Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice Of Motion No.1982/2019 ..1.. In Suit No.1306/2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 1982 OF 2019
IN
L.C. SUIT NO. 1306 OF 2019
Mr. Nadeem Abdul Hakim Khan,
Aged : 55 Years,
Residing At : 57, Shafi Wali Bldg.,
Opp. Badi Masjid, Haji Karamatali Road,
Quresh Nagar, Kurla (East),
Mumbai 400 070. ...Plaintiff
Versus
The Municipal Corporation of
Gr. Mumbai,
Having their Head Officer At :
Mahapalika Bhavan,
Mahapalika Marg,
Mumbai 400 001. ...Defendant
Appearance :
Mr. V. T. Dubey, Advocate for Plaintiff.
Ms. Mhatre, Advocate for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI A. N. MARE (C.R.No.11)
DATE : 02ND NOVEMBER, 2019.
O R A L O R D E R
The plaintiff is seeking temporary injunction to restrain the
defendant from demolishing, pulling down or removing a building hav
ing ground plus five floors admeasuring 1800 Sq.Ft. at Survey No. 275,
Hissa No. 4, 57, Shafi Wali Building, Qureshi Nagar, Kurla (East), Mum
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Notice Of Motion No.1982/2019 ..2.. In Suit No.1306/2019
bai 400 070 (hereinafter referred as the suit building) without follow
ing due process of law.
2. In brief the plaintiff's case is that, the suit building consists
of ground plus five floors. He has acquired the rights in the suit build
ing pursuant to agreement dated 17.03.2019 from the previous owner
Mrs. Kamrunnisa Mohd. Shafi. The suit building is occupied by tenants.
It is situated in declared slum area. It is duly assessed since
01.04.1961. Earlier owner has carried out some repairs to the suit
building. On 20.05.2019 the defendant visited the suit building at 1.00
p.m. and started demolishing it. The suit building is partly demolished.
The defendant threatened to demolish the suit building completely.
The suit building is in the same condition and is existing since long.
The defendant has not issued any notice to the plaintiff in respect of the
suit building. The defendant has no right to demolish the suit building
without following due process of law.
3. Notice of Motion is opposed by the defendant on the
ground that the old building was existing which was dilapidated.
Therefore a notice under Section 353B of the Mumbai Municipal Cor
poration Act, 1888 (hereinafter referred as the M.M.C. Act) was issued
to Mrs. Kamrunnisa. On 08.05.2015 Mrs. Kamrunnisa submitted struc
tural audit report and sought permission to pull down old building and
construct a new one. On 19.11.2018, during inspection, officer of de
fendant found unauthorised demolition of old building and ongoing
construction of ground plus first floor structure. Therefore a notice un
der Section 354A was issued to Mrs. Kamrunnisa. She replied said no
tice. However, except an assessment bill no document was produced
revealing permission or authorization to carry out the construction.
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Therefore, the defendant passed speaking order dated 12.12.2018. Mrs.
Kamrunnisa challenged the notice issued under Section 354A of the
M.M.C. Act, as well as the speaking order by filing a Suit bearing Stamp
No. 16048/2018, later registered as Suit No. 661/2019. In said suit she
had sought protection to a building consisting of ground plus three
floors. This Court granted Adinterim injunction. Mrs. Kamrunnisa
continued unauthorised construction. On 08.01.2019 an inspection was
carried out where the ongoing work of slab of first floor was found in
progress. Similarly during inspection of 16.01.2019 third floor slab was
found in progress. On 24.01.2019 another inspection was carried out
wherein ongoing work of fourth floor slab was detected. Therefore, the
defendant applied for appointment of Court Commissioner. This Court
appointed Court Commissioner. The Court Commissioner changed the
timing of his visit to the building and thus allowed the plaintiff to make
suitable arrangement to hide ongoing construction. The Court Commis
sioner tendered his report in the Court to which the defendant has ob
jected. On 04.05.2019 Mrs. Kamrunnisa withdrew Suit No. 661/2019
unconditionally. The defendant has followed due process of law and
initiated the action of demolition on 20.05.2019. The next day plaintiff
has preferred present Suit claiming to be owner of a building consisting
of ground plus five floors. It is the same building that was involved in
Suit No. 661/2019, however, presently it has additional floors. On an
inspection dated 17.09.2019 the construction of sixth and seventh floor
was found ongoing. The plaintiff is not entitled to the relief as defen
dant has already followed due process of law.
4. Following points arise for determination against which
findings are recorded for the reasons to follow:
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Notice Of Motion No.1982/2019 ..4.. In Suit No.1306/2019
Sr. No. POINTS FINDINGS
1. Whether the plaintiff has made out
a primafacie case? In the Negative.
2. Whether the balance of conve
nience lies in plaintiff’s favour? In the Negative.
3. Whether the plaintiff will suffer ir
reparable loss if injunction as
sought is refused?
In the Negative.
4. What Order ? Notice of motion is
dismissed with costs.
REASONS
AS TO POINTS NO.1 TO 4.
5. The plaintiff has come with the case that he has rights in
the suit building consisting of ground plus five floors on the strength of
an agreement dated 17.03.2019. Without giving any notice to him the
defendant has tried to demolish the suit building. Per contra defen
dant's contentions is that due process of law is followed by the defen
dant. The actions of defendant were challenged by the owner Mrs.
Kamrunnisa by filing Suit No. 661/2019 which she later on withdrew.
Since due process of law is already followed. The plaintiff's case is not
sustainable.
6. Considering rival contentions in present suit, it will be nec
essary to look into the aspect whether plaintiff has acquired certain
rights in the suit building in order to claim that a notice should be
served upon him before taking any action against the suit building.
7. The plaintiff has produced on record copy of agreement of
sale bearing no date. However, at the end of the agreement a date
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17.03.2019 is found below the signatures of Adv. Tripathi and the No
tary. Therefore, the agreement is considered to be an agreement dated
17.03.2019. The agreement does not bear signatures of the witnesses.
The agreement is titled as Agreement of Sale. Its internal page No. 2
and more particularly last paragraph of internal page No. 2 reveals that
the plaintiff has agreed to purchase the building and to acquire all
rights, title and interest in respect of building for a valid consideration
of Rs.35,00,000/. Internal page No. 4 of the agreement reveals that
Mrs. Kamrunnisa has sold/signed/transferred and relinquished all her
rights, title an interest in the building and the plaintiff has acquired all
rights, title and interest in the building against a consideration of
Rs.35,00,000/. It is also mentioned that neither Mrs. Kamrunnisa nor
her family members shall claim any right, title or interest in the build
ing.
8. Considering the statements made in agreement of sale
dated 17.03.2019, what appears is that it is nothing but a deed convey
ing right, title and interest in the suit building to present plaintiff
against a consideration of Rs.35,00,000/. However, said document is
an unregistered deed.
9. Needless to say that whenever an interest right or title in
immovable property having worth more than Rs.100/ is to be conveyed
or transferred, it can only be transferred by virtue of a registered deed.
An unregistered deed can not be considered to hold that such right, title
or interest in an immovable property is transferred from one person to
another by virtue of an unauthorised deed. Thus, the plaintiff cannot
claim to have acquired some right title or interest in the suit building by
virtue of agreement of sale dated 17.03.2019.
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10. The building is admittedly occupied by tenants. Therefore,
plaintiff can not be presumed to be in possession of the suit building.
Thus, even primafacie there is nothing on record to show that the
plaintiff is other owner or occupier of the suit building to whom defen
dant can issue any notice under any provision of the Mumbai Municipal
Corporation Act,1888 (hereinafter the MMC Act). The status of plaintiff,
thus, is not proved either as owner or occupier of suit building. In such
circumstances plaintiff's locus to maintain present suit against the action
of defendant itself is questionable.
11. The defendant has produced on record a copy of plaint in
Suit No. 661/2019 filed by Mrs. Kamrunnisa. It reveals that it was filed
in the month of December, 2018 for a building comprising ground plus
three floors. Mrs Kamrunnisa withdrew the suit on 04.05.2019 as seen
in the copy of Roznama, filed by the defendant with the affidavit in sup
port of list of documents tendered on 21.05.2019. Agreement of sale,
relied upon by the plaintiff, is dated 17.03.2019 i.e. executed during the
pendency of Suit No. 661/2019. In December 2018, while filing Suit
No. 661/2019, the suit was for a building consisting ground plus three
storeys whereas in March 2019, while executing the alleged agreement
of sale, the building was consisting ground plus five storeys. However,
still the agreement dated 17.03.2019 claims that a building consisting
ground plus five floors is existence since 1956. This circumstance clearly
reveals that two additional floors were constructed after filing Suit No.
661/2019 and before its withdrawal by Mrs. Kamrunnisa. Thus, Mrs.
Kamrunnisa was aware that a building consisting of ground plus five
storeys was not existing since the year 1956. But still agreement dated
17.03.2019 mentions so. Apparently the agreement is fraudulent. It is
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only brought into existence to nullify the effect of notice under Section
354A of the MMC Act served on Mrs. Kamrunnisa and the speaking or
der passed by the defendant. Such an agreement brought into existence
to halt the process of law can not be considered for any purpose.
12. In its reply, the defendant has disclosed the filing of earlier
suit by Mrs. Kamrunnisa, issuance of notice under Section 354A of the
MMC Act by defendant to Mrs. Kamrunnisa, replying of such notice by
Mrs. Kamrunnisa, passing of speaking order by the defendant in pur
suance to notice under Section 354A of the MMC Act and challenging
the same by Mrs. Kamrunnisa vide Suit No. 661/2019. In spite of dis
closing of these facts and submitting on record relevant documents, the
plaintiff did not claim by filing rejoinder that Mrs. Kamrunnisa did not
inform him about all these aspects. On the contrary the circumstances in
this case, lead to an inference that plaintiff was aware of those, still in
order to thwart the process of law, he and Mrs. Kamrunnisa brought
into existence a fraudulent agreement dated 17.03.2019. Such attempt
can not be tolerated by the Court. If such attempts are accepted by the
Court and defendant is again directed to follow due process of law, in
every case where a notice under Section 351 or Section 354A of the
MMC Act is issued, the owner or occupier may execute an agreement in
favour of another and said purchaser may come before the Court claim
ing that defendant must issue notice to him and then only shall take ac
tion against the building or construction. There will be endless chain of
such agreements as the unregistered agreements will not require such
parties to pay the stamp duty or registration fee. In such circumstances,
an unregistered document can not be relied upon by this Court to con
sider that some rights will be acquired by the plaintiff and therefore a
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notice must be given to him by the defendant before taking any action
against the suit building, though the defendant has filed documents re
vealing that already notice under Section 354A of the MMC Act was is
sued to Mrs. Kamrunnisa and after considering reply filed by her a
speaking order is also passed. Since suit No.661/2019 was withdrawn
by Mrs. Kamrunnisa, the defendant, in absence of injunction, has partly
demolished the suit building on 20.01.2019. This action of defendant
therefore can not be considered as illegal or unlawful.
13. The defendant has produced on record various inspection
reports. The inspection report dated 19.11.2018, inspection report
dated 16.01.2019, inspection report dated 24.01.2019, and inspection
report dated 17.09.2019 coupled with the photographs attached to such
inspection reports, reveal that the unauthorised construction began in
2018 and is still going on despite issuance of notice under Section 354A
of the MMC Act and passing speaking order in its pursuance. Said no
tice and speaking order is not the subject matter of any pending suit at
present and therefore the action by defendant can not be considered as
illegal or unlawful.
14. The discussion in foregoing paragraphs thus reveals that
the defendant has followed due process of law and thus has initiated ac
tion.
15. Advocate for plaintiff submitted that the defendant shall
give a notice to the plaintiff so that he will put forth his case before the
defendant for its consideration. According to him unless a notice is
given to the plaintiff, he is at loss in presenting his case before the de
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Notice Of Motion No.1982/2019 ..9.. In Suit No.1306/2019
fendant. He submitted that without giving a notice if action is taken by
the defendant it will be against the due process of law.
16. As already discussed, plaintiff has failed to establish that he
has any locus to maintain present suit in absence of proving his right in
the suit building, primafacie. The defendant has already followed due
process of law, hence, the plaintiff's contention that a notice be given to
him is not acceptable.
17. The manner in which the present suit is engineered on the
basis of a fraudulent agreement, reveals that plaintiff's conduct is not at
all equitable. The suit is nothing but an attempt to play a fraud upon
the Court hiding many facts. In such circumstances, the plaintiff can
not claim an equitable and discretionary relief from this Court.
18. Advocate for plaintiff submitted that, admittedly the suit
building exists in declared slum area. Defendant has no authority to act
against the suit building.
19. It needs to be mentioned here that the legal position is set
tled that until and unless the structure is censused or the occupier pos
sesses photopass in respect of a structure, defendant can act against
such structure though it is situated in declared slum area. The proviso
to Section 47 of The Maharashtra Slum Areas (Improvement, Clearance
and Redevelopment) Act, 1971, saves powers of the defendant to pass
order for demolition of a structure situated in slum area in absence of
any such order of demolition passed by the Competent Authority consti
tuted under The Maharashtra Slum Areas (Improvement, Clearance and
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Redevelopment) Act, 1971. Hence, the contention of Advocate for
plaintiff in that regard is not acceptable.
20. The plaintiff has produced on record an assessment bill
claiming that it pertains to the suit building and reveals its existence
since prior to the datum line and so it needs to be protected.
21. The assessment bill reveals that, it is pertaining to a tiled
shed. When Mrs. Kamrunnisa filed Suit No. 661/2019 it was a ground
plus three storeys structure. On the day of agreement dated 17.03.2019
and on the date of filing present suit it grown into ground plus five
storeys structure. The inspection report and photographs dated
17.09.2019 reveal that the suit building has furthers grown in a ground
plus seventh storeys building as on date. This is a case where a tiled
shed has grown into a ground plus six storeys or seven storeys building
by the passage of time as if it is a living organism. Be that as it may, the
assessment bill of tiled shed cannot be considered to be pertaining to
the suit building consisting of ground plus five storeys.
22. When the defendant unfolded the story of previous suit, in
his rejoinder submissions, the Advocate for plaintiff submitted that this
Court should not have prepone the date of hearing of notice of motion.
This is an unfortunate statement. The proceedings do reveal that the de
fendant has moved a precipee to prepone the date and the matter was
taken on board on 15.10.2019. With the consent of advocate for plain
tiff the matter was posted on 18.10.2019 for N.M. hearing. Thereafter
the matter was posted on 22.10.2019. This reveals that after consenting
to prepone the date for hearing of notice of motion and after arguing
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Notice Of Motion No.1982/2019 ..11.. In Suit No.1306/2019
notice of motion while rejoining such statement is made. This Court will
not say anything else about the statement except saying that it is an un
fortunate statement.
23. The discussion made in foregoing paragraphs reveals that,
neither the plaintiff has made out a primafacie case in his favour nor
the balance of convenience lies in his favour. No case of irreparable loss
is also made out, since the defendant had already followed the due
process of law. In the result, I answer points No. 1 to 3 in the negative
and in response to point No. 4 pass following order.
ORDER
Notice of Motion No. 1982/2019 is dismissed with costs.
(A. N. MARE)
Judge,
Date : 02.11.2019 City Civil Court, Gr. Mumbai.
Dictated On : 01.11.2019 & 02.11.2019
Pronounced On : 02.11.2019
Transcribed on : 04.11.2019 & 05.11.2019
HHJ Signed on : 06.11.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
06.11.2019 12.17 p.m. Mahendrasing D. Patil (H.G. Steno)
Name of the Judge H.H.J. SHRI. A. N. MARE
(Court Room No. 11)
Date of pronouncement of Order 02.11.2019
Order signed by P.O. on 06.11.2019
Order uploaded on 06.11.2019
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