Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.1998/18 (L.C.S.No.2074/18)
MHCC010065442018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.1998 OF 2018
IN
LONG CAUSE SUIT No.2074 OF 2018
Kitabullah Khan … Plaintiff
- Versus -
The Municipal Corporation
of Greater Mumbai ... Defendant
Appearance :-
Mr. Mohit Jadhav with Ms. Megha Shigavan, Advocates for plaintiff.
Mr. Tawakuli with Mrs. Mhatre, Advocates 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 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 notice structure is made up of B/M wall and G/I sheet
roof and being used as a clinic by the grandson of the plaintiff under the
name and style of ‘Care & Cure Clinic”. The structure known as
Supreme Stones is admeasuring 1,200 square feet situated opposite to
Asma Industries at L. B. S. Road, Mulund (W), situated at C. T. S.
No.706 and 723, Mulund, Mumbai (in short notice structure). The
plaintiff further stated that suit structure is admeasuring 500 square
feet with A/C sheet roof.
3] It is further stated that notice structure is having repair
permission in the name of Supreme Stones issued by defendant in
December 2005. The notice structure has been censused by competent
authority under the Slum Act. The notice structure is protected under
the Slum Act and the plaintiff is having census certificate. In 1995 the
plaintiff and Haji Zainuddin Hukumallah purchased the land alongwith
structure standing thereon admeasuring 1,460 square yards equivalent
to 1,220.72 square meters by virtue of Deed of Conveyance. The
plaintiff is having 7/12 extracts, electricity bill at the address of notice
structure.
4] It is further stated that in 2009 defendant issued notice
under Section 351 of the M. M. C. Act to Supreme Stone and passed
Speaking Order. The plaintiff filed Long Cause Suit No.759/2011 which
is decreed in his favour. It is further stated that in 2018 again the
plaintiff received notice under Section 351 of the M. M. C. Act wherein,
it is falsely alleged that the plaintiff has unauthorizedly constructed suit
structure. The plaintiff immediately replied said notice and submitted
documents. In the reply he has mentioned that application for repair
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has been granted. But, eventhough designated officer passed Speaking
Order without considering documents and application of mind. Hence
the plaintiff constrained to file suit and took out present Notice of
Motion.
5] 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 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.
6] 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 plaintiffs 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. It is further stated that the plaintiff has not proved legality of
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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.
7] 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.
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 :-
8] The plaintiff relied on copies of permission for repair,
Index-II, copies of 7/12 extracts, electricity bill, Census Certificate,
photo-pass, notice under Section 351 of the M. M. C. Act, reply,
speaking order and copy of judgment dated 20/2/2014 etc.
9] Defendant B. M. C. relied on copies of inspection report,
notice under Section 351 of the M. M. C. Act, speaking order,
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demolition report and photographs etc.
10] Learned advocate for the plaintiff submitted that the
plaintiffs have challenged notice under Section 351 of the M. M. C. Act
issued to structure admeasuring 500 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 Corporation has granted permission for repair in 2005.
He further submitted that the Corporation had issued notice under
Section 351 of the M. M. C. Act to Supreme Stone. The plaintiff had
filed Suit No.759/2011 challenging the Speaking Order and the Court
has decreed said suit and in spite of that the Corporation issued notice
under Section 351 of the M. M. C. Act. 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 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.
11] 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
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there was protection to the structure for one week. In the
circumstances, the plaintiff is not entitled for the relief of temporary
injunction.
12] 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.
13] 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.
14] Defendant B. M. C. has filed an additional affidavit of Mr.
Bharwade, Junior Engineer of T ward, stating that the plaintiff has
suppressed that even in the past the Corporation has issued notice and
demolished unauthorized structure. It is further contended that the
plaintiff had reconstructed notice structure without obtaining approval
from B.M.C. and now adopted same tactics. The plaintiff has stated
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different structure at different C. T. S. number. The plaintiff has not filed
counter affidavit and denied contentions made in said additional
affidavit.
15] It is case of the plaintiff that earlier, the Corporation had
issued notice under Section 351 of the M. M. C. Act to said Supreme
Stone and the plaintiff has challenged said notice by filing Long Cause
Suit No.769/2011 and this Court has decreed said suit. However, the
plaintiff has not produced said notice to show that it has been issued to
same suit structure. The area of structure which was subject-matter of
the earlier suit was 7.4 X 15.65 square meters with height 3.1 meters
and notice is given to structure admeasuring 15.10 X 3.35 square
meters made up with A/C sheet. The plaintiff in paragraph No.1 of the
plaint stated that the structure of B/M wall and G/I sheet is used as a
clinic by his grandson and further stated that the structure admeasuring
500 square feet made up with A/C sheet roof is suit structure. Thus, the
description of suit structure and notice structure is completely different.
There is nothing on record to show that description of structure in
earlier notice and structure which is subject matter of impugned notice
is one and the same. In reply to show cause notice the plaintiff has not
stated that earlier the Corporation has issued said notice and the Court
has decreed suit challenging said notice.
16] The plaintiff has relied upon photo-pass bearing No.34-
MUTT-000015 in the name of plaintiff and Shehrunissa Khan. As per
said photo-pass the said photo-pass is valid for the area of 500 Sq. Ft.
however, area of notice structure is 572 Sq. Ft. Thus, the description of
censused structure and notice structure is totally different. The structure
which the subject-matter of the earlier Long Cause Suit No.759/2011 is
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made up of B/M wall and A/C sheet roof however, notice structure is
made up of G/I sheet. Thus, it cannot be said that earlier notice was in
respect of suit structure.
17] In the plaint the plaintiff described suit structure as Care &
Cure Clinic. However, the earlier suit was in respect of shop namely
Supreme Stones. The photo-pass and written permission not clearly
shows that permission or photo-pass relates to notice structure.
18] 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. However, the plaintiff has not
placed on record true facts about description of structure. The plaintiff
has not given detail description of suit structure to clearly identify it.
The description of notice structure and censused structure is completely
different. None of the documents, relied by the plaintiff, proves
authority of notice structure. 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 05:15 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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