Final Order 1

Order Details: Notice of Motion
Pdf Text: NOTICE OF MOTION NO.2066/2019 ..1.. IN SUIT NO.1118/2019
CNR NO.MHCC010057432019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 2066 OF 2019
IN
L.C. SUIT NO. 1118 OF 2019
Mohammed Jafer Khan,
S/o. Nasir Ahmed Khan,
Inhabitant of Mumbai, Carrying on
Shop No. 24, Situated at Shivaji
Kutir Mandal, Opp. U.P. Compound,
L.B.S. Marg, Kurla (West),
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. B. P. Shukla, Advocate for Plaintiff.
Ms. Mhatre, Advocate for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI A. N. MARE (C.R.No.11)
DATE : 15TH OCTOBER, 2019.
-- 1 of 13 --
NOTICE OF MOTION NO.2066/2019 ..2.. IN SUIT NO.1118/2019
O R A L O R D E R
By this notice of motion the Plaintiff has sought temporary
injunction to restrain defendant from demolishing the suit premises in
pursuance of notice dated 24.04.2019 issued under Section 354A of
M.M.C. Act and order dated 03.06.2019 passed thereon.
2. In brief the plaintiff's case is that, he is owner of shop No. 24
admeasuring 20 x 18 meters with height of 9 meters having ground
floor plus two upper floors made of B.M. Walls and Ladi coba roof
(hereinafter referred as the suit premises). The suit premises is old and
was occupied by one Mr. T. M. Louis. The suit premises is assessed in
the name of Mr. Louis since the year 1979. After death of Mr. Louis his
legal representatives have conveyed the suit premises to the plaintiff
vide agreement and general Power of Attorney both dated 20.05.1996.
Plaintiff is carrying a business of selling scrap in the name and style of J.
K. Corporation. He has establishment certificate and electricity bill
issued on the address of the suit premises. The suit premises is existing
since prior to the year 1979. It is protected and tolerated as per
defendant's policy. The plaintiff has carried out tenantable repairs such
as plastering, painting and water proofing of the roof. Defendant has
issued notice dated 24.04.2019 under Section 354A of the M.M.C. Act
alleging unauthorized construction as described in schedule of the
notice. Plaintiff has replied said notice vide reply dated 25.04.2019.
Defendant threatened to demolish the suit premises without passing an
order and therefore plaintiff approached the court. During pendency of
the suit a speaking order dated 03.06.2019 is passed directing the
plaintiff to remove suit premises within 24 hours from the receipt of
order. The order is lacking reasons. It does not consider plaintiff's
documents and it is passed as if a notice under Section 351 of the
-- 2 of 13 --
NOTICE OF MOTION NO.2066/2019 ..3.. IN SUIT NO.1118/2019
M.M.C. Act is under consideration. The designated officer has nowhere
stated in the order that the construction was in progress. The order
does not refer to any photographs or panchnama. Defendant has not
followed the guidelines in Sopan Maruti Thopate's case as well as it's
circular. The suit premises is in hutment area.
3. Notice of Motion is opposed by the defendant contending that
suit is bad for want of notice under Section 527. This Court has no
jurisdiction in view of provisions of Section 515A of the M.M.C. Act.
Plaintiff has not produced approved plan or permission granted in
plaintiff's favour for erection of notice structure or any authentic
document to prove authorization of notice structure.
4. The defendant has also filed an additional reply dated
27.09.2019 contending that after scrutinizing plaintiff's reply dated
03.06.2019 defendant has passed speaking order. On inspection of the
suit site on 18.09.2019, it revealed that plaintiff has shut the ingrace of
the suit site by constructing a patra shed around the suit structure and a
door to such shed was kept locked to prevent the entry. The officer
entered the premises when the door was opened and found that the
plaintiff has completed the external brick work of ground plus two
structure but internal work of plastering, flooring and other work is yet
not completed. The Officers of the defendant found labors carrying on
construction activities to complete internal structure. The officer has
taken the photographs. The photographs falsify plaintiff's contention.
The plaintiff has violated and breached the order of this Court. The
plaintiff has not come with clean hands before this Court. The
construction is not yet completed and no person has occupied the
structure till 18.09.2019. The Construction is still going on and
-- 3 of 13 --
NOTICE OF MOTION NO.2066/2019 ..4.. IN SUIT NO.1118/2019
therefore provisions of Section 2 of Section 354A of the M.M.C. Act are
attracted. Plaintiff was given opportunity to produce permission for
erection of notice structure, however, he failed to do so. Upon site
inspection on 24.04.2019, defendants officer detected unauthorized
ongoing construction of ground plus two storyed structure admeasuring
20 x 18 mtrs. having 9 mtrs. height by B.M. wall Ladi Coba roof. Upon
failure of the owner or occupier to show permission or any other
document proving authorization of work, measurements were taken.
Photographs were also taken on 24.04.2019. Considering material
produced before him, the designated officer issued stop work notice
under section 354A of the M.M.C. Act. However, the plaintiff did not
stop the work and continued the same. The plaintiff has submitted
reply. After considering the said, the speaking order is passed. In the
guise of this Court's order plaintiff has carried out construction
activities. The plaintiff has not come with clean hands before this Court
and had suppressed material facts.
5. Plaintiff has filed rejoinder denying the contents of reply by
the defendant. It is claimed that no inspection was carried out. The
suit premises is a completed construction. On 01.09.1983 defendant
has issued a notice under Section 354 of M.M.C. Act to plaintiff's
predecessor who carried repairs to ground plus two storyed structure.
The photograph of complete suit premises was shown to the Court at
the time of adinterim relief. The photographs dated 27.03.2019 reveal
that the construction was complete even before issuance of stop work
notice.
6. In it's sirrejoinder defendant has contended that the
assessment of the year 1979 of the premises reveals existence of AC
-- 4 of 13 --
NOTICE OF MOTION NO.2066/2019 ..5.. IN SUIT NO.1118/2019
shed. Suddenly in the year 1983 there cannot be a dilapidated building
of ground plus two storyed to which such notice under Section 354 can
be given. There is every possibility that the plaintiff has prepared false
document without producing the original one.
7. Following points arise for determination against which
findings are recorded for the reasons to follow:
Sr. No. POINTS FINDINGS
1. Whether the plaintiff has made out a
primafacie case?
In the negative.
2. Whether the balance of convenience
lies in plaintiff’s favour?
In the negative.
3. Whether the plaintiff will suffer
irreparable loss if injunction as sought
is refused?
In the negative.
4. What Order ? Notice of motion is
dismissed with
costs.
REASONS
AS TO POINT NOS.1 TO 4.
8. Advocate for plaintiff submitted that the ground plus two
story structure is existing since long. There is no construction activity
as alleged by the defendant. Some tenantable repairs i.e. only plastering
and coloring was carried out, that too before the service of stop work
notice. Since a complete structure is existing since prior to the issuance
of stop work notice, the remedy for defendant is under Section 351 as
in such circumstances Section 354 A does not deal with the action of
demolition. In support of his submission he relied upon judgment of
Hon'ble Supreme Court in Special Leave Petition (civil) No. 9049/2006
between Muni SuvratSwami Jain S.M.P. Singh V/s. Arun Nathuram
Gaikwad and Ors.
-- 5 of 13 --
NOTICE OF MOTION NO.2066/2019 ..6.. IN SUIT NO.1118/2019
9. He also relied upon the circular issued by defendant of which
clause 4 runs as under,
"It is made clear that in case where an
unauthorized construction is completed, even though
very recently a notice under Section 351 of M.M.C. Act
should be issued and no action under Section 354A of
the M.M.C. Act should be taken against such
construction."
10. On the other hand, Advocate for defendant submitted that, the
plaintiff has not come with a case that the notice structure is
constructed on the basis of a sanctioned plan or a construction
permission issued by defendant. The documents i.e. inspection report
and photograph clearly reveal ongoing construction. The plaintiff has
mislead this Court and obtained adinterim relief. The plaintiff has not
come with clean hands before this Court. In such circumstances,
plaintiff is not entitled to equitable and discretionary relief of
injunction. In support of his submissions he relied upon judgment of
the Hon'ble Bombay High Court dated 28.08.2019 in PIL No.
67/2017 between Tushar Guru Salien V/s. State of Maharashtra and
Others,. He also relied upon judgment of Hon'ble Bombay High Court
dated 18.09.2019 in A.O. Stamp No. 25660/2019 between
Mohammed Imran Gulam Mohd. Gujarati & Anr. V/s. The Municipal
Corporation of Greater Mumbai.
11. The plaintiff's main contentions are (i) that the suit premises
exists since long as ground plus two storyed structure, (ii) that plaintiff
is carrying on business in such place, (iii) no work of any nature is
being carried on the date of notice dated 24.04.2019 or thereafter.
-- 6 of 13 --
NOTICE OF MOTION NO.2066/2019 ..7.. IN SUIT NO.1118/2019
12. To consider the first circumstance relied upon by the plaintiff,
that the suit premises existing since long as ground plus two storyed
structure, the assessment of documents on record will be fruitful.
13. Plaintiff has produced a copy of assessment bill claiming that
it relates to the suit premises. It reveals that the first date of assessment
of structure shown therein is 01.04.1979. The structure assessed
thereby is an A.C. shed. Thus, the assessment bill clearly reveals that at
the time of assessment in the year 1979 what existed was an A.C. shed
and not a ground plus two storyed structure.
14. Plaintiff as thereafter relied upon agreement of assignment
claiming that by virtue of it he acquired rights in the suit premises. It is
dated 20.05.1996. The schedule of premises on page 8 of the
agreement clearly reveals that, it nowhere mentions that the premises is
a ground plus two storyed structure. Thus said document also does not
help the plaintiff in establishing the stand that ground plus two storyed
structure was purchased by him in the year 1996 as claimed by him in
the plaint. The subsequent documents also do not support the plaintiff's
contention. Thus, there is nothing on record to indicate that ground
plus two storyed structure is existing since long as claimed by the
plaintiff. Thus, the first contention of the plaintiff stands falsified.
15. The second circumstance to be considered is that the plaintiff
is carrying on business in the suit premises.
16. The plaintiff has produced certificate of registration of
establishment and a registration under GST Act. However, the
photographs produced by the defendant with lists Exh.2, 4 and 5 clearly
-- 7 of 13 --
NOTICE OF MOTION NO.2066/2019 ..8.. IN SUIT NO.1118/2019
reveal that no business is being carried out in the premises revealed in
these photographs. Plaintiff has not claimed that these photographs are
not of the suit premises. Thus, the plaintiff's contention that as on the
date of suit he is carrying on business in the suit premises, also is not
established primafacie.
17. It is third contention of the plaintiff that no work of any
nature is being carried either on the date of suit or on the date of notice
or thereafter. Such contention is specifically raised in plaint paragraph
30 clause (2) of the plaint. Similar is contention of the plaintiff in his
reply dated 25.04.2019. However, the plaintiff has come with some
different stand in his affidavit in rejoinder claiming that only the work
of plastering and painting was going on. This is apparently minor but
an important deviation by the plaintiff from his earlier stand in the
plaint.
18. Defendant has also produced on record the inspection report
dated 24.04.2019 wherein it is alleged that unauthorized construction
of ground plus two storyed structure of brick missionary walls was
found in process. With list Exh.2 defendant has also produced the
photographs dated 24.04.2019. Those clearly reveal that there exists
skeleton of ground plus two storyed structure but not of B. M. Walls but
of G.I. sheets. The photographs further reveal that there is some gap in
the G.I. Sheet walls from which the skyline can be seen, meaning
thereby that there was no construction of first and second floor at the
relevant time. However, from the height of G.I. Sheet walls and the
iron bims seen in the photographs, one can easily guess that the
construction of ground plus two storyed structure was to be erected.
The photograph dated 19.05.2019 further reveals that the construction
-- 8 of 13 --
NOTICE OF MOTION NO.2066/2019 ..9.. IN SUIT NO.1118/2019
of brick missionary walls of ground plus two storyed is existing.
Apparently it is a fresh construction. The photographs produced by
defendant with list Exh.4 are dated 18.09.2019. Those reveal that the
work much beyond the alleged work of plastering and painting is going
on in the suit premises. One of the photographs also reveal partially
exposed under construction fresh B. M. Wall. These photographs
clearly falsify plaintiff's stand that no new construction was being
carried out and the alleged tenantable repairs were going on. Yet again
plaintiff has not denied that the photographs are of the suit premises.
Similarly the photographs dated 10.01.2019 produced with the list
Exh.5 reveal still ongoing construction.
19. The photographs produced with list Exh.2, 4 and 5 thus
categorically reveal that on the date of impugned notice the
construction had begin and even after service of impugned notice to
stop work the plaintiff did not stop the work but has carried it on
further. It is apparently still going on. The construction does not mean
the construction of walls only. In order to complete a construction the
internal work of a building also must be completed. Thus, the
photographs dated 18.09.2019 reveal that the construction is not yet
complete and still is on going.
20. The assessment record produced by defendant with list Exh.6
further reveal that an AC shed was assessed on 01.04.1979 of which
ratable value was shown 1860. Same ratable value is considered even
for the year 20092010. Thus, till the year 2010 there was no structure
of ground plus two storyed existed. In such circumstances the copy of
notice issued under Section 354 can not be relied upon.
-- 9 of 13 --
NOTICE OF MOTION NO.2066/2019 ..10.. IN SUIT NO.1118/2019
21. Here it needs specific mention that the plaintiff has produced
a photocopy of notice and did not say anything about the original. It is
only when the defendant has objected said document and this Court
inquired whether plaintiff has the original, on instructions from the
plaintiff, his Advocate has submitted that plaintiff does not possess
original notice under Section 354. Considering this circumstance and
the plaintiff's conduct throughout, it is difficult to believe such
document. In the light of these circumstances and photographs
produced by the defendant on record, the photographs relied upon by
the plaintiff, submitted alongwith rejoinder, also do not inspire
confidence. The circumstances, thus, reveal the plaintiff has come with
a false version before this court. The construction of ground plus two
storyed structure is not an old construction. On the date of impugned
notice the construction of walls was at the initial stage and despite
service of impugned notice the plaintiff has carried on construction.
Thus, the plaintiff has failed to comply with the stop work notice i.e.
impugned notice.
22. In Muni SuvratSwami Jain S.M.P. Singh V/s. Arun
Nathuram Gaikwad and Ors., the facts before the Hon'ble Supreme
Court were that, after service of a notice to stop the work under Section
354A of the M.M.C. Act, no work was admittedly carried out. In such
circumstances the Hon'ble Supreme Court has held that the provisions
of Section 354A have nothing to do with the question of demolition
and the recourse to Section 351 can be taken.
23. In this case the circumstances are different. The plaintiff has
come with a false version that the construction was not going on. The
circumstances also reveal that the plaintiff did not stop ongoing work
-- 10 of 13 --
NOTICE OF MOTION NO.2066/2019 ..11.. IN SUIT NO.1118/2019
despite service of the stop work notice. Thus, the conditions to invoke
the powers of demolition under Section 354A (2) of the M.M.C. Act do
exist in this case. Consequently, with respect, I hold that the authority
cited supra is not attracted in this case.
24. Similarly the circular relied upon by the plaintiff also will not
help him since construction is not yet complete.
25. In the case of Mohammed Imran Gulam Mohd. Gujarati &
Anr. V/s. The Municipal Corporation of Greater Mumbai, dated
18.09.2019 in A.O. No. 25660/2019 and Tushar Guru Salien V/s.
State of Maharashtra and Others, dated 28.08.2019 in PIL No.
67/2017, the Hon'ble Bombay High Court has held that the plaint must
make an averment of the sanction obtained from the Corporation and
must make an averment that the structure targeted is primafacie
governed by the sanction. Merely pointing out deficiencies in the notice
or the authority of the person issuing the notice is neither here nor
there. Thus, the sine qua non of such kinds of suits is a positive
assertion made with reference to the sanctioned building plan.
26. In this case the perusal of plan clearly reveals that, there is no
such pleading that the notice structure is constructed or is being
constructed by the plaintiff on the basis of a sanctioned plan or
construction permission. In view of this, the plaintiffs claim primafacie
is not acceptable. In the result, I hold that the plaintiff has failed to
make out a primafacie case. While seeking discretionary and equitable
relief of injunction, the plaintiff has tried to suppress the material facts
from the Court and thus has made an attempt to play fraud upon the
Court. Such persons can not be given any assistant by the Court.
-- 11 of 13 --
NOTICE OF MOTION NO.2066/2019 ..12.. IN SUIT NO.1118/2019
Consequently, I answer point No. 1 in the negative.
27. Considering circumstances of this case I hold that balance of
convenience does not lie in favour of plaintiff. He has failed to make
out case of irreparable loss. Hence, I answer points No. 2 and 3 also in
the negative and in response to point No. 4 pass following order:
ORDER
Notice of Motion No. 2066 of 2019 is dismissed with costs.
(A. N. MARE)
Judge,
Date : 15.10.2019 City Civil Court, Mumbai.
Dictated On : 15.10.2019
Transcribed on : 15.10.2019 & 16.10.2019
HHJ Signed on : 16.10.2019
-- 12 of 13 --
NOTICE OF MOTION NO.2066/2019 ..13.. IN SUIT NO.1118/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
17.10.2019 4.33 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 15.10.2019
Order signed by P.O. on 16.10.2019
Order uploaded on 17.10.2019
-- 13 of 13 --