Order 1

Order Details: Notice of Motion
Pdf Text: 1 Common order on NM in St. no.5514-2018 & two sister suits.
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
CNR MHCC010051602018
NOTICE OF MOTION NO.1620 OF 2018
IN
L.C. SUIT (STAMP) NO.5514 OF 2018
&
CNR MHCC010049192018
NOTICE OF MOTION NO.1584 OF 2018
IN
L.C. SUIT (STAMP) NO.5278 OF 2018
&
CNR MHCC010040292018
NOTICE OF MOTION NO.1267 OF 2018
IN
L.C. SUIT NO.791 OF 2018
Akramal Najibul Sarkar ]..Plaintiff.
Versus
Municipal Corporation of Greater Mumbai, ]... Defendant.
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 3rd May, 2018.
Mr. B.P. Shukla, advocate for plaintiff.
Ms. Rawade, advocate for defendant.
ORDER
1. The plaintiff has moved these notices of motion seeking
interim relief of injunction for restraining the defendant Corporation
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from acting in pursuance of the notices dated 13.3.2018, 11.4.2018 and
16.4.2018 issued under Section 354A of the Mumbai Municipal
Corporation Act (for short, “M.M.C. Act”) and order dated 12.4.2018
passed in furtherance of notice dated 11.4.2018.
2. The facts, in nutshell, are that the plaintiff claims to be an
owner of the building namely Vazir mansion (for short, “the suit
building”) located at 244, Narsi Natha Street, Pydhonie, Mandvi,
Mumbai. According to him, the suit building is occupied by various
tenants. It is assessed for municipal taxes since 196162.
3. According to the plaintiff, the suit building is cess building.
It was requiring urgent repairs. MHADA authorities, time and again
issued notices warning the plaintiff and the occupants of the suit
building to vacate the same immediately as it was in dilapidated
condition. Accordingly, the tenants were shifted in transit camp and
permission for repairs was granted. The Mumbai Building Repair and
Reconstruction Board (for short, “M.B.R.R.B.”) issued no objection
certificate and work order for carrying out repairs of the suit building.
4. However, upon false complaint the defendant issued
aforesaid notices to stop the work of repairs and also passed an order
for demolition of alleged unauthorized structure. According to the
plaintiff, in all the notices similar allegations are made. However, the
notices are vague and issued without inspecting the suit building. The
notices do not disclose the mode of construction. The defendant
threatened to demolish the notice structure.
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5. The defendant contested the motion by contending that it
received various complaints regarding unauthorized work being carried
on at the suit building. Therefore, the officers of defendant inspected
the suit site and found that unauthorized work of construction of a
building was in progress. Accordingly, by taking photographs at the site
inspection reports were prepared. The plaintiff was called upon to
produce the documents showing authorization of the construction work
which was in progress. However, he failed to produce any documents.
The defendant issued three notices under Section 354A of M.M.C. Act.
The plaintiff filed three suits consecutively, by suppressing material
facts. According to the defendant, the M.B.R.R.B. had only permitted
for structural repairs of the suit building. However, the plaintiff under
the garb of such repairs demolished the entire building and started
construction of new building.
6. The learned advocate for the plaintiff submitted that the
construction is completed and therefore, the defendant cannot issue
notices under Section 354A of the M.M.C. Act. According to him, no
documents are filed on record to show that the work was in progress.
He submitted that the work has been carried out in accordance with
the permission and work order given by MHADA. He further submitted
that the defendant has not followed the circular dated 29.4.2006 and
therefore, no action can be taken against the notice structure. He
placed reliance on the following authority:
(2006)8 Supreme Court Cases 590.
Muni Suvrat Swami Jain, SMP Sangh vs. Arun Gaikwad
Ratio: The provisions of Section 354 have nothing to do
with the question of demolition, when the structure is in
existence.
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7. On the other hand, the Learned Advocate for the defendant
submitted that the plaintiff under the garb of permission for repairs,
demolished the entire suit building and started construction of the
notice structure. Accordingly, the aforesaid notices were issued under
Section 354A of the M.M.C. Act. Certain part of the notice structure
was also demolished by the defendant. According to her, the action
taken by the defendant is proper.
8. Considering the submissions made by respective advocates
and copies of documents placed on record, the following points are
decided for the reasons stated below:
SR.
NOS.
POINTS FINDINGS
1 Whether the plaintiff has made out a prima
facie case?
In the negative.
2 Whether the points of balance of
convenience, hardship and irreparable loss lie
in favour of the plaintiff?
In the negative.
3 Whether the plaintiff is entitled to the relief
of interim injunction as prayed for?
In the negative.
REASONS
As to point nos.1 to 3.
9. It is necessary to look into the copies of documents placed
on record. It is undisputed that the M.B.R.R.B. by letters dated
29.3.2014, 11.4.2014, 14.5.2014, 29.4.2016 directed the plaintiff as
well as all the tenants, occupants of the suit building that the suit
building was in dilapidated condition and unfit for human habitation
and therefore, to vacate the same immediately.
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10. By letter dated 11.4.2016, the plaintiff was informed by
M.B.R.R.B. that the suit building was taken on priority for structural
repairs and the plans and estimates for the same were received from the
architect of the plaintiff and were also scrutinized. An estimate for
repairs was also informed.
11. By letter dated 16.3.2016, the M.B.R.R.B. informed the
Assistant Engineer (B & F) of the defendant that the suit building was
the cess property which was in dilapidated condition etc. and
accordingly work order was issued to start the repair work etc. It was
also informed that the tenants were shifted in transit camps and
therefore, permission for repairs should be granted urgently.
12. By letter dated 23.9.2016, the M.B.R.R.B. informed the
architect of the plaintiff about its no objection for structural repairs of
the suit building and to seek IOD and commencement certificate from
the defendant. It was also informed that while carrying out structural
repairs of the suit building no unauthorized work should be carried out.
Thus, it prima facie appears from this letter that the M.B.R.R.B. only
permitted the plaintiff to carry out structural repairs as per the plan to
be sanctioned by the defendant.
13. By letter dated 17.2.2017, the M.B.R.R.B. informed the
contractor M/s. India Enterprises about the work order and gave liberty
to replace decayed wooden members, if any, by use of standard quality
structural steel. Thus, it is crystal clear that the plaintiff was permitted
to replace only decayed wooden beam etc. In the said letter it is
specified the work shall be got executed strictly as per the approved
plans and specification only. It is not the case of plaintiff that entire
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wooden members (beams and columns) of the suit building were
decayed, and accordingly, were permitted to be replaced.
14. The three stop work notices respectively specify the work
under construction as follows:
A. Notice dated 13.3.2018
“Unauthorized construction of structure at 244, Narsinatha
Street, Pydhonie Mumbai admeasuring 70 ft. x 15 ft.
without permission from competent authority.”
B. Notice dated 10/11.4.2018
“In spite of earlier stop work notice dated 13.3.2018,
unauthorized construction of first, second, third and forth
floor admeasuring each floor level 70 ft. x 15 ft. using
material ladi coba slab and rolled steel joint sections as
shown in the sketch below without obtaining permission
from competent authority.”
C. Notice dated 16.4.2018
“In spite of earlier two stop work notices dated 13.3.2018
and 10.4.2018 unauthorized construction of fifth and sixth
floors admeasuring 15ft x 70 ft. using material rolled steel
joint sections as shown in the sketch below.”
15. The defendant has also produced inspection reports and
photographs, which prima facie show that work of construction of new
building was being carried on at the relevant time when the suit site
was inspected. The suit building did not exist at the site. It appears
from the photographs that steel girders, syporex blocks, tiles, cement
bags were lying at the site and skeleton of steel girders existed at the
suit site. Some photographs also show that on 13.4.2018 part of the
ladi coba slabs were demolished by the defendant.
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16. The copy of letter dated 14.3.2018 issued by M.B.R.R.B. to
plaintiff, his architect and others prima facie show that the said board
received a complaint about unauthorized development at the suit site
and it was informed that the NOC given for structural repairs would
expired on 22.3.2018. The defendant has also filed copies of first
information report lodged against the plaintiff in respect of
unauthorized construction carried out by him at the suit site. The
photographs dated 19.4.2018 prima facie show that a skeleton in steel
girders covered by polythene sheets is standing at the suit site. It
appears from the said photographs that the work was in progress on
19.4.2018 when the photographs were snapped.
17. Though, in the NOC dated 23.9.2016 permission was
granted for structural repairs only, by defining the duties and
responsibilities of the plaintiff, his architect and contractor for carrying
out the structural repairs and the plaintiff was directed to bring IOD
and commencement certificate, the plaintiff has not placed on record
such IOD and commencement certificate. Thus, there is nothing on
record to show prima facie that the plaintiff was carrying on the work at
the suit site with IOD and commencement certificate. It was also
directed that the NOC has been given under Section 102 of the MHADA
Act for structural repairs as per repair plan. The plaintiff has not
produced on record copy of such approved / sanctioned repair plan and
thus, there is nothing on record to show that the plaintiff carried on
/out the work under valid permission.
18 Considering the aforesaid documents, it prima facie
appears that the M.B.R.R.B. only permitted the plaintiff to carry out
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structural repairs of the suit building and he was not permitted to
demolish and reconstruct the suit building. The plaintiff, prima facie
suppressed the repair plan and has not clarified whether the defendant
Corporation has sanctioned the permission for repairs in furtherance of
the plan sent by the M.B.R.R.B. The photographs prima facie show the
complete demolition of the suit building and raising of skeleton in steel
girders and at some places construction of floors by laying tiles (ladi).
Thus, the said work is /was in progress and cannot be termed as
“completed.” The factum that the defendant was required to issue
repeated stop work notices show that the plaintiff was not at all obeying
the directions given in the notices and was continuing with the
construction activity.
19. In the case of Sopan Maruti Thopate the Hon'ble High
Court of Bombay has given guidelines in paragraph no.19(iii) relating
to notice under Section 354A of the M.M.C. Act. Prima facie it appears
that the defendant has carried out inspection and took photographs and
then issued the notices. Therefore, the plaintiff cannot claim that the
defendant has not followed the provisions of law. He has also not
shown prima facie that the construction was completed in all respects
and thus, notices under Section 354A were wrongly issued.
20. Under such circumstances, the plaintiff has failed to make
out prima facie case in all the three matters. The points of balance of
convenience, hardship and irreparable loss do not lie in favour of the
plaintiff. Therefore, intervention of this Court by granting interim
reliefs is not warranted. It is also necessary, considering the conduct
of the plaintiff, to saddle him with the costs of the respective notices
of motion. Accordingly, point nos.1 to 3 are answered in negative.
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21. The Learned advocate for the plaintiff at this juncture seeks
further protection of the notice structures to facilitate the plaintiff to
approach the Hon'ble High Court to challenge this order. The learned
advocate for defendant is not present.
22. The Hon'ble High Court of Bombay in the case of Kranti
Mohan vs. Fatechand reported in A.I.R. 1982 Bombay 263 has laid
down, “a laudable principle is implicit in the system to give a fair deal to
each of litigants who is aggrieved by order of Court and has legitimate
right to move the higher court to ask for redress and therefore a
reasonable opportunity should normally be given, provided that the prayer
on the face of it does not appear vexatious or frivolous. Principle is
essential so as to instil a sense of confidence in system of administration of
justice.”
23. Here, it appears from the conduct of the plaintiff that in
spite of repeated issuance of stop work notices, the plaintiff did not
obey the same and went on raising the skeleton of structures and
further filing suits on receipts of each notice. Therefore, the prayer for
stay does not appear bonafide. It appears vexatious and thus, the
plaintiff is not entitled to such protection to facilitate him to challenge
the order before the Hon'ble High Court. Thus, the following order is
passed:
ORDER
1. Notice of Motion no.1267 of 2018 in L.C. Suit 791 of 2018,
Notice of Motion no.1584 of 2018 in Suit (Stamp) no.5278 of
2018, Notice of Motion no. 1620 of 2018 in Suit (Stamp)
no.5514 of 2018 are dismissed with costs respectively.
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2. An ordinary copy of this order duly authenticated by Sheristedar
of this Court be supplied to the plaintiff.
3. Certified copy of the order is expedited.
Sd/
(M.S. Deshpande)
AdHoc Judge,
Dated: 03.05.2018 City Civil Court, Mumbai.
Directly typed on : 03/05/2018.
Checked by HHJ on : 03/05/2018.
Signed by HHJ on : 04/05/2018.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNE
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.05.2018 At 03.00 p.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
03/05/2018
JUDGMENT/ORDER signed by
P.O. on
04.05.2018
JUDGMENT/ORDER uploaded
on
04.05.2018
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