Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.1722-18 in L.C.SUIT no.1325-18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 1722 OF 2018
(CNR no. MHCC010056552018)
IN
L.C. SUIT NO. 1325 OF 2018
(CNR no. MHCC010050352018)
Fariyas Hotel Pvt. Ltd. ]..Plaintiff
Versus
1 Designated Officer, Asst. Eng. (B&F) A ward
2. M.C.G.M. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 22nd October, 2018.
Mr. P. D. Gandhi, advocate for plaintiff.
Mr. Gajanan Shinde with Mr. Pradeep Patil, advocates for defendants.
ORDER
1. The plaintiff has taken out this motion seeking temporary
injunction for restraining the defendants from taking any action
pursuant to notice dated 14.02.2006 issued under Section 351 of
Mumbai Municipal Corporation Act (M.M.C. Act) and order dated
08.03.2013 passed in furtherance of the same.
2. According to the plaintiff, the notice structure (suit
premises) are located on the terrace above 10th floor of the building of
Hotel Fariyas, Arthur Bunder Road, Colaba. The plans of the said
building were approved on 26.09.1967 and 08.01.1970.
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Commencement certificate was also issued. Accordingly, the said
building was constructed.
3. The learned advocate for the plaintiff submitted that in
1977, a proposal for additions / alterations to be carried out above the
10th floor of the said building was submitted to the defendant
corporation. Accordingly, an Intimation of Disapproval (IOD) dated
01.03.1978 and Commencement Certificate dated 22.06.1978 were
issued. Thereafter, on 21.05.2003 a notice under Section 53(1) of the
Maharashtra Regional & Town Planning Act was issued against the said
construction. The same was challenged in L.C. Suit no. 2745 of 2003.
The said suit was decreed in favour of the plaintiff. However, thereafter
on a complaint of a local corporator, the impugned notice was issued in
2006. Though, the plaintiff replied the same the impugned order was
passed after a period of seven years, without considering the reply and
documents.
4. Learned advocate for the plaintiff further submitted that on
10.04.2013, its architect submitted proposal for regularization of the
internal additions and alterations carried out by the plaintiff above the
10th floor premises. Requisite fees were also deposited for scrutiny.
However, the defendant did not communicate any decision about
acceptance or rejection of the said proposal and suddenly on
17.04.2018 the officers of the corporation came to the suit premises and
demolished part thereof.
5. On the other hand, the learned advocate for the defendants
submitted that the plaintiff has carried out illegal and unauthorized
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construction of rooms at the terrace above the 10th floor as specified in
the impugned notice. The same was inspected on 13.02.2006.
According to him, filing of proposal for regularization presupposes that
the construction is unauthorized. The defendant corporation by letter
dated 10.05.2013 directed the architect of the plaintiff to submit block
plan and location plan. The plaintiff failed to comply with the said
letter. Therefore, the plaintiff was again informed by letter dated
15.02.2016 to clarify the position of its proposal. However, it was
totally neglected and ultimately, an action for demolition was initiated.
He further submitted that the suit is also barred by law of limitation.
6. In reply, the learned advocate for the plaintiff submitted
that the letter dated 10.05.2013 and 15.02.2016 were not served on the
plaintiff, otherwise the plaintiff could comply with the same as the suit
premises could be regularized.
7. On the premise of rival submissions, it is necessary to look
into the documents placed on record. Institution of L.C. Suit no. 2745 of
2003 and decreeing it in favour of the plaintiff are prima facie
undisputed. The impugned notice dated 14.02.2006 describes the suit
premises as under :
“Unauthorized covering of open set back terrace on 10th
floor level admeasuring 24 m. X 1.80 m. X 0.90 m., 1.80 m. X 0.90 m.,
6 m. X 5.50 m. with height (3.45 + 2.80) / 2 m. (upto false ceiling) by
constructing B.M. wall, sliding windows above parapet wall and covered
with A.C. sheet roof and constructing 5 nos. of rooms along with toilet
block and pantry.”
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4 NM no.1722-18 in L.C.SUIT no.1325-18
8. The plaintiff replied the same on 20.02.2006 and submitted
various documents and claimed that the suit premises are legal and
authorized. The impugned order dated 08.03.2013 prima facie shows
that the documents submitted by the plaintiff were held to be not
sufficient to prove authorization of the suit premises. The concerned
designated officer had come to a conclusion that the amendment plan
approved by E.E.B.P. (City) under no. E.B. /84/A dated 23.01.1979 for
addition / alteration at 10th floor and proposed swimming pool at first
floor which proves the permission issued by competent authority for
covering of open set back terrace on 10th floor level admeasuring 24
m. X 5.50 m., 1.80 m. X 0.90 m., 1.80 m. X 0.90 m., 6 m. X 5.50 m.
with height (3.45 + 2.80 ) / 2 m. (up to false ceiling) by constructing
B.M. wall, sliding windows above parapet wall and covered with A.C.
sheet roof, however, the present internal addition / alteration at 10th
floor by B.M. wall i.e. 5 nos. of rooms with toilet block and pantry is not
tallied with the amended plan approved by E.E.B.P. (City) under no.
E.B./84/A dated 23.01.1979. On the basis of this conclusion he
declared the suit premises unauthorized and directed to remove the
same or face an action for its demolition.
9. The copy of letter dated 19.03.2013 issued by the plaintiff
prima facie shows that if the defendant concludes that the additions /
alterations would be capable of being regularized, the plaintiff would
submit a proposal through its architect. The copy of letter dated
08.04.2013 issued by Mr. W. V. Kanhere, architect for the plaintiff
prima facie shows that the proposal for regularization was submitted
with various documents including a plan showing proposed work and
certain fees were also deposited with the defendant on 09.04.2013.
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10. The defendants also produced certain documents. The copy
of letter dated 10.05.2013 issued in the name of the aforesaid architect
prima facie shows that he was called upon to submit block plan and the
location plan in given scale with remark that on complying with the
same, the matter will be processed further on its own merits. The copy
of letter dated 15.02.2016 prima facie shows that the plaintiff and its
architect were informed that the aforesaid letter dated 08.04.2013 was
not complied with and no proposal for regularization was received. The
plaintiff has prima facie disputed the receipt of these letter dated
10.05.2013 and 15.02.2016.
11. Though, the defendant corporation has placed on record
copy of dispatch book, the same is not sufficient to come to a conclusion
prima facie that the aforesaid letters were served on the plaintiff for its
architect. The photographs placed on record show that certain action
for demolition of the suit premises was taken by the defendant
corporation and the same is prima facie undisputed.
12. In order to support his contention that the suit is barred by
law of limitation. Learned advocate for the defendants relied on the
ratio laid down in the case of Laxmichand Kalyanji vs. M.C.G.M.
reported in 2002(2) Mh. L. J. 210 to the effect that the suit
challenging the action under Section 351 of the M.M.C. Act had to be
filed within 6 months from accrual of cause of action. In reply, the
learned advocate for the plaintiff submitted that the plaintiff was
waiting for the decision of the defendant corporation about the proposal
for regularization and therefore, when the defendant suddenly
demolished the part of suit premises, the suit has been instituted.
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Considering these submissions, the question whether the suit is barred
by law of limitations appears to be a mixed question of law and facts
and the same is required to be decided at the time of final hearing of
the suit, by giving respective parties an opportunity to lead evidence.
13. The learned advocate for the defendants has relied on the
ratio laid down by the Hon'ble Supreme Court in the case of Seema
Arshad Zaheer vs. M.C.G.M. reported in 2006 (5) Mh. L. J. 218 to
the effect that no consideration should be shown to the builder or any
other person where construction is unauthorized. Judicial discretion can
not be exercised which encourages or perpetuates illegality. The learned
advocate for the defendants today submitted that the very fact that the
plaintiff applied for regularization of the suit premises amounts to
acceptance on its part that the structure is illegal and unauthorized. For
that he placed reliance on the ratio laid down by Hon'ble High Court of
Bombay in the case of Radheshyam Brahmadev Mishra vs. M.C.G.M.
(P.I.L. no. 11 of 2013 decided on 14.07.2015) with other matters and
also in the case of Madan Dasharath Vaity vs. Assistant
Commissioner (W.P. no. 13603 of 2017 decided on 30.07.2018)
14. On the other hand, the learned advocate for the plaintiff
has relied on the ratio laid down by the Hon'ble High Court of Bombay
(Coram : Anoop V. Mohta and F.M. Reis, JJ.) in the judgment dated
23.09.2014 in the case of Ajinkya Nigade vs. State of Maharashtra in
W.P.(L) no. 2513/2014 and other matters to the effect that pending
the proposal for regularization, the action initiated by the defendant
corporation was unwarranted. He further relied on the ratio laid down
by the Hon'ble High Court of Bombay (Coram : Anoop V. Mohta and
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A. A. Sayed, JJ.) in the judgment dated 16.01.2014 in the case of Lilly
Pandit vs. M.C.G.M. in W.P.(L.) no. 88 of 2014 to the effect that
requirement of giving full opportunity to prove the case can not be
overlooked merely because the sections and other provisions empower
the authorities of corporation to initiate an action for demolition of
unauthorized premises.
15. Considering the aforesaid ratios, it is the fact that
defendant has partially demolished the suit premises. Merely filing of
application for regularization, though amounts to acceptance that the
structure is unauthorized as held in the cases of Radheshyam Mishra
and Madan Vaity referred to above, here the said proposal is not yet
finally decided by the defendant corporation. By adinterim reliefs dated
23.04.2018 though the defendants were directed that no coercive action
should be taken against the suit premises till the disposal of the notice
of motion, the plaintiff was also restrained from repairing or carrying on
/ out any changes at the suit premises till disposal of the motion. Prima
facie nothing has been placed on record to show that the aforesaid two
letters dated 10.05.2013 and 15.02.2016 were served on the plaintiff or
its architect. Under such circumstances, it is necessary that the plaintiff
should be given a long rope to prove its metal, and that too when some
plan was approved in 1979 for additions and alterations of the premises
on the terrace on 10th floor level of the said building.
16. As the defendants have already demolished the suit
premises partially there will not be any sympathy or unwarranted
exercise of judicial discretion in favour of the plaintiff if it is directed to
consider the proposal for regularization in time bound manner which is
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pending before the defendant corporation. The balance of convenience
lies in favour of the plaintiff. Thus, the plaintiff has made out a prima
facie case which requires intervention of this Court by allowing the
motion as below. Thus, in order to avoid multiplicity of proceedings the
following order is passed:
ORDER
1. The Notice of Motion no. 1722 of 2018 is made absolute in the
terms of following directions:
i) The plaintiff is directed to comply with the letters dated
10.05.2013 and 15.02.2016 issued by the defendant corporation
within a period of 4 weeks i.e. on or before 19.11.2018.
ii) Thereafter, the defendant corporation to consider the
proposal for regularization within a period of 6 weeks i.e. on or
before 05.01.2019, in the light of prevailing rules, regulations
and laws.
iii) The earlier orders dated 23.04.2018 that the defendant
should not take any coercive action against the remaining suit
premises and the plaintiff should not carry out any repairs or
changes to the suit premises are continued till next date i.e.
07.01.2019.
iv) No extension will be granted to either of the parties in
respect of the time schedule directed above on any count.
2. Parties to bear their own costs of the motion.
(Dr. M. S. Deshpande)
Ad hoc Judge,
Date : 22.10.2018 City Civil Court, Mumbai.
Directly typed on dias computer : 22.10.2018
Checked by HHJ on : 22.10.2018
Signed by HHJ on : 22.10.2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 23.10.2018 at 11.35 a.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
22/10/2018
JUDGMENT/ORDER signed by
P.O. on
22/10/2018
JUDGMENT/ORDER uploaded
on
23/10/2018
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