Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 1589 of 2018
IN
L.C.SUIT NO. 1053 OF 2018
(CNR No.MHCC010049272018)
The Matunga Athletic Club & Anr. )...Plaintiffs.
Versus
Municipal Corporation of Greater Mumbai )...Defendant.
Appearance:
Adv. Mr. Mukesh Pandey for plaintiffs.
Adv. Mr.Malvankar for defendant/MMC.
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
DATE : 7th, NOVEMBER 2019.
(C.R.No.06)
O R D E R
This notice of motion is taken out by the plaintiffs for temporarily
restraining to the defendant Corporation from executing and enforcing
the notice under section 351 of MMC Act, 1988 dated 07/11/2017 and
Speaking order dated 14/02/2018 passed by the defendant in respect of
the suit premises till final disposal of the suit. The defendant resisted
notice of motion by filing its reply. Read the present notice of motion,
affidavit of the plaintiff in respect of the notice of motion, reply of the
defendant/corporation and affidavit of the employee of the defendant
Corporation. Heard both the learned counsels on behalf of both the
sides at length. Perused the record.
2. The plaintiff has submitted that the plaintiff no.1The Matunga
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Athletic Club is duly registered and since the year 1939 carrying on
their Club activity from the structures admeasuring 368.16, 51.1,
810,123,162 sq.ft. consisting of ground and part upper floor situated on
The Matunga Athletic Club, 76J, Bhaudaji Road extension, near Midas
Building, Sion, Mumbai, duly leased on monthly rent by the defendants.
(Hereinafter for the sake of brevity the same will be referred to as the
" said premises " and the part upper floor and the front portion shed and
W.C. on ground floor will be referred to as the "suit premises"). The
defendant Corporation is the owner of the land and have leased the
same to the plaintiffs in the year 1939. The said structure is situated
thereon since inception of lease/tenancy and the plaintiffs are
conducting the Gym therefrom at the very normal rate.
3. The said premises including suit premises is duly assessed by the
defendant Corporation by confirming that the same is assessed prior to
the year 196162. The plaintiff no.2 is residing in the upper floor along
with his family. The Election Commission of India have issued the
Election Identity Card to the plaintiffs. The plaintiffs have Aadhar Card,
Ration Card, Driving Licence, LIC Policy, Saving passbook of the Bank
Account, telephone facilities, Electricity supply are showing the
residential proof of the plaintiff no. 2 on the said premises.
4. The plaintiffs on the advice by the defendant Corporation in
respect of toilet block, the plaintiffs have also made an application in
respect of the same under Maharashtra Cleanness Programme which is
duly permissible and protected under Prime Minister Yojana of
cleanness.
5. The plaintiffs have submitted that the suit premises is very old.
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On the false complaint, the defendant Corporation has issued notice
under section 351 of MMC Act dated 07/11/2017 to the plaintiff in
respect of the suit property. After receipt of the said notice, the
plaintiffs replied to the notice by their Advocate's letter dated
10/11/2017. Inspite of placing all the documents on the record, the
defendants Corporation had passed erroneous order dated 14/02/2018,
without considering documents produced by the plaintiff.
6. In response to the notice of motion of the plaintiff, the defendant
Corporation has submitted that letter dated 11/10/2017 bearing
no.AC/Estate/141/GEN/AE(IMPII) was issued by the Asstt.Engr.(Imp)
II(Estate), to the Secretary of the plaintiff no.1 Matunga Athletic Club ,
thereby informing that, on the recent inspection of the premises by the
office staff, it is observed that the unauthorized work on the VLT Plot
has been carried out as mentioned in the said letter and requested to
submit the documentary evidence showing the work mentioned are
permitted, authorized or regularized by the M.C.G.M. within a period of
7 days, failing which the necessary demolition action as well as
termination of V.L.T. will be initiated. The notice under section 488 of
M.M.C Act dated on 27/10/2017, was issued by the Designated Officer,
F/NI, Asstt, Eng. B & F to the Secretary of The Matunga Athletic Club
and thereby informed that on 2nd November, 2017 at 10.30a.m., the
site under reference will be inspected by the officer of the M.M.C. and
to take photographs and the measurement as per the complaint
received.
7. The defendant Corporation has further submitted that thereafter
the notice under section 351 of M.M.C.Act dated 7/11/2017 was issued
by the defendant Corporation to the Secretary of The Matunga Atheltic
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Club. Pursuant to the said notice, the letter dated 10/11/2017, from
advocate Mr.B.S.Baraskar was received by the Designated officer i.e.
Asstt. Engr. B & F, F North Ward on 13th November, 2017, requesting
to extend the time of notice by one month. Thereafter, along with the
letter dated 16/11/2017 of advocate Mr.B.S.Baraskar, the plaintiffs
have submitted the documents contending that, "the documentary
evidence produced is of prior to 1995 and are eligible to be tolerated
further stating that if it is, treated as separate ENTITY, is willing to pay
the charges if any for regularization of the unauthorized work if any."
8. The defendant Corporation has further submitted that after
considering the reply and documents produced by the plaintiffs, the
defendant Corporation has passed Speaking Order and held that the
documents produced by the plaintiffs are not proved to the
unauthorized construction made by the plaintiffs in respect of suit
premises. The defendant Corporation has rightly issued legal notice to
the plaintiffs in respect of unauthorized suit structure. Therefore, the
plaintiffs have failed to prove their prima facie case, balance of
convenience does not lie in favour of the plaintiffs. On these grounds,
advocate for defendant Corporation has requested that present notice of
motion may kindly be dismissed.
9. During the arguments advanced on behalf of the plaintiffs, the
learned counsel on behalf of the plaintiffs has submitted that admittedly
the defendant Corporation is the owner of the said premises including
suit premises. The defendant Corporation has leased out the premises to
the plaintiffs in the year 1939. Since inspection of the lease deed in
favour of the plaintiffs, the plaintiffs were carrying the club activities.
The first assessment of the suit premises in prior to 196162. The
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plaintiffs have not carried out any change to the extending structure in
the said premises. The defendant Corporation has issued false and
illegal notice under section 351 of MMC Act on the false complaint
made by the complainant in respect of the suit premises to the plaintiffs.
The plaintiffs have submitted that the entire required documents of the
suit premises produced by the plaintiff to the defendant Corporation
before passing Speaking Order. But the defendant Corporation without
considering the documents produced by the plaintiffs passed stereo
type order by stating that the documents produced by the plaintiff are
not proved the authorization of the suit structure. The suit structure is
in existence since 1939. It is the submission of the defendant
Corporation that the plaintiff has carried out unauthorized structure.
Therefore, it can be decided on the trial. Therefore, the learned counsel
on behalf of the plaintiffs has submitted that the plaintiffs proved
prima facie case, balance of convenience and irreparable loss. Lastly,
the plaintiffs advocate states that the plaintiffs are entitled to protect
suit premises.
10. The learned counsel on behalf of the defendant Corporation has
submitted that admittedly the defendant Corporation is the owner of
the said premises including the suit premises. The defendant
Corporation has given the said premises on leased to the plaintiffs. But
recently the plaintiffs have carried out unauthorized construction
which is mentioned in the suit notice issued by the defendant
Corporation to the plaintiff under section 351 of the MMC Act. After
receipt of the suit notice under section 351 of MMC Act, the plaintiffs
given reply alongwith documents to the defendant Corporation. But the
entire documents produced on behalf of the plaintiffs are not proved the
authorization of the suit structure. Therefore, the plaintiffs are not
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entitled to protect the suit structure. Therefore, the learned counsel on
behalf of the defendant Corporation has submitted that plaintiffs have
failed to prove prima facie case, balance of convenience is not lies in
favour of the plaintiffs and the the plaintiffs will not suffer any
irreparable loss.
11. After hearing the arguments advanced on behalf of both the sides
at length and after scrutiny of pleadings and documents are on record,
it appears that it is not disputed that the said premises including suit
premises is owned by the defendant/Corporation. The plaintiff no.1
The Matunga Athletic Club is the registered trust under Society
Registration Act,1860 and the plaintiff no.2 Vikram Babulal Mehrol is
the Secretary of the plaintiff no.1 Trust. The defendant Corporation
had given the said premises to the plaintiffs in the year 1939 on
the basis of lease. The plaintiff no.1 The Matunga Athletic Club
carrying on its club activity in the said premises since inception of the
tenancy i.e. since 1939. Admittedly, the defendant Corporation has
made first assessment of the said premises on 31/03/1961. The
plaintiffs have challenged in the present suit and notice of motion, the
notice issued by the defendant Corporation to the
plaintiff bearing no.FN/DO1FN/172/351MMCACT/FN419N01/0711
2017 dtd.07/11/2017 under section 351 of MMC Act and order passed
by the defendant Corporation dated 14/02/2018.
12. In real controversy in between the parties are that according to
the plaintiff, the notice structure is in existence prior to datum line
i.e. before 196162. As against the submission of the defendant
Corporation is that the notice structures are carried out by the plaintiff
after datum line without prior permission of the competent authority. It
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is further dispute in between the parties are that according to the
plaintiff that the plaintiff produced documents after receipt of notice
under section 351 of MMC Act for consideration about authorization of
existence of notice structure but defendant Corporation without
considering the concern documents passed stereo type illegal order
dated 14/02/2018. As against the submission of the defendant
Corporation is that the documents produced by the plaintiff prior to
passing the order dated 14/02/2018 are not proving the authenticity
of the notice structure. Therefore, notice issued by the defendant
Corporation under section 351 of MMC Act dated 07/11/2017 and
order dated 14/02/2018 are executable and legal one.
13. In order to prove the authenticity of the existence notice
structure, I have scrutinized the documents produced by the plaintiff.
The copy of the assessment bill showing the suit premises is assessed
in the year 1961 at Exh.H, which shows first assessment held by the
defendant Corporation to the suit property on 31/03/1961. The
copy of Election Identity Card of the plaintiff no.2 at Exh.M, Copies of
Aadhar Card at Exh.N, Ration Card of the plaintiff no.2 at Exh.O, Copy
of the Driving License at Exh.P, LIC Policy of 1986 at Exh.Q, Old
envelope received from the Postal authority at Exh.R, Copy of Diwali
Greeting received in the year 1986 at Exh.S, Copy of Saving Passbook
showing the opening the Bank Account in the year 1987 at Exh.T,
Copies of UCP in the year 1988 at Exh.U, Postal Acknowledgment
received at the suit premises in the year 1988 at Exh.V, Copy of letter
from MTNL in respect of Telephone Deposit at the suit premises dated
22/03/1993 at Exh.AA, Copies of Bills in respect of HP Gas Stove at
Exh.CC, Registration Slip dated 19/01/1994 for HP Gas installation at
Exh.DD, Domicile certificate at the addresses of the suit premises at
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Exh.FF, Copies of the passport at suit premises issued in the year 1997
is at Exh.GG. These documents are shown the plaintiff no.2 occupying
the said property including suit premises since long. On perusal of these
above documents produced on behalf of the plaintiff, it appears that the
said property including suit premises are in existence since prior to
datum line i.e. 1961. The plaintiff Matunga Athletic Club running club
activities since prior to datum line. The plaintiffs are occupying the suit
property since prior to datum line. Therefore, at this prima facie stage,
it appears that the plaintiffs are entitled to protect the notice structure
till decision of the final suit. Therefore, the plaintiffs have made out
prima facie case, balance of inconvenience lies in favour of the
plaintiffs. The plaintiffs will suffer irreparable loss, if this notice of
motion is rejected. Therefore, I inclined to allow this notice of motion of
the plaintiffs. Hence, I have proceed to pass following order.
ORDER
1. Plaintiffs notice of motion no.1589/2018 is hereby allowed.
2.The defendant Municipal Corporation is hereby temporarily restrained
from executing and enforcing the notice under section 351 of MMC Act
bearing no.FN/DO1FN/172/351MMC ACT/FN419N01/07112017
dated 7/11/2017 and order dated 14/02/2018, in respect of the suit
premises, till final disposal of he suit.
3. Notice of motion no. 1589/2018 is disposed off accordingly
Date : 07/11/2019 (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on :07/11/2019
Transcribed on : 08/11/2019
Signed by HHJ : 11/11/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
11/11/2019 5.00p.m. Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.06)
Date of Pronouncement of
Judgment/Order
07/11/2019
Judgment/order signed by P.O on 11/11/2019
Judgment/order uploaded on 11/11/2019
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