Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.1993/18 (L.C.S.No.1354/18)
MHCC010065262018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.1993 OF 2018
IN
LONG CAUSE SUIT No.1354/2018
Mr. Mohd. Muzzamil
Matin Ahmed Khan … Plaintiff
- Versus -
Municipal Corporation of
Greater Mumbai ... Defendant
Appearance :-
Mr. Mohit Jadhav with Ms. Megha Shigvan, Advocates for plaintiff.
Mr. Vyas with Mrs. Mhatre, Advocates for defendant.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 13/12/2023.
O R D E R
. This suit is to challenge notice under Section 351 of The
Mumbai Municipal Corporation Act (in short the M. M. C. Act) and
demolition order dated 27/4/2018 and the plaintiff has taken out
present Notice of Motion for under Order-XXXIX Rule-1 of The Code of
Civil Procedure (in short the C. P. C.) for temporary injunction
restraining defendant B. M. C. from demolishing the notice structure.
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2] Brief facts of the plaintiff’s case are as under :-
The plaintiff is in use, occupation and possession of
structure admeasuring total 28 X 60 = 1,680 square feet and running
business under the name and style of “On Off LED Work Shop”, situated
at L. B. S. Road, Mulund (W), survey No.67 (P) and C. T. S. No.706 and
723 of Nahur village, Tal. Kurla, Mumbai (in short notice structure).
The notice structure has been censused by competent authority under
the Slum Act. The notice structure is protected under the Slum Act
however, defendant B.M.C. has issued impugned notice, alleging that
the plaintiff has carried out unauthorized construction. Thus, impugned
notice is illegal and bad-in-law. The plaintiff replied show cause notice
however, designated officer passed demolition order without
considering documents and application of mind. Hence the plaintiff
constrained to file suit and took out present Notice of Motion.
3] Defendant B.M.C. resisted Notice of Motion by filing reply.
At the outset, it is stated that suit is not maintainable for want of
statutory notice under Section 527 of the M. M. C. Act. Notice is
executive or administrative act or order and same is not open to
challenge in the Court of law. The plaint discloses no cause of action.
The plaintiff has not give description of property to identify it hence suit
is liable to be dismissed under Order-VII Rule-3 of the C. P. C. In view of
the provisions of Section 515A of the M. M. C. Act this Court has no
jurisdiction to try and entertain present suit.
4] It is further stated that the plaintiff has not come to the
Court with clean hands. The plaintiff has not produced a single
document to prove legality of structure. The notice structure is
unauthorized and, therefore, the plaintiff is not entitled for the relief
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3 N/M. No.1993/18 (L.C.S.No.1354/18)
claimed. The Corporation has issued impugned notice under Section
351 of the M. M. C. Act calling upon the plaintiff to show sufficient
cause why notice structure should not be pulled down. It is further
stated that before passing speaking order the plaintiff approached the
Court, wherein, the Court recorded that defendant will follow due
process of law with liberty to the plaintiff to submit additional
documents. Accordingly, defendant B.M.C. passed speaking order and
served it upon the plaintiff on 17/5/2018 and then demolished
structure on 26/5/2018 as protection was granted by the Court for a
week. Then on 28/5/2018 the plaintiff has taken out Notice of Motion
for permission to reconstruct the structure and compensation. On that
date, this Court recorded that notice structure is partly demolished and
directed to maintain status quo as per photographs. It is further stated
that the plaintiff has not proved legality of notice structure and,
therefore, defendant B.M.C. has demolished notice structure by
following due process of law. On these grounds, defendant prayed for
dismissal of Notice of Motion.
5] Points for determination alongwith findings thereon for the
reasons are as under :-
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out
prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
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3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
6] The plaintiff relied on copies of letter sent by Deputy
Collector, rent receipts, survey receipt, survey receipt, photo-pass,
circular dated 11/8/2000, notice under Section 351 of the M. M. C. Act,
reply and speaking order etc.
7] Defendant B. M. C. relied on copies of inspection report,
notice under Section 351 of the M. M. C. Act, speaking order,
demolition report and photographs etc.
8] Learned advocate for the plaintiff submitted that the
plaintiff has challenged notice under Section 351 of the M. M. C. Act
issued to structure admeasuring 1,680 square feet situated at C. T. S.
No.706 and 723, Lal Bahadur Shastri Road, Mulund. He further
submitted that notice structure has been censused by Competent
Authority and photo-pass has been issued to the notice structure. The
notice structure is protected under the Slum Act and it is legal/
authorized. The plaintiff is having documents to show that notice
structure is legal and authorized. However, the Corporation issued
notice under Section 351 of the M. M. C. Act and passed demolition
order without application of mind. He further submitted that the
plaintiff has established that notice structure is protected as per the
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policy of State Government and M. C. G. M., as such, notice alleging
that structure is unauthorized is illegal and bad-in-law. On the basis of
these submissions learned advocate prayed for temporary injunction.
9] On the other hand, learned advocate for B. M. C. submitted
that after issuance of impugned notice immediately the plaintiff filed
this suit. The Court has directed to consider reply and pass speaking
order. Then, the plaintiff has submitted documents and thereafter
Designated Officer passed Speaking Order after considering documents
submitted by the plaintiff and demolished structure after a week as
there was protection to the structure for one week. It is further
submitted that the plaintiff himself has filed an affidavit and
photographs stating that on 26/5/2018 defendant B. M. C. demolished
notice structure, therefore, suit as well as Notice of Motion became
infructuous. In the circumstances, the plaintiff is not entitled for the
relief of temporary injunction. It is further submitted that as per order
dated 26/5/2018 this Court directed to maintain status quo, but in
breach of said order, the plaintiff reconstructed structure without
permission. This shows that the plaintiff has suppressed material fact
and not entitled for equitable relief of temporary injunction.
10] The plaintiffs have taken out Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 of the C. P. C.
11] The plaintiff have taken out this Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 of the C. P .C. Plaintiff
is seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a
prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
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balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
12] The plaintiff is seeking protection to notice structure. It is
prayed by plaintiff that defendant B. M. C. or anybody through it be
restrained from demolishing/removing any portion of notice structure.
Defendant B. M. C. has filed on record demolition report dated
26/5/2018 alongwith photographs. As per said report notice structure
has been demolished by B. M. C. It is important to note here that the
plaintiff has taken out Notice of Motion No.1987/2018 for
reconstruction of suit premises and compensation of Rs.90,00,000/-. In
the affidavit in support to said Notice of Motion it is stated by the
plaintiff that on 26/5/2018 there was 4th non-working Saturday and
defendant B.M.C. started demolition of notice structure. The
photographs filed by defendant B. M. C. alongwith demolition report
and statement made by the plaintiff in Notice of Motion No.1987/2018,
it appears that defendant B. M. C. has demolished structure. The
plaintiff is also seeking permission of reconstruction of notice structure.
Thus, it is clear that notice structure has been demolished by defendant
B.M.C. on 26/5/2018.
13] Defendant B. M. C. has filed an additional affidavit of Mr.
Bharwade, Junior Engineer of T ward, stating that defendant B. M. C.
has removed structural on 26/5/2018 and this Court directed to
maintain status quo however, the plaintiff reconstructed structure
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without permission or order from the Court and the plaintiff has
suppressed this fact from this Court. The plaintiff has not filed counter
affidavit and denied contentions made in said additional affidavit.
Learned advocate for plaintiff submitted that the Corporation has
demolished structure partly. On the other hand, it is contention of
B.M.C. that notice structure has been completely demolished. The
photographs submitted by the plaintiff filed alongwith affidavit dated
29/5/2018 does not show date of photographs. On the contrary,
photographs submitted by B. M. C. taken on 26/5/2018 shows that
structure has been completely demolished by B.M.C. The demolition
report dated 26/5/2018 and photographs clearly show that notice
structure has been demolished by B. M. C.
14] The relief of temporary injunction is discretionary relief.
Before granting equitable relief of temporary injunction three
prerequisites i.e.
prima facie case, balance of convenience and
irreparable loss are to be satisfied. The relief of temporary injunction is
equitable relief and the party who approaches the Court for seeking
relief of temporary injunction has to come to the Court with clean hands
and his conduct must be free from blame. The material on record i.e.
demolition report and photographs filed by the defendant B. M. C.
shows that entire structure is demolished. However, it is contention of
the plaintiff that structure is partly demolished but the plaintiff has not
produced photographs with date to show that B. M. C. has demolished
structure partly. The plaintiff has filed Notice of Motion for permission
to reconstruct the structure. This supports contention of defendant
B.M.C. that structure has been demolished by the B. M. C. Moreover, the
plaintiff has not denied contentions made of B. M. C. that the plaintiff
has reconstructed structure despite of status quo order without
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permission of the Court. To counter the contention of the Corporation,
that the plaintiff has reconstructed notice structure without permission
of the Court the plaintiff has not filed affidavit/photographs showing
that structure is in same position as shown in photographs filed by the
parties on record on 28/5/2018 when this Court directed to maintain
position shown in the photographs. This shows that the plaintiff has not
come to the Court with clean hands and has suppressed the fact that he
has re-constructed structure. The plaintiff has not denied allegation of
reconstruction of notice structure. On the contrary, the plaintiff has
taken out Notice of Motion No.1987/2018 for permission of
reconstruction of structure. This fact itself, shows that notice structure
has been demolished by the B. M. C. Therefore, the plaintiff is not
entitled for the relief of temporary injunction restraining from
demolishing structure which is demolished by the B. M. C. The plaintiff
is seeking relief of temporary injunction but he has not placed on record
true facts. In the circumstances, the plaintiff is not entitled for the
equitable relief as claimed. Accordingly, I answer points No.1 to 3 in the
negative and in answer to point No.4 pass following order :-
O R D E R
Notice of Motion is dismissed.
Date : 13/12/2023. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
20/12/2023 04:30 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
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9 N/M. No.1993/18 (L.C.S.No.1354/18)
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 13/12/2023
ORDER Typed on 18/12 and 19/12/2023
ORDER signed by P. O. on 20/12/2023
ORDER uploaded on 20/12/2023
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