Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 1903/18 in Stamp No.6831/18
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 1903/18
IN
STAMP NO. 6831/18
Mr. Mohammed Yakoob Shaikh
Age 55 years, an adult, Indian
Inhabitant of Mumbai, having
Structure known as Sami Building,
Near Michael Compound,
Moreshwar Patankar Marg,
Pipe Road, Kurla (West),
Mumbai – 400 070. Plaintiffs.
V/s.
The Municipal Corporation of Greater Mumbai
a body corporate duly constituted under the
Provisions of B.M.C. Act, 1888,
Having their head office at
Mahapalika Bhavan, Mahapalika Marg,
Mumbai – 400 001. Defendants.
Advocate Mr. B.P. Shukla for Plaintiff.
Advocate Ms. Hajare for Deft./BMC.
CORAM : HER HONOUR JUDGE
MS. SUREKHA R. PATIL.
(C.R.NO.11)
DATE : 10th JULY, 2018
ORAL ORDER
The plaintiff has filed present notice of motion for
temporary injunction to restrain the defendants from demolishing
and/or removing the suit premises i.e. 3Rd Floor of Sami building
consisting of ground + 3 upper floor.
2. Plaintiff submits that he is the owner and in use,
occupation and possession of Sami building consisting of ground plus
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three upper floors admeasuring 84.0 feet X 21.0 feet made by B.M.
Wall, LadiCoba roof and AC Sheet Roof. The said suit premises is in
existence prior to year 196162 and same is assessed to the Municipal
Tax under No. L2194 since year 1962. The suit premises is the part and
parcel of Sami building. Suit premises is constructed by grandfather of
plaintiff named Mohd. Sami Mohd. Ali since prior to year 1961. Now
the plaintiff is paying assessment tax to the defendant. Plaintiff enclosed
the assessment extract at Exh. B of the plaint, which reflects the
existence of 3rd floor.
3. The suit premises i.e. 3rd floor is occupied by the tenants
and tenants are paying Rent to the landlord. The Rent Receipt is at
Exh.C (colly.). The electricity connection also provided to the suit
premises and the tenants are paying the electricity charges. On
05.08.1999 the father of plaintiff received the show cause notice from
defendant regarding the suit premises under Section 351 of MMC Act.
Plaintiff replied the said notice through their advocate by letter dated
13.08.1999. After receiving the reply from the plaintiff the defendant
did not initiate any action and dropped the action.
4. All of sudden plaintiff received notice dated 20.11.2017
under Section 351 of MMC Act regarding the suit structure with same
and similar allegations in the previous notice of year 1999 alleging
therein that, plaintiff has constructed unauthorized construction of
ground plus 3 floor mentioned in the schedule of impugned notice and
directed to remove the suit premises within 7 days from the receipt of
the notice, otherwise, suit premises would be demolished by the
defendants. Plaintiff replied the said notice alongwith the documents.
On 08.05.2018 Designated officer of the defendants passed the order
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holding that the suit premises is unauthorized and directed the plaintiff
to remove the same. On next day the officers of the 'L' ward of the
defendant came to the suit premises and threatened to demolish the suit
structure. During the pendency of the said notice of motion plaintiff
found certain documents regarding the suit structure. Plaintiff filed the
said documents with the office of defendant through his advocate's
letter dated 16.05.2018 for reconsidering the same. By filing the
chamber summons, which is allowed by the Court, the plaintiff brought
all those documents on record. The BMC has issued notice on
03.04.1976 under Section 354A of the MMC Act to the grandfather of
the plaintiff alleging therein that, unauthorized repair to the 3rd floor of
the building are carried out and directed to stop the same. Thereafter
defendant issued notice dated 01.09.1983 under Section 354 of the
MMC Act to the father of plaintiff regarding the repair of Sami building.
In the said notice defendant specifically mentioned ground + 3rd floor.
5. On 01.09.1983 defendant also issued notice to tenant
Mohd. Ismail Shaikh giving reference to the notice issued to landlord
dated 01.09.1983 Imtiyaz Ahmad Shaikh stating that in case the
landlord fails to repair, then the tenants can approach to Municipal
corporation and seek permission under Section 499 of the MMC Act to
repair the said building. Plaintiff submits that from the said documents
it is showed that the said building is consists of ground plus 3 floor.
Hence, he prayed to allow the Notice of motion in terms of prayer
clause.
6. The adinterim of the plaintiff was rejected therefore, they
approached to Hon'ble High Court by filing Writ Petition bearing Appeal
From Order (L) No.14953/18 with Civil Application (St) No. 14954/18
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in Appeal From Order (L) No. 14953/18.
7. Defendant filed their reply alongwith list of documents,
thereby opposed NM filed by the plaintiff on the ground that present
suit is not maintainable as per the newly incorporated Section 515 A of
MMC Act. Notice and order passed by the Designated Officer shall not
be challenged in the Court of law by way of Suit. The plaintiff also
failed to give notice under Section 527 of MMC Act to defendant, which
is mandatory. On receipt of complaint from one Abdul Lhan Masjid
Khan regarding the unauthorized construction at Sami building Jr.
Engineer (Building and Factory) of Defendants inspected the suit
premises on 18.11.2017 and observed that the plaintiff had carried out
unauthorized construction of ground plus 3 upper floor with the help of
B. M Wall with RCC components at 1st, 2nd and 3rd floor and remaining
part of structure with Ladi Coba Slabs at each floor level supported on
MS and wooden Beam with AC sheet roofing at 3rd floor top measuring
(6.50 meter x 24.53 meter x 12.275 meter). The plaintiff failed to
produce any documents regarding the authenticity of the structure
hence, officer prepared inspection report and same is forwarded to
higher authority for necessary order. After going through the said
inspection report Designated officer came to the conclusion that notice
structure is unauthorized one and issued notice under Section 351 of
MMC Act dated 20.11.2017. Plaintiff filed reply and submitted tax
assessment bill bearing no. LX0601460060000. The remarks of
concerned Assistant Assessor and Collector was called on the said tax
assessment bill. He replied that the said tax assessment bill is not in
respect of suit structure. After perusal of the inspection report of Jr.
Engineer, the Tax Assessor and collector gave their remarks. After going
through the documents and remarks obtained from Asst. Assessor and
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collector, designated officer came to the conclusion that there is new
addition in the suit structure in the year 199495 and 199798. The
third floor is not assessed prior to the datum line 1.4.1962 therefore it is
treated to be unauthorized one. Therefore on 08.05.2018 Designated
officer passed reasoned order, thereby directing plaintiff to
remove/demolish/pull down the 3rd floor of the notice structure.
Whatever the order passed by the Designated officer is legal and valid.
The plaintiff has made unauthorized constructions without permission
of the authority and hence, they are not entitled for any interim relief as
prayed.
8. Heard both the parties.
After perusal of record it is observed that during the
pendancy of this notice of motion the plaintiff filed chamber summons
and sought to file certain old documents, which were not traceable
earlier. All these documents are the notices issued by BMC in respect of
unauthorized construction of the plaintiff since year 1976. The said
documents was not submitted by the plaintiff to the defendants prior to
passing final speaking order dated 08.05.2018. From the notice issued
by the defendant under Section 354A dated 03.04.1976 to the
grandfather of the plaintiff in respect of 165, Sami Building. In the said
notice there is a reference of unauthorized repairs to the 3rd floor of the
building, plastering work in progress. Thereafter notice under Section
354 of BMC Act issued to the father of plaintiff on 01.09.1983, in which
there is a reference of replaster damaged BM walls from ground to 3 rd
floor be prepared is mentioned. The similar notice issued to the tenants
on same day, in which it is mentioned that notice under Section 354 of
BMC Act are already issued to the owners of the above premises giving
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him 90 days time for carrying out the required repairs. In the said
notice subject is mentioned repair to premises 165, Sami Building, Pipe
Road, Kurla West, Bombay – 70 i.e. Suit premises. Thereafter on
05.08.1999 one more notice is issued to the father of plaintiff under
Section 351 of MMC Act. In schedule of the said notice it is mentioned
that the construction of the 3rd floor with BM Wall with AC sheet roof
and Ladi Coba as flooring and stair case and the measurement of the
said premises is mentioned alongwith sketch. The advocate for the
father of plaintiff had replied to the said notice. The plaintiff also
enclosed tax assessment extract of BMC for the year 199798, which is
at Exh.B to the plaint, in which in the addition after 2nd floor one room
as residence by owner is mentioned. Plaintiff also filed Assessment
Extract of the suit building on Page no.24 onward. At Page No. 27 of
said extract, Sr.No.18 to 21, Column no.4, 3rd floor is mentioned. The
Column No.11 is of the age of building. From Sr. No.18 to 21 the age of
the building i.e. 3rd floor is mentioned 53 years. Even the documents
filed by the defendant in their Assessment extract, the Sr. Nos. 18 to 21,
at Column no.4, 3rd floor is mentioned and in column No.11 i.e. age of
the building i.e. structure is mentioned 48 year old, which means that
the 3rd floor is in existence since last 48 years.
9. The plaintiff has relied on the judgment of Hon'ble
Bombay High Court passed in Appeal From Order No.57/13
alongwith Civil application No.62/13 in Notice of Motion
No.2456/12 in L.C. Suit No.2178/12 in the case of Masood Ahmed
Siddiqui V/s Mumbai Municipal Corporation & Ors.
10. In the said case also the contention of the plaintiff is that
their structure is in existence prior to datum line i.e. 01.04.1962. In the
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said case the plaintiff produced the license on record, which is issued on
11.08.1977. Plaintiff also sought information under RTI from BEST,
from which it is revealed that from 1950 there is electric supply to the
said building. In that case the Hon'ble High Court observed that primary
documents shows that there is commercial structure is in existence and
license from atleast 1977. Copies of the documents are produced by the
parties including plaintiff for their perusal and which copies are the true
copies and at the interlocutory stage, if there is no doubt about their
genuineness and authenticity they need not be discarded. In the said
case the Hon'ble High Court relied on the documents filed by the
plaintiff i.e. License issued by MMC dated 11.08.1977 and Deed of
Assignment dated 29.09.1995. From the said document it shows that
prima facie the existence of the suit structure is at least from 1977. The
Hon'ble High Court observed that when the plaintiff is relied upon the
document which prima facie shows that the suit structure was in
existence from 1977 and if not, at least 1983, then these are not the
cases, where suddenly some construction has been made in a
compulsory open space and which has to be proceeded with on
emergent basis. The plaintiff deserves an opportunity to prove his case
at the trial and particularly as to whether the suit structure was
existence prior to the datum line and based on the documents referred
in the said citation. The Hon'ble High Court granted him interim
injunction.
11. Similarly, in the present case also the notices issued by
BMC under Section 354A of MMC Act in the year 1976 to the
grandfather of the plaintiff and thereafter under Section 354 of MMC
Act dated 1.09.1983 in the name of the father of the plaintiff and notice
under Section 351 of MMC Act dated 05.08.1999 and the tax
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assessment extract filed by the plaintiff as well as defendant, prima
facie it seems that the 3rd floor of the Sami Building was in existence
since 1976. From the photographs of the suit structure enclosed with
the documents filed by the defendant, it revealed that the said
construction is old one. The plaintiff has not constructed the 3rd floor
recently. The plaintiff has rightly relied on abovesaid judgment of
Hon'ble High court. During the trial the plaintiff deserves an
opportunity to prove his case as to whether the suit structure was
existing prior to the datum line. On the document filed by the plaintiff
on record, which are referred above the plaintiff is entitled to interim
injunction as he made out prima facie case and balance of conveyance is
also in favour of the plaintiff, as from the documents on record is
claiming that the suit structure is in existence since 1976. At present the
plaintiff is residing in the suit premises and he would be suffered
irreparable loss and injury, if the relief is not granted. Hence, I proceed
to pass following order :
ORDER
1. Notice of Motion No.1903/18 is made absolute in terms of
prayer clause 'a' and 'b' and accordingly disposed of.
2. No order as to costs.
(SUREKHA R.PATIL)
Judge,
City Civil Court,
Gr. Bombay.
Date: 10/07/2018.
Dictated on : 10/07/2018
Transcribed on : 11/07/2018
Signed on : 12/07/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12/07/2018 At 5.15 p.m. MRS. K. S. JADHAV
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. R. PATIL
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
10/07/2018
Judgment/Order signed by P.O. on 12/07/2018
Judgment/Order uploaded on 12/07/2018
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