Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No. 2369/19
in L.C. Suit No. 1597/19.
MHCC010065262019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION 2369 OF 2019.
IN
L.C. SUIT NO. 1597 OF 2019.
Bhagwan Shankar Kakade ............................... ….. PLAINTIFF.
V/s.
The Municipal Corporation of Greater Bombay. ….. DEFENDANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 12th January, 2022.
APPEARANCES :
Shri. B.P. Shukla, the Ld. Advocate for Plaintiff.
Shri. S.C.Khandagale, the Ld. Advocate for Defendants / MCGM.
*****
01. The plaintiff has taken out this Notice of Motion for interim
relief in terms of prayer clause (a), thereby restraining the defendant to
proceed against the suit premises, which is duly prescribed in para 1 of
the plaint, in pursuance of the notice dtd. 19.06.2019, issued U/s. 354-
A of the Mumbai Municipal Corporation Act, 1988 (for short ‘the MMC
Act’) and the Order dtd. 24.06.2019.
02. Briefly stated, the plaintiff's case is that he is in occupation,
use and possession of the suit premises. During the 'census' carried in
the year of 1990, his application for issuance of photopass was accepted
by the the concerned authority and accordingly, 'census' receipt bearing
No. 0079281, dtd. 27.11.1990 was issued to him. He also possesses the
documents of Electricity connection, Election identity card, Aadhar card
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in L.C. Suit No. 1597/19.
etc., where his residence is shown at the suit premises. This premises is
old one and existed since long. It is also situate in the 'slum' area. Still,
on the basis of some complaints, the defendant issued the suit notice on
19.06.2019, calling upon him to produce the documents, relating to the
alleged unauthorized construction on the suit premises. In fact, the suit
premises is old one and there was no construction ‘in progress’. Hence,
the issuance of suit notice is not justified. The suit premises was visited
by the defendant. As it was ‘censused’ in the year 1990, it was tolerated
and protected premises, as per the own prevailing policy of defendant.
Moreover, the defendant did not follow the guidelines issued in view of
the MMC Act and in the case of Sopan Maruti Thopte. Still, the plaintiff
replied the suit notice on 24.06.2019. Surprisingly, on the same day, the
defendant passed the order, even without considering his reply. He was
served with the Order on 27.06.2019 only. On that day, at @11.30 a.m.,
some of officers of the defendant, who refused to disclose their names,
visited at the suit premises and they threatened to demolish the same.
In the circumstances, he has to institute this suit along-with the notice
of motion for the aforesaid relief. To support his claim, he relied on the
documents like copy of ration card, electricity bill, election card, Aadhar
card, census receipt of the year 1990, the notice dtd. 01.11.2003, the
suit notice, his reply dtd. 24.06.2019 and the Order dtd. 24.06.2019.
03. The defendant objected this motion in view of the affidavit
in reply filed by one Apurva Yogesh Sagane. At the outset, she denied all
the adverse contentions of plaintiff. She contended that on usual round
of inspection on 19.06.2019, she inspected the suit premises and found
that there was an unauthorized construction of 2nd floor, with B.M. Wall
and some material, in specific dimensions. Hence, the owner/occupier
of the suit premises were called upon to explain the same, wherein they
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in L.C. Suit No. 1597/19.
failed. Thereafter, on 19.06.2019, the suit notice came to be issued and
as the plaintiff could not show sufficient cause, the Order was passed on
24.06.2019. She further contended that even after passing the order of
ad-interim relief, on 28.06.2019, when she visited the suit premises, it
transpired to her that further unauthorized construction was 'going on'.
In the circumstances, the defendant prayed for rejection of this motion.
In support of his contentions, the defendant relied upon the documents
like copy of first inspection report dtd. 19.06.2019, with photographs,
the suit notice, the Speaking Order and photographs dtd. 28.06.2019.
04. Heard both the sides. Considering the rival submissions and
the record, the points for determination, along-with my findings and the
reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in his favour ? …................................ .. Yes.
(ii). Whether balance of convenience lies in
favour of the plaintiff ? ….................…..... …Yes.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted ? …...................... Yes.
(iv). What Order ? …..............…....................... .. Notice of Motion
is allowed
REASONS FOR FINDINGS
AS TO POINT NOS. 1 TO 3 :
05. As these points are interconnected, to maintain the brevity,
I am taking the same for joint discussion. Since beginning, the plaintiff
came with a specific case that he is in occupation of the suit premises. It
is old one. In the year of 1990, it was ‘censused’. He also filed the copy
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in L.C. Suit No. 1597/19.
of receipt to that effect. It is further his contentions that it is situate in a
‘slum' area. Being so, it is protected and a tolerated premises as per the
prevailing policy of the defendant. Further, as the suit premises was old
one, due to the monsoon season, he carried some of 'tenantable' repairs
to it. However, on the false complaints, the defendant issued this notice,
and without affording any fair chance of hearing, passed this Order. As I
referred earlier, he supported his contentions on the documents like the
copy of ration card, electricity bill, election card and 'census' receipt of
the year 1990. The record further reveals that on 24.06.2019, he replied
the notice personally and through his advocate Shri. Shukla. However,
the speaking order dtd. 24.06.2019, which is passed on the same day,
transpires that no such reply was given by this plaintiff. It is, apparently,
contrary to this record, specially when the copy of reply seems to have
been received by the Office of defendant vide inward No. 11559 of dtd.
24.06.2019. This being the position, the defendant was required to take
into consideration this reply, while passing the Order, where he failed.
06. Assailing this motion, the defendant relied upon the copy of
first inspection report of dtd. 19.06.2019. That time, it revealed to him
that the said construction was in the form of 'extension to the existence
structure'. It was being carried as an 'addition' and 'alteration'. However,
the fact remained that this inspection report is silent on the aspects like
sketch and panchnama of the alleged unauthorized construction, which
were mandatory to be drawn. True that the defendant placed the initial
photograph of the same date of inspection, as per the list of documents
Exhibit 02. However, as it is observed earlier by the learned predecessor
of the Court, these photographs do not reveal construction of 2nd floor
structure, as it is observed in the first inspection report, the suit notice
and the Speaking Order. If said differently, as per Schedule (Description
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in L.C. Suit No. 1597/19.
of the work) mentioned in the suit notice, on the day of inspection, the
concerned officer of the defendant observed unauthorized construction
of 2nd floor, with B.M. wall and the other material, that too with specific
dimension. However, the initial photographs, on the basis of which this
suit notice was issued and subsequently, the Speaking Order came to be
passed, don’t whisper the existence of 2nd floor construction. Here, it is
to be noted that in reply, although the defendant contended that even
after the passing of ad-interim Order, on 28.06.2019, the plaintiff found
carrying further construction, the record is silent to assume that on that
count, the defendant proceeded against him. True that in support of his
contentions, the defendant filed photographs in view of the list Exhibit
02. And, after considering reply of the plaintiff on this development, in
roznama dtd. 29.06.2019, my learned predecessor placed the defendant
at liberty to pass fresh Speaking order. However, there seems nothing on
record. At this juncture, it is to be noted that by issuing the suit notice,
though the defendant contended that said construction was in progress,
specially in absence of sketch and panchnama of the said construction,
the record is silent to conclude that it was an 'on going' construction. On
this backdrop, the very nature of the alleged construction is doubtful.
07. True it is that nowhere, even the plaintiff came before the
Court that he carried the alleged constructions only after obtaining due
permission of the defendant. Obviously, only by assailing the suit notice
and the Speaking Order, he can't ask for his exemption to substantiate
his own bonafides as regards this construction. However, in view of my
above discussions, I am of the considered opinion that apparently, the
defendant failed to follow the due process of law, while issuing the suit
notice and passing the Speaking Order dtd. 24.06.2019. Consequently,
assuming that the suit structure is unauthorized one, still, the defendant
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in L.C. Suit No. 1597/19.
has to stick to the due process of law and the guidelines, as laid down in
the case of Sopan Maruti Thopte. In the circumstances, I feel that as of
now, the plaintiff could establish a prima facie case in his favour and the
balance of convenience also tilts in his side. Simultaneously, on the basis
of the suit notice and the Order, if the defendant is allowed to demolish
the suit premises, he would suffer irreparable loss. Consequently, till the
defendant follows the due process of law, it deserves to be protected. In
the result, I answered point Nos. 1 to 3 in the affirmative and to answer
to point No. 4, I pass the following Order :
-: O R D E R :-
(i). Notice of Motion No. 2369/ 2019 is made absolute,
in terms of prayer clause (a), leaving the defendant
at absolute liberty to proceed against the suit
premises, by following the due process of law.
(ii). Costs to follow the event.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 12.01.2022 City Civil Court, Mumbai.
Dictated on : 12.01.2022.
Transcribed on : 12.01.2022.
Signed on : 14.01.2022.
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in L.C. Suit No. 1597/19.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14.01.2022. Mrs. S.R.Mejari
Name of the Judge (with Court Room no.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 12.01.2022.
Judgment/Order signed by P.O. on 14.01.2022.
Judgment/Order uploaded on 14.01.2022.
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