Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.1995/18 (L.C.S. No.1356/18)
MHCC010065282018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.1995 OF 2018
IN
LONG CAUSE SUIT No.1356/2018
Mr. Jalaluddin Hukumullah Shaikh … Plaintiff
- Versus -
Municipal Corporation of
Greater Mumbai ... Defendant
Appearance :-
Mr. Mohit Jadhav with Ms. Megha Shigvan, Advocates for plaintiff.
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 plaintiff has taken out
present Notice of Motion 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.1995/18 (L.C.S. No.1356/18)
2] Brief facts, of the plaintiff’s case, are as under :-
The plaintiff is in use, occupation and possession of
structure admeasuring 1,364.43 square feet and running business under
the name and style of “M/s. Star Stone”, consisting of two parts i.e. (1)
80 square feet office and rest of the area 1,281.43 square feet was
covered by iron pillars and A/C sheet above situated at opposite to
Asma Industries, L. B. S. Road, Mulund (W), survey No.67 (P), C. T. S.
No.723 (in short notice structure). In 1995 the plaintiff purchased the
land alongwith notice structure by virtue of registered Deed of
Conveyance dated 16/9/1995. The Sub-Registrar, Bombay issued Index-
II of the land. So also the plaintiff is having 7/12 extracts, Hakkache
Patrak, property card, telephone bill, electricity bill etc. of notice
structure. Defendant B. M. C. issued notice under Section 351 of the
M.M.C. Act alleging unauthorized construction of notice structure.
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 given 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.
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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
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 have made out
prima facie case ? . . . No.
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2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
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 documents i.e. copies Deed of
Conveyance, Index-II, 7/12 extracts, Hakkache Patrak, property card,
electricity bills, assessment bills, telephone bill, shop and establishment
certificate, trade licence, notice under Section 351 of the M. M. C. Act,
reply, 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 1,361.43 square feet situated at survey
No.67 (P), C. T. S. No.723 of Nahur village, Tal. Kurla. The plaintiff is
having electricity bill and other 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
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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.
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 28/5/2018 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 plaintiff has 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)
balance of convenience tilting in his favour and (iii) clear possibility of
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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.
11] 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.1989/2018 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.1989/2018,
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.
12] 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
without permission or order from the Court and the plaintiff has
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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.
13] 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
datum line or protected under the Slum Act. The plaintiff has also relied
upon judgment of this Court in Long Cause Suit No.760/2011.
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. In paragraph No.3 of the plaint the plaintiff pleaded that
suit structure consists of two parts one is made up of B/M wall and A/C
sheet roof and another is covered by iron pillar and A/C sheet roof. The
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description of structure which was the subject-matter of the earlier suit
and description given by the plaintiff in the plaint is same. However,
notice has been given to structure made up of M/S sheet wall and A/C
sheet roofing. Thus, subject-matter of the earlier decreed suit and notice
structure is completely different. Therefore, this judgment is not helpful
to prove legality of notice structure. None of the documents relied by
the plaintiff proves that structure is tolerated or protected under the
Slum Act or constructed as per sanctioned plan.
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
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
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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.1989/2018 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 STENOGRAPHER
UPLOAD 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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