Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.1992/18 (L.C.S. No.1357/18)
MHCC010065292018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.1992 OF 2018
IN
LONG CAUSE SUIT No.1357/2018
Mr. Jalaluddin Hukumullah Shaikh … Plaintiff
- Versus -
Municipal Corporation of
Greater Mumbai ... Defendant
Appearance :-
Mr. Mohit Jadhav with Ms. Megha Shigavan, 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.1992/18 (L.C.S. No.1357/18)
2] Brief facts, of the plaintiff’s case, are as under :-
The plaintiff is in use, occupation and possession of
structure admeasuring 1,200 square feet and running business under
the name and style of “M/s. Star Ceramics”, 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 total admeasuring 1,460 square yards
equivalent to 1,220.72 square meters. The notice structure has been
censused by competent authority under the Slum Act. The plaintiff is
having census certificate sanding in the name of his father. The Sub-
Registrar, Bombay issued Index-II of the land. So also the plaintiff is
having 7/12 extracts, Hakkache Patrak, property card etc. of notice
structure. The notice structure is protected under the Slum Act however,
defendant B.M.C. has issued impugned notice, alleging that the plaintiff
has have 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 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
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3 N/M. No.1992/18 (L.C.S. No.1357/18)
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
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 :-
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4 N/M. No.1992/18 (L.C.S. No.1357/18)
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.
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 of Deed of
Conveyance, Index-II, 7/12 extracts, Hakkache Patrak, property card,
census certificate, 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 1,200 square feet situated at survey
No.67 (P), C. T. S. No.723 of Nahur village, Tal. Kurla. He further
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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 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
plaintiff has 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 the parties 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.
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10] The plaintiff has taken out Notice of Motion for temporary
injunction under Order-XXXIX Rule-1 of the C. P. C.
11] 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
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.1990/2018 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.1990/2018,
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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
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 26/5/2015 and photographs clearly show that notice
structure has been demolished by B. M. C.
14] The plaintiff has relied upon census certificate exhibit-C/1
to the plaint. The area of census structure is 1,200 square feet. 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 census structure is
totally different. So also the area of notice structure and census
structure is also different. In paragraph No.4 of the plaint it is pleaded
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that notice structure is covered by iron pillar and A/C sheet roof
however, notice structure is made up of M/S sheet wall, bamboo, G/I
sheet and tarpaulin roofing. Thus, the description of suit structure and
notice structure is completely different. The plaintiff has also 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, shop
and establishment certificate 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. Thus, none of the
documents relied by the plaintiff proves authenticity of structure.
15] 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
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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
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.1990/2018 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.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
22/12/2023 05:10 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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