Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.1999/18 (L.C.S. No.1994/18)
MHCC010065252018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.1999 OF 2018
IN
LONG CAUSE SUIT No.1994 OF 2018
Kitabullah Khan … Plaintiff
- Versus -
The 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 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.1999/18 (L.C.S. No.1994/18)
2] Brief facts of the plaintiff’s case are as under :-
The plaintiff is using structure admeasuring 910 square feet
as a godown for storage of marbles situated at opposite to Asma
Industries, L. B. S. Road, Mulund (W) (in short notice structure). The
notice structure has been censused by competent authority under the
Slum Act and authority had issued census certificate. Thus, 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
claimed. The Corporation has issued impugned notice under Section
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3 N/M. No.1999/18 (L.C.S. No.1994/18)
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. 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.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
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4 N/M. No.1999/18 (L.C.S. No.1994/18)
- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
6] The plaintiff relied on copies of census certificate,
verification report, Index-II, 7/12 extracts, electricity bill, 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 910 square feet situated at 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 photo-pass and
censused certificate to show that notice structure is protected under the
Slum Act. 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
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5 N/M. No.1999/18 (L.C.S. No.1994/18)
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. The photo-pass and
census certificate is not in respect of notice structure. He submitted that
area of notice structure and structure censused is totally different. In his
submissions, notice structure is made up of G/I sheet roof however,
censused structure is made up of A/C sheet roof. 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
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.
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6 N/M. No.1999/18 (L.C.S. No.1994/18)
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. The photographs filed by defendant B.M.C.
alongwith demolition report, it appears that defendant B. M. C. has
demolished structure.
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 structure 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 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 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
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7 N/M. No.1999/18 (L.C.S. No.1994/18)
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 relied upon photo-pass and census
certificate exhibits-A and B to the plaint to show that notice structure
has been censused by the competent authority and it is protected under
the Slum Act. However, the description of censused structure and notice
structure is totally different. The area of censused structure is 14’ X 65’
= 910 square feet and area of notice structure is 90’ X 16’ = 1,440
square feet and notice structure is made up of G/I sheet however,
censused structure is made up of A/C sheet. This shows that photo-pass
is not relating to notice structure.
14] The plaintiff is seeking equitable relief of injunction
restraining defendant B.M.C. from demolishing structure however, the
material on record shows that notice structure has been demolished by
the B.M.C. In the circumstances, the temporary injunction to protect the
structure which is demolished by the B. M. C., cannot be granted.
Therefore, the plaintiff is not entitled for the relief of temporary
injunction restraining B.M.C. from demolishing structure which is
demolished. Thus, I hold that the plaintiff has failed to prove that notice
structure is protected under the Slum Act. None of the documents relied
by the plaintiff proves authenticity of notice structure. 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
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8 N/M. No.1999/18 (L.C.S. No.1994/18)
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 05:10 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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