Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M. No. 1709 of 2018
CNR: MHCC01-005645-2018
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO. 1709 OF 2018
IN
L.C. SUIT NO. 1160 OF 2018
Mohd. Irfan Iqbal Tinwala .. Plaintiff
V/s.
The Municipal Corporation of
Gr. Mumbai .. Defendant
Appearance:-
Adv. B.P. Shukla for plaintiff.
Adv. Suyawanshi for MCGM.
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 19/06/2024.
ORDER
By this Notice of Motion, the plaintiff has prayed for
temporary injunction restraining the defendant from demolishing
and/or removing the notice structure in pursuance of the notice dt.
10/10/2017 issued under Section 354A of the MMC Act and order dt.
20/04/2018 pending the hearing and decision of the suit.
2 It is the case of the plaintiff that he is in the occupation and
possession of Room No. 49 admeasuring 354 sq. ft. made of B.M. wall
and A.C. sheet roof on the 5th floor of the building known as Habib
Manzil situated at Samuel Street, Mumbai (hereinafter referred to as
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the suit premises). The plaintiff is occupying the suit premises as a
tenant which is in existence since the inception of the said building.
Earlier the suit premises was occupied by Mr. Sayeed Ziya Najafali who
transferred all his rights in the suit premises in favour of father of the
plaintiff by executing affidavit and general power of attorney dt.
28/11/1997. The Assistant Assessor and Collector, D Ward has issued
assessment extract dt. 19/06/2013 of the building in which the suit
premises clearly reflects. The plaintiff also applied to the Assessment
Department for the assessment extract of the said building vide RTI
application dt. 06/05/2014. Pursuant to the application, Assessment
Department issued a letter stating that as per joint visit of the site and
as per available record, referred structure is existing since prior to 1961.
The suit premises is old one and the plaintiff has carried out only
tenantable repairs i.e. plastering, painting and replacement of decayed
A.C. shed roof with new one which does not require any permission
from the Corporation.
3 On the basis of some false complaint, the officer of the
defendant has issued the notice dt. 10/10/2017 under Section 354A of
the MMC Act which was duly replied by the plaintiff on 10/10/2017
and 12/10/2017. The plaintiff has also replied through his advocate
letter dt. 23/10/2017 and also submitted documentary evidence and
requested the defendant to withdraw the said notice. However, no order
was passed and/or communicated to the plaintiff. Therefore, L.C. Suit
No. 2355 of 2017 was filed by the plaintiff. In the said suit, at the time
of hearing on ad-interim relief, defendant stated that order came to be
passed on 23/10/2017. After considering the order dt. 23/10/2017,
the City Civil Court was of the view that the officer of the defendant
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cannot take unilateral action without considering the reply of the
plaintiff. Therefore, by granting ad-interim relief, suit was disposed off
by an order dt. 26/10/2017 by directing the officer of the defendant to
pass a reasoned order with further directions not to take any action for
one week after communicating the said order of the plaintiff. However,
inspite of giving such directions, the officer of the defendant again
passed cryptic and non-reasoned order dt. 20/04/2018 without
considering the documents of the plaintiff and directed the plaintiff to
remove the notice structure. The plaintiff, therefore, filed this suit and
prayed for the interim relief.
4 The defendant resisted the notice of motion mainly on the
ground that after receipt of various complaints regarding unauthorized
suit structure, staff of the defendant visited the site and observed that
the plaintiff was carrying out unauthorised construction. The suit site
was inspected on 10/10/2017. The officer of the defendant inquired
about permission and documents showing authorization of the notice
structure but the plaintiff failed to show the same. Therefore, the
inspection report was prepared and notice under Section 354A came to
be issued to the owner/occupier/tenant on 10/10/2017 calling upon
the owner/occupier/tenant to show cause as to why the notice structure
should not be removed. However, the plaintiff failed to produce the
documentary evidence to prove that the suit structure was in existence
since prior to 01/04/1962. Therefore, speaking order was issued on
23/10/2017. However, the plaintiff moved to the City Civil Court on
24/10/2017 in which the City Civil Court directed to pass a reasoned
order. Thereafter, on 31/10/2017, again reply to the notice was
submitted by the plaintiff alongwith documents through his advocate.
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The defendant also received a copy of Writ Petition (St.) No. 2970 of
2017 of the Hon’ble High Court which was filed by the petitioner Mr.
Mohd. Yanus Jusab in which the High Court issued directions to the
Designated Officer to visit the said premises and submit the compliance
report. Thereafter matter was adjourned for compliance. Accordingly,
site was inspected and the officer of the defendant passed the speaking
order on 20/04/2018 after considering the reply and documents filed
by the plaintiff. At the time of passing the speaking order, it was found
that none of the documents prove that the notice structure is legal and
authorized. Rest of the averments are denied in toto. It is thus,
contended that the notice of motion is liable to dismissed.
5 On the basis of rival submissions, following points arise for
my determination. My findings are recorded thereon with reasons
enumerated therein, as under.
Sr.
No.
POINTS FINDINGS.
1 Whether the plaintiff has made out a
prima facie case?
Affirmative
2
Whether balance of convenience lies in
favour of the plaintiff?
Affirmative
3
Whether the plaintiff will suffer
irreparable loss, if interim relief is not
granted, as prayed for?
Affirmative
4 What Order ? As per final order
REASONS
AS TO POINTS NO.1 TO 3.
6 Considering the submissions of both sides, I have carefully
gone through the respective pleadings and copies of documents on
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record. In this suit, while seeking the interim relief, the plaintiff has
challenged the notice dt. 10/10/2017 issued under Section 354A of the
MMC Act and order dt. 20/04/2018 in respect of the notice structure
which is described as “unauthorized construction on terrace of Habib
building with Siporex blocks and cement plaster admeasuring 6.85M X
4.90M without permission from competent authority”. As can be seen
from the impugned notice and speaking order, action has been initiated
by the defendant under Section 354A which is the stop work notice
towards ongoing construction. While initiating action under Section
354A, it is the contention of the defendant that the said unauthorized
construction has been carried out on the terrace of the said building.
7 In this context, the plaintiff has not disputed that he came
into the occupation and possessions of the suit premises in the year
1997 and the suit premises situated on the 5th floor of the said building
was earlier occupied by the erstwhile tenant Mr. Sayeed Ziya Najafali. It
is, therefore, incumbent on the part of the plaintiff either to produce
approved plan and or permission granted by the competent authority
towards the notice structure. In the absence of approved plan and/or
permission, the plaintiff is required to prove that the notice structure is
in existence since prior to 01/04/1962 which is the datum line for the
residential structure to bring the same withing the tolerated category.
8 In this backdrop, if the copies of documents filed on record
are taken into consideration, it reveals that the plaintiff has filed a copy
of inspection extract of the said property for the year 2009-2010 in
which Room No. 49 including one shed approx. 75.70 sq. mtr. has been
shown on the 5th floor of the said building. Therefore, it can be seen
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that in the year 2009-2010, the suit premises i.e. Room No.49 on 5th
floor was duly assessed by the Corporation. The plaintiff has also filed a
copy of RTI application dt. 06/05/2014 alongwith a copy of letter
bearing No. Supdt. B/136/2014-2015 issued by the Superintendent, B
Ward in which it is mentioned that the property bearing No. B-3024-28
situated at 145-47, Vallabh Road (E) has been jointly visited and as per
available record in their office, the referred structure is existing prior to
1961 which is seen from the inspection extract for the year 1971-1972.
It is further mentioned in the said letter that the inspection extract of
1971-1972 is available in the said office which is continued since prior
to the datum line. Thus, having regard to the copy of inspection extract
coupled with the copy of letter issued by the Superintendent, B Ward, at
this juncture, plaintiff has prima facie proved that the notice structure is
in existence since long.
9 Apart from the copies of inspection extract and the letter
of Superintendent, B Ward, learned advocate for the plaintiff has also
filed copy of Circular dt. 29/04/2006 issued by MCGM in which
necessary guidelines are given for action to be taken under relevant
provisions of the MMC Act for demolition of unauthorized structure.
Having regard to the guidelines laid down in the said Circular, it was,
therefore, incumbent on the part of the defendant/MCGM to produce
the copy of inspection report, panchanama and photographs to show
the status of the work in progress. However, neither report of inspection
and/or panchanama nor copies of photographs are tendered on record
to show that any such work of construction is in progress in the suit
premises. Therefore, having regard to all these circumstances, I am of
the considered view that the plaintiff has made out a prima facie case
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and balance of convenience also lies in his favour. In the light of copies
of extract of inspection and letter issued by the Superintendent, B Ward,
if interim protection is not granted till decision of the suit, it will cause
great prejudice to the plaintiff. Therefore, point No.1 to 3 are answered
in affirmative.
AS TO POINT NO.4.
10 In view of aforesaid findings on the points No.1 to 3,
following order is passed.
ORDER
1 Notice of Motion No. 1709 of 2018 is allowed.
2 The defendant, its servants, agents or anybody on their
behalf are hereby temporarily restrained from taking any action in
respect of the suit premises pursuant to the notice dt. 10/10/2017
issued under Section 354A of the MMC Act and order dt. 20/04/2018,
pending the hearing and decision of the suit.
3 Costs in cause.
4 Notice of Motion stands disposed off accordingly.
Date:19/06/2024. (R. M. Mishra )
Dictated on :19/06/2024. Judge, City Civil Court,
Typed on :19/06/2024. Gr.Mumbai.
Signed on :19/06/2024.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19/06/2024. 05.23 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
19/06/2024.
JUDGMENT/ORDER signed by P.O.on 19/06/2024.
JUDGMENT/ORDER uploaded on 19/06/2024.
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