Order 3

Order Details: Copy of Judgment
Pdf Text: 1 Judg in L.C.Suit No.1493 of 2018
MHCC010064672018
Presented on : 28052018
Registered on : 28052018
Decided on : 05092022 .
Duration :04 Ys, 03 Ms, 08 Ds
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
L.C.SUIT NO.1493 OF 2018
Himanshu Jayantilal Kamdar
Age:55 years, Occ:Business,
Sole Proprietor of Kamdar
Sweets having address at
Shop No.6, 429E, S.V.P.
Road, Prarthana Samaj,
Giraum, Mumbai:400 004. .. Plaintiff
V/s.
1 The Municipal Corporation of
Greater Bombay, a Body Corporate
Constituted under the Bombay
Municipal Corporation Act, 1888,
having its office at Mahapalika
Marg, Opp. C.S.T., Fort,
Mumbai:400 001.
2 Mr. Mandar A. Tari
Asst. Engineer (Maint.East)
'D' Ward, Brihanmumbai,
Mahanagar Palika, Office
of the Asstt. Commissioner
'D' Ward, 2nd Floor, DWard
Municipal Office Building,
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2 Judg in L.C.Suit No.1493 of 2018
Johanputra Compound,
Nana Chowk, Grant Road(W),
Mumbai:400 007.. .. Defendants
Appearance:
Adv. Sanket Mungale for plaintiff.
Adv Smt. Kumud Soraan for defendant/MCGM.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR.
BOMBAY
(C.R. NO.05).
DATE : 05/09/2022
JUDGMENT
1 This is a suit for declaration and permanent injunction
instituted by the plaintiff against the proposed action of
defendants pursuant to impugned notice U/s.314 of Mumbai
Municipal Corporation Act, bearing No.ACD/20387/ AE(M)/East
dt.19/01/2018 and impugned order bearing No.ACD/052285/AE
(M)/East dt.22/05/2018 regarding notice structure as described
below.
2 Suit claim of the plaintiff may be narrated as under:
Plaintiff is carrying on business of selling Sweetmeats,
Farsan, Chikki, Dry Fruits etc. as a proprietor in the name and style
of M/s.Kamdar Sweets at Shop No.6, 429E, S.V.P. Road,
Prarthana Samaj, Girgaum, Mumbai:400 004 since from
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3 Judg in L.C.Suit No.1493 of 2018
dt.9/7/1997. Earlier one Narendra Popatlal Vora was the tenant
of said suit premises and he acquired occupancy from landlord
Shri. Ranjitbhai Kapadia and then Shri. Narendra Vora gave the
suit premises to the plaintiff for running and conducting the
business of Sweets, Dry Fruits etc. by way of Agreement of
Conducting for a period of six years and after his demise, the
Conducting Agreement was executed with his widow Rashmi Vora.
3 The structure situated on S.V.P. Road known as
'Kamdar Sweets' as shown in the photograph of impugned notice
i.e. Canopy is the alleged notice structure. The plaintiff has not
carried out any construction in the suit premises. Mezzanine floor
as well as Canopy were in existence since long. There are various
documents to show existence of mezzanine floor and Canopy
which is a part and parcel of the mezzanine floor.
4 However, the plaintiff received the notice U/s.314 of
MMC Act bearing No.ACD/20387/AE(M)/East dt.19/01/2018
from defendant No.2 to show that the notice structure has been
constructed as per permission granted by Municipal Corporation of
Greater Bombay or authorities or protected by any law or policy in
force. Plaintiff gave reply to said notice through advocate,
mentioning all the facts about the notice structure. Plaintiff has
averred that initially, the defendants issued notice to him
regarding construction of unauthorised mezzanine floor and said
notice had been challenged by him by filing suit bearing No.1979
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4 Judg in L.C.Suit No.1493 of 2018
of 2011. The Court has granted status quo in said matter in
respect of suit premises and the plaintiff was asked to file
application for regularization of mezzanine floor before the
competent authority within three weeks as per undertaking.
Plaintiff has applied for regularization of mezzanine floor and the
status quo order in said suit is still in continuation. Even though,
the defendants have issued impugned notice to the plaintiff
U/s.314 of MMC Act on dt.19/1/2018. It is specifically averred
that the structure covered under the present impugned notice is
the part and parcel of mezzanine floor and order is already passed
for maintaining status quo in the above suit. However, the
Designated Officer passed the speaking order directing the plaintiff
to remove the structure notified in the impugned notice.
5 This notice action has been initiated merely on the
basis of wrong complaint made by one Narendra Walawalkar to
the BMC and BMC is issuing notice at his behest.
Defendant/Corporation is very much aware that Canopy is there
from the beginning. Plaintiff had shown the plan showing Canopy
and the Canopy register is showing its existence prior to 1960.
Even though, the defendants continued with the notice action and
gave threats to the plaintiffs that they will demolish the notice
structure.
6 It is specifically averred that defendants have failed to
consider the documents submitted by him to them by way of reply.
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No personal hearing is given, no principles of natural justice are
followed. Canopy is part and parcel of mezzanine floor and is not
a separate structure. Plaintiff has not used Canopy portion for
cooking purpose or residential purpose for his labours, though it
has been alleged by the defendants. The regualarization
application for mezzanine floor is still pending before the
defendants, but they issued impugned notice to the plaintiff.
Hence, plaintiff has filed this suit for declaration thereby declaring
that the impugned notice and impugned order passed by the
defendants are bad in law, illegal and null and void. Moreover,
plaintiff prayed that the defendants may be restrained
permanently from taking any action pursuant to the impugned
notice and order.
7 The defendants have combated the suit by filing
written statement on record at Ex.6 & 9.
It is specifically contended that they received complaint
from Shri.Walawalkar for illegal and unauthorised projection of
Canopy of Kamdar Sweets and using it for illegally cooking food
on Municipal foot path at S.V.P. Road near Prarthana Samaj,
Mumbai:400 004. Their officers visited the site and found that
M/s.Kamdar Sweets damaged the wall of building to make
unauthorised entry gate through Canopy. The canopy portion is
used totally for commercial purpose. The owner/occupier used
the front portion of Canopy for the advertisement of their shop
and to keep Gas Cylinder and cooked food on Canopy and the
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6 Judg in L.C.Suit No.1493 of 2018
labour of Kamdar Sweets also used it for residential purpose and
waste purpose. The drainage pipe line is also installed by the
owner/occupier on the suit site. The type of use of Canopy is in
violation of Rules and Regulations of MCGM.
8 Therefore, defendants issued impugned notice U/s.314
of MMC Act vide No.ACD/20387/ AE(M)/East dt.19/01/2018 to
the owner/occupier of the structure for unauthorised Canopy on
Municipal foot path and directed to remove the same within 48
hours from the service of notice or in alternative within 48 hours
to produce the documentary evidence, if any, to show that the
structure have been constructed as per permission granted by the
MCGM and or authorised/protected by any law/policy in force
before the Assistant Commissioner 'D' Ward.
9 The plaintiff submitted his reply through Advocate on
dt.19/1/2018 denying notice contents and said that Canopy is a
part and parcel of mezzanine floor and L.C. Suit No.1979 of 2011
for mezzanine floor is already sub judice before City Civil Court.
However, after going through the inspection report and rough
sketch, photographs and reply etc, the Asstt. Engineer,
Maintenance 'D' Ward passed order under
No.ACD/052285/AE(M)/East dt.22/05/2018 and directed the
plaintiff to remove the Canopy portion within three days on receipt
of the order.
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7 Judg in L.C.Suit No.1493 of 2018
10 The Canopy is illegal projection over the Municipal foot
path. As per the record of Corporation at Maintenance
Department(East), 'D' Ward, there is entry in the name of
Narendra P. Vora in Ground Rent Register for the post awning of
the Shop No.6, but the name of Kamdar Sweets is not found in the
Register. The existing structure and its use does not match to the
norms of the post awning. Post Awning is a temporary structure,
but the plaintiff has constructed 4 numbers of permanent columns
for supporting the heavy concrete slab in place of supporting post
and temporary shed which is totally illegal and in contravention
with the provisions of law and without permission of competent
authority. There is no record that over hanging slab erected on
Municipal foot path is approved by BMC, however, the Vora
Brothers names are recorded in Municipal registers for paying
ground rent. They have verified the City Survey Plan Sheet
No.175 Second Edition corrected upto 1944 as per Hon'ble High
Court's order in A.O.No.823 of 2019 and they found existence of
shed but nowhere it is showing that the plaintiff has sought
permission for construction of Canopy portion in the form of
mezzanine floor. Defendants have raised legal objection to the
tenability of the suit stating that this Court has no jurisdiction to
entertain the present suit in view of Section 515 A of MMC Act.
Hence, the suit is liable to be dismissed. Further, the suit is bad
for want of statutory notice U/s.527 of MMC Act.
11 Hence, the suit brought by plaintiff is totally wrong.
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Notice action is lawful and initiated by following due process of
law. Hence, suit is liable to be dismissed with costs.
12 From the facts and circumstances of the case, and
material placed on record, following issues arose for my
determination and I have given my findings thereon with reasons
as below.
Sr.
No.
ISSUES FINDINGS.
1 Whether the plaintiff proves
that the notice dt.19/01/2018
issued U/s.314 of the Mumbai
Municipal Corporation Act and
the order dt.22/05/2018 is
illegal and bad in law ?
Proved.
2 Whether the plaintiff is entitled
for perpetual injunction as
prayed for?
Yes.
3 Whether the suit is bad for
want of notice U/s.527 of
MMC Act?
No.
4 Whether the jurisdiction of this
Court is barred U/s.515(A) of
the Mumbai Municipal
Corporation Act ?
No.
5 What order and decree? Suit is decreed as
per final orders.
REASONS
13 In order to establish the suit claim, plaintiff adduced
evidence by filing affidavit of his power of attorney holder Mr.
Jimmy Mahendra Thakkar vide Ex.10 and also tendered
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9 Judg in L.C.Suit No.1493 of 2018
documentary evidence on record as follows:
1) Photocopy of the notice U/s.314 of MMC Act
1888 dt.19th January 2018 Ex.12
2) Photocopy of the letter dt.22nd May 2018 Ex.13,
3) Photocopy of Inspection Report dt.5th February
2018 Ex.14,
4) Original letter dt.18th September 2018 from
defendant No.1 alongwith the relevant extract of
Canopy register issued under RTI Act Ex.15,
5) Original Power of Attorney dt.19th July 2022
Ex.16,
6) Photocopy of the Agreement of Conduction dt.9th
July 1997 Ex.17,
7) Photocopy of Deed of Assignment Ex.18,
8) Photocopy of letter dt.4th May 1990 Ex.19,
9) Photocopy of the letter dt.19th January 2018
Ex.20,
10) Photocopy of letter dt.25th May 2018 Ex.21,
11) Original letter dt.9th February 2018 Ex.22,
12) Original office copy of the application dt.20th
August 2018 under RTI Act, Ex.23,
13) Original office copy of the letter dt.30th August
2018 Ex.24,
14) Original certified copies of the two survey plans
issued by the Superintendent, City Survey and Land
Records, Mumbai:400 023 Ex.25,
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15) Certified copy of Property Card Ex.26.
14 The defendants have adduced evidence by filing
affidavit of DW1 Abhijeet Ravindra Rasal below Ex.27 and also
tendered following documents on record:
1) Copy of C.S. Sheet No.175 of 1968 Ex.29
2) Copy of complaint dt.8/1/2018 of Shri.Narendra
Walawalkar Ex.30,
3) Copy of notice U/s.314 of MMC Act
dt.19/1/2018 and remarks from A.e. (B & F), 'D' Ward
Ex.31,
4) Copy of letter dt.21/02/2018 of these defendants
Ex.32,
5) Copy of plaintiff advocate reply dt.3/3/2018 with
documents and other dt.22/5/2018 and photographs
dt.28/5/2018 Ex.33,
6) Copy of photographs showing construction of
shed above the permanent Sheet slab Canopy, also
showing use of Canopy for cooking food and other
activities Ex.34,
7 Copies of photographs showing the present status
of the suit structure Ex.35.
15 Heard Adv. for plaintiff and defendants at length.
Perused record. All oral and documentary evidences are gone
through in order to get the findings on disputed issues framed
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11 Judg in L.C.Suit No.1493 of 2018
below Ex.7.
AS TO ISSUE NO.1:
16 The plaintiff has come up with the averment that the
impugned notice issued on dt.19/1/2018 U/s.314 of MMC Act by
the defendants and order passed on dt.22/5/2018 are illegal and
bad in law.
17 To substantiate suit claim, PW1 Jimmy Thakkar has
tendered affidavit of evidence below Ex.10 and reuttered the facts
as enumerated in the suit plaint and relied upon the documents
produced on record. PW1 Jimmy Thakkar is CA of plaintiff and
manager of Kamdar Sweets. On perusal of record, it reveals that
PW1 is aware of all the facts averred in the suit plaint. His
capacity as CA is not tarnished by the defendants. Hence, I hold
that his evidence is admissible on the facts deposed by him. As it
transpires, plaintiff has come with the case that plaintiff has been
doing business of selling sweets, farsan, chikkis etc as sole
proprietor since 9 July, 1997 from suit premises. One Narendra
Popatlal Vora was the tenant of Shop No.6 i.e. suit premises and
he was running said business from the said premises but due to
his ill health, he executed a Conducting Agreement on
dt.09/7/1997 with plaintiff (Ex.17) and after his demise, his
widow Rashmi Vora assigned said business as well as tenancy in
respect of said premises in the name of plaintiff by executing deed
of Assignment dt.30/08/2006 (Ex.18). These documents have the
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12 Judg in L.C.Suit No.1493 of 2018
reference of notice structure. They received impugned notice
U/s.314 of MMC Act from the defendants vide Ex.12 falsely stating
that the structure situated at S.V.P. Road known as Kamdar
Sweets has encroached on Municipal foot path. However, there is
no structure which has encroached on the Municipal Road. There
has been existing Canopy/shed like structure which has been
existing since the inception of the building. As per the survey plan
prepared by the Superintendent of Bombay City Survey and Land
Records, Old Customs House of Mumbai, the suit structure has
been in existence at least since the year 1914.
18 So far as unauthorised use of said premises is
concerned, it is deposed that plaintiff is not using said premises for
commercial purpose and the inspection report of defendants Public
Health Department (Ex.14) which was prepared after visit post
issuance of impugned notice states that there is no preparation of
food on the spot. Further, D.B. Marg Police issued letter on
09/02/2018 to Kamdar Sweets after visit that they did not find
any Gas Cylinder or Gas Stove or any flammable articles or any
unauthorised construction in the premises. Therefore, neither
notice structure is an encroachment over Municipal foot path nor
its use is for unlawful commercial purpose. Hence, impugned
notice action is bad in law.
19 The aforesaid oral evidence of PW1 Jimmy Thakkar on
the point of existence of notice structure is well supported by
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documentary evidence such as two Survey Plans issued by the
Superintendent, City Survey and Land Record, Mumbai vide Ex.25
as well as certified copy of Property Card Ex.26. Said maps are
issued by the Collector, City Bombay(Suvey Branch). These
documents are not disputed by the defendants. It reveals that the
contents are proved by the plaintiff through satisfactory substantial
evidence and no proof of rebuttal has been placed on record by the
defendants.
20 On perusal of the Survey Plans Ex.25, it reflects that
the land of Sheet No.184 was surveyed in the year 1914 and
corrected upto the year 1944 and the Suvey Plan No.2 at Ex.25
also shows that land at sheet No.184 was surveyed in 1914 and
corrected upto August 1965. Both these Survey Plans shows
existence of suit structure. It is pertinent to note that in
A.O.No.823 of 2019(against order on Notice of Motion), Hon'ble
High Court has also observed that map relied upon by the
Appellant i.e. plaintiff indicates existence of suit Canopy in Plot
No.1291. However, defendant Corporation was directed to verify
the authenticity of said maps. It reveals that DW1 Abhijeet
Ravindra Rasal has deposed below Ex.27 that their office asked the
Superintendent City Survey Office and A.E.(Survey), City of BMC
to verify said maps. The superintendent of City Survey and Land
Records vide letter No.CSLR/S & LR2/T13/Girgaon/L No
1291/2022 dt. 12/05/2022 has forwarded copy of sheet No.175
i.e. 5th Edition of year 1968. Also, AE(Survey), City vide reference
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No.EE(BP)/278/Survey/City/I dt.28/4/2022 has informed that
copy of sheet No.175 of the year 1914 is not available with his
officer. Both departments have not confirmed about Sheet No.175
of the year 1914 corrected upto year 1944, hence authenticity of
maps at Ex.24 and 25 could not been verified. However, from the
City Survey Sheet No.175 of 1968, it is confirmed that said post
awning/shed is existing since year 1968 and as per Ground Rent
Register for Post Awning of BMC charges ground rent for
Municipal foot path were paid for the structure. The witness
further deposed that this does not prove the existence of suit
structure(Canopy) prior to 1/4/1962, the datum line prescribed by
MCGM tolerating unauthorised commercial structures. The
plaintiff has not submitted any other document such as assessment
records prior to 1/4/1962 and the City Survey Plan submitted by
plaintiff is not a BMC approved plan. Hence, suit structure is not
authorised one.
21 To my mind, Municipal Corporation is a statutory Civic
body maintaining public records regarding town planning. They
are record keeper. It is surprising that at one hand, they
themselves could not find out their own record for verification of
plans submitted by the plaintiff and at another end, they expect a
common man to keep the record intact which is older more than
100 years. Secondly, the City Survey Plans below Ex.25 are legally
obtained by the plaintiff from authorised Government authority.
The defendants though are authorised keeper of record failed to
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produce their own record and questioned the documents issued by
public authority. Therefore, I hold that defendants' objection to
the authenticity of City Survey Plans below Ex.25 have no root.
Per contra, these documents are sufficient to prove existence of
notice structure prior to datum line of dt.1/4/1962.
22 Before recording findings as to issue No.1, it is also
necessary to discuss the oral evidences as well as the law cited by
the parties and also it is necessary to see what is the nature of
disputed structure in impugned notice below Ex.12 or order below
Ex.13 and what is the nature of structure described in the written
statement and evidence of DW1. On perusal of impugned notice
below Ex.12, it reflects that it is stated therein that the structure
situated at S.V.P. Road known as Kamdar Sweets as shown in
photograph has encroached Municipal foot path. It means that
initially notice Us/.314 of MMC Act came to be issued under the
presumption that said structure is an encroachment over Municipal
foot path. They have not used the word Canopy. However, after
receipt of plaintiff's reply to said notice dt.19/01/2018, the
defendants have deviated from their earlier stand and said that
said structure is Canopy which is coming on Municipal foot path.
The notice structure is not described by them. The wording of
notice is vague. It means that defendants have deviated from their
earlier stand regarding unauthorised structure and made
improvement in the impugned order after receipt of plaintiff's
reply. Above all, it transpires from the record that during trial, the
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plaintiff produced the documents regarding existence of notice
structure prior to datum line and payment of ground rent for
Municipal foot path. So, the contention regarding unauthorised
structure of Municipal foot path is washed out by said evidence.
Hence, again in additional written statement and evidence
affidavit, the defendants have come up with the contention that
initially the structure was in the nature of post awning.
Subsequently, plaintiff constructed 4 permanent columns for
supporting the heavy concrete slab in place of supporting post and
temporary shed which is totally illegal and in contravention with
the provisions of law. On perusal of record, it reflects that it was
not the part of defendant's pleading and it was not part of
impugned notice also. It was not the case of defendants that the
plaintiff had changed the nature of existing Post Awning or
Canopy without their permission. Their case was of total
encroachment over Municipal foot path. The advocate for plaintiff
has opposed the deviation and rightly pointed out said fact during
cross examination of DW1 and final arguments.
23 For said purpose, he placed reliance on the authority in
the case of Suzuki Parsrampuria Suitings Private Limited V/s.
Official Liquidator of Mahendra Petrochemicals Limited(in
liquidation) and Ors. (2018) 10 SCC 707. Hon'ble Apex Court
has made observation regarding the recital of pleadings, their
relevance and contradictions and after making observations, it has
been held that adoption of contradictory stand and to approbate
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and reprobate is impermissible. Relying upon said ratio, it is
stated by the Adv. for plaintiff that the defendants have done same
thing in this suit. They have taken self contradictory stand in their
written statement as well as evidence and therefore, the same
cannot be allowed. I have perused the record and observed that
plaintiff's contention is correct. The impugned notice states only
the encroachment over Municipal foot path without making any
description of the notice structure. However, in the impugned
speaking order the notice structure is described differently. Again
it reveals from the record that after receiving the sanction plan
from the plaintiff showing existence of suit Canopy, the defendants
have deviated from their earlier contention and made
improvement in the pleadings without amending the plaint. It
further reveals that without amending the pleadings, they have
tabled their evidence on record and put forth the theory of
erection of columns by plaintiff over suit Canopy. Undoubtedly,
such contradictory stand without following due process of law and
which is against the procedure provided in the Evidence Act is not
permissible. Therefore, I hold that such pleading and evidence of
defendants needs to be discarded. Furthermore, for the reasons
noted above, I hold that the authority cited supra is squarely
applicable here.
24 The oral evidences of plaintiff and defendants are very
much vital on the point of legality of notice structure. PW1 has
deposed during his cross examination that their building is more
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18 Judg in L.C.Suit No.1493 of 2018
than 100 years old and Canopy structure exists from that time. In
fact, it is the contention of defendants that plaintiff has made
encroachment over Municipal foot path. So basically, it is for them
to show that foot path was constructed prior to the construction of
notice structure. However, there is no record about the period of
construction of foot path. Above all, PW1 has shown his inability
to inform whether foot path was constructed earlier than their
building or vise versa. The documents produced by the plaintiff
are sufficient to establish that suit Canopy existed from the period
prior to datum line. In said circumstances, when existences of
notice structure prior to datum line is prima facie proved by the
plaintiff, it is for the defendants to bring rebuttal evidence on
record as now the burden is shifted on them. Unfortunately,
record shows that no such evidence is produced by the defendants.
25 Inter alia to this, there are various admissions on
record given by DW1 regarding existence of notice structure and
non observance of due process of law by them. He has admitted
that the inspection report made prior to issuance of impugned
notice is not produced on record. Further, they do not have any
document to show that they found that M/s. Kamdar Sweets
damaged the wall of building to make unauthorised entry gate
through Canopy. It is not so mentioned in the impugned notice
and order also. Above all, he has admitted that the sanction plan
of suit building is not available in their office record. He is not
aware that the suit building is constructed prior to 196263. Inter
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alia to this, he has admitted that he cannot tell exactly during
which period the plaintiff allegedly made construction of 4 pillars
of which reference has been made in para 12 of the evidence
affidavit. The contentions raised in para 12 of the evidence
affidavit are not incorporated in the impugned notice U/s.314 of
MMC Act but the same are incorporated in the speaking order.
26 At the backdrop of said admissions, I have gone
through the documents produced by the plaintiff and defendants.
In fact, it reveals that the reference regarding construction of 4
pillars by plaintiff is not made in the notice or even in the speaking
order. Moreso, it is crystal clear from the record that the
defendants have tendered the evidence regarding the facts which
were not pleaded in the written statement as well as the impugned
notice and speaking order. Therefore, such pleading and evidence
without pleading cannot be accepted and hence, the same has
been discarded by me.
27 Therefore, considering overall oral as well as
documentary evidence, I have arrived at the conclusion that the
plaintiff has successfully proved existence of notice structure prior
to datum line. So far as the existences of structure in the same
nature as it exists today is concerned, the said question would
arise only if the exact measurement notice structure is given in the
notice and speaking order. The impugned notice and speaking
order are totally silent on the point of description and
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measurement of notice structure.
28 Therefore, I hold that there shall not be any hesitation
to believe that the structure now exists on the spot was in
existence prior to datum line. Said fact is proved by the plaintiff
by cogent and convincing evidence. In said circumstances,
obviously, the impugned notice and impugned order are
determined as bad in law, null and void. Hence, I have answered
issue No.1 in the affirmative as 'Proved'.
AS TO ISSUE NO.3 & 4.
29 These are the legal and technical issues in which the
maintainability of the Suit is challenged by the defendants in view
of the provision of section 527 and 515A of the MMC Act. It is an
admitted fact that, in the present Suit 'Prior Statutory Notice' as is
required under section 527 of MMC Act, is not issued by the
plaintiff to defendants prior to the institution of Suit. However, it
is pointed out that the impugned notice has been issued on dated
19/01/2018 giving 48 hours time to the plaintiff to file reply to
said notice and later on the defendants had passed final speaking
order dated 22/05/2018 directing the plaintiff to remove the
notice structure within fifteen days from the date of receipt of the
order. The notice under section 527 of MMC Act is a thirty days
notice expected to be given prior to the institution of the Suit. It is
pertinent to note that Section 527 of MMC Act notice is a
protection given to the Corporation against the Suit action in
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21 Judg in L.C.Suit No.1493 of 2018
respect of notice and orders issued by the defendants in pursuance
of execution or intended execution of the MMC Act. Said notice is
one month notice in writing. In the present Suit, it reveals that
after passing of the final speaking order dated 22/05/2018, the
defendant has proposed demolition of the Suit structure within 15
days of the said order, if the plaintiff himself fails to demolish the
same. It means that only 15 days were there in the hands of the
plaintiff to challenge the notice action and said period is less than
the notice period of one month as specified in U/s.527 of MMC
Act. As such, it appears that the plaintiff has given reasonable and
sufficient justification for not giving statutory notice U/s.527 of
MMC Act to the Corporation prior to the institution of this Suit.
Per contra, it can be said that defendants have waived this notice
by conduct. Hence, in view of aforesaid discussion, I hold that the
present Suit cannot be said to be bad in law for non issuance of
notice U/s. 527 of MMC Act.
30 So for as the issue regarding bar of jurisdiction as per
section 515A of the MMC Act is concerned, it is pertinent to note
that, as per the Suit averments pleaded by the plaintiff, impugned
notice and order has been passed by the defendants incryptic
manner without following due process of law. They have
challenged the legality of the impugned notice. In fact impugned
notice is a quasi judicial inquiry. It cannot be termed merely as
administrative action on the part of defendants. In such
circumstances the provision of section 515A of MMC Act will not
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22 Judg in L.C.Suit No.1493 of 2018
come into picture. The legality of the notice and perverse action
can be very well challenged before the Civil Court. Therefore, on
perusal of Suit plaint, I have arrived at the conclusion that this
Court have jurisdiction to try and entertain the Suit. Therefore, the
Suit is not barred by section 515A of the MMC Act.
31 Hence, considering aforesaid discussion, I have arrived
at the conclusion that there is no iota of evidence to prove that the
Suit is not maintainable, either for want of statutory notice under
section 527 of MMC Act or for want jurisdiction as per section 515
A of the MMC Act. Resultantly, I have answered issue Nos.3 and 4
in the negative as 'No'.
AS TO ISSUE NO.2:
32 The plaintiff has sought the relief of declaration and
permanent injunction against the notice action. I have already
held that the impugned notice dt.19/01/2018 and impugned order
dt.22/05/2018 are bad in law as well as null and void. The
plaintiff has successfully proved that notice structure exists prior to
the datum line and therefore, I hold that the plaintiff is entitled for
the declaration to that effect. So far as the relief regarding
perpetual injunction is concerned, I have already hold that the
impugned notice and order are bad in law. In such circumstances,
if notice action is taken by the defendants, the same will cause
irreparable loss to the plaintiff which may not be compensated in
terms of money. Therefore, I hold that the defendants are
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23 Judg in L.C.Suit No.1493 of 2018
required to be restrained from taking action pursuant to the
impugned notice and impugned speaking order by way of
permanent injunction.
33 Hence, I hold that the plaintiff is entitled for the relief
of declaration and permanent injunction as sought. Resultantly, I
have answered issue No.2 in the affirmative as 'Yes'.
AS TO ISSUE NO.5:
34 Hence, in view of affirmative findings as to issue Nos.1
and 2, I hold that plaintiff is entitled to the reliefs claimed and the
suit deserves to be decreed. Hence, following order is passed.
ORDER
1 Suit is decreed with costs.
2 It is hereby declared that impugned notice issued by
the defendant No.2 U/s.314 of Mumbai Municipal Corporation Act
bearing No.ACD/20387/AE(M)/East dt.19/01/2018 and
impugned order bearing No.ACD/052285/AE(M)/East
dt.22/05/2018 regarding notice structure described in the suit
plaint are illegal, bad in law and null and void and hence, the
same are set aside.
3 By way of permanent injunction, the defendants, their
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24 Judg in L.C.Suit No.1493 of 2018
servants, agents etc. are hereby restrained from taking any action
pursuant to the above impugned notice and impugned order
regarding the notice structure as described in the suit plaint.
4 The defendants are at liberty to take appropriate
action, if any, regarding user of notice structure if found
unauthorised, by following due process of law.
5 Decree be drawn up accordingly.
Dt.05/09/2022.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Gr.Mumbai.
Dictated on :05/09/2022.
Typed on :08/09/2022.
Signed on :08/09/2022.
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25 Judg in L.C.Suit No.1493 of 2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
15/09/2022. 05.40 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
05/09/2022.
JUDGMENT/ORDER signed by
P.O.on
08/09/2022.
JUDGMENT/ORDER uploaded on 15/09/2022.
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