Order 1

Order Details: Notice of Motion
Pdf Text: Draft Notice of motion 1 L.C.Suit No 1241 of 2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Draft Notice of Motion
In
L.C. Suit No. 1241 of 2018
Delux Polymer Pvt. Ltd ...Plaintiff
V/s
Designated Officer, Asst Engr.
( B & F) 'G.S.Ward, MCGM & Anr ... Defendants
Advocate Shri. P.D.Gandhi for the Plaintiff.
Advocate Shri Vyas a/w Mr. Kumawat adv for Defendant /BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 5th May 2018.
(Court Room No.06)
O R D E R
1. Plaintiff has taken out this draft notice of motion to
restrain the defendant corporation from demolishing the suit premises
i.e. Unit no. 8 (described as between Block no 19 and 22A in the
impugned notice) situate at Raghuvanshi Mills Compound, C.S.No.
107, Lower Parel, Mumbai 400 013, on the basis of notice dated
23/4/2018 and order dated 28/04/2018.
2 Case of plaintiff may be summarized as under:
The plaintiff is a company registered under the Companies
Act, 1956 and suit premises is owned and in possession of the plaintiff
under an agreement of the year 1997, Defendant no 2 is the Municipal
Corporation of Greater Mumbai. Defendant no 1 is the designated
officer of defendant no.2.
3 Plaintiff gives the suit premises on leave and licence basis.
One Little Naps, is the licensee under the agreement dated 20/4/2016.
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Draft Notice of motion 2 L.C.Suit No 1241 of 2018
Plaintiff has been carrying on business activities from the suit premises
by itself and/or through its licensees.
4 Initially defendant had given notice to the plaintiff U/s
354 A of the MMC Act. Plaintiff had filed L.C.Suit No 629 of 2013.
Thereafter, the officer of the defendant made statement before the
Court that defendant corporation will follow the due process of law and
accordingly the suit is disposed of.
5 However, plaintiff received a notice dated 23/04/2018 U/s
351 of MMC Act. In the said notice it is contended that plaintiff has
raised unauthorized construction of commercial show room on open
land admeasuring 20.16 meters x 5.38 meters and 11.59 meters x 1.62
meters and having height 5.76 meters with side brick masonry walls
and A.C. Sheet roofing. Immediately on receipt of the said notice
plaintiff gave reply through his advocate dated 25/04/2018 and placed
on record true and correct facts and documents to the defendant. Now,
plaintiff has received the order dated 28/04/2018 and defendant called
upon the plaintiff to remove the suit premises within stipulated time or
else defendants would carry out the demolition.
6 According to the plaintiff the impugned notice and order
are illegal and bad in law. There is total non application of mind.
Defendants have not supplied the important documents such as
sanctioned plan, inspection report, photographs etc. Sanctioned plain
is in the possession of the owners of the Raghuvanshi mills and MCGM
and no notice has been given to the owners of the said mills.
Defendants have not considered that the premises is existing as is
where is basis. Thus, plaintiff prayed to grant ad interim injunction in
terms of prayer clause (a) of the notice of motion.
7 Notice is served to defendant. Defendants filed affidavit in
reply to the notice of motion. Defendants denied that the suit structure
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Draft Notice of motion 3 L.C.Suit No 1241 of 2018
is unauthorized. Defendants denied that plaintiff is entitled for the
relief of adinterim injunction. According to defendant, the suit is not
maintainable for want of notice U/s 527 of the MMC Act. There is no
cause of action to the suit. Defendant corporation is the planning
authority and performing the duties and liabilities as per the MMC Act.
It was noticed that plaintiff was carrying out unauthorized work
therefore notice U/s 354 A of the MMC Act was given but plaintiff filed
suit bearing no. 629/2013 and obtained ad interim relief and in the
mean time completed the unauthorized construction. Therefore, the
officer of the defendant has given statement that defendant will follow
due process of law and the suit no. 629/2013 is disposed of.
8 According to defendant, on 23/04/2018, Shri Rohan
Kumavat, Junior Engineer G/south ward inspected the site and found
that plaintiff has raised unauthorized construction as mentioned in the
notice. Therefore, the notice U/s 351 of the MMC Act is given. Plaintiff
has given reply through his advocate. Plaintiff has also produced
documents but the officer of the defendant found that the entire
structure is unauthorized and he passed speaking order dated
28/4/2018. Thus, the notice structure is unauthorized.
9 Defendant further contended that there is no mention
about the notice structure in the Tikka sheet of the year 1969 and
1980 and also plan approved in the year 19751977. Thus, the plaintiff
is not entitled for ad interim relief as sought.
10 Defendants further contended that recently due to
irregularities and unauthorized construction, the incident of Kamla Mill
took place and 14 persons lost their lives as there was no way to rescue
because of unauthorized constructions and therefore defendants have
taken action against the unauthorized construction. Hence prayed to
refuse the ad interim relief.
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11 I have heard Shri P.D.Gandhi advocate for plaintiff and
Shri Vyas advocate for defendant corporation.
12 Shri P.D.Gandhi advocate for plaintiff has submitted that
plaintiff has acquired the suit premises as is where is basis.The
construction is authorized. After receipt of the notice plaintiff had
given detailed reply. Plaintiff has also demanded documents from the
defendant but defendant did not supply the documents to the plaintiff.
He further submitted that the documents might have with owners of
Raghuvanshi Mills or the defendant corporation. Suit premises is
assessed by the defendant. Plaintiff pays taxes. Plaintiff has taken
electricity connection in the suit premises. There are triable issues in
the suit. Further defendant has not given opportunity of hearing to the
plaintiff and the false notice is given. Therefore, he prayed to protect
the structure till the decision of suit on merit. In support of his
contention he relied on:
1 Mrs. Lilly P. Pandit V/s Mumbai Municipal
Corporation of Greater Mumbai, writ petition no 88 of
2014
2 Uma Nath Pandey and Ors V/s State of U.P and Anr
reported in Criminal Appeal No 471 of 2009
3 Gopal Krishnaji Ketkar V/s Mohamed Haji Latif and
Others, reported in AIR 1968 Supreme Court, 1413
13 Per contra, Shri Vyas adv for defendant corporation has
submitted that the Municipal Commissioner is duty bound to take
action against the unauthorized construction. He has invited my
attention towards the documents on record. According to him, in the
Tikkasheet and approved plan in the year 1976 there is no mention of
the said structure. The said structure is in between block no 19 and 22
A. The officer of the defendant has visited the suit premises, at that
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time plaintiff has not produced any documents. Thereafter, after receipt
of the notice plaintiff gave reply and produced documents but these
documents do not prove that the suit structure is prior to datum line or
subsequently authorized structure. Hence, he prayed to refuse ad
interim relief. In support of his contention he relied on Seema Arshad
Zaheer and Others V/s Municipal Corporation of Gr. Mumbai and
others, reported in 2006 (5) 218 Mh.L.J.
14 Plaintiff has come with a specific case that plaintiff
company is in possession of the suit premises as is where is basis.
Plaintiff contended that the impugned notice and order are illegal and
bad in law. Therefore, plaintiff has to prove prima facie case, balance of
convenience and irreparable loss will be caused, if injunction is
refused. Plaintiff has to prove that the structure in question is prior to
the datum line i.e. 196162 and authorized by approved plan of the
corporation.
15 I have perused the documents filed by both the parties.
Plaintiff became owner and possessor of the suit property by way of
agreement of sale dated 15/10/1997. The agreement is executed
between Raghuvanshi Mills Ltd and the plaintiff company. In the
second schedule the description of suit property is mentioned as
structure B admeasuring about 35000 sq ft. consisting of full ground
floor with mezzanine floor. It is true that plaintiff pays the electricity
charges of the suit premises. It also appears that someway in the year
2008, the suit premises is assessed by the corporation. Plaintiff had also
licence under a Shops ad Establishment Act. Now therefore the
question is whether by these documents plaintiff proved that the suit
structure is authorized.
16 The suit premises is assessed by corporation in the year
2008. However, the aspect of assessment of structure is merely to
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collect taxes from the occupant. Even though the suit premises is not
assessed prior to the datum line.
17 Ld advocate Mr. P.D.Gandhi for plaintiff has mainly argued
that the opportunity of hearing is not given to the plaintiff. The order is
passed without application of mind. He further submitted that
defendants have filed the documents i.e. plan and tikkasheet at the
time of filing of this reply. Plaintiff has demanded the documents from
defendant therefore plaintiff has not got an opportunity of hearing. In
the notice reply plaintiff has demanded certain documents.
1 In Mrs. Lilly P. Pandit V/s Mumbai Municipal Corporation
of Greater Mumbai, writ petition no 88 of 2014, Hon'ble High Court
hold that:
Defendant corporation has not given an opportunity
of hearing to the plaintiff and thereby breached the
principle of natural justice.
2 In Uma Nath Pandey and Ors V/s State of U.P and Anr ,
reported in Criminal Appeal No 471 of 2009 (Arising out of SLP
(Cri) 6382 of 2007), Hon'ble Supreme Court held in para no 6 & 7
that :
6 Natural Justice is another name for commonsense
justice. Rules of natural justice are not codified
canons. But they are principles ingrained into the
conscience of man. Natural justice is the
administration of justice in a commonsense liberal
way. Justice is based substantially on natural ideals
and human values. The administration of justice is to
be freed from the narrow and restricted
considerations which are usually associated with a
formulated law involving linguistic technicalities and
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Draft Notice of motion 7 L.C.Suit No 1241 of 2018
grammatical niceties. It is the substance of justice
which has to determine its form.
7 The expressions "natural justice" and "legal
justice" do not present a watertight classification. It
is the substance of justice which is to be secured by
both, and whenever legal justice fails to achieve this
solemn purpose, natural justice is called in aid of
legal justice. Natural justice relieves legal justice
from unnecessary technicality, grammatical pedantry
or logical prevarication. It supplies the omissions of
a formulated law As Lord Buckmaster said, no form
or procedure should ever be permitted to exclude
the presentation of a litigants defence.
3 In Gopal Krishnaji Ketkar V/s Mohamed Haji Latif and
Others, reported in AIR 1968 Supreme Court, 1413 Hon'ble
Supreme Court held that:
(A) Evidence Act (1872) Secs 114(g) and 103 A
party in possession of best evidence which would
throw light on the issue in controversy withholding
it. Court ought to draw an adverse inference against
him notwithstanding that onus of proof does not lie
on him Party cannot reply on abstract doctrine of
onus of proof or on the fact that he was not called
upon to produce it.
18 Here in the present case, the defendant issued notice to the
plaintiff. Plaintiff immediately gave reply to the defendant and
demanded certain documents. Plaintiff has produced the documents
with the defendant. From the perusal of speaking order, it appears that
the designated officer has considered every document and come to the
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conclusion that those documents do not show that the structure is
authorized and passed order of demolition. Therefore, it cannot be said
that plaintiff has not given an opportunity of hearing.
19 Defendant has produced the approved plan, Tikkasheet
and other documents. The plan is approved in the year 1976. Earlier
there was a Raghuvanshi Mill. In the approved plan the existing
structure is absent. The suit structure is in between the unit no 19 and
22 A. However, in the plan the space between unit no9 and 22 A is
open space.
20 As discussed in supra, plaintiff at this stage has not
produced any documents to prove that suit structure is prior to the
datum line and tolerable or authorized structure. In Seema Arshad
Zaheer and others V/s Municipal Corporation of Gr. Mumbai,
reported in 2006 (5) 218 Mh.L.J. Hon'ble Apex Court ruled that
It is true that in cases relating to orders for
demolition of building irreparable loss may
occur if the structure is demolished even
before trial, and an opportunity to establish by
evidence that the structure was authorized
and not illegal. In such cases, where prima
facie case is made out, the balance of
convenience automatically tilts in favour of
the plaintiff and a temporary injunction will
be issued to preserve status quo. But where
the plaintiffs do not make out a prima facie
case for grant of an injunction and the
documents produced clearly show that the
structure are unauthorised, the Court may not
grant a temporary injunction merely on the
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ground of sympathy or hardship. Exercise of
discretion by granting a temporary injunction
when there is no material or refusing to grant
a temporary injunction by ignoring the
relevant documents produce, are instances of
action which are termed as arbitrary,
capricious or perverse. Where the lower Court
acts arbitrarily, capriciously or perversely in
the exercise of its discretion, the Appellate Court will
interfere. To grant a temporary injunction, where the
structure is clearly unauthorised and the final order passed
by the Commissioner of the Corporation after considering
the entire material directing demolition would be to
encourage and perpetuate an illegality. Where there was
'no material' to make out a prima facie case and the High
Court in its appellate jurisdiction, was justified in
interfering in the matter and vacating the temporary
injunction granted by the trial Court (Para 31 and 32).
Further in M.I. Builders (P) Ltd V/s Radhey Shyam Sahu
(1999)6 SCC 464, Hon'ble Apex Court ruled that:
This Court in numerous decisions has held that no
consideration should be shown to the builder or any other
person where construction is unauthorised. This dicta is
now almost bordering the rule of law. Stress was laid by
the appellant and the prospective allottees of the shops to
exercise judicial discretion in moulding the relief. Such a
discretion cannot be exercised which encourages illegality
or perpetuates an illegality. Unauthorised construction, if it
is illegal and cannot be compounded, has to be
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Draft Notice of motion 10 L.C.Suit No 1241 of 2018
demolished. There is no way out. Judicial discretion
cannot be guided by expediency. Courts are not free from
statutory fetters. Justice is to be rendered in accordance
with law. Judges are not entitled to exercise discretion
wearing the robes of judicial discretion and pass orders
based solely on their personal predilections and peculiar
dispositions. Judicial discretion wherever it is required to
be exercised has to be in accordance with law and
set legal principles.
21 Thus considering the ratio laid down in the above ruling
and the documents produced by plaintiff I find that plaintiff failed to
prove that the notice structure is authorized. Hence plaintiff has no
prima facie case, balance of convenience does not lie in favour of
plaintiff and if injunction as prayed is granted then irreparable loss will
be caused to the defendant. Hence I pass following order.
ORDER
Ad interim relief is refused.
Draft Notice of Motion be registered.
Date : 5/5/2018. (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 5/5/2018
Typed on : 7/5/2018
Signed by HHJ. :8/5/2018
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Draft Notice of motion 11 L.C.Suit No 1241 of 2018
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
8/5/2018 Mr. S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
5/05/2016
JUDGEMENT/ORDER signed by
P.O. on
8/5/2018
JUDGEMENT/ORDER uploaded
on
8/5/2018
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