Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 2304 OF 2019
CNR NO. MHCC01-006378-2019
IN
L.C. SUIT NO.1363 OF 2019
Pradip Jagjivan Shah ….Plaintiff.
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 plaintiff contended that the plaintiff was a resident of
Mumbai and residing in Flat No.4, on the First floor of the building
known as “Khimiya Kunj” constructed on the plot No.42A, Sion (W),
Mumbai. The plaintiff was residing there with his family members since
1957. In Flat No.4 there are two balconies. The notice came to be issued
in connection with North side balcony. It is alleged that the plaintiffs
have closed balcony. The abovementioned flat No.4 is concerned in the
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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 plaintiff on 24.12.2018 thereby asking the plaintiff to assign the
sufficient cause for not pulling down the unauthorised change carried
out in the flat No.4. i.e. suit property. It is alleged that the plaintiff has
closed the balcony permanently and put grill in the balcony. It is alleged
that the said work was carried out without authorization. The plaintiff
filed the reply to the said notice. The BMC, thereafter passed the
speaking order and they directed the plaintiff to remove the grill put in
the balcony. They also observed that the said change is effected without
authorization. The plaintiff 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 plaintiff reasonably apprehend that the defendants
may demolish or pull down the balcony enclosures in North side
balcony. The BMC is acting at the instance and instigation of one Mr.
Sunil Bhagat. The plaintiff left with no alternative but to file this suit for
injunction. The plaintiff is praying for interim injunction against the
action of defendants.
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
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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 North
side is illegally closed. The inspection was taken. Photographs were also
taken. The balcony was 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 plaintiff has filed the regularization proposal
which itself shows that the notice structure is illegal. The notice and
speaking order is binding upon the plaintiff and notice of motion taken
by the plaintiff 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. The notice structure is partly
demolished on the basis of license plan of year 1977. The plaintiff has
not filed any legal document showing that he is entitled to claim the
relief. 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 license
plan of the year 1977 and the correspondence dated 30th April 2019, it
is clear that none of the balconies in the said premises are enclosed. The
notice was sent to the original plaintiff for the demolition of illegal
enclosures in the balcony in the North side of the premises on the 1st
floor. The balcony enclosure is done by the plaintiff and the same is
illegal. The plaintiff has closed the balcony in the North side of First
floor which is illegal. The Municipal Corporation has issued the notice
and speaking order which are proper. There is no illegality in issuing the
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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 plaintiff have made out
prima facie case in his favour ?
In the affirmative
2. Whether balance of convenience lies in
favour of plaintiff?
In the affirmative.
3. Whether irreparable loss will be caused
to the plaintiff, 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 plaintiff, therefore,
burden of proof lies upon him and in order to discharge the said burden
the plaintiff has submitted that he was a tenant. He 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 plaintiff started
residing in the suit premises since 1974. The balconies were already
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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 plaintiff, which is
illegal. The defendants are acting at the instance and instigation of Mr.
Sunil Bhagat. The defendants in the speaking order directed the
plaintiff 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 plaintiff be protected against the action of defendants and the
plaintiff be permitted to restore/install the said aluminum sliding
window removed by the plaintiff 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 North
Side balcony is illegally closed. The BMC has properly issued the notice
and it is binding on the plaintiff. 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. There is a partial demolition which is already carried- out. The
notice and speaking order is binding and the plaintiff cannot pray for
any relief.
9. The notice and speaking order issued by BMC if perused,
show that the notice came to be issued and speaking order has been
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passed by the Designated Officer. The Designated Officer has directed
the plaintiff 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
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
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application of mind and whenever there is non application of mind the
plaintiff would be entitled for the protection of the Court.
10. 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.
11. 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 plaintiff. 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.
12. The perusal of the case papers make one aspect clear which
is detrimental to the defendant’s side. There are two speaking orders
passed by the Designated Officer. The suit structure/notice structure is
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the same. There is no reason adduced by the Designated Officer for
passing the second speaking order. Once the speaking order is passed,
then the Designated Officer cannot pass the another speaking order
without any concrete reason. In first speaking order, the Designated
Officer directed the party to remove the alterations within 7 days and
by passing the second speaking order, he has violated the time limit
mentioned in the first speaking order or it can be said that the
Designated Officer has extended the time limit mentioned in the first
speaking order. All these procedural loopholes makes the defendant’s
case weak and dubious. It was altogether beyond the scope of the
Designated Officer to pass the second speaking order and violate the
time limit mentioned in first speaking order. The practice adopted by
the Designated Officer is contrary to the law. It cannot be said that the
defendants have observed the due process of law in dealing with the
matter.
13. It is also alleged by the BMC and defendant No.4 that the
plaintiff has carried out illegal construction i.e. closing the balcony of
North side. The counsel for BMC argued that there was a regularization
proposal by the plaintiff 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 plaintiff 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
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of closing the balcony. Even if the balcony is 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 plaintiff is
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 North side. As the BMC fails to fulfill the norms of the procedure, the
plaintiff is entitled to the protection of the Court.
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 plaintiff. 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
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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
plaintiff. It is the mandate of law that 15 days time should be granted.
In such circumstances, the plaintiff is entitled to the protection of the
Court. Moreover there is procedural lapses in observing the manual
issued under the MMC Act. The plaintiff is 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 plaintiff. If the
alteration/deviation is removed, then there would be inconvenience to
the plaintiff. The grant of injunction would not impose burden and
hardship on the defendants. The plaintiff would have losses if the
injunction is refused. The action not warranted in law causes hardship
and losses. The plaintiff is not entitled to installation of aluminum
frame with glass 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 plaintiff cannot be taken on
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the basis of procedure which is not warranted under the law and on this
ground alone the plaintiff is 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.2304 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 plaintiff u/sec. 351 of the MMC
Act till further orders.
3. No any order as to costs.
4. The Notice of motion No. 2304 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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