Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.2134-2019 in L.C. SUIT 1468-2019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.2134 OF 2019
in
L.C. SUIT NO. 1468 OF 2019
Ikhlak Mohammed Shaikh ]...Plaintiff.
Versus
MCGM ]..Defendants.
Appearance:
Ld Advocate Diamondwala for the plaintiff.
Ld Advocate Rawde for defendants (MCGM).
CORAM : S.C. Pathare, Judge
(Court Room no.5)
DATED : 22nd March, 2021.
ORAL ORDER
1) Plaintiff took out this notice of motion against defendants
for temporary injunction. Plaintiff placed on the record NM
affidavit/additional affidavit. Defendant submitted reply affidavit &
strongly opposed NM.
2) I have heard arguments advanced by the Ld Counsels of the
parties. Ld Counsel of plaintiff argued that defendants be restrained
from implementing, enforcing, executing the notice dtd. 27/6/2018
issued by defendant to plaintiff till pendency of this suit. On the other
hand, Advocate of defendants opposed said relief.
3) The schedule of the notice is as follows:- “unauthorized
vertical extension of structure on 3rd floor room no.16 by changing to
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flat roof from slope roof with ladi coba slab and brick masonry adm
7.9M X 4.9M with ht 3m without permission of competent authority”.
4) Plaintiff relied on the following documents:-
1 Exh.A- copy of the letter addressed by the
defendant No.2 to the complainants.
27/11/2001
2 Exh.B- copy of a letter addressed by
defendant No.2 to the plaintiff.
3/1/2018
3 Exh.C- copy of a notice u/s.351 issued by
the defendant No.2.
27/6/2018
4 Exh.D- copy of a letter addressed by the
plaintiff’s advocate to the defendant No.2.
7/7/2018
5 Exh.E- copy of the order passed by the
Hon’ble Supreme Court of India.
30/11/1992
6 Exh.F- copy of the order passed by the
defendant No.2.
19/7/2018.
7 Exh.G- copy of a letter addressed by the
plaintiff’s advocate to the defendant No.2.
30/7/2018.
8 Exh.H – copy of the screenshot of
application made to the defendant No.1.
30/7/2018.
9 Exh.I – copy of the letter addressed by the
plaintiff to the defendant No.2.
4/8/2018.
10 Exh.J - copy of the order passed by the
defendant No.2.
29/11/2018.
11 Exh.K - copy of the order passed by the
defendant No.2.
14/3/2019.
12 Exh.L – copy of the application made by
the plaintiff to the defendant No.2.
25/3/2019.
13 Exh.M – copy of the notification
introducing Sec.52A to the MRTP Act.
15/4/2017.
14 Exh. N – copy of notification framing the
rules being Maharashtra Town Planning
(compounded structures) Rules, 2017.
7/10/2017.
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5) Plaintiff is a tenant in respect of room No.16 situated on
the 3rd floor of the said building. Said premises stands in the name of
grandfather of plaintiff. The landlord of the same is Sir Mohammed
Yusuf Charitable Trust. Plaintiff party is tenant since prior to 1965.
6) The roof of the tenanted premises was slope roof made up
of teackwood & mangalore tiles. Building was very old. In order to
avoid any accident etc it was necessary to repair said roof. Plaintiff due
to financial problem etc got repaired said roof by replacing the same
with ladi coba & made said roof flat, in the year 2000-2001.
7) According to plaintiff in the year 2001 one Mr. Zahir Shaikh
& Mr. Rashid made complaint dtd. 28/9/2001 to MCGM in respect of
notice structure, falsely.
8) Ld Advocate of plaintiff argued that said notice structure is
not unauthorized & furthermore according to him he has taken efforts
to get said notice structure regularized from MCGM. He prayed
protection of said structure. On the other hand, Ld advocate of MCGM
argued that notice structure was not existing prior to the datum line &
the same is not authorized by the competent authority of MCGM, hence
he prayed to deny protection to said structure.
9) Plaintiff produced letter dtd. 27/11/2001 which is
addressed by MCGM to the complainant of the said structure. Plaintiff
produced letter dtd. 3/1/2018 addressed by MCGM to plaintiff u/s.488
of the Act. Admittedly, said letters are not the documents of sanction of
notice structure.
10) Plaintiff produced copy of show cause notice issued u/s.351
of the Act dtd. 27/6/2018. Plaintiff also produced
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reply/documents/correspondence made with MCGM subsequent to the
show cause notice. Plaintiff also produced speaking/final orders passed
by officer of MCGM dtd. 19/7/2018, 29/11/2018 & 14/3/2019. Perusal
of the same shows that MCGM followed the procedure & after accepting
reply/documents finally passed speaking order against said notice
structure.
11) On behalf of plaintiff Ld counsel invited my attention on
pg. No.32 of the suit. It is regarding draft application dtd.23/7/2018.
He has also produced copy of regularization application dtd.30/7/2018.
Advocate of plaintiff argued that plaintiff is trying to fill up said online
application for regularization, but those are not being accepted from the
side of MCGM online. Thus, it is crystal clear that after the datum line
plaintiff party has carried out unauthorized vertical extension of
structure by changing to flat roof from slope roof with ladi coba slab &
brick masonary without permission of the competent authority.
12) Perusal of the pleadings it shows that plaintiff is admitting
that notice structure came to be effected after the datum line & without
obtaining prior permission of the competent authority. Plaintiff has
produced photographs in that regard. Perusal of the same it shows that
in the said vicinity there are roofs having tiles etc. On the other hand
plaintiff has changed said slope as mentioned in the notice structure.
13) The Ld Advocate of plaintiff produced at pg. No.40 of the
plaint notification of Maharashtra Government dtd.15/4/2017
regarding introduction of Sec.52A in MRTP Act. He has also produced
notification dtd. 7/10/2017 at pg No.43 of the suit regarding
publication of rules regarding Sec.52A. Perusal of the suit & documents
available on the record it shows that MCGM has not taken action
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against plaintiff under provisions of the MRTP Act, per contra action
against plaintiff is taken by invoking Sec.351 of the MMC Act. Apart
from that from record it appears that plaintiff has made permanent
changes in the roof & plaintiff could not show that whether such serious
changes to the roof can be regularized. However, when application of
regularization is filed by plaintiff before MCGM then said authority is
expected to deal with said application/proposal as per law. However,
due to pendency of said application before said authority this court can
not wait till decision on that application by MCGM. The MCGM is free
to decide said application/proposal on its own merits.
14) Ld Advocate of plaintiff at pg.No.28 of the plaint placed on
the record copy of judgment passed by the Hon’ble Supreme Court in
the case of
Syed Muzaffar Ali vs. Municipal corporation of Delhi
dtd.30/11/1992 in SLP (C) No. 1411/1992. In the said ruling it is held
that there are cases of unauthorized constructions. Some are amenable
to compounding & some may not be. It is crystal clear that said case law
is not developed under the MMC Act. However, in view of said case law
it would be just & proper to direct MCGM to decide
application/proposal of plaintiff on its own merits. In this regard I have
to humbly submit that in subsequent various rulings Hon’ble Supreme
Court & Hon’ble High Court held that when notice structure is
unauthorized/unsafe then trial court should not give injunction in
favour of the plaintiff, this vital aspect cannot be ignored. Furthermore,
in the above ruling Hon’ble Supreme Court has not directed trial courts
to grant injunction in “all” such matters of unauthorized constructions.
Hence, in my humble view due to different facts & circumstances
present plaintiff is not entitled to injunction from this court.
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15) If said unauthorized structure is not removed, then, the
same may in future invite any untoward incident/accident, this aspect
also cannot be casually ignored, by this court.
16) Vide Sec. 56 & 57 of the Evidence Act regarding said
unauthorized construction, it is necessary to consider the law laid
down by the Hon'ble High Court Bombay in the case of
Tushar Salian
V/s. State of Maharashtra PIL No.67/2017 (DB) judgment dated
28/08/2019 and further judgment passed in the same case by the
Hon'ble High Court dated 23/09/2019. The Hon'ble High Court held
that (i) when the property is governed under Municipal Statute the
interest protected has to be with respect to plea that prima facie the
structure being targeted is unauthorized structure (ii) the plaint must
make averment of sanction obtained from corporation and must make
the averment with the structure targeted is prima facie governed by
sanction (iii) merely pointing out deficiencies in the notice or the
authority of a person issuing the notice is neither here nor there (iv)
thus, sine quo non of such suits is positive assertion made with
reference to the sanction of building plans. If any plan is produced then
the same “must have endorsement of approval” of the corporation.
Plaintiff must produce such permission or the approved plan in support
of the suit.
17) Apart from that in the case of
Sopan Thopte V/s. PMC AIR
1996 (H.C.Bom) 34 and in the case of MCGM V/s. Sunbeam
Hightech Developers Pvt. Ltd. 2019 SCC Online 1389 (SC), General
guidelines are provided. It is held that the injunctions cannot be granted
casually in such suits. Intentional or unintentional lapses, which do not
affect the substantive rights ought not to result in protection of
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unauthorized construction. More particularly, in the case of Sunbeam in
para No.2 Hon’ble Apex Court held that, “rule of Law also envisages
that illegal constructions which are constructed in violation of law must
be demolished and there can be no sympathy towards those who violate
law. It is further observed that, “the courts must not be hidebound by
old decisions and law must develop in accordance with changing times”.
18) Furthermore, in the case of
Mrs. Paramjit Kaur Bansal vs.
MCGM W.P. No.1828/19 dtd. 7/1/2020, the Hon’ble High Court
Bombay held that while granting stay to such structure trial court has to
find out the permission/sanction in that regard and to examine a prima
facie case. Thus, in the present matter these guidelines are also
appearing against plaintiff.
19) I am further inclined to take guidance from the case of
Shantilal Chhogalalji Doshi Versus M.C.G.M. (Appeal From Order No.
8/2021 dated 3/2/2021) wherein Honourable High Court observed
that, “
No sympathy can be shown to an unauthorized structure as by
showing the same, would tantamount to perpetuating illegality, which
may cause danger to the lives of adjacent dwellers”. Therefore, I am not
inclined to protect the said unauthorized structure.
20) In view of above thorough discussion in my humble view
plaintiff is not having a prima facie case or balance of convenience in
his favour. Further, if Notice of Motion is rejected in that event plaintiff
will not suffer any irreparable loss which cannot be compensated in
terms of money.
21) Considering peculiar facts, circumstances & documents etc,
I proceed to pass the following order in the interest of justice:
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ORDER
1) NM No. 2134/19 stands dismissed with
costs.
2) If regularization application/proposal is
already served to MCGM then the MCGM
shall decide the same according to
provisions of law, as early as possible.
3) If regularization proposal is not served on
MCGM till today then plaintiff shall serve
the same to MCGM within 4 weeks from
today & thereafter, MCGM will consider
the same as per law, as early as possible.
4) Authenticated copy of this roznama be
given to parties, if requested.
Date:22/03/2021. (S.C. Pathare)
Ad-hoc Judge
City Civil Court
Dictated & directly typed on dais computer : 22/03/2021.
Checked by PO : 22/03/2021.
Signed by HHJ on : 22/03/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26/03/2021. Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI S.C. Pathare (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
22/03/2021.
JUDGMENT/ORDER signed by P.O.
on
22/03/2021.
JUDGMENT/ORDER uploaded on 26/03/2021.
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