Final Order 1

Order Details: Copy of Judgment
Pdf Text: CNR NO : MHCC010056952019. 1 L.C. Suit No. 1365/2019 .
JUDGMENT.
Presented on : 11.06.2019
Registered on : 12.06.2019
Decided on : 27.01.2025
Duration : 5 Y, 7 M, 16 days .
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
LONG CAUSE SUIT NO. 1365 OF 2019.
EXHIBIT NO. 11.
Narayanrao Balwantrao Patil @ Nana Patil,
Aged : 72 years, Chairman of Khandala Sanmitra
Co. Op. Credit Society Ltd. Mumbai, having
address at 4/7, Khot Chawl, Sarveshwar Mandir
Marg, Kurla (West), Mumbai- 400 070…………….
]
]
]
]
] ..…...PLAINTIFF.
: V E R S U S :
The Municipal Corporation Mumbai of Gr.Mumbai,
(A Body Corporate under the Provisions of
the BMC Act,1889), having its Head Office
at Annexe Building, Mahapalika Marg,
Mumbai CST, Mumbai - 400 001……………………
]
]
]
]
] …..DEFENDANT.
APPEARANCES :
Mr. V.T. Dubey, Ld. Advocate for the Plaintiff.
Mr. Suryakant Botlawar, Ld. Advocate for Defendant/MCGM.
**************
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO. 11.
DATED : 27th January, 2025.
J U D G M E N T.
01. This is the suit to challenge notice dtd. 08.05.2019, issued
u/s. 354-A of the Mumbai Municipal Corporation Act, 1888, (‘the MMC
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Act’) and perpetual injunction, restraining the defendant/BMC from
demolishing the structure i.e. Shop No. 19, area of 370 sq. ft, with two
upper floors, situated at CTS No.477 (2), Municipal No.1373(47), Khot
Chawl, Takiyaward, Kurla (West), Mumbai-70, made up of BM Wall and
AC Sheet roof (the suit structure). The plaintiff has amended the plaint
and sought declaration that the subsequent Order dtd. 31.07.2019, be
declared as bad in law, illegal, null and void.
Facts of case can be summarized as below :-
02. The plaintiff has acquired the suit structure, pursuant to the
registered Sale Deed dtd. 11.10.2018 and using the suit structure as
Office of ‘Khandala Sanmitra Co. Op. Credit Society Ltd.’ The suit
structure is duly assessed to property tax, and same is in existence prior
to 1962 and it was very old. The roof of the suit structure was badly
damaged and therefore, the plaintiff has replaced few broken AC sheets
by new cement sheets and carried out plastering and painting work to
the existing structure. However, on the basis of complaint of neighbors,
with whom the plaintiff hasn’t having cordial relations, the defendant/
BMC issued stop work notice. The said notice was not served upon the
plaintiff, but same was made available to him on 09.06.2019 and
immediately on the next day, he has replied the said notice.
03. It is further stated that without verifying the record, the
defendant/BMC issued impugned notice and inspite of reply, not passed
demolition Order. However, on 10.06.2019,without passing the Order,
defendant/BMC has threatened to demolish the suit structure. Hence,
plaintiff approached this Court. It is further stated that at the relevant
time, no any work was in progress. As such, impugned notice is illegal,
null and void. Even, the said notice has been issued without inspection
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JUDGMENT.
and panchnama of the suit structure.
04. The plaintiff has amended the plaint and sought relief of
declaration that subsequent demolition Order is illegal and bad in law,
as same is passed without application of mind and without considering
the reply/documents submitted by the plaintiff and without considering
the fact that the suit structure is already in existence.The plaintiff hasn’t
commenced any unauthorized work. Moreover, the notice structure is
existed prior to datum line and it is assessed prior to 1962. Thus, the
notice as well as the Speaking Order are illegal and bad in law. In the
circumstances, the plaintiff is entitled for the decree as prayed.
05. Inspite of sufficient opportunity, the defendant/BMC failed
to file written statement (WS), hence, as per the roznama Order dtd.
21.12.2022, the suit proceeded without its WS. Then, the plaintiff
Narayanrao Patil (PW1), filed affidavit in lieu of examination-in-chief at
Exhibit 2. Apart from the oral evidence, the plaintiff relied on following
documents :-
Sr.
No.
Particulars of documents Exhibit Nos.
1 Sale Deed Exhibit 4 Colly.
2 Electricity Bill Exhibit 5
3 Notice Exhibit 6
4 Reply Exhibit 7
5 Speaking Order Exhibit 8
06. On the basis of the plaint and evidence of the plaintiff,
following points are arises for determination, I have recorded my
findings thereon for reasons to follow :
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JUDGMENT.
Sr. No. POINTS FINDINGS
1. Does the plaintiff prove that notice
structure is in existence since prior to
1962 ?………………………………………. … No.
2. Does the plaintiff prove that notice u/s.
354-A dtd. 08.05.2019 and Speaking
Order dtd. 31.07.2019, are illegal and
bad in law ?………………………………... … Yes.
3. What order and decree ?………………….. ... The suit is
decreed with
costs.
AS TO POINT Nos. 1 AND 2:-
07. In his affidavit of evidence, Mr.Narayanrao(PW1), reiterated
contentions of the plaint. It is the plaintiff’s case that the suit structure
is in existence since prior to datum line and it is assessed prior to 1962.
The structure was very old and its roof was badly damaged, hence, to
avoid the leakage, he replaced broken AC sheet with new cement roof
and done plaster and painting work. However, on the basis of complaint
of neighbour, the defendant/BMC issued impugned notice.
08. In his cross-examination, it was suggested to the plaintiff
that he commenced unauthorized construction without permission and
he is deposing false. However, he denied the suggestions.
09. Ld. Advocate for plaintiff submitted that the suit structure
is in existence since prior to datum line of 1962, and the plaintiff has
purchased the suit structure from its earlier owner, in pursuant to
registered Sale Deed of 2018. Ld. Advocate for plaintiff further
submitted that the plaintiff is having electric connection at the suit
structure. The plaintiff has carried out repairs by replacing cement roof
sheet, done plaster and painting. However, on basis of complaint of
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neighbors, the defendant/BMC issued impugned notice. The plaintiff
has replied show cause notice. However, the designated Officer has not
passed any Order and without passing Order, the defendant/ BMC
threatened to demolish the structure. Hence, the plaintiff filed the suit
in urgency.
10. Ld. Advocate for the plaintiff further submitted that
subsequently, the designated Officer passed the final Order, but he has
not considered the documents and without considering the same, the
final Order is passed. He submitted that the notice structure is already
in existence. Ld. Advocate for the plaintiff relied upon the registered
Sale Deed, wherein there is reference of Ground+upper floor structure.
Ld. Advocate for plaintiff further submitted that the defendant/BMC
had issued notice alleging that the plaintiff has commenced the
unauthorized construction of 2nd floor. He further submitted that the
defendant/BMC has issued circular from time to time for procedure to
be followed by the staff, if any ongoing construction is noticed. Further,
he submitted that neither the BMC has led evidence, nor, produced
panchnama or photographs, showing date and status of on-going work.
He further submitted that even there is no denial in cross-examination
of the plaintiff that structure was in existence in all respect and no any
work was going on.Therefore, the Court has to accept the plaintiff’s
evidence that the suit structure was already in existence and hence, the
stop work notice is illegal. He further submitted that the defendant/
BMC ought to have issued notice u/s. 351. However, without giving
notice u/s. 351 the BMC has passed the demolition Order. Therefore,
the notice is illegal and bad in law.
11. Per contra, Ld. Advocate for the defendant/BMC submitted
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that the Officer of the defendant/BMC, noticed work in progress.
Hence, the BMC has issued stop work notice to the plaintiff further
directing him to submit the permission for on-going work, but the
plaintiff failed to show permission for on going construction within
prescribed time. Therefore, defendant/BMC has passed final Order.
Thus, the defendant/BMC has followed the due process of law. Hence,
the suit is liable to be dismissed with costs.
12. I have given thoughtful consideration to the submission
made by the Ld. Advocate for the parties and evidence on record. The
plaintiff has challenged stop work notice, issued u/s. 354 A of the MMC
Act, on the ground that the notice structure is in existence since long i.e.
prior to datum line and at the relevant time, no work was going on. In
support of his contention, the plaintiff has relied upon the registered
Sale Deed of 2018, executed by earlier owner in favour of the plaintiff.
On perusal of the schedule of the property, which is subject matter of
the Sale Deed (Exhibit 4), it appears that there is no reference of 2nd
floor i.e. the notice structure. Thus, the Sale Deed relied by the plaintiff
is not helpful to prove existence of the notice structure i.e. 2nd floor.
The plaintiff has not produced the other document to establish that the
notice structure was in existence since prior to issuance of stop work
notice. Contrarily, the Sale Deed relied by the plaintiff shows that in the
year 2018, there was Ground+1st floor structure. Thus, I hold that the
plaintiff failed to prove existence of the suit structure prior to datum
line.
13. It is next contention of the plaintiff that at the time of
issuance of notice, no any work was in progress. It is case of the plaintiff
that the structure was complete in all respects and no any work was in
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progress when the notice was given. There is no denial in the cross-
examination of the plaintiff that notice structure was not incomplete in
all respects and the work was in progress.
14. Ld. Advocate for the plaintiff submitted that there is no
denial in the cross-examination of the plaintiff therefore, the Court has
to accept evidence of the plaintiff that the notice structure was already
in existence and no any work was going on. It is well settled that if
there is no denial in the cross-examination of the witness, the Court
may accept evidence of the witness.
15. It is the specific case of the plaintiff that notice structure
was already existed and at the relevant time, no any work was in
progress. It is well settled that the object of notice u/s. 351 and 354-A is
different. The object and purpose of Sec. 354-A is to stop unauthorized
on going work, which is going in contravention of the MMC Act and its
removal. If inspite of notice, the noticee does not stop unauthorized on-
going work or produce its authorization. On the other hand, the object
and purpose of Sec. 351 is demolition of unauthorized notice structure,
which is already in existence. In view of the specific case pleaded by the
plaintiff and legal position, the burden lies upon the BMC to show that
at the time of issuance of the notice, unauthorized construction work
was going on. However, neither the defendant/BMC has led evidence
nor, produced any record i.e. panchnama, copy of detection register,
photographs showing status of on-going work. As per circular of BMC,
dtd. 15.03.2012, where any unauthorized work in progress contrary to
the provisions of MMC Act, is detected by the Officer, such Officer has to
take photographs showing the date and status of work, prepare
panchnama, inspection report of on-going work. He has also to make
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entry to that effect in detection register and then prepare the notice
u/s.354-A. In this case, the defendant/BMC has not produced
panchnama, inspection report or photograph showing date and status of
on going work. As earlier stated, there is no denial in the cross-
examination of the plaintiff. So also, the defendant/BMC has not
produced evidence on record to show that at the relevant time the work
was in progress. In the circumstances, I hold that the plaintiff has
proved by leading satisfactory evidence that the notice structure was
complete in all respect and no any work was going on. In the
circumstances the defendant/BMC ought to have issued notice u/s. 351
of the MMC Act and without giving such notice, the demolition Order is
illegal and bad in law. In the result, I answer point No.1 in the negative
and point No. 2 in the affirmative.
AS TO POINT NO. 3 :
16. In view of affirmative finding on point No. 2, the plaintiff
entitled for the relief of declaration and injunction. Therefore, in answer
to point No. 3, I pass the following Order:
-: O R D E R :-
1. The suit is decreed in following terms with cost.
(a). It is hereby declared that the notice dtd. 08.05.2019, issued
u/s. 354-A of the MMC and demolition Order dtd.
31.07.2019 are hereby declared illegal and bad in law.
(b). The defendant/BMC is hereby permanently restrained from
demolishing the notice structure, in pursuance of the above
referred notice and Order.
2. Decree be drawn-up accordingly.
(S.H. Salunkhe)
Mumbai. Ad-hoc Judge,
Dated : 27.01.2025. City Civil Court, Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
13.02.2025 at 5.40 p.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 27.01.2025
Judgment/Order signed by P.O. on 13.02.2025
Judgment/Order uploaded on 13.02.2025
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