
the court, the plaintiff has produce any documents proving the
legality of notice structure. Needless to state that, it was for the
plaintiff to prima facie show that the notice structure was in existence
much prior to 1962 or it was constructed after obtaining the
necessary permission from the MCGM or getting the plan sanctioned
from the MCGM. Despite of giving fair opportunity to the plaintiff,
-- 4 of 7 --
Notice Motion No. 1579 of 2018 5 L.C. Suit No. 895/2018
the plaintiff has failed to show single document proving the legality
and validity of the unauthorized structure of terrace having area 4.5
mts x 7.6 mts and heights 3.50 mts approximately.
6. I am not satisfied with the argument advanced by the
learned advocate for the plaintiff as in absence of any documentary
evidence, there is no probability of the plaintiff obtaining the relief
act at the conclusion of the trial. Accordingly, the plaintiff failed to
show prima faice case for granting temporary injunction. I, therefore
answer point no.1 in the negative.
AS TO POINT NO. 2 :
7. From the above discussion, it is aptly clear that the
plaintiff is using unauthorized structure. It is not the case of MCGM
that complete building is unauthorized. So, if the notice structure is
removed, the inconvenience to the plaintiff if compared with the
MCGM which had followed due process of law, the scale of
inconvenience leans to the side of MCGM, Accordingly, I answer point
no. 2.
AS TO POINT NO.3 :
8. '' Irreparable injury'' means such injury which cannot be
adequately remedied by the damages. Considering overall facts and
circumstances, it cannot be said that the plaintiff will suffer
irreparable injury which cannot be compensated in terms of money.
Accordingly, I answer point no. 3.
9. After answering the aforesaid points, in my opinion, the
plaintiff has failed to make out a prima facie case for grant of
-- 5 of 7 --
Notice Motion No. 1579 of 2018 6 L.C. Suit No. 895/2018
temporary injunction. The balance of convenience leans in favour of
the MCGM and plaintiff will not suffer irreparable loss or injury, if the
injunction is refused. Therefore, notice of motion needs to be
rejected. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 1579 of 2018 is rejected.
2. Cost in cause.
3. Notice of Motion is disposed of accordingly.
(Kishore M. Jaiswal )
Addl. Sessions Judge,
Date:5.5.2018. City Civil & Sessions Court, Gr.Mumbai.
Dictated on : 5.5.2017
Transcribed on : 5.5.2017 & 10/05/2018
Signed on :
-- 6 of 7 --
Notice Motion No. 1579 of 2018 7 L.C. Suit No. 895/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: NAME OF STENOGRAPHER
29.05.2018 Mrs. Pushpa Wagh (Reliever)
TIME: 3.15 noon.
Name of the Judge ( With Court room no.)
Shri Kishore M. Jaiswal
(Court Room No.08)
Date of Pronouncement of
JUDGEMENT/ORDER
05.05.2018
JUDGMENT/ORDER signed by
P.O. on
10.05.2018
JUDGEMENT/ORDER uploaded on 29.05.2018
-- 7 of 7 --