Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of motion 1932 of 2018: 1 : St No. 6855 of 2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion No.1932 of 2018
IN
St.No. 6855 of 2018
Shri Krishna Industries Pvt Ltd ...Plaintiff
V/s
The Designated Officer,Asst Engr
(B & F)'G/S' Ward, MCGM & Anr ...Defendants
Advocate Shri P.D. Gandhy for the Plaintiff.
Advocate Shri D.K.Vyas,Shri Tavakkuli, with Mr. Kumawat for
Defendant /BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 22nd June 2018.
(Court Room No.06)
O R D E R
1. Plaintiff has taken out this notice of motion to restrain the
defendants, their servants, agents, representatives and anybody
claiming through them by temporary order of an injunction from
demolishing the suit premises being premises/Basement , of the said
structure 'A' to be known as PRATHAMESH TOWERS standing on a
portion of land in RAGHUVANSHI MILLS COMPOUND bearing City
Survey No. 107 of Lower Parel Division situate at 1112, Senapati
Bapat Marg, Lower Parel, Mumbai400 013, and/or any portion thereof
pursuant to the suit notice dated 19042018 and impugned order
passed by defendant no.1 dated 5/05/2018.
2 Facts in brief are as under:
The plaintiff is a Private Limited Company, registered
under the Companies Act of 1956, carrying on business from the
premises having address at Basement of Prathamesh Tower,
Raghuvanshi Mill Compound.The Raghuvanshi Mill Compound is
-- 1 of 19 --
Notice of motion 1932 of 2018: 2 : St No. 6855 of 2018
consisting of several buildings which were at one point of time used for
any ancillary purpose of the said Raghuvanshi Mills Limited. Since last
more than 20 years the said Raghuvanshi Mill was closed down and the
management of the said Raghuvanshi Mill Limited sold their various
buildings to various companies which had opened up their offices and
business premises at the suit buildings of the said Raghuvanshi Mill
Limited. The defendants have recognized the user of the suit building
and are charging property tax of the Suit building without any
objection and reservation. The Raghuvanshi Mills limited is a sick
industry and therefore the revival plan was approved by the Board for
Industrial and Financial Reconstruction The building in which suit
premises is situate is building no. 3 in the said Raghuvanshi Mills
Compound having basement, Ground Plus 6 upper floors.
3 Thereafter pursuant to the order of BIFR the said
Raghuvanshi Mills Limited have assigned their rights in the suit
building to M/s Chaitanya Developers . Thereafter M/s Chaitanya
Developers carried out necessary tenantable repairs to the suit building
and gave the name to building no.3 as "Prathamesh Towers".
Accordingly plaintiff has purchased the suit premises from M/s
Chaitanya Developers. The suit premises and other buildings in
compound are having shops and Establishment certificates and the said
certificate was granted by the concerned department of defendant after
due inquiry and verification of the authorization of the structure.
Plaintiff has taken electricity connection, telephone connection in the
said premises. The suit premises is assessed by the defendant.
4 Plaintiff further averred that there is a dispute between
owner of Raghuvanshi Mills and the defendant in respect of issue of
payment of property taxes. Therefore, defendant started to harass the
-- 2 of 19 --
Notice of motion 1932 of 2018: 3 : St No. 6855 of 2018
occupiers in the building. Earlier defendants have issued a notice U/s
351 of MMC Act. The Raghuvanshi Mills Ltd had filed suit bearing
L.C.Suit No. 3601/1998 in respect of the said building. This Court
dismissed the suit on merit on 20/04/2006. Defendant had given the
permission for the tenantable repairs of the suit building. The earlier
notice which was challenged in L.C. Suit No 3601/1998 was withdrawn
by the order of Municipal Commissioner. However, defendant
suppressed the said facts during the trial of the suit. Thus, defendants
are trying to evict the occupiers in the building any how.
5 According to plaintiff, defendant No. 1 had given notice to
the plaintiff and occupiers U/s 351 of the MMC Act on 19/4/2018.
Plaintiff has given reply to the notice and asked the documents from
the defendant. However, defendant did not supply the documents to
the plaintiff and passed the order dated 5/5/2018. By the said order
defendant directed the plaintiff and occupiers to vacate the building
within 7 days otherwise the same will be demolished. According to
plaintiff, the said notice and order are illegal, null and void. The
defendant no. 1 has acted unlawfully, unilaterally, solely at the behest
and under the influence of the complainant. The notice is arbitrary and
defendant no. 1 neither gave an opportunity to the plaintiff of being
heard nor passed speaking order. Thus, defendant no. 1 has violated
the principles of natural justice. Defendant no. 1 has not given
inspection of documents. Hence impugned notice and order are illegal
and malafide.
6 Plaintiff further avers that plaintiff is in lawful possession
of the suit premises. He has not made any addition, alteration. Plaintiff
carries business there. There are triable issues. Hence, prayed to grant
interim injunction.
-- 3 of 19 --
Notice of motion 1932 of 2018: 4 : St No. 6855 of 2018
7 Notice is served to defendants. Defendants filed affidavit in
reply of defendant no. 1 Shri Sunil Tavade. Defendant raised
preliminary objection that plaintiff has not given notice U/s 527 of the
MMC Act. The order passed by defendant no. 1 is administrative order
hence suit is not maintainable. According to defendant, the owner of
the land namely Khimji Bhagwandas Charity Trust made complaint
dated 18/1/2018 to the Chief Minister. The secretary of Chief Minister
forwarded the complaint to the defendants. Accordingly, the officer of
the defendant namely Rohan Kumavat Jr. Enginner visited the building
on 9/04/2018. He found that the unauthorized construction of
basement ground + 6 upper floors. At that time, the occupants had not
shown documents. The officer of the defendant prepared inspection
report and submitted to the defendant no. 1. Accordingly, defendant
no.1 has issued notice to the plaintiff and other occupants U/s.351 of
the MMC Act. Plaintiff gave reply through his advocate and also
produced documents. Defendant no. 1 has considered the reply that
documents produced by plaintiff and on 5/5/2018 passed speaking
order . The structure is unauthorized. The plan is approved in the year
1975 and in the 1977. Further in the city survey record Tikka sheet
survey is carried in the year 1980. In Tikka sheet and approved plan
there is no mention of the suit structure.
8 According to defendant, it is the duty of the Municipal
Corporation to remove the unauthorized construction. Recently
incident of Kamala Mill took place. Due to unauthorize construction, 14
persons lost their lives. Defendants have followed due process of law
and accordingly the notice and order are illegal. Hence, prayed to
dismiss the notice of motion.
9 I have heard Shri P.D.Gandhy advocate for plaintiff. Shri
-- 4 of 19 --
Notice of motion 1932 of 2018: 5 : St No. 6855 of 2018
D.K.Vyas, Shri Tavakkuli , Shri Kumavat advocates for defendant.
10 ShriP.D.Gandhy advocate for plaintiff has submitted that
there are many units in the said tower. The said building is redeveloped
as per the approval of BIFR. Plaintiff and other occupants have
purchased the units in the building . Plaintiff has not made any
addition and alteration. The building known as Prathamesh Tower is
standing on block no.3 in the Raghuvanshi Mill Compound. Earlier
defendant had issued a notice to the owners of the Raghuvanshi Mills
U/s 351 of the MMC Act. The said notice and order were challenged in
L.C.Suit No. 3601/98. Defendant contested the said suit and this court
has decreed the suit on 20/04/2006. In that suit the notice was in
respect of ground+ 6th floors. Thus, defendants cannot again issued
notice for the said building. He further submitted that during
pendencey of the suit no. 3601/98, the Municipal Commissioner has
directed to withdraw the said notice as the structure of ground+ 6
floors was in existence.
11 He has invited my attention towards the documents on
record. According to him, the plaintiff has purchased the suit structure
from Chaitanya Builders and Developers for construction. Plaintiff and
other occupants carried their business there. Due to the property tax
dispute between the owners of the Raghuvanshi Mills and the
defendants and due to the instigation of the powerful builders in the
city defendant has issued a notice to the plaintiff.
12 According to him, after receipt of the notice plaintiff gave
reply to the defendants. Plaintiff asked some documents to
defendants . However, defendant no 1 did not produce documents and
passed order. He has invited my attention towards a speaking order.
According to him, defendant no. 1 discarded the documents filed by
-- 5 of 19 --
Notice of motion 1932 of 2018: 6 : St No. 6855 of 2018
plaintiff and contended that the said structure is not in a approved
plan in the year 1975 and 1977 and in Tikka Sheet in the year 1980.
Thus, documents are not provided to the plaintiff before passing the
order. Thus, the defendant has violated the principles of natural justice.
Though, according to defendants the said documents are Public
documents and available in the office of the Corporation, it was duty of
defendant no.1 before passing of the order to provide the documents to
the plaintiff. Thus, the very order is illegal and bad in law.
13 He further submitted that earlier this court had rejected
ad interim relief in one of the suit in Raghuvanshi Mills bearing St.No
6755/2018 between Janmejal Bagrodia & Others V/s Designated
Officer BMC and others . The plaintiff had filed appeal before Hon'ble
High Court and Hon'ble High Court quashed speaking order in that suit
and directed the defendant to give an opportunity to the plaintiff. He
further submitted that according to defendants now it is "useless
formality theory" to provide documents to the plaintiff but it is settled
law that an opportunity should not be denied. Thus, the order is liable
to be set aside. In support of his contention he relied on:
1 Uma Nath Pandey and Ors V/s State of U.P. and Anr reported
in Criminal Appeal No 471 of 2009 ( rising ot of SLP (Cri) No.
6382 of 2007)
2 Mr.Arvind Pradhanbhai Dama V/s The Municipal
Corporation of Greater Mumbai in Appeal From Order No.
361 of 2013 with Civil Application No 441 of 2013
3 Mrs.Lilly P Pandit V/s The Municipal Corporation of Greater
Mumbai , Writ petition (L) No. 88 of 2014,
4 Ramdas M. Suryavanshi V/s Municipal Corporation of
Greater Mumbai reported in A.O. 919 of 2000 with C.A.
-- 6 of 19 --
Notice of motion 1932 of 2018: 7 : St No. 6855 of 2018
No.9216 of 2000
14 Shri D.K.Vyas advocate for defendant has submitted that it
is the duty of the Municipal Commissioner to remove the unauthorized
structures. The subject matter in L.C Suit no 3601/1998 and subject
matter in the present suit is different. In the suit no. 3601/98, there
was a building of ground+ 6 floors and now in the present suit
building consist basement + ground + 6 floors. He has submitted that
in the year 20042005 assessment department inspected the structures
in the Raghuvanshi Mills Compound and found that the construction of
the suit building was in progress. He admitted that the suit building is
duly assessed. Shri Vyas advocate for defendant has invited my
attention towards the sanctioned plan and Tikka sheet. According to
him, there is no mention of the suit structure. Plaintiff could not
produce the authentic map hence, the entire structure is liable to be
demolished. Plaintiff ought to have inspect the sanction plan and other
documents from the developer before entering into an agreement.
Plaintiff had filed documents before the defendant no.1. However, they
do not prove the authorization of the structure.
15 He further submitted that at the time of hearing of this
application ample opportunity is given to the plaintiff to produce the
documents and rebut the contention in the sanction plan and tikka
sheet. However, plaintiff could not produce any counter documents to
rebut these documents. Hence the suit premises cannot be protected. In
support of his contention he relied on:
1 Namdev Pandurang Panchal V/s MCGM, 2005 (4)ALL MR 689
2 Esha Ekta Apartments Coop Hsg society Limited & Ors,2013
(2) ALL MR 901 (SC)
3 Dipak Kumar Mukherjee V/s Kolkata Municipal Corporation
-- 7 of 19 --
Notice of motion 1932 of 2018: 8 : St No. 6855 of 2018
& Ors, 2013 (5) Supreme Court Cases 336
4 Seema Arshad Zaheer & Ors V/s MCGM,2006 (5) Mh. L.J.218
5 Shri Sopan Maruti Thopte &another V/s Pune Municipal
Corporation and another, 1996 (2) ALL MR 383
6 Pratibha Cooperative Housing Society Ltd & another V/s
State of Maharashtra and other, 1991(3) Supreme Court
Cases 341
16 By this suit plaintiff has challenged the notice dated
19/4/2018 and order passed thereon dated 5/5/2018. According to
plaintiff, the suit structure is authorized. Plaintiff and other occupants
carry business in the suit building. Defendants have issued a notice and
passed order with malafide intention and on the instigation of the
complaint. Whereas according to defendant, entire structure of the
building is unauthorized and liable to be demolished.
17 It is to be noted that the suit building is situate at
Raghuvanshi Mills compound. Raghuvanshi Mill is the lessee and
Khimji Bhagwandas Charaty trust is the owner/lessor of the land. On
18/1/2018, Khimji Bhagwandas Charity trust gave complaint to the
Government and the same was forwarded to the defendant No. 1
Accordingly as discussed in supra initial notice U/s 351 was given and
after receipt of the reply from plaintiff, defendant no.1 passed the
impugned order. It is true that initially burden is on the plaintiff to
prove that suit structure is authorized. In Esha Ekta Apartments Co
operative Housing Society Ltd & ors V/s MCGM Hon'ble Supreme
Court held that flat purchaser knowing full well that construction was
unauthorized so the flat purchaser cannot seek mandamus for
regularization of unauthorized/illegal construction. Municipal
authorities cannot encourage violation of sanctioned plans by not
-- 8 of 19 --
Notice of motion 1932 of 2018: 9 : St No. 6855 of 2018
taking any action and courts are also expected to refrain from
exercising equitable jurisdiction for regularization of
illegal/unauthorized constructions.
18 In Seema Arshad Zaheer & Ors V/s MCGM reported in
2006 (5) Mh.L.J. 218 Hon'ble Apex Court ruled that :
It is true that in cases relating to orders of demolition of
buildings, 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
structures are unauthorised, the Court may not grant a
temporary injunction merely on the 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 produced, 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 unauthorized 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
19 Here in the present case, plaintiff has raised objection in
respect of the notice and order. One of the foremost objection of the
plaintiff is that plaintiff gave reply to the defendant and asked
inspection report, sanctioned plan, Tikkaa Sheet and other documents.
-- 9 of 19 --
Notice of motion 1932 of 2018: 10 : St No. 6855 of 2018
Defendant did not give documents to the plaintiff. Defendant no.1
discarded the documents produced by the plaintiff and passed the
impugned order on the basis of sanctioned plan of the year 1975,1977
and Tikka sheet of the year 1980. An opportunity was not given to the
plaintiff to put his submission on these documents before passing the
order. Thus, the defendant has violated the principle of natural justice.
Defendant no. 2 is nominated as the designated officer under the MMC
Act.
20 In Uma Nath Pandey and Ors V/s State of U.P. and Anr
reported in Criminal Appeal No 471 of 2009 ( rising ot of SLP (Cri)
No. 6382 of 2007) Hon'ble Supreme Court held in para no. 8 that:
The adherence to principles of natural justice as recognized
by all civilized States is of supreme importance when a
quasijudicial body embarks on determining disputes
between the parties, or any administrative action involving
civil consequences is in issue. These principles are well
settled. The first and formost principle is what is
commonly known as audi alteram partem rule. It says that
no one should be condemned unheard. Notice is the first
limb of this principle. It must be precise and unambiguous.
It should appraise the party determinatively the case he
has to meet. Time given for the purpose should be
adequate so as to enable him to make his representation.
In the absence of a notice of the kind and such reasonable
opportunity, the order passed becomes wholly vitiated.
Thus, it is but essential that a party should be put on notice
of the case before any adverse order is passed against him.
This is one of the most important principles of natural
justice. It is after all an approved rule of fair play. The
concept has gained significance and shades with time.
When the historic document was made at Runnymede in
1215, the first statutory recognition of this principle found
its way into the " Magna Carta". The classic exposition of
Sir Edward Coke of natural justice requires to"vocate"
interrogate and adjudicte". In the celebrated case of
Cooper V. Wandsworth Board of Works (1863) 143 ER
414, the principle was thus stated:
-- 10 of 19 --
Notice of motion 1932 of 2018: 11 : St No. 6855 of 2018
Even God did not pass the sentence upon Adam, before he
was called upon to make his defence."Adam" says
God,"Where art thou? hast thou not eaten of the tree
whereof I commanded thee that thou shouldest not eat.
In Para no. 10 Hon'ble Apex Court held that:
Principles of natural justice are those rules which
have been laid down by the courts being the minimum
protection of the rights of the individual against the
arbitrary procedure that may be adopted by a judicial,
quasi judicial and administrative authority while making
an order affecting those rights. These rules are intended to
prevent such authority from doing injustice.
21 In Mr. Arvind Pradhanbhai Dama V/s The Municipal
Corporation of Greater Mumbai in Appeal From Order No. 361 of
2013 with Civil Application No 441 of 2013 the Hon'ble High Court
held in para no. 4 that:
The question of sanction plan and/or necessary
documents in support of alleged construction certainly
need opportunity. The Assistant Commissioner, in my
view, just cannot pass single line order without giving
an opportunity of hearing. If the documents are filed
on record and when nothing to show that the show
cause notice was also issued to the owner, therefore
reasoning so given by the learned Judge though not
recorded in the order passed by the Assistant
Commissioner on 11.3.2013, in my view, is
unacceptable. The situation is that the reasoned order
need to be passed by the Assistant Commissioner first
and then the Court can note the said order and
reasoning so mentioned. The learned Court cannot give
reasons for the first time which were provided and/or
given by the Assistant Commissioner confirming the
show cause notice in issue. This, in my view, is relevant
factor to quash and set aside impugned order dated
21/3/2013.
22 In Mrs.Lilly P Pandit V/s The Municipal Corporation of
Greater Mumbai , Writ petition (L) No. 88 of 2014, Hon'ble High
Court held in para no. 3 that :
At this stage without observing anything further on merits
of the matter we are satisfied that no sufficient reason, no
opportunity as required under the law revolving around
-- 11 of 19 --
Notice of motion 1932 of 2018: 12 : St No. 6855 of 2018
the principles of natural justice has been given. Merely
issuing show cause notice itself is not sufficient. The
reasoned order as contemplated means application of mind
to the documents so supplied as the impugned
action/decision ultimately decides and/or take away the
rights of the Petitioners to retain the possession of the
alleged unauthorised premises as the case is of the
existence of the structures prior to 1962. The sections itself
entitled the person/party to appear in person or through
agent to submit reply and the documents to the show
cause notices. The need to give them opportunity in
accordance with law therefore also requires to pass
reasoned order. This itself means the officer concerned
must apply his mind to the documents and the reply by
giving all reasonable opportunity to the parties,specially
when the order has effect of final decision. There is no
further appeal or revision available. The civil Court's
jurisdiction is also barred in view of section 515A of the
MMC Act. The officer in question therefore is also required
to exercise its authority and /or power judicially, before
deciding the rights of the parties/persons. The inherent
principles of natural justice, fair play are required to follow
by all including the quasijudicial authority at all stages
including the final decision.
23 In Ramdas M. Suryavanshi V/s Municipal Corporation
of Greater Mumbai reported in A.O. 919 of 2000 with C.A. No.9216
of 2000 Hon'ble High Court ruled in para No. 5 that:
In a matter of this nature, I am of the view that the Ward
Officer of the Municipal Corporation ought to have
displayed a closer application of mind to the circumstances
of the case. While dealing with the reply issued in respect
of the notice Section 351 of the Mumbai Municipal
Corporation Act, 1988 ( hereinafter referred to as"the Act)
the Ward Officer enumerated the documents, which had
been produced and thereafter, merely concluded by saying
that the documents do not show the existence of the
structure prior to the datum line. In a case such as the
present where the Appellant is a tenant of an old building,
there is substance in the grievance that the sanctioned
building plan would not be available to the tenant himself.
The Municipal Corporation has chosen not to issue a notice
-- 12 of 19 --
Notice of motion 1932 of 2018: 13 : St No. 6855 of 2018
to the landlord. Consequently, the Appellant sought the
inspection of the sanctioned building plan and also of the
assessment record of the Municipal Corporation. Fairness
in such a case would require that if the sanctioned plan is
available to the Appellant for the purpose of inspection.
The assessment record should also be divulged to the
Appellant who has been sought to be proceeded against.
Ultimately the assessment record and the sanctioned
building plan may or may not reveal the existence of the
attic, but that is besides the point. Fairness in the process
would require, particularly, when a notice is not issued to
the landlord that a reasonable opportunity be given to the
tenant to demonstrate to the Municipal Corporation as to
whether the attic had been constructed right at its
inception as contended by the Appellant. of Course, in a
given case it could well happen that the nature of the
construction would reveal that it is of a recent origin and
this may be deduced on the basis of other factual material
such as the nature of the construction material that has
been used, the status and position of the property or the
method of construction. In each case it would be necessary
that the Ward Officer apply his mind to the facts and
circumstances before him instead of passing a stereotypes
order as has been done in the instant case. The Ward
Officers of the Corporation must bear in mind that natural
justice is not an empty formality. The requirement of due
process is not merely to give a legal form to a decision
which has already been taken earlier. The person who is
sought to be proceeded against must have a real
opportunity to demonstrate the justness of the cause. In
the circumstances, I suggested to the Learned Counsel
appearing on behalf of the Municipal Corporation that
while it would not be appropriate for this court to go into
the merits of the case at the present stage, the Appellant
may be given an opportunity of inspecting the assessment
record and the sanctioned building plan , if the same is
available in the files of the Municipal Corporation. The
learned Counsel appearing on behalf of the Municipal
Corporation stated that at the least the Appellant should
furnish the property number and other relevant details so
as to enable the Municipal Corporation to search out the
assessment record and sanctioned plan. This request is fair
-- 13 of 19 --
Notice of motion 1932 of 2018: 14 : St No. 6855 of 2018
and reasonable. Accordingly, it would be open to the
Appellant to furnish further details in respect of the
representation which has already been made by the
Appellant so as to enable the Municipal Corporation to
make such records including the assessment records and
sanctioned building plan as are available with it for
inspection to the Appellant. The Appellant will furnish
such additional details within a period of two weeks from
today. The Ward Officer of the Municipal Corporation shall
obtain and furnish inspection of the assessment record as
well as the sanctioned plan if that is available in the files of
the Municipal Corporation within a reasonable period
thereafter. The Ward Officer will consequently pass a fresh
order after giving an opportunity to the Appellant of
submitting any further representation that he may wish to
submit.
24 Hence, Hon'ble Supreme Court and Hon'ble High Court has
held that the quasijudicial authority shall follow the principles of
natural justice before passing any order. Now it is also settled that even
in case of useless formality theory are an opportunity should be given
to the person against whom the order is likely to be passed. Quasi
Judicial authority when following due process of law then the said
authority shall follow the principle of natural justice and opportunity
shall be given to the parties. Admittedly, the plaintiff has given reply to
the notice issued by defendant no. 1 dated 26/04/2018. Plaintiff
denied the every contention in the notice and demanded the
inspection report, sanctioned plan and other documents. Admittedly,
defendant no. 1, did not provide the documents to the plaintiff and on
5/5/2018, passed the impugned order and thereby directed the
plaintiff to vacate the suit premises. In the affidavit in reply defendant
no. 1 has stated that plaintiff has produced documents but they do not
prove the authorization of structure. The structure is not in consonance
with the sanctioned plan and Tikka sheet as above. While passing
-- 14 of 19 --
Notice of motion 1932 of 2018: 15 : St No. 6855 of 2018
speaking order the defendant no. 1 has discarded the entire documents
produced by plaintiff and in para no. 6 held that the notice structure is
contravening the sanction plan and tikka sheet and on that basis
passed the said order. The defendant no. 1 further held that the suit
building is assessed from the year 2004 2205. Thus, from the perusal
of the speaking order passed it appears that it is passed without giving
any opportunity to plaintiff of hearing.
25 The defendant no. 1 has issued a notice to the occupiers in
the compound of Raghuvanshi Mill. All the occupiers have challenged
the notice and order and filed the suit in this court. One of the
occupier in a Prathemesh Tower namely Janmejai has filed Suit St.No.
6755 of 2018. At that time defendants have filed reply and produced
the sanctioned plan, tikkaa sheet. The adinterim relief was refused by
this court but plaintiff Janmejai had filed Appeal before Hon'ble High
Court. Hon'ble High Court directed the defendant corporation give the
copies of the documents to the plaintiff and thereafter pass the order.
Hon'ble High Court held that in order to enable the appellant to deal
the necessary documents and have effective defence to the notice
issued U/s 351, it would be appropriate if authorized officer is directed
to supply the documents and give an opportunity to deal with the
such documents , the authorized officer would pass order. Thus,
Hon'ble High Court set aside the order passed by defendant no. 2 and
directed to pass order a fresh. The ratio laid down in the above ruling is
applicable to the present case in hand. Therefore I find that an
opportunity should be given to the plaintiff to put his grievance in
respect of documents before the designated officer .
26 In Shri Sopan Maruti Thopte and another V/s Pune
Municipal Corporation an another, 1996 (2) ALL MR 383 Hon'ble
-- 15 of 19 --
Notice of motion 1932 of 2018: 16 : St No. 6855 of 2018
High Court has laid down the procedure in para no. 19 and also
directed that the said procedure shall be followed by Municipal
Corporation and Municipal corporation constituted under B.P.M.C Act.
Hon'ble High Court in para no. 19 held that:
Hence, on the basis of the law as discussed above, it is directed
that after 1st May, 1996, the Bombay Municipal Corporation or
the Municipal Corporations constituted under the B.P.M.C Act
would follow the following procedure before taking action Under
section 351 of the B.M.C Act or under Sec.260 of the B.P.M.C
Act.
(i) In every case where a notice under section 351 of the
B.M.C Act/under sec. 260 of B.P.M.C Act is issued to a
party 15 days time shall be given for submitting the reply.
In case the party to whom notice issued sends the reply
with the documents, and shows cause, the Municipal
Commissioner or Deputy Municipal Commissioner shall
consider the reply and if no sufficient cause is shown, give
short reasons for not accepting the contention of the
affected party.
(ii) It would be open to the Commissioner to demolish the
offending structure 15 days after the order of the
Commissioner/Deputy Municipal Commissioner is
communicated to the affected person.
(iii) In case the staff of the Corporation detects the building
which is in the process of being constructed and/or
reconstructed and/or extended without valid permission
from the Corporation, it would be open to the
Commissioner to demolish the same by giving a short
notice of 24 hours after drawing a panchnama at the site
and also by taking photographs of such structure and/or
extension. The photographs should indicate the date when
the same were taken.
(iv) In case where the Municipal Corporation has followed
due process of law and demolished the unauthorised
structure and/or extension, if the same is reconstructed
without valid permission within a period of one year, it
would also be open to the Corporation to demolish the
same by giving a short notice of 24 hours.
-- 16 of 19 --
Notice of motion 1932 of 2018: 17 : St No. 6855 of 2018
(v) If the offending structure and or extension which is
assessed by the Corporation for two years, notice shall
provide for 15 days time to show cause. If the Deputy
Municipal Commissioner comes to the conclusion that he
requires assistance of the party, he may give an oral
hearing if he deems fit and proper before passing the
order. It is made clear that oral hearing is not at all
compulsory but it is at the discretion of the authority.
(Vi) In any other case the Corporation is directed to issue a
show cause notice in case of any structure and/or
extension other than those mentioned in clauses (i) to (iv)
above. The Corporation shall provide for 7 days time to
show cause in such as case.
27 Here in the present case, the designated officer had
directed the plaintiff to give reply within 7 days and also after passing
the order directed the plaintiff to vacate the premises within 7 days.
Thus, the order of the defendant no. 1 does not comply the directions
of Hon'ble High Court in Shri Sopan Maruti Thopte and another V/s
Pune Municipal Corporation an another
27 Therefore, at this stage without going to the other points
of the case and in view of the authoritative pronouncement of the
Hon'ble Supreme Court and Hon'ble Bombay High Court I find that an
opportunity is to be given to the plaintiff to defend his case firstly
before the designated officer. Hence I pass the following order:
ORDER
1 The plaintiff is directed to remain present before the
Designated officer ( defendant no.1) either on
26/06/2018 or 27/06/2018 and would make a demand
of requisite documents. Documents would be supplied
to the plaintiff within period of two days.
2 Plaintiff shall appear before the Designated officer
-- 17 of 19 --
Notice of motion 1932 of 2018: 18 : St No. 6855 of 2018
(defendant no1) within a week (as on the date fixed by
defendant no.1) for further hearing and thereafter the
Designated officer shall pass an order after affording
an opportunity of hearing to the plaintiff.
3 Till then and thereafter two weeks in case of adverse
order if any, the defendant shall not take coercive
action in respect of the suit structure.
4 Notice of motion No. 1932/2018 is disposed off in
terms of above directions.
Both the parties are directed to follow above schedule
scrupulously.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 22/06/2018
Typed on : 26/06/2018
Signed by HHJ. :30/6/2018
-- 18 of 19 --
Notice of motion 1932 of 2018: 19 : St No. 6855 of 2018
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
2/7/2018 Mrs. 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
22/06/2016
JUDGEMENT/ORDER signed by
P.O. on
30/6/2018
JUDGEMENT/ORDER uploaded
on
2/7/2018
-- 19 of 19 --