Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.MHCC010056712019 1 Notice of Motion No. 2044/2019.
in L.C. Suit No. 395/2019.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2044 OF 2019.
IN
L.C. SUIT NO. 395 OF 2019
Usha Vadiraja Bhat………………………………….. …. PLAINTIFF.
V/s.
MCGM. ....………………………………………........ …. DEFENDANT.
CORAM : S.H. SALUNKHE.
(Court Room No.11).
DATED : 9th May, 2025.
APPEARANCES :
Mr. S.V. Bhat, the Ld. Advocate for Plaintiff.
Mr. S.R. Yadav, the Ld. Advocate for Defendant/MCGM.
*****
01. This is suit to challenge legality of notice dtd. 12.09.2018,
issued u/s. 351 of the Mumbai Municipal Corporation Act, 1888, (‘the
MMC Act’) and Speaking Order dtd. 25.01.2019 and the plaintiff has
taken out present Notice of Motion (‘the NM’), under Order XXXIX, Rule
1 of the Civil Procedure Code, 1908, for temporary injunction,
restraining the defendants/BMC from executing the Speaking Order.
02. The defendant resisted by filing reply-cum-WS below
Exhibit 03. Perused record and proceedings. Heard both the sides.
03. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has made out prima
facie case to grant temporary injunction in
her favour ?………………………………….…In the negative.
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CNR No.MHCC010056712019 2 Notice of Motion No. 2044/2019.
in L.C. Suit No. 395/2019.
(ii). Whether balance of convenience lies in
favour of the plaintiff? ….…..…............….…In the negative.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted?.….................. …In the negative.
(iv). What Order? …..........….…....................... …As per final Order .
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
04. Ld. Advocate for plaintiff filed written notes of arguments
and submitted that the plaintiff is tenant of the suit structure, as per the
tenancy agreement dtd.27.02.2012 and he has not carried out any
alternation or additions. However, the landlord raised ground level of
the suit premises by 1.25 mtrs., in view to avoid flood water. The road is
at hight of 2 ½ ft. compared to ground level. It is further submitted that
due to heavy rain, the rain water enters in Shastri Nagar area, wherein
the suit structure is situated. The area submerges in rain water and/or
flooded during monsoon. Therefore, the landlord raised height of the
suit premises by 2 ½ ft. It is further submitted that there are area
adjacent structure, having common walls and on three sides. It is
further submitted that the BMC has not provided copy of inspection
report and Speaking Order. The land is situated on private land and
there is valid reason for raising ground floor structure. In the
circumstances, the impugned notice and Order is illegal and bad in law
and therefore, interim protection may be granted final hearing of the
suit. The plaintiff has also filed rejoinder affidavit.
05. Ld. Advocate for BMC submitted that no single document
produced on record by the plaintiff to show legality of the unauthorized
vertical extension as shown in the inspection report. Ld. Advocate for
the plaintiff submitted that the photographs annexed to the inspection
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CNR No.MHCC010056712019 3 Notice of Motion No. 2044/2019.
in L.C. Suit No. 395/2019.
report, clearly shows that the plaintiff has carried out unauthorized
extension of vertical extension and raised height without permission.
Ld. Advocate for the defendant further pointed that the plaintiff has
admitted that owner has raised height of the ground floor structure by
2½ ft. to avoid frequent flood. Thus, it is clear that the notice structure
is unauthorized and illegal and same cannot be protected. In the
circumstances, the NM deserves to be dismissed.
06. The plaintiff has challenged the notice u/s. 351 of the MMC
Act. Thus, as per The plaintiff has challenged the notice u/s. 351 of the
MMC Act. The explanation to Section 351 of the MMC Act, provides the
word “to show sufficient cause” would mean to prove that work
mentioned in the notice has been carried in accordance with the
provisions of the MMC Act. Sub-section (2) of Section 351 of the MMC
Act mandates that if a person fails to show sufficient cause to the
satisfaction of designated officer, then the designated officer may pass
order of removal of notice structure. Thus it is incumbent upon the
plaintiff to show that notice structure has been constructed as per
sanctioned plan or it is in existence prior to the datum line of 1962.
07. It is the case of the plaintiff that the landlord has raised the
height of ground floor structure of 2 ½ ft. height to avoid the flood.
Hence, the plaintiff has not disputed raising of height.As per section 342
of the MMC Act, change in horizontal and vertical existing dimensions
of the structure, requires permission of BMC. Admittedly, the plaintiff
has not obtained permission for vertical extension to the suit structure.
Thus, it is clear that the plaintiff has carried out unauthorized vertical
extension to the existing structure as shown in the inspection report and
sketch annexed to the notice.
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CNR No.MHCC010056712019 4 Notice of Motion No. 2044/2019.
in L.C. Suit No. 395/2019.
08. The Hon’ble Apex Court in the matter of Rajkumar
Badjatya Vs. U.P. Avas Evam Parishad, held that each and every
construction must be made scrupulously following and strictly adhering
to the rules and regulations. In the event of violation being brought to
the notice of course, the same should be dealt with the iron hands and
any leniency or mercy to the person, guilty of unauthorized construction
would amount to showing misplaced sympathy. Thus, in view of the
abovecited judgment, the unauthorized structure cannot be protected at
any costs. Thus, the plaintiff is not entitled for any relief as prayed.
09. The defendant/BMC has raised objection as to jurisdiction
of this Court to entertain the suit, challenging the notice, u/s. 351 in
view of provisions of sec. 515-A of the MMC Act. Ld. Advocate for the
plaintiff submitted that sec. 515-A itself states that designated Officer is
under obligation to exercise its discretion judiciously and not arbitrarily
and to observe principles of natural justice and pass Order with reason.
However, in the case in hand, the designated Officer acted on the
complaint of private party, hence, notice and Order is illegal.
10. In view of the provisions of sec. 515-A, the exception to
entertain the suit, to suit challenge notice u/s.351 and 354-A is on the
basis of Order being nullity and suffering of jurisdictional error. It is
well settled that the said ground must be clear and the plaintiff has to
demonstrate as to how, there is jurisdictional error and notice is nullity.
However, in the case in hand, there is no pleading as to how, the notice
is nullity or there is jurisdictional error. The plaintiff has not
demonstrated as to how, there is jurisdictional error on the part of
authority. In the circumstances, I find substance in the contention of the
plaintiff that the present suit is not maintainable in view of bar u/s.
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CNR No.MHCC010056712019 5 Notice of Motion No. 2044/2019.
in L.C. Suit No. 395/2019.
515-A of the MMC Act. In the circumstances, no case made out for
granting temporary injunction. The balance of convince does not tilt in
favour of the plaintiff. Accordingly, I answer point Nos. 1 to 3 in the
negative and in answer to point No. 4, I pass the following Order :
ORDER
(i). Notice of Motion No. 2044/2019 is dismissed.
(ii). Notice of Motion No. 2044/2019 is, accordingly,
disposed of.
(S.H. Salunkhe)
Mumbai. Ad-Hoc Judge,
Dated : 09.05.2025. City Civil Court, Mumbai.
Directly typed on computer on : 09.05.2025.
Draft given to HHJ on : 20.05.2025.
Checked and Signed on : 22.05.2025.
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CNR No.MHCC010056712019 6 Notice of Motion No. 2044/2019.
in L.C. Suit No. 395/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
on 22.05.2025 at 11.37 a.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri. S.H. Salunkhe
(Court Room No.11).
Date of Pronouncement of Judgment/Order 09.05.2025
Judgment/Order signed by P.O. on 22.05.2025
Judgment/Order uploaded on 22.05.2025
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