Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 2240 OF 2019
CNR NO. MHCC01-006141-2019
IN
L.C. SUIT NO.1465 OF 2019
Umarshi Devji Savla …. Deleted since deceased
1A. Nitesh Umarshi Savla and ors. ….Plaintiffs.
V/s.
1. The Municipal Corporation
of Greater Mumbai and Ors. ..Defendants.
Appearance :
Adv. Ramchandra Narayan for plaintiffs.
Adv. Neeta Jadhav for defendant Nos. 1 to 3/BMC.
Adv. Moulik Chedda a/w Adv. Ganesh Shinde for defendant No.4
CORAM : HIS HONOUR JUDGE
SHRI. V. S. KHOT
(C.R.NO.06)
DATE : 13thMarch, 2025.
ORAL ORDER
1. This notice of motion is filed for the injunction restraining
the defendants to take action against the plaintiffs under the notice and
speaking order passed u/sec. 351 of the MMC Act.
2. The plaintiffs (LRs of original plaintiff) contended that the
original plaintiff was a resident of Mumbai and residing in Flat No.7, on
the third floor of the building known as “Khimiya Kunj” standing on the
plot No.42A, Sion (W), Mumbai. The original plaintiff was residing
there with his family members since 1978. The present plaintiffs are LRs
of original plaintiff. The original plaintiff is died. In flat No.7 there are
two balconies. The notice came to be issued in connection with East
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side balcony. It is alleged that the plaintiffs have closed balcony. The
abovementioned flat No.7 is concerned in the litigation and shall be
referred as “ Suit Premises” hereinafter for the sake of convenience and
brevity.
3. The defendants are Bombay Municipal Corporation and
officers of the defendant No.1. The defendants have issued one notice to
the plaintiffs on 10.05.2019 thereby asking the plaintiffs to assign the
sufficient cause for not pulling down the unauthorised change carried
out in the flat No.7. i.e. suit property. It is alleged that the plaintiffs
have closed the balcony permanently and put grill in the balcony. It is
alleged that the said work was carried out without authorization. The
plaintiffs filed the reply to the said notice. The BMC, thereafter passed
the speaking order and they directed the plaintiffs to remove the grill
put in the balcony. They also observed that the said change is effected
without authorization. The plaintiffs failed to prove any authorization
and prove the fact that the said property is prior to datum line i.e.
17.04.1964.
4. The notice issued by the defendants is void and against the
principles of law. The notice came to be issued without application of
mind. The same is about the speaking order. The notice and speaking
order are illegal. The plaintiffs reasonably apprehend that the
defendants may demolish or pull down the balcony enclosures in East
side balcony. The BMC is acting at the instance and instigation of one
Mr. Sunil Bhagat. The plaintiffs left with no alternative but to file this
suit for injunction. The plaintiffs are praying for interim injunction
against the action of defendants.
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5. The defendants’ side filed the reply. The defendants/BMC
contended that the notice of motion is illegal. No statutory notice U/sec.
527 of the MMC Act is given. This Court is having no jurisdiction to
entertain the matter. The defendants/BMC also contended that City
Civil Court is having no jurisdiction in view of section 515A of the MMC
Act. The defendants received the complaint that the balcony of East side
is illegally closed. The inspection was taken. Photographs were also
taken. The balconies were illegality closed. The concerned work is
unauthorised, therefore the BMC has issued notice U/sec. 351 of the
MMC Act. The notice has been issued and 7 days time is granted for
removing the notice structure. The notice structure is unauthorised and
liable to be removed. The plaintiffs have filed the regularization
proposal which itself shows that the notice structure is illegal. The
notice and speaking order is binding upon the plaintiffs and notice of
motion taken by the plaintiffs be rejected.
6. The defendant No.4 also filed reply and submitted that the
notice of motion and affidavit in support are false and misleading. The
notice of motion is not tenable. There is a prayer for ad-interim relief of
restoring the illegal structure which is impermissible. The LRs have not
filed any legal document showing that they are entitled to claim the
relief. The cause of action does not survive so far as the LRs or
substituted plaintiffs are concerned especially after the demise of
original plaintiff. The tenants have carried out illegal structures in the
concerned building. The owner has already intimated and made written
complaint to MCGM on 12.11.2018. It is pertinent to note that as per
the correspondence dated 30th April 2019 done by the plaintiffs is false.
It is clear that none of the balconies in the said premises are enclosed.
Here the notice was sent to the original plaintiff for the demolition of
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illegal enclosures in the balcony in the East side of the premises on the
3rd floor. Thus, balcony enclosure is done by the plaintiffs and the same
is illegal. The plaintiffs have closed the balcony in the East side of third
floor which is illegal. The Municipal Corporation has issued the notice
and speaking order which are proper. There is no illegality in issuing the
notice and speaking order. The regularization proposal came to be
rejected by the Municipal Corporation. The suit is not maintainable and
no order can be passed at ad-interim stage. The defendant No.4 has
prayed for the rejection of the notice of motion.
7. In view of the rival contentions of the parties, the following
points arise for my determination and I have recorded my findings
subject to the reasons as mentioned hereinafter.
Sr. No. POINTS FINDINGS
1. Whether the plaintiffs have made out
prima facie case in their favour ?
In the affirmative
2. Whether balance of convenience lies in
favour of plaintiffs?
In the affirmative.
3. Whether irreparable loss will be caused
to the plaintiffs, if present Notice of
Motion is not allowed ?
In the affirmative.
4. What order? As per the final order
R E A S O N S
AS TO POINT NOS.1 to 4.
8. This notice of motion is taken by the plaintiffs, therefore,
burden of proof lies upon him and in order to discharge the said burden
the plaintiffs have submitted that the original plaintiff was a tenant. He
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was residing in the suit property alongwith him family members. The
defendants have issued the notice u/sec. 351 of the MMC Act and also
passed the speaking order which is illegal, null and void. The original
plaintiff started residing in the suit premises since 1974. The balconies
were already enclosed and same have continued in the coming years.
The landlady never made any grievance regarding the said fact. The
Municipal Corporation has initiated the action against the plaintiffs,
which is illegal. The defendants are acting at the instance and
instigation of Mr. Sunil Bhagat. The defendants in the speaking order
directed the plaintiffs to remove the notice structure without any sound
reason. The final occupation plan has been passed by the defendant
No.3 on 22nd April, 2019 showing the existence of notice structure prior
to datum line of 17th April, 1964. The notice u/sec. 351 of the MMC Act
is a colourable exercise of the statutory power and abuse of the process
of law. The plaintiffs be protected against the action of defendants and
the plaintiffs be permitted to restore/install the said aluminum sliding
window removed by the plaintiffs in the year 2019. The entire action of
the BMC is illegal. On the contrary, the BMC contended that the notice
u/sec. 527 of the MMC Act is not issued and the suit is barred in view of
section 515A of the MMC Act. The notice structure is illegal. The East
Side balcony is illegally closed. The BMC has properly issued the notice
and it is binding on the plaintiffs. The defendant No.4 supported the
stand of the BMC and submitted that the action of BMC is proper. The
alterations/deviations were carried out by the tenants, therefore the
notice and speaking order is proper. The authenticate documentation is
not filed by the plaintiffs’ side. The regularization proposal is forwarded
by the plaintiffs’ side ultimately shows that the notice structure is
illegal. The notice and speaking order is binding and the plaintiffs
cannot pray for any relief.
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9. The notice and speaking order issued by BMC if perused,
show that the notice came to be issued and speaking order has been
passed by the Designated Officer. The Designated Officer has directed
the plaintiffs to demolish or pull down the notice structure within 7
days from the receipt of the speaking order. The 7 days time has been
granted by the Designated Officer. In so many citations of the Hon’ble
High Court and Hon’ble Apex Court the time limit granted is of 15 days.
It is apparent that the Designated Officer has curtailed the time limit
from 15 days to 7 days. The citation of Sopan Maruti Thopte V/s. Pune
Municipal Corporation reported in (1996 (1) Mh. L.J. 963) made it
clear that the 15 days time is required to be granted. It is observed in
the citation that the BMC is at liberty to demolish offending structure 15
days after the order of the Commissioner/Deputy commissioner is
communicated to the affected persons. This is the observation of the
Hon’ble Bombay High Court in Sopan’s case (mentioned supra). The
Designated Officer has clearly violated the mandate of the citation of
the Sopan’s case (mentioned supra). This attitude/way of work is highly
deprecated. The BMC ought to have observed the directions of the
Hon’ble High Court. But, it appears that the Designated officer has
violated the directions of the Hon’ble High Court. In the catena of
decisions the Hon’ble Apex Court and the Hon’ble Bombay High Court
has mandated it that the procedure should be just, fair and reasonable.
The BMC while taking action against the illegal encroachment/
unauthorised construction should observe the due process of law. When
the BMC officer is violating the directions of the Hon’ble High Court
then it cannot be said that the BMC has acted reasonably and observed
the due process of law. The due process of law is cardinal principle to be
observed by the officers in dealing with the issue of unauthorised
encroachment/construction. The act of the BMC goes against the case
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law mentioned in Sopan v/s. Pune Municipal Corporation’s case. It is
clear that the BMC has not acted as per norms. It is nothing but non
application of mind and whenever there is non application of mind the
plaintiffs would be entitled for the protection of the Court.
11. The Municipal Corporation has taken the action under
patronage of section 351 of the MMC Act. There is a manual issued by
the BMC under the said Act. Under the said Act time line schedule is
prescribed in taking action u/sec. 351 of the MMC Act. If the time line
mentioned in the manual is considered, then the action of the BMC in
this case is faulty. The Designated Officer has not followed the time line
mentioned in the manual. This is also another instance of violation of
the law by the Municipal officer in taking action against the
unauthorised construction. This aspect goes against the defendants.
12. Perusal of the case papers makes it clear that there is one
Gift Deed filed by the party. The perusal of the Gift Deed goes to show
that premises were in existence from 1959. The Gift Deed vide schedule
makes it clear that the structure was there at the time of Gift Deed. The
paragraph at page No.5 of the Gift Deed show that there were ground +
2 floors at the time of Gift Deed. It appears that the suit property was in
existence prior to 1961 i.e. prior to datum line. There is no concrete
evidence regarding the fact that the alterations were made thereafter by
the plaintiffs. In such circumstances, it cannot be said that the suit
premises were not in existence prior to datum line and alterations were
made after the datum line. This aspect goes against the side of
defendants.
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13. It is also alleged by the BMC and defendant No.4 that the
plaintiffs have carried out illegal construction i.e. closing the balconies
of East side. The counsel for BMC argued that there was a
regularization proposal by the plaintiffs which ultimately shows that
closing of balcony/ balconies are illegal. The perusal of the case papers
show that there was a proposal for regularization. It is also true that the
party who is applying for regularization must admit that the
construction is illegal. The counsel for the BMC submitted that the
construction is definitely illegal and it cannot be protected. The
plaintiffs during pleadings and arguments submitted that the
construction was already there when he was inducted as a tenant. In
such circumstances, it is doubtful that the plaintiff himself has carried
out the alterations. No sanction plan is before the Court. There is no
authenticate document showing the date of closing the balcony. Even if
the balconies are closed and action is required to be taken against the
invader then procedure established must be reasonable and fair. The
illegal act cannot be dealt with illegally. Illegality cannot be removed by
doing one another illegal act. The law is strict in this respect. The law
mandates that the procedure must be fair, reasonable and must
confirmed the principles of natural law. The abovementioned discussion
clearly show that the BMC has acted contrary to the law. The BMC has
violated the ratio of the case of Sopan (mentioned supra). In such
circumstances, the plaintiffs are entitled to the interim protection,
especially when it is not established that who is author of the illegal
alterations i.e. fixing the grill in balcony of East side. As the BMC fails to
fulfill the norms of the procedure, the plaintiffs are entitled to the
protection of the Court.
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14. The counsel for the BMC relied on the citation of Abdul
V/s. Municipal Corporation Greater Mumbai, wherein the Hon’ble High
Court observed that the section 515A of the MMC Act bars the
jurisdiction of Civil Court. The learned counsels for the BMC argued
that the City Civil Court is having no jurisdiction to entertain the
interim relief prayed by the plaintiffs. The counsel for the plaintiffs
opposed the contention of the BMC Counsel.
15. The section 515A of the MMC Act bars of jurisdiction of the
Civil Court whenever there is a strict compliance to the procedure and
action is taken after application of mind. In the citation of Abdul Karim
Ahmed Mansuri v/s. Municipal Corporation of Greater Mumbai and Anr.
(2013 (6) All MR 232), it is held that Civil Court is obliged to take note
of the provision and statutory bar whenever the plea raised by the
Corporation before it. The judge has to decide the issue of jurisdiction
by considering averments in the plaint. If the averments in the plaint do
not make out any case which would enable the Court to apply legal
principle set out then the section 515A of the MMC Act will come into
play. So, it is clear that whenever there is a violation to the rules and
procedure Civil Court will have the jurisdiction. In this case, the BMC
has violated the norms of procedure, therefore it cannot be said that
Civil Court cannot entertain the dispute. Whenever, there is a flaw to
the procedure and there is a violation to the principles of due process of
law then Civil Court is having the jurisdiction. The citation would not
benefit the defendants.
16. In this case, it is apparent that there is a violation to the
due process of law. The BMC has granted the 7 days time to the
plaintiffs. It is the mandate of law that 15 days time should be granted.
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In such circumstances, the plaintiffs are entitled to the protection of the
Court. Moreover there is procedural lapses in observing the manual
issued under the MMC Act. The plaintiffs are having prima-facie case in
his favour.
17. As far as balance of convenience and irreparable loss is
concerned both the aspects/points arise in favour of the plaintiffs. If the
alteration/deviation is removed, then there would be inconvenience to
the plaintiffs. The grant of injunction would not impose burden and
hardship on the defendants. The plaintiffs would have losses if the
injunction is refused. The action not warranted in law causes hardship
and losses. The plaintiffs are not entitled to installation of aluminum
frame in balcony as such type of interim relief is not required at this
stage. It is a type of mandatory interim relief which is permissible in
rare cases only. The action against the plaintiffs cannot be taken on the
basis of procedure which is not warranted under the law and on this
ground alone the plaintiffs are entitled to the interim protection. Having
regard to abovesaid reasons, my answer to point Nos.1 to 3 are in
affirmative and finally, I am inclined to pass the following order
resulting in grant of interim relief.
ORDER
1. The Notice of Motion No.2240 of 2019 stands allowed and is
hereby made absolute.
2. The BMC, its officers, servants and/or anybody claiming through
it are hereby restrained from taking any action against the
plaintiff and proceeding further in furtherance of notice and
speaking order passed against the plaintiffs u/sec. 351 of the
MMC Act till further orders.
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3. No any order as to costs.
4. The Notice of motion No. 2240 of 2019 is disposed off.
(V. S. KHOT)
Judge,
City Civil Court,
Date: 13.03.2025 Gr. Bombay.
Dictated on : 13.03.2025
Transcribed on : 13.03.2025
Signed on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/03/2025 at 11.40 a.m. Mayuresh P. Tathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ SHRI. V. S. KHOT
(C.R.NO.06)
Date of pronouncement of Judgment/
Order
13.03.2025
Judgment/Order signed by P.O. on 18.03.2025
Judgment/Order uploaded on 18.03.2025
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