Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M No. 1917/2019 in Stamp No. 5792/2019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1917 OF 2019
(CNR NO. MH CC010053302019)
IN
STAMP NO. 5792 OF 2019
Mrs. Kanta Jagubhai Makwana ]
Adult, Hindu aged 59 years, ]
Occupation: Housewife, ]
Residing at Room No.2, Outhouse, ]
Botawala Chawl Compound, Near Haji ]
Kasam Building, Rambhai Bhogle Marg, ]
Mazgaon, Mumbai 400 010. ].. Plaintiff.
V/s.
1 Municipal Corporation of Greater ]
Mumbai, Having its office at Mahapalika ]
Marg, Opp: C.S.T. Station, Fort, ]
Mumbai 400 001. ]
2 Sarah Housing Development Pvt. Ltd. ]
Having its office at Shop No.9, ]
Botawala Chawl, Rambhau Bhogle Marg ]
Mazgaon, Mumbai 400 010. ]
3 Maharashtra Housing and Area ]
Development Authority, Mumbai ]
Bandra. ]..Defendants
Advocate Mr. D.M. Trivedi for the plaintiff.
Advocate Mr. Om Suryawanshi for defendant no.1.
Advocate Mr. Pradeep D. Gandhy for defendant no.2.
Advocate Mr. Shetye for defendant no.3.
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CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 6th JUNE 2019
ORAL ORDER
This Notice of Motion has been taken out by the plaintiff
for restraining defendant no.1 temporarily from demolishing the suit
premises Room No.2 forming part of Outhouse of Botawala Chawl,
Botawala Chawl, Botawala Compound, lying on C.S. Nos.641 and 642
and situated at Near Haji Kasam Chawl, Rambhau Bhogle Marg,
Mazgaon, Mubabi 400 010.
2 In support of notice of motion, the plaintiff has filed her
affidavit, wherein she has stated that defendant no.1 has issued notice
dated 15.05.2019 under section 55 of M.R.T.P. Act at the instance of
defendant no.2 and relied upon pleadings in the suit plaint. She has
replied the said notice through advocate on 17.05.2019. There is every
apprehension that defendant no.1 may remove the suit premises at any
time. If adinterim relief is not granted, irreparable loss would be
caused to the plaintiff and her family members, which cannot be
compensated in terms of money. If interim relief is granted, no
prejudice or injustice would be caused to the defendants. The balance
of convenience and equity is in favour of the plaintiff. Hence, prayed
for allowing notice of motion.
3 Defendant no.1 has opposed interim relief and filed
documents along with affidavit. It is contended that this Court has no
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jurisdiction to try and entertain the suit under section 149 of the MRTP
Act. Therefore, the suit is not maintainable. The plaint discloses no
cause of action against this defendant. The plaintiff is not entitled to
any injunction order or any declaration as prayed. Thus, prayed for
dismissal of notice of motion.
4 Defendant no.2 through Authorized Representative filed
affidavit in reply and opposed for granting interim relief as prayed by
the plaintiff. Defendant no.2 has tendered documents along with
affidavit in reply It is contended that this Court has no jurisdiction to
try and entertain the suit, in view of section 149 of MRTP Act. The suit
is prematured, as admittedly till date defendant no.1 has not passed
any final order considering the alleged reply filed by the plaintiff.
5 Defendant no.2 is developing the suit property under the
Development Control Regulations for Greater Mumbai. As per the
scheme of redevelopment, defendant no.2 is required to hand over
permanent alternate accommodation of the premises to the eligible
tenant/occupants certified by the Mumbai Building Repair and
Reconstruction Board. Defendant no.2 has provided transit
accommodation and is paying rent to 422 tenants, who have been
accepted as eligible by defendant no.3. The plaintiff is not an eligible
occupant certified by MHADA/MBRRB as per the provisions of DCR
33(9). The plaintiff is aware of this since 2006 when the first time
defendant no.3 certified the list of eligible tenants/occupants on the
said property under provisions of Regulation 33(7) of the Development
Control Regulations.
6 The alleged structure claimed to be occupied by the
plaintiff is not authorized and is therefore illegal. Hence, defendant
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no.3 has not certified the plaintiff as eligible tenant/occupant on the
said property. The suit bearing no.1892/2017 is pending before the
Court and the plaintiff is attempting to use the good offices of the Court
to force defendant no.3 to accept the plaintiff as eligible tenant.
Defendant no.3 has demonstrated time and again that the plaintiff is
not eligible to participate in the scheme of redevelopment.
7 It is further contended that the process of certification was
done under Regulation 33(7) of the DCR as early as 2006. The name of
the plaintiff is not certified in that list. The subsequent certification of
the eligible tenants/occupants happened between June to December
2014. In July 2015, the final list was published by MBRRB/MHADA.
Thus, over the past 11 years, the plaintiff has not managed to get
herself certified by MBRRB/MHADA, as eligible tenant/occupant. The
list of the tenant annexed to the plaint is a draft unsigned copy having
no legal sanctity.
8 It is further contended that the plaintiff's structure is a
temporary structure made of cement sheets with corrugated roof. The
same is not assessed by defendant no.1 as falsely stated by the plaintiff
in the plaint. The plaintiff has failed to produce any assessment records
for the said structure. The plaintiff is required to prove that the
structure is existing and constructed by obtaining approval from
defendant no.1. The plaintiff has nowhere in the plaint produced any
document supporting the legality of the structure. It is the case of the
plaintiff in the plaint that the structure is temporary in nature having
been constructed with brick masonary wall having A.C. Roof. The
description of the structure prima facie suggests the temporary nature
of the construction. Further, it is the plaintiff's own case in the plaint
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that the structure is in existence since last 30 years only. Thus, itself
shows that the structure is not legal.
9 It is the case of defendant no.2 that originally the property
was proposed to be developed under Regulation 33(7) of DCR 1991.
The tenants/occupants on the said property were then certified by
MBRRB/MHADA in 2006. Thereafter, the scheme for cluster
redevelopment came into force in 2009 and the said property was
capable of being developed under Regulation 33(9) of the DCR. The
project of redevelopment of the said property received approval from
the High Power Committee on 13.01.2013. The MBRRB/MHADA
certification happened sometime in between June to December 2014.
The certified tenants/occupants list was circulated by MBRRB/MHADA
amongst all the occupants in or around July 2015 and it was published
by MBRRB/MHADA in local newspapers. Defendant no.2 received
MHADA No.C certificate on 22.09.2015 and received intimation of
Disapproval from MCGM on 02.01.2017. Defendant no.2 has received
commencement certificate from MCGM on 29.04.2017. Seven slabs
have been cast on the said property and construction activity is on in
full swing. The plinth construction on the said property is about 10 feet
higher than the ground level. This will result in safety issues for the
illegal structure during the monsoon season.
10 It is further contended by defendant no.2 that admittedly,
according to the plaintiff, two other families were occupying the illegal
structure have left on their own voluntarily as they were found to be
ineligible for participation in the scheme of redevelopment. The
plaintiff is trying to hold the project and defendant no.2 to ransom.
There are about 200 flat purchasers and 423 eligible tenants whose
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houses are at stake if any relief is granted to the plaintiff. The project
will get delayed, if any of the aforesaid reliefs are granted in favour of
the plaintiff. Defendant no.2 is under obligation to complete the
building in a timely manner and thus, by making specific denial in
respect of the suit plaint, defendant no.2 has prayed for dismissal of
notice of motion with costs.
11 Defendant no.3 has failed to file reply.
12 Heard the learned advocate for the plaintiff and the learned
advocates for defendant nos.1 to 3.
13 The following points arise for my determination. I have
recorded points and findings thereon alongwith the reasons are as
follows:
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff has established
prima facie case ?
In the
Negative.
2 Whether balance of convenient lies in
favour of the plaintiff ?
In the
Negative
3 To whom irreparable loss would be
caused, if this notice of motion is
allowed ?
To the
Defendant
4 What Order ? As per final Order
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R E A S O N S
AS TO POINT NO.1
14 Perused documents tendered by the parties. Perused
plaint. By this suit, the plaintiff has challenged the notice issued by
defendant no.1 on 15.05.2019 under section 55 of the MRTP Act and
accordingly, prayed for declaration in respect of the said suit notice and
relief of permanent injunction in respect of suit room restraining
demolition of the suit room.
15 It is for the plaintiff to establish prima facie that the notice
issued under section 55 of the MRTP Act and in respect of suit room is
illegal and bad in law. I would like to mention that at the time of
arguments, the learned advocate for defendant no.1 has placed on
record Speaking Order passed on 31.05.2019 in respect of suit room. It
appears that while passing order, Designated Officer, Executive
Engineer (B & F), Ward E has considered all seventeen documents
tendered by the plaintiff in respect of suit room and it is observed that
the said documents failed to prove existence of suit room prior to datum
line 17.04.1964 and accordingly, further considered that even the
plaintiff has failed to prove that the notice structure is an authorized
construction. Thus, accordingly, by way of said order, the plaintiff is
directed to remove the notice structure forthwith. Thus, primafacie, it
appears that order has been passed by giving opportunity to the plaintiff
to prove authorization of notice structure.
16 The learned advocate for the plaintiff has drawn my
attention towards documents tendered along with plaint. According to
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her, defendant no.2 has acquired development rights from the landlord
and at the instance of defendant no.2, defendant no.1 has issued notice
under section 55 of the MRTP Act. According to the plaintiff, there is
suit bearing No.1891/2017 filed for deciding eligibility to get
permanent alternate accommodation and it is pending.
17 Admittedly, redevelopment is under Regulation 33(9) of
D.C.R. and not under Regulation 33(7) of DCR. It is urged by learned
advocate for the plaintiff that in view of AppendixIIIA of 33(9) of D.C.
Rules, for slum areas, a structure shall mean, all the dwelling areas of
all persons who are enumerated as living in one numbered house in the
electroral roll of the latest date, upto 01.01.2000 or such other
reference date notified by the Government and regardless of the
number of persons, or location of rooms or access. Thus, according to
the plaintiff, she is eligible being occupant to get alternate permanent
accommodation.
18 Primafacie from the submissions and documents on record,
it is acceptable that redevelopment in respect of the suit property is
under section 33(9) of Development Control Regulation. Now in this
background, even defendant no.2 has filed on record copy of plaint in
Suit No.1891/2017. After perusal of the plaint, it seems that the
plaintiff has pleaded that the suit room is in possession prior to year
1962 or thereabout and documents are available with her from the year
1989 and according to her, hut is in existence prior to 1995. Thus,
primafacie, it appears that in respect of possession in the suit structure,
pleadings in earlier suit and in this suit are inconsistent.
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19 In this background, let us consider notice dated
15.05.2019. It appears that the suit notice has been issued by the
Designated Officer, Assistant Engineer (B & F) for removal of structure
of temporary nature constructed unauthorizedly. Defendant no.1 has
filed on record Inspection Report dated 15.05.2019 carried out on the
basis of complaint received on 09.05.2019. The said complaint seems
to be given by the Cooperative Society and members of it at present
residing at different places for development of the building. It is
specifically mentioned in the complaint that the plaintiff and his mother
obstructing the said development work. It appears that while carrying
out inspection, photographs of suit hut has been taken. The sketch has
also been prepared along with area. No permission has been shown in
respect of the said construction. Therefore, suit notice has been issued
to the plaintiff.
20 It is urged by the learned advocate for the plaintiff that the
notice is not legal. He has pointed out definition of local authority
under MRTP Act and Planning Authority. According to her, under the
act, the Planning Authority shall by notification in the Official Gazette,
designate an officer of the Planning Authority to be the Designated
Officer for the purpose of exercise of the powers of the Planning
Authority under sections 54, 55 and 56. Further, he has pointed out
definition of Commissioner and Designated Officer under M.M.C. Act.
According to the learned advocate for the plaintiff, there is no copy of
notification has been attached. Therefore, notice is not issued having
authority. At this stage there is no substance in the arguments in
advance by the learned advocate for the plaintiff regarding authority of
issuance of notice because primafacie after perusal of notice, it appears
that it is issued by Designated Officer, Assistant Engineer (B & F).
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21 It is argued by the learned advocate for defendant no.2 that
there is no evidence to show structure is prior to 1964 and there are
inconsistencies in the pleadings in the present suit and earlier suit.
Further, he has urged that this Court has not jurisdiction to try and
entertain the suit, in view of section 149 of the MRTP Act.
22 Perused the documents of the plaintiff annexed to the
plaint i.e. Ration Card (Exh.B). Ration Card discloses address of the
suit room and age of the plaintiff was 28 years. Now the plaintiff is 59
years old. Thus, according to the plaintiff, she is residing in the suit
room since more than 31 years atleast. Further, she has filed her new
Ration Card in which her age has been shown as 35 years. Further, the
plaintiff has filed copy of Voters list, Adhar Card, Death Certificate of
husband of the plaintiff showing the address of the suit room. Further,
the plaintiff has filed on record School Leaving Certificate of the son of
the plaintiff. All the said documents are not showing authorization of
the suit structure because above documents are not showing existence
of structure prior to datum line 17.04.1964 and/or permission for
construction.
23 Further, the plaintiff has filed on record Memorandum of
Understanding. According to her, earlier his name was shown in the list
prepared for getting permanent alternate accommodation by M.C.G.M.
The learned advocate for defendant no.2 has pointed out said list at
page no.97 to the plaint. It disclosing the name of the plaintiff in the
list. It is to be noted that it is not signed by any of the Officer of the
authority. Thus, primafacie , it is not acceptable that name of the
plaintiff has been considered in the certified list.
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24 The plaintiff has filed letter issued by M.M.C. to her in
respect of issue of allotment of the room, in view of existing alternate
accommodation. It appears that the said issue has not been decided in
favour of the plaintiff till the date. According to the plaintiff, in view of
Memorandum of Understanding, she has given consent, which was
required for development by filing affidavit and accordingly, drawn my
attention towards page no.118 of the plaint. Basically, in respect of
entitlement of the plaintiff and his eligibility has not been primafacie
established on record and issue is pending. Further, in respect of
authorization of the structure, there is no evidence. Also perused
photographs on record. Primafacie photographs discloses that the suit
structure is of temporary nature, which is constructed without
permission of the competent authority. Further, it appears that in view
of complaint, Designated Officer has issued notice under section 55 of
M.R.T.P. Act to which the plaintiff has filed reply. After considering all
the documents tendered by the plaintiff, the Designated Officer has
passed order. Primafacie, the plaintiff has failed to prove construction of
the notice structure is prior to datum line dated 17.04.1964. There is
no evidence regarding any permission obtained for the said
construction. In this background, primafacie documents of the plaintiff
nowhere discloses that the notice structure is in existence prior to
datum line dated 17.04.1964.
25 The learned advocate for defendant no.2 has placed his
reliance in Babar Sher Khan and others V/s. Municipal Corporation
of Brihanmumbai and others reported in 2007(6) ALL MR 89. The
principle held in this authority is applicable to the present set of facts.
As per section 55(2) of MRTP Act, the decision of the Planning
Authority on the question of what is development of a temporary nature
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shall be final. Further, he has placed his reliance in Vikram Shama
Shetty V/s. Designated Officer, Assistant Engineer (Building and
Factory) and others reported in 2017(5) ALL MR 70. In the present
case in hands also the Designated Officer has considered all the
documents, which are produced on record by the plaintiff. There is no
evidence primafacie to show that the structure in question is in
existence prior to datum line. Therefore, the principle held in the
authority is applicable to the present set of facts. It appears that the
plaintiff has replied the suit notice and tendered the documents also
and the said documents were considered and accordingly, order has
been passed by the Designated Officer.
26 Further, the learned advocate for defendant no.2 has
placed his reliance in Mohd. Ismail Gulam Shaikh V/s. Municipal
Corporation of Greater Mumbai and others reported in 2016(2)
ABR477. The principle held in the authority is applicable to the present
set of facts. None of the documents produced by the plaintiff would
indicate that the suit structure, which is subject matter of the notice was
pucca structure or is in existence since prior to 17.04.1964. Further, he
has placed his reliance in Bales Sardara Paracha V/s. Municipal
Corporation of Greater Bombay and others reported in 2005(3) ALL
MR 218 and Mohan N. Bhawe V/s. The Municipal Corporation of
Greater Bombay reported in 2005(3)Bom CR 300. With respects, the
principle held is guideline to the present case.
27 Section 149 of the M.R.T.P. Act gives finality of the orders
under MRTP Act and the said order shall not be questioned in any suit
or other legal proceedings. Therefore, primafacie , the suit notice under
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section 55 of M.R.T.P. Act is final order under MRTP Act and even
thereafter opportunity has been given to the plaintiff and after hearing
the plaintiff, the Speaking Order has been passed. In the circumstances,
mere pending suit for eligibility to give alternate accommodation has no
relevance with the present suit notice and order. Defendant no.1 has
authority, in view of MRTP Act to take appropriate action in respect of
structure of temporary nature and without permission. Primafacie , suit
notice and order passed appears legal one. Therefore, in the above facts
and circumstances, I hold that the plaintiff has prima facie failed to
establish case in his favour. Hence, I answer point no.1 in the negative.
AS TO POINT NOS.2 AND 3:
28 So far as balance of convenience if concerned, it appears
that already the development is in progress under 33(9) of the DCR.
423 tenants/occupants have already been certified by MHADA and in
respect of these tenants, defendant no.2 has agreed to provide
permanent alternate accommodation, in view of 33(9) of DCR.
Defendant no.2 is carrying on construction, in view of approved plan. If
this notice of motion is allowed complete project will be delayed,
causing inconvenience to said tenants and flat purchasers. Besides, the
plaintiff is not yet considered as eligible tenant/occupant of the said
property. The redevelopment work is necessary to be completed timely.
Therefore, I hold that the balance of convenience is tilted in favour of
defendant no.2 and not in favour of the plaintiff. If this notice of
motion is allowed, irreparable loss would be caused to defendant no.2
and said 423 eligible tenants and flat purchasers. Hence, I answer
point nos.2 and 3 accordingly.
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29 In the light of my above discussion and findings as to point
nos. 1 to 3, the plaintiff is not entitled for seeking equitable relief as
prayed. Therefore, this notice of motion is to be dismissed. With this, I
proceed to pass the following order:
ORDER
1. Notice of Motion No.1917 of 2019 is hereby dismissed with
costs.
2. Notice of Motion No.1917 of 2019 stands disposed of accordingly.
(S. P. PONKSHE)
Judge,
Date: 06/06/2019. City Civil Court,
Gr. Bombay.
Dictated on : 06/06/2019
Transcribed on : 07/06/2019
Signed on : 10/06/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11/06/2019 At 2.30 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.12)
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Date of pronouncement of
Judgment/Order
06.06.2019
Judgment/Order signed by P.O. on 10/06/2019
Judgment/Order uploaded on 11/06/2019
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