Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI
NOTICE OF MOTION NO.2318 OF 2019
IN
L.C. SUIT NO.1318 OF 2018
Javed Ismail Kachra, ]
Adult, Indian Inhabitant, Age : 52 years, ]
Occupation : Business, residing at ]
plot No.115A, behind Bhikuji Cottage, ]
besides Agashe Hospital, M. N. Road, ]
Kurla (W), Mumbai – 400 070. ] ... Plaintiff
Versus
Municipal Corporation of Greater ]
Mumbai, through their Assistant ]
Municipal Commissioner, “L” Ward, ]
Kurla (W), Mumbai – 70. ] ... Defendant
And
Mr. Pyarelal Kapgate, ]
Junior Engineer, “L” Ward, ]
Kurla (W), Mumbai 70. ] ... Respondent
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 16th September, 2019.
Mr. S. S. Kudalkar, Advocate for plaintiff.
Ms. Ghosh, Advocate for M.C.G.M./defendant.
CNR NO.: MHCC010064092019
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O R D E R
1. By this notice of motion, the plaintiff has sought direction
to the respondents to reconstruct the suit premises at their costs, and in
the alternative, to allow the plaintiff to reconstruct the suit premises to
its original position. A direction is also sought to direct the respondents
to deposit the sum of Rs.10 Lakhs for damaging and destroying the suit
premises.
2. In the affidavit in support of notice of motion, the plaintiff
has come with a case that the suit bearing L.C. Suit No.1318 of 2018 is
pending before this Court, challenging the notice dated 01/11/2017
issued under Section 354A of the Mumbai Municipal Corporation Act
(hereinafter to be referred as the M.M.C. Act). The order passed in
pursuance to said notice is also under challenge. The suit premises is
house at plot No.115A, behind Bhikuji Cottage, besides Agashe
Hospital, M. N. Road, Kurla (W), Mumbai – 400 070. Along with the
suit, draft notice of motion was filed. On 05/06/2018, this Court
granted adinterim relief restraining the defendant from enforcing the
impugned notice and order. The said order was passed in presence of
Advocate of the defendant. The said order is also served by the plaintiff
on the office of defendant at “L” Ward, Kurla, Mumbai, on 06/06/2018
at around 10.30 a.m. It is acknowledged by the officers of
defendant/Corporation. Inspite of such order and inspite of informing
the said order to the office of the defendant/Corporation, the officers of
the defendant came to the suit premises on 06/06/2018 at 1.00 p.m.
for the purpose of demolition of the suit premises. The plaintiff
informed the order to those officers and also shown the copy of the said
order. However, the said officers of the defendant/Corporation did not
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look into the same and partly demolished the suit premises
highhandedly and in complete disregard to the injunction order. The
officers of the defendant/Corporation demolished the first floor and
also caused damage to the roof/slab of the ground floor. After
considering the reply by the plaintiff, submitted in response to the
impugned notice, the defendant/Corporation has passed speaking
order. After grant of adinterim relief by this Court, copy of speaking
order is served on the plaintiff. By the said speaking order, the
designated officer has concluded that the plaintiff has failed to prove
authorisation of notice structure and directed the plaintiff to remove
the same. The officers of the defendant/Corporation have demolished
the first floor of the suit premises with malafide intention and have also
damaged the ground floor of the suit premises extensively. Since the
speaking order dated 05/07/2018 concludes that the existence of
ground floor prior to the datum line is established, the
defendant/Corporation is satisfied that the ground floor is existing
since prior to datum line. The officers of the defendant/Corporation
have in hasty manner, carried out demolition affecting the plaintiff's
right. The plaintiff's family has no shelter and is residing in the house of
plaintiff's brother. The aforesaid facts are brought on record by the
chamber summons by way of amendment in the plaint. In view of the
liberty granted by this Court, the present notice of motion is filed. The
plaintiff be permitted to restore back the structure admeasuring about
40' x 25' each to the side of 6.7 meters of ground and mezzanine floor.
The officers of the defendant/Corporation have committed contempt of
the Court. They have also stated that they are above the judiciary and
also made sarcastic and demeaning statements against this Court as
not faithful.
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4. The defendant/Corporation has opposed the notice of
motion contending that by virtue of notice dated 01/11/2017, the
plaintiff was called upon to produce the documents proving existence
of the structure prior to the datum line. The plaintiff did not do so.
Therefore, speaking order was passed after completion of 24 hours to
remove illegal structure. The plaintiff failed to comply the instructions
in the notice and therefore, the suit structure was demolished with the
help of Vinoba Bhave Marg police station. The plaintiff again tried to
reconstruct the said structure without necessary permission and hence,
under intimation to the Vinoba Bhave Marg police station vide letter
dated 29/05/2018, redemolition was scheduled on 06/06/2018.
During the demolition on 06/06/2018, the plaintiff showed order
dated 05/06/2018 passed by this Court and the officers of the
defendant/Corporation immediately stopped the work. Thus, there is
no violation of principles of natural justice, the order of this Court and
plaintiff's right. The officers of the defendant/Corporation have
followed the due process of law. The defendant/Corporation, being
public body, has a system for acknowledging the documents and then
to forward to the relevant departments. It is denied that the officers
carrying out demolition work had knowledge of the order dated
05/06/2018. Soon after getting knowledge, they stopped the work of
demolition. The documents submitted by the plaintiff on 04/06/2018
do not prove authorisation of the notice structure. The equity does not
lie in favour of the plaintiff as the authorisation is not proved. By filing
the present notice of motion, the plaintiff is trying to prove that the
notice structure is authenticated and legal. The plaintiff has no
bonafide intentions. Notice of motion is not maintainable. The balance
of convenience does not lie in favour of the plaintiff.
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5. The plaintiff has filed an affidavit in rejoinder and has
stated therein that the plaintiff has replied impugned notice on
01/11/2017 itself. However, the order is passed without considering
the documents. There is no inspection report or demolition report of
the suit structure. No panchanama and photopass are produced. The
suit structure was very much in existence. There is no document to
prove that the suit premises was demolished on 08/11/2017. The reply
by the defendant/Corporation reveals that the receipt of injunction
order is admitted by them. Since the demolition is carried out without
following due process of law, the suit structure can be reconstructed
and restored. The officer of the defendant/Corporation Mr. Pyarelal
Kapgate arrived at the suit premises at 12.30 p.m. with all demolition
squad with police protection and immediately copy of order was shown
to him. The suit structure is assessed prior to 1960. The cost of
reconstruction of the suit structure is more than Rs.10 Lakhs.
6. Perused. Heard.
7. Before going through the merits of the Notice of Motion, it will
the fruitful to know the proceedings that took place prior to this Notice
of Motion which will definitely have bearing on the maintainability of
this Notice of Motion.
8. The plaintiff, after the alleged incident of demolition, has moved
this Court by way of a Chamber Summons No.2057 of 2018 seeking
amendment as well as permission to restore the statusquo ante of the
suit premises. A direction was also sought to restore the ground floor
of the suit premises as per Speaking Order dated 5.7.2018 passed by
the Designated Officer of BMC. During the course of hearing of said
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Chamber Summons, Advocate for plaintiff has not pressed the relief
sought in Clause (b) of the Chamber Summons which was for restoring
statusquo ante of the suit premises. Considering that a Chamber
Summons was moved, prayer Clause (c) was not considered by this
Court and plaintiff was granted liberty to take out appropriate
proceedings in that regard. Prayer Clause (c) was pertaining to
restoration of ground floor premises.
9. Coming to the relief sought in present Notice of Motion it is seen
that prayer Clause (a) in the Notice of Motion is for direction to the
Respondents to reconstruct the suit premises at their own costs or in
the alternative to allow the plaintiff to reconstruct the suit premises to
its original position.
10. The relief not pressed while hearing Chamber Summons No.2057
of 2018 and relief Clause (a) of present Notice of Motion are having the
same effect. Once the plaintiff has not pressed said relief while hearing
Chamber Summons No.2057 of 2018, to my mind the plaintiff cannot
ask for said relief by instituting another proceeding. More particularly
when liberty was granted to the plaintiff to take out appropriate
proceedings seeking restoration of the ground floor of the suit
premises.
11. In view of above discussion therefore, maintainability of the
Notice of Motion in respect of prayer Clause (a) is rendered doubtful.
12. Coming to the facts of the case, the plaintiff has come with a case
in the plaint that, the suit premises has ground + mezzanine floor, as
described in plaint paragraph 1. The Registered Deed of Conveyance
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dated 22.11.2016 executed in favour of the plaintiff however, reveals,
in the schedule of the property, that the structure purchased by the
plaintiff is a single storied building. In the affidavit in support of Notice
of Motion the plaintiff has claimed in paragraph 4 that the defendant
has demolished the first floor of the suit premises in breach of the order
passed by this Court.
13. The circumstances, pointed out above thus reveal that plaintiff
had purchased a single storied structure. While filing the suit it was
ground floor + mezzanine floor however, while filing present Notice of
Motion it was ground + first floor. This expansion of the suit premises
is not automatic. In view of this, it is clear that the plaintiff has not
come with clean hands before the Court in respect of the construction
of the suit premises.
14. The plaintiff has come with a case that the impugned Notice was
served on the plaintiff on 1.11.2017 and he replied on the same day,
however, without considering the reply the Speaking Order dated
2.11.2017 was passed. Defendant Corporation has disputed this aspect
that the plaintiff has filed a reply to impugned notice.
15. Plaintiff has produced a copy of reply at Exh.D to the plaint. A
bare look to the copy of reply dated 1.11.2017 reveals that it nowhere
bears the acknowledgement of the defendant Corporation
acknowledging the receipt of said reply dated 1.11.2017. Thus, the
plaintiffs contention that impugned notice was immediately replied but
without considering said reply the order is passed, is, prima facie, not
acceptable.
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16. The proceedings do indicate that while moving Chamber
Summons No.2057 of 2018 the plaintiff has submitted certain
photographs on record. The photographs submitted alongwith
Chamber Summons No.2057 of 2018 reveal that a frame work of M.S.
Angles to construct the first floor was erected. The brick walls had just
seen started to have been constructed. The nature of construction
material seen in these photographs supports the contention of
defendants in the impugned notice that the unauthorised construction
using B.M. walls , M.S. Angles, ladi coba, ladi slab was in progress. In
plaint paragraph 1 the plaintiff has described the suit premises having
B.M. walls and RCC Walls. The photograph produced at Exh.8 by the
plaintiff reveals that it has slopping roof of A.C. Sheet. However, the
plaintiff has not come with a case that the suit premises ever has M.S.
Angles and ladis were used for its constriction. Thus, it is clear that the
photographs produced by the plaintiff himself reveal that the nature of
suit premises is changed.
17. The defendant has produced on record two compilations of
documents Exh.4 and Exh.6. The documents produced reveal that after
passing a Speaking Order dated 2.11.1918 the action of demolition of
the suit premises was carried out on 8.11.2017. The demolition Report
clearly reveals that it did took place. The photo forming part of
demolition report clearly indicates that the demolition was carried out
on 8.11.2017. The plaintiff has suppressed this fact from this Court.
18. The discussion above, thus, reveals that the plaintiff has not
come with clean hands before the Court on many counts.
19. Coming to the contention of the plaintiff that the demolition was
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further carried out on 6.6.2018, in breach of order dated 5.6.2018, the
plaintiff's statement in Affidavit in support of Notice of Motion need to
be considered. According to the plaintiff he served the copy of order
dated 5.6.2018 in the office of defendant at 10.30 a.m. on 6.6.2018.
Despite this service of copy of order, at 1.00 p.m. the staff from "L"
Ward appeared at the suit premises and partly demolished the suit
premises in breach of the order dated 5.6.2018. It is also his statement
that he shown the order of injunction dated 5.6.2018 to the officer of
defendant but still he demolished the first floor and damaged the
roof/slab of the ground floor.
20. The fact that this Court passed an order on 5.6.2018 restraining
the defendant temporarily from demolishing the notice structure is
undisputed. The defendant however, has disputed that despite the
knowledge of the order Officer of defendant demolished the alleged
first floor.
21. According to the defendant the demolition was already
scheduled on 6.6.2018 since even after demolition on 8.11.2017 the
plaintiff was reconstructing the suit structure. During the course of
demolition on 6.6.2018 the plaintiff shown the copy of order dated
5.6.2018 and immediately the demolition activity was stopped. Thus
the order dated 5.6.2018 is obeyed by the defendant and no question of
it's disregard arises. It is also contended that the copy of order, though
served on the office, it takes time to bring said order to the knowledge
of the Officers on site.
22. Thus there is a dispute as to at what time the copy of order was
served, at what time the Officers arrived at the site and whether they
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did stop the activity of demolition after getting knowledge of the order
passed by this Court.
23. At this stage, considering the plaintiff's conduct, it is difficult to
believe plaintiff's version in this regard. Thus, this questions will have
to be considered only on the basis of evidence adduced during trial. At
this stage, therefore, the plaintiff has not made out any case for
reconstruction of the suit premises.
24. The facts remain that after considering the plaintiff's reply and
documents defendant has passed another order dated 5.7.2018
wherein the ground floor structure was not considered unauthorised
and the plaintiff is directed to remove the first floor structure only. The
plaintiff has come with a case that the plaintiff is homeless due to the
activity of the defendant. In such circumstances, if the plaintiff is
allowed to repair the roof or slab of the ground floor and is allowed to
occupy the ground floor, it will be just and equitable. However, this
can only be done in or under supervision of a licensed Architect and by
granting liberty to the defendant to inspect the activities of such
repairs.
25. Advocate for plaintiff had relied upon Judgment of Hon'ble
High Court of Bombay in the case of Municipal Corporation of
Greater Mumbai Vs. Mr. Thomas Mathew, Mr. Jhonson Mathew
And Mr. Sabastian Mathew. I have gone through the authority cited
supra wherein the Hon'ble High Court had allowed to reconstruct the
shops. However, such reconstruction was ordered after a fullflaged
trial and on assessment of evidence therein. In this case, the matter is
at interim stage. Thus, the authority cited supra will not help the
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plaintiff to make out a case for himself.
26. The advocate for plaintiff also relied upon the Judgment of
Bombay High Court in Writ Petition No.608 between
Harishchandra B. Kahar Vs. Municipal Corporation of Greater
Mumbai. Wherein after considering the observations in Sopan Maruti
Thopte's case, the Hon'ble Bombay High Court, in the facts of the case,
held that erection of the structure should be allowed.
27. In this case, considering the conduct of the plaintiff and in
absence of evidence, plaintiff's entitlement to relief sought, in the
Notice of Motion is held doubtful. Thus, the authority, cited supra, will
not help the plaintiff.
28. The Advocate for defendant Corporation relied upon Namdev
Pandurang Pandurang Panchal Vs. Mumbai Municipal Corporation,
2006(1) Bom.CR 680, 2006(1) MhLj 194, to content that the
illegality and validity of structure is required to be proved on the basis
of documentary evidence otherwise that will create chaotic situation
where everybody will examine numerable witnesses for proving these
facts. There cannot be any substitute for written permission of the
BMC for construction nor there cannot be any substitute for approved
plan before construction.
29. There cannot be any dispute about the proposition of law laid
down by the authority cited supra.
30. In the circumstances, therefore, I hold that the Notice of Motion
can be disposed of effectively and equitably by allowing the plaintiff
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only to repair roof of ground floor as defendant has held it tolerable.
In the result, I pass following order:
ORDER
1. The plaintiff is allowed to repair the slab/roof of the ground floor
structure under the supervision of Licensed Architect.
2. Defendant Corporation is at liberty to inspect the activity of such
repairs.
3. In case the defendant finds that the liberty given by this Court is
being misused by the plaintiff, the defendant is allowed to move
this Court but it shall not take action on its own without giving
24 hours notice to the plaintiff.
4. Notice of Motion No.2318/19 is disposed of.
5. Costs in cause.
Sd/
(A.N. MARE)
Judge,
16.09.2019 City Civil Court, Mumbai.
Dictated On : 16.09.2019
Transcribed on : 18.09.2019
HHJ Signed on : 20.09.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
20/09/19 03.25 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
16.09.2019
JUDGEMENT /ORDER signed by
P.O. on
20.09.2019
JUDGEMENT /ORDER uploaded on 20.09.2019
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