Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.2151/2019
in S.C. Suit No.846/2016
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.2151 of 2019
(CNR NO. MH CC010059932019)
In
L.C. SUIT No.846 OF 2016
Gopal Deoppa Shetty & Ors. ….Plaintiff
V/s.
Municipal Corporation for Greater Bombay & Ors. ....Defendants
Appearance:
Mr. Gautam Kanchanpurkar, Advocate for the plaintiff.
Mr. Mahesh Vishwakarma a/w Mrs. Chandramore, Advocate
for defendant Nos.1 to 3.
Mrs. Subhedar, Advocate for defendant No.4
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 17 th January, 2020.
ORDER
1. By this notice of motion, plaintiffs have prayed for
restraining defendants, their servants, agents or any other persons
claiming through them from interfering, altering, removing or
demolishing the suit property i.e. Shop Nos.4 and 5 situated at Station
Road, Near Vikhroli Station Road, Vikhroli (E), Mumbai.
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2. In support of notice of motion, the plaintiffs have filed
affidavit and has relied on the contentions raised in the plaint. It is
further averred that if the reliefs as prayed in the notice of motion are
not granted, plaintiffs will suffer grave, harm, loss, injury and prejudice
which cannot be compensated in terms of money.
3. In affidavit in reply, it is submitted by defendant Nos.1 to 3
that the plaintiffs have not given statutory notice to the defendants
before filing the suit as required under section 527 of Mumbai Municipal
Corporation Act (MMC Act). The suit notices are executive or
administrative acts or orders and the same are not open to challenge in a
Court of Law. The plaint does not disclose the cause of action against the
defendants and therefore the suit is not maintainable.
4. It is further averred that the sanctioned revised development
plan of “S” Ward, the land bearing survey No.89 of Village Vikhroli (E),
and survey NO.271, 271/7, 271/8, 271/10, 271/11, 271/12, 271/13,
271/14 of Village Hariyali, Mumbai is partly reserved for 15.25 mt.
Railway reservation and partly for 18.30 mts. wide D.P. road. The
demarcation of alignment of 18.30 mts. wide D.P. road and boundaries
of Central Railway Reservation were demarcated by Central Railway
Department, at that time 18.30 mts. D.P. road parallel to Railway line
was not developed and the land under Railway reservation was being
used as an access by the residents of existing building situated on the
land of Municipal Corporation of Gr. Mumbai (MCGM) though the land
under Railway reservation has been already acquired by Railway
Authority. The officer of defendants had visited the suit premises when it
was observed that there are some residential/commercial structure
situated within alignment of 18.30 mts. wide D.P. road. The defendants
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issued notice dated 22.03.2010 under No. ACS/OD/6147/AEMS to
plaintiff Mr. Gopal Shetty. It was informed in the said notice that the
defendants have proposed to widen 60' D.P. road. It was also informed
that the structure i.e. Neeraj Country Bar, Vikhroli (E), Near Railway
Station was affected in the proposed 60' wide D.P. road. The plaintiff
was informed that if he was in possession of any legal documentary
evidence in respect of suit structure, the same be submitted within seven
days from the date of receipt of notice. The notice was duly served upon
plaintiff on 22.03.2010 which was replied by plaintiff by letter dated
29.03.2010. After perusing the documents provided by the plaintiff, The
Assistant Commissioner “S” Ward came to the conclusion that those were
in respect of the suit structure after 01.01.1995. Therefore, he passed
reasoned order dated 06.08.2013 under No. ACS/0753/AEMS/OD in
respect of suit structure. By the said order, the plaintiff was directed to
demolish the suit structure failing which the defendants will demolish
the notice structure.
5. It is further averred that the defendants had received the list
of rehabilitated project affected persons from M.M.R.D.A showing the
name of plaintiff at structure identification number 805 in survey plan,
which shows that the plaintiff had been given alternate premises by
M.M.R.D.A. and therefore the claim of plaintiff is not maintainable.
6. It is further averred that as per the direction given by
Hon'ble High Court in Writ Petition No.2133/2013, the defendants have
given personal hearing to the plaintiff. On 06.11.2015, the plaintiff and
his Advocate were present for personal hearing along with the
documents. Considering the documents submitted by plaintiff, the
Assistant Commissioner “S” Ward came to the conclusion that M.M.R.D.A
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had given alternate accommodation to the affected persons as well as to
the plaintiff for structure No.805. Therefore, the order of Assistant
Commissioner dated 23.11.2015 is legal, proper and binding upon the
plaintiff. The plaintiff has suppressed all these facts of having received
alternate accommodation from M.M.R.D.A in lieu of his affected
structure in Railway line. After receiving the alternate accommodation,
the plaintiff without prior permission of defendants erected a structure
on 60' wide D.P. road and thus he is not entitled for another alternate
accommodation.
7. It is averred by defendants that the letter produced by
plaintiff bearing No. ACS/29161/B&F dated 10.02.2009 issued by
Assistant Engineer (B&F) “S” Ward does not disclose any authority on the
suit structure. By the said letter, it is intimated to the Collector that the
defendants have reserved the right to take action about unauthorized
construction in future. Therefore, the said letter is not authentic
document showing that the structure is authorized. For all these reasons,
it is prayed that the notice of motion may kindly be dismissed with cost.
8. Defendant No. 4 has not filed any reply to the notice of
motion.
9. Following points arise for consideration. Findings against
each of them along with reasons are stated as below.
SR. NOS. POINTS FINDINGS
1. Whether the plaintiff has
established prima facie case ?
In Affirmative
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2. Whether balance of convenience
tilt in favour of plaintiff ?
In Negative
3. Who would suffer irreparable loss
if relief of injunction is granted ?
In Negative
4. What Order ? As per final order
REASONS
As to point No.1 to 3 jointly:
10. Learned Advocate for plaintiffs submitted that the reply of
defendant Nos. 1 to 3 is identical to the reply filed in Writ Petition.
Except affidavit in reply, the defendants have not tendered any document
on record in support of their contention. Corporation has not taken any
action/notice against the plaintiffs but has collected the Tax on the suit
structure. The copies of the same are filed on record. It has not been
shown on behalf of defendants that the suit structure was erected on a
specific date. Plaintiff has received alternate accommodation for another
premises and not for suit structure. It is further submitted that the copy
of letter issued by Assistant Engineer to the Collector, Excise Department
reflects that till 10.02.2009 Corporation has not issued any notice to the
plaintiff for erection of suit structure. The copies of Bills cum Receipts of
property Taxes filed at page Nos.31 to 44 of the plaint reflects that those
were issued in respect of Shop No.4 and 5 i.e. suit structure. The recitals
of the same further reflects that the plaintiffs are paying the taxes of suit
structure since 19581959. It is further vehemently submitted by learned
Advocate for plaintiff that since the suit structure was not affected, it was
not shown in the list. For all these reasons, it is prayed that the notice of
motion may kindly be made absolute.
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11. Learned Advocate of defendant Nos. 1 to 3 strenuously
submitted that in the maps prepared by M.M.R.D.A/Railway, suit
structure is not shown. No structure is shown behind identification
No.805. Plaintiff is claiming that portion on the basis of Notification
issued in 2015. The list prepared on 22.05.2006, reflects that the names
of plaintiff and their family members are recorded against identification
Nos.805, 808, 809, 999, 1000 and 1001. Tea and Cold Drinks House
was the activity carried out in identification No.805. Since, the plaintiffs
are disputing the order of Competent Authority, this Court has no
jurisdiction to entertain and try the present suit. For all these reasons, it
is prayed that the notice of motion may kindly be dismissed with cost.
12. By way of present suit, the plaintiff has challenged the notice
cum order dated 23.11.2015 issued by defendant No.3 as illegal, null and
void and not binding on plaintiffs. In view of order in chamber summons
No.906/2019 the suit is amended in respect of the prayer of alternate
accommodation in lieu of suit premises. According to plaintiffs they are
owners of structure bearing Shop No.4 and 5 situated at Station Road,
Near Vikhroli, Railway Station, Vikhroli (E), Mumbai. They have been
carrying on their business in the structures since 19581959. Initially,
the plaintiffs were carrying on their business of selling Tea and Cold
Drinks in the suit property. After some time they started Mess in the suit
property and thereafter started the business of selling liquor. They have
relied on the copy of license issued by defendant No.1. The recitals of
the same reflects that the liquor business was given license on
07.02.2005. The plaintiffs have further relied on the copies of Bills cum
Receipt towards the payment of Taxes made by them. Bill of Tax for the
property S1400 (2K) reflects that it is Shop No.4 situated opposite
Vikhroli Railway crossing whereas the bill of Tax for the property S
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1400 2L reflects that it is shop NO.5 situated opposite Vikhroli Railway
Crossing. Both the bills were issued in the year 1994. The plaintiffs have
further relied on the notice dated 20.09.1975 issued by defendant No.1
under Section 351 of Bombay Municipal Corporation Act, 1949. The said
notice was replied by the plaintiff on 24.09.1975. In the year 1993
1994, the defendant No.2 had issued notice to plaintiffs under Section
167 of BMC Act informing that the Corporation was inserting the name
of plaintiff No. 1 on structure S1400(2H),Station Road,at the rateable
value from 1.4.1993. The copy of the said notice is filed on record. On
04.12.2001, the additional Tahasildar (NA), KurlaMulund issued notice
to the plaintiffs directing them to pay Annual NA Assessment since the
plaintiffs were using the said structure. It was directed to the plaintiffs to
pay Annual NA assessment from 31.07.1971 to 31.07.2002. The recitals
of the said notice reflects that the plaintiffs are carrying on their business
in the suit structure since 1981. The period of annual NA assessment is
shown from 01.08.1981 to 31.07.2002 in the said letter.
The copy of license for Neeraj Country Liquor Bar reflects
that it was issued on 20.10.2009. In this respect learned Advocate for
defendant Nos. 1 to 3 submitted that the said copy itself shows that the
plaintiffs are carrying liquor business in the suit structure since 2009.
Therefore, the plaintiffs are not entitled for protection of the suit
structure. However, considering the bills of tax and the letter issued by
Additional Tahsildar, it has prima facie come on record that the suit
structure is in existence since 1981. The copy of bill cum receipt
No.42739 and No. 126 shows that those are issued for the period
1/04/1958 to 30/09/1958 and 1/10/1958 to 31/01/1958 for structure
No. N1401 IB, Harali, East of Railway Shed,M/s Godrej Boyce Mfg Co.
Ltd. The defendants have not shown any document those receipts were
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issued for any other structures.
13. According to plaintiffs on 23.07.2009, in L.C. Suit
No.1858/2008 it was directed for the development of the proposed
widening of 18.30 mts. Road near platform No.5 and 6. Pursuant to the
said order, the defendant No.3 issued notice dated 22.03.2010 calling
upon the plaintiff to submit their proof showing the existence of suit
structure prior to 01.01.1995. Accordingly, the plaintiffs submitted
relevant documents. However, the said documents were not considered
by defendant Nos 1 to 3 and without giving any opportunity of hearing of
plaintiffs. On 07.08.2013, by issuing notice, the claim of plaintiffs for
alternate accommodation was rejected by defendant No.3 holding that
the suit structure was not found in existence prior to 01.01.1995.
Against the said notice dated 07.08.2013, the plaintiffs have filed Writ
Petition (L) 2133/2013, wherein the defendants were directed not to
take coercive action against the suit structure. In this respect, learned
Advocate for defendant Nos. 1 to 3 has placed reliance on the copy of
MAP prepared on 20.12.2005 by Assistant Executive Engineer which is
Lane Table survey at Hariyali VillageI, Vikhroli (E), Central Railway,
PhaseII, MAP No.8. It is pointed out by learned Advocate for defendant
Nos. 1 to 3 that in the said MAP behind structure No.805 there is no
existence of any other structure which is evident to show that suit
structure was not in existence on 20.12.2005. I am not swayed away by
the said submission as it has been already observed above that the suit
structure is in existence since 1981.
14. It is the contention of plaintiffs that the structure bearing
No.805 styled as Maya PanBidi Shop was affected by 5 th and 6th Railway
line between Kurla and Thane which was undertaken by MUTP.
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Defendant No.4/MMRDA had provided the plaintiffs alternate structure
bearing No.4 B12 at Kanjur Marg (E), in lieu of structure No.805. On
the other hand, it is the contention of defendant Nos. 1 to 3 that after
providing alternate structure to the plaintiffs, they encroached on the
land owned by Corporation and erected suit structure in 2009. The list
of eligibility in lieu of structures affected by the project of 5th and 6th
Railway Line between Kurla and Thane is filed on record wherein the
names of plaintiffs and their family members are shown against the
structure Nos. 805, 808, 809, 810, 811,939, 1000, 1001 as eligible for
getting alternate accommodation.
Learned advocate for defendant Nos. 1 to 3 submitted that
against structure No. 805 the nature of activity is shown as Tea and Cold
Drink House admeasuring 37.67 sq.mts. and for the Panbidi Shop in
structure No.810 Naina Shetty has been held eligible for alternate
accommodation. Therefore, according to learned Advocate for defendant
Nos. 1 to 3 when already alternate accommodation have been allotted to
the plaintiffs in lieu of structure No.805, they are not entitled for
alternate accommodation in lieu of suit structure. However, the
defendants have not produced on record any documents against the bill
cum receipt for structure No.14011 B which is assessed from 01.04.1958
to 30.09.1958. Further more, structure No.S1400 (2K) and S1400
(2L) are referred as Shop Nos. 4 and 5 respectively in the year 199495
by defendant No.1. There is no explanation by the defendants in respect
of the said documents which are tendered by plaintiffs.
15. Plaintiffs have filed the letter dated 17.01.2009 issued by
District Collector, Mumbai, Suburb (State Excise Duty Department) to
defendant No.3 regarding the legality of suit structure and requested to
submit the report. The copy of report dated 10.02.2009 prepared by
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defendant No.3 is also filed on record which is evident to show that there
is no other action pending in respect of the suit structure on the basis of
the documents available with the concerned department. Copies of
receipts showing the payment of Taxes made by plaintiff are also filed on
record. All these documents relied upon by plaintiffs prima facie shows
that the suit structure is in existence since 195859.
16. In Dalpat Kumar And Anr. v/s Prahlad Singh And Ors
reported in AIR 1993 SC 276 it has been observed that the existence of
the prima facie right and infraction of the enjoyment of plaintiff's
property or the right is a condition for the grant of temporary injunction.
Prima facie case is not to be confused with prima facie title which has to
be established, on evidence at the trial. Only prima facie case is a
substantial question raised, bona fide, which needs investigation and a
decision on merits. Satisfaction that there is a prima facie case by itself is
not sufficient to grant injunction. The Court further has to satisfy that
noninterference by the Court would result in “irreparable injury” to the
party seeking relief and that there is no other remedy available to the
party except one to grant injunction and he needs protection from the
consequences of apprehended injury or dispossession. Irreparable injury,
however, does not mean that there must be no physical possibility of
repairing the injury, but means only that the injury must be a material
one, namely one that cannot be adequately compensated by way of
damages. The third condition also is that “the balance of convenience”
must be in favour of granting injunction. The Court while granting or
refusing to grant injunction should exercise sound judicial discretion to
find the amount of substantial mischief or injury which is likely to be
caused to the parties, if the injunction is refused and compare it with that
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which is likely to be caused to the other side if the injunction is granted.
Thus the Court has to exercise its sound judicial discretion in granting or
refusing the relief of ad interim injunction pending the suit.
17. The copy of order in Writ Petition No.1674/2013 to
1680/2013 dated 15.04.2019 is filed on record. The present plaintiffs
are the petitioners in WP (L) No. 1677/2013 wherein, it is observed in
para No.4 by Hon'ble High Court that on the instructions taken by
Advocate of Petitioner, it was informed that each of the said applicants
will vacate and move away from the premises or areas which are
demarcated for road widening within 4 weeks. It is not shown whether
the said order was passed in respect of suit structures or for any other
structures. It is not in dispute that the sanctioned revised Development
Plan of “S” Ward, land baring survey No.89 of Village, Vikhroli (E) and
survey No.271, 271/7, 271/8, 271/10, 271/11, 271/12, 271/13 and
271/14 is partly reserved for 15.25 mts. Railway Reservation and partly
for 18.30 mts. wide D.P. Road. The suit structure is affected in the
proposed 60' wide D.P. road. It being public amenity requires to be
provided for the benefit of public at large. The claim of plaintiffs for
alternate accommodation can be decided after considering evidence
adduced by both the parties. Therefore, though prima facie case is in
favour of plaintiffs considering the documents on record,balance of
convenience tilts in favour of defendants and it will be the defendants
who would suffer irreparable loss if the project of widening the road is
not completed which will be for the benefit of public at large. Public
project can not be withheld for protection of one or two structures on the
land when the claim of plaintiff can be decided on merit. Accordingly,
point No.1 is answered in affirmative and point Nos. 2 and 3 are
answered in negative.
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18. Learned Advocate for defendant Nos.1 to 3 has cited the
Judgment in the matter of Yogesh Megaji Gada and Ors. V/s. The
Municipal Corporation of Grater Mumbai & Ors. in
MANU/MH/0465/2014, decided on 10.04.2014.
It has been observed by Hon'ble Bombay High Court that :
“ Whether petition was maintainable against order passed under
Sections 351 and 354 A of Act ? As per provisions of Act, if
designated officer is satisfied that erection of any building is
unlawfully carried on, he may issue order to stop such work. If
person to whom such notice is issued does not produce requisite
permission, designated officer can then take necessary steps to stop
work. In present case, actions had been taken under Sections of
Act. Generally parties resorted to remedy of civil suits to challenge
orders issued pursuant to these two Sections. However, Petitioner
filed petition against order on premise that suit was not
maintainable. Respondent submitted that petitioner could not
directly approach Court on presumption against order. Submission
of Respondent was right and petition could not be entertained
merely because of perception of petitioner that suit could not be
filed. Therefore, petition was not maintainable and petitioners
were directed to file civil suit. Petition dismissed.”
In that case, some of Writ Petitions were filed for
challenging notices issued under Section 351 of MMC Act, 1988 and in
some of the Writ Petitions the notices issued under Section 354 were
challenged and it was held that even if jurisdiction of the Civil Court has
been excluded by Section 515A, it is still open if the petitioners shows
that there is jurisdictional error on the part of the Authority. The scope
to challenge the order has been narrated down to this effect. In the
present case also plaintiffs have challenged the notice cum order dated
23.11.2015 issued by the Corporation and therefore it is open to them to
show that there is jurisdictional error on the part of Corporation.
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Therefore, the observations cited in the Judgment are in favour of
plaintiffs.
19. Learned Advocate for plaintiff has cited the Judgment in the
matter of Qari Mohammed Zakir Hussain & Ors. V/s. Municipal
Corporation of Greater Mumbai & Ors. In 2002 (2) Bom. C.R.98.
It has been observed by Hon'ble Court that :
“ It is well settled that exclusion of the jurisdiction of the Civil
Court is not to be readily inferred but such exclusion must either be
explicitly expressed or clearly implied. It is well settled that even if
the jurisdiction it so excluded the Civil Courts have jurisdiction is
examine into the issues where the provisions of the Act have not
been complied with, or statutory Tribunal has not acted in
conformity with the fundamental judicial procedure. On the other
hand, a suit in Civil Court can always be maintained to question
the order of a Tribunal created by a statute, even if its order is,
expressly or by necessary implication, made final, if the said
Tribunal abuses its power or does not act under the Act but in
violation of its provisions. In other words, if the suit proceeds on
the premises that the offending act has been done not in good faith,
then there is no bar for such a suit. ”
In that case, the question for consideration was that whether
the trial court was justified in returning the plaint as presented by the
plaintiffs on the ground that the same was barred by Section42 of the
Maharashtra Slum Areas (Improvement, Clearance and Redevelopment )
Act, 1971. Therefore, with due respect of the observations laid down
above being not identical with the present set of facts is not applicable.
20. Learned Advocate for plaintiff has further cited the
Judgment in the matter of Abdul Karim Ahmed Mansoori V/s. The
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Municipal Corporation of Grater Mumbai & Anr. in 2013 (6) ALL MR
233.
It has been observed by Hon'ble Bombay High Court that :
“ In every individual case depending upon the pleadings, the issue
of jurisdiction would have to be decided by the Civil Court. The
applicability of Section 515 A and the issue of jurisdiction must be,
therefore, gone into, dealt with and decided in each case depending
on the pleas raised by parties. The law is well settled in as much as
the learned Judge will have to decide the issue of jurisdiction by
considering the averments in the plaint. If the averments in the
plaint do not made out any case which would enable the Court to
apply the legal principles set out above, he would then apply the
provision in question, namely, Section 515 A and return an
appropriate finding on the point of jurisdiction depending on the
materials placed before him. It is not as if the bar should be
ignored or should not be taken note of. The Civil Court is obliged
to take note of the provision and the statutory bar whenever that
plea is raised by the Corporation before it.”
In this case, the Petitioner had challenged the notice issued by the
Municipal Corporation under section 354A of the Act by way of a civil
suit. An objection regarding the bar section 515A was raised and ad
interim relief was refused by the civil court. An appeal from order was
filed, which was withdrawn and thereafter, the writ petition came to be
filed. The Hon'ble Division bench considered the legal position as
regards the bar to civil suits in respect of the section 515A of the Act. It
is further observed in para No. 11 that “Needless to clarify that only for
the purposes of enabling the petitioner to apply for interim relief,that
we have clarified the above position of law.” In the present case, the
plaintiff's have challenged the legality of the order dated 23/11/2015
passed by defendant No. 3. Therefore,the contentions of plaintiff for
grant of interim relief can be considered.
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21. Learned Advocate for defendant Nos.1 to 3 has cited the
Judgment in the matter of Municipal Corporation of Greater Mumbai
Ors. V/s. Rafiqunnisa M. Khalifa (Deceased) Through his legal heir
Mr. Mohd. Muqueen Qureshi & Anr. in Civil Appeal Nos.17271732
of 2019 decided on 18/02/2019
It has been observed by Hon'ble Apex Court that :
“ Section 312 of the Act prohibits erecting of any structure or
fixture of any nature such as wall, fence, rail, post, step, booth
upon any street or over any open channel, drain, well or tank in
any street which causes obstruction or encroachment or projection
or to occupy portion of such street, channel, drain, well or tank as
the case may be. Only those structures/fixtures are saved from
Section 312 of the Act which are erected with the permission of the
Commissioner granted under Sections 310 and 317 of the Act. In
other words, Section 312 has no application to those
structures/fixtures which are erected by the person with the
permission of the Commissioner under Sections 310 and 317 of the
Act.”
In that case, final judgment was challenged and it was held
that action taken under Section 314 of M.M.C. Act,1888 was legal and
proper. Therefore, with due respect to the observations laid down
above,those are not applicable to the present set of facts.
As to point No.4
22. In view of forgoing discussion, as plaintiffs are not entitled
for the relief of temporary injunction, for the answer of point No.4, I pass
following order.
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ORDER
1) Notice of Motion No.2151/2019 is dismissed.
2) Notice of Motion No.2151/2109 stands disposed off accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 17/01/2020
Dictated on : 17.01.2020
Transcribed on : 18.01.2020
Signed on : 20.01.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
21.01.2020 01.05 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 17.01.2020
Order signed by P.O. on 20.01.2020
Order uploaded on 21.01.2020
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