Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.1994/18 (L.C.S. No.1355/18)
MHCC010065272018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.1994 OF 2018
IN
LONG CAUSE SUIT No.1355/2018
Mr. Matin Ahmed Abdul
Majid Khan & Anr. … Plaintiffs
- Versus -
Municipal Corporation of
Greater Mumbai ... Defendant
Appearance :-
Mr. Mohit Jadhav with Ms. Megha Shigavan, Advocates for plaintiffs.
Mrs. Mhatre, Advocate for defendant/M. C. G. M.
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 plaintiffs have 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 N/M. No.1994/18 (L.C.S. No.1355/18)
2] Brief facts of the plaintiffs’ case are as under :-
The plaintiffs are in use, occupation and possession of
structure admeasuring 1,417.30 square feet and running business under
the name and style of “M. A. Marble Shop”, situated at L. B. S. Road,
Mulund (W), survey No.67 (P) and C. T. S. No.723 of Nahur village, Tal.
Kurla, Mumbai (in short notice structure). The said shop is being used
by the plaintiffs for keeping materials manufactured by them and selling
marbles. In 1995 the plaintiffs purchased the land alongwith the
structure standing thereon total admeasuring 1,421 square yards by
virtue of Deed of Conveyance dated 16/9/1995 from the previous
owner.
3] It is further stated that the plaintiffs are having
documentary evidence
viz. copies of deed of conveyance, Index-II, 7/12
extracts, Hakkache Patrak and property card, electricity bill, telephone
bill, assessment bill, shop and establishment certificate etc. In spite of
that defendant B.M.C. has issued impugned notice, alleging that the
plaintiffs have carried out unauthorized construction. Thus, impugned
notice is illegal and bad-in-law. The plaintiffs replied show cause notice
however, designated officer passed demolition order without
considering documents and application of mind. Hence the plaintiffs
constrained to file suit and took out present Notice of Motion.
4] 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 plaintiffs have not given description of property to identify it hence
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3 N/M. No.1994/18 (L.C.S. No.1355/18)
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.
5] It is further stated that the plaintiffs have not come to the
Court with clean hands. The plaintiffs have not produced a single
document to prove legality of structure. The notice structure is
unauthorized and, therefore, the plaintiffs are not entitled for the relief
claimed. The Corporation has issued impugned notice under Section
351 of the M. M. C. Act calling upon the plaintiffs to show sufficient
cause why notice structure should not be pulled down. It is further
stated that before passing speaking order the plaintiffs approached the
Court, wherein, the Court recorded that defendant will follow due
process of law with liberty to the plaintiffs to submit additional
documents. Accordingly, defendant B.M.C. passed speaking order and
served it upon the plaintiffs 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 plaintiffs have 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 plaintiffs have 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.
6] Points for determination alongwith findings thereon for the
reasons are as under :-
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4 N/M. No.1994/18 (L.C.S. No.1355/18)
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiffs have made out
prima facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiffs ? . . . No.
3) Whether plaintiffs 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 :-
7] The plaintiffs relied on copies of registered Deed of
Conveyance dated 16/9/1995, Index-II, copies of 7/12 extracts,
electricity bills, telephone bills, assessment bill, shop and establishment
certificate, trade licence, Hakkache Patrak, property card, notice under
Section 351 of the M. M. C. Act, reply and speaking order etc.
8] 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.
9] Learned advocate for the plaintiffs submitted that the
plaintiffs have challenged notice under Section 351 of the M. M. C. Act
issued to structure admeasuring 1,417.30 square feet situated at C. T. S.
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5 N/M. No.1994/18 (L.C.S. No.1355/18)
No.706 and 723, Lal Bahadur Shastri Road, Mulund. The plaintiffs are
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 plaintiffs have established that notice
structure is protected as per the 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.
10] On the other hand, learned advocate for B. M. C. submitted
that after issuance of impugned notice immediately the plaintiffs filed
this suit. The Court has directed to consider reply and pass speaking
order. Then, the plaintiffs have submitted documents and thereafter
Designated Officer passed Speaking Order after considering documents
submitted by the plaintiffs and demolished structure after a week as
there was protection to the structure for one week. It is further
submitted that the plaintiffs themselves have 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 plaintiffs are not entitled for the
relief of temporary injunction. It is further submitted that as per order
dated 28/5/2018 this Court directed to maintain status quo, but in
breach of said order, the plaintiffs reconstructed structure without
permission. This shows that the plaintiffs have suppressed material fact
and not entitled for equitable relief of temporary injunction.
11] The plaintiffs have taken out Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 of the C. P. C.
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6 N/M. No.1994/18 (L.C.S. No.1355/18)
12] The plaintiffs have taken out this Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 of the C. P .C. Plaintiffs
are 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)
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.
13] The plaintiffs are seeking protection to notice structure. It
is prayed by plaintiffs 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.1988/2018 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
plaintiffs 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 plaintiffs in Notice of Motion No.
1988/2018 it appears that defendant B. M. C. has demolished structure.
The plaintiffs are also seeking permission of reconstruction of notice
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7 N/M. No.1994/18 (L.C.S. No.1355/18)
structure. Thus, it is clear that notice structure has been demolished by
defendant B.M.C. on 26/5/2018.
14] 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 plaintiffs reconstructed structure
without permission or order from the Court and the plaintiffs have
suppressed this fact from this Court. The plaintiffs have not filed
counter affidavit and denied contentions made in said additional
affidavit. Learned advocate for plaintiffs 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 plaintiffs 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.
15] The plaintiff has relied upon Deed of Conveyance dated
16/9/1995 in support of contention that notice structure is in existence
since long. However, there is no reference of area and description of
structure in the said Conveyance Deed. The plaintiff has further relied
on copy of Index-II, 7/12 extracts, mutation entry, property card,
electricity bill, payment receipts etc. However, none of the documents
proves authenticity of structure. The plaintiff has not produced a single
document on record to show that notice structure has been constructed
with permission of the B.M.C. or it is in existence since prior to the
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8 N/M. No.1994/18 (L.C.S. No.1355/18)
datum line or protected under the Slum Act. The plaintiff has also relied
upon judgment of this Court in Long Cause Suit No.758/2011.
However, the area of structure which was the subject-matter of said suit
and the area and description of notice structure is totally different.
Thus, none of the documents relied by the plaintiff proves authenticity
of structure.
16] 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
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
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9 N/M. No.1994/18 (L.C.S. No.1355/18)
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.1988/2018 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 already 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.”
22/12/2023 04:55 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
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 20/12 and 21/12/2023
ORDER signed by P. O. on 22/12/2023
ORDER uploaded on 22/12/2023
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