Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.2000/18 (L.C.S.No.1995/18)
MHCC010065542018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.2000 OF 2018
IN
LONG CAUSE SUIT No.1995 OF 2018
Kitabullah Khan … Plaintiff
- Versus -
The 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 plaintiffs have 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 plaintiffs’ case are as under :-
The plaintiff is using structure admeasuring 700 square feet
with A/C sheet roof having iron angle frame upto height 8 of feet on
right side of structure and B/M wall at left side adjacent to Care & Cure
Clinic, L. B. S. Road, Mulund (W), survey No.67 (P) and C. T. S. No.723
of Nahur village, Tal. Kurla, Mumbai (in short notice structure). The
plaintiff alongwith others purchased the land in 1995 where the
structure is situated alongwith structure admeasuring 1,400 square
yards equivalent to 1,220.72 square meters by a registered Deed of
Conveyance. The plaintiff is having electricity connection at the address
of suit structure. The plaintiff has received show cause notice under
Section 351 of the M. M. C. Act and he immediately replied show cause
notice. The Designated Officer passed speaking order. The structure is
legal and authorized. The Corporation has issued trade licence and area
of structure is reflected in trade licence. Trade licence has been issued
after verifying authorization of structure. Thus, the issuance of notice
and passing an order thereupon is without 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.
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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 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 copies of Index-II to prove the tile
over CTS No.723, 7/12 extracts, electricity bill, shop and establishment
licence, payment receipt, 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 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 700 square feet situated at situated at
C. T. S. No.723, Lal Bahadur Shastri Road, Mulund. He further
submitted that the plaintiff has purchased land bearing C. T. S. No.723
alongwith structure. The Corporation has issued trade licence after
verifying area of structure. The plaintiff is having electricity meter at the
address of suit structure, shop and establishment certificate to show
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that notice structure is legal and authorized. Therefore, the impugned
notice under Section 351 of the M. M. C. Act and order of demolition is
illegal and bad-in-law. The Corporation issued notice under Section 351
of the M. M. C. Act and passed demolition order without application of
mind. 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 plaintiffs 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. None of the
documents relied by the plaintiff proves authorization of structure. The
plaintiff has not produced sanctioned plan or document showing
existence of structure prior to the datum line or document showing that
structure is protected under the slum policy. In the circumstances, the
plaintiff is not entitled for the relief of temporary injunction. It is further
submitted that as per order dated 26/5/2018 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
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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.
11] The plaintiff is seeking protection to notice structure. The
plaintiff has challenged notice under Section 351 of the M. M. C. Act. It
is contention of the plaintiff that notice structure is legal and
authorized. As per proviso to Section 351 of the M. M. C. Act the
burden lies upon the noticee to show to the satisfaction of Designated
Officer that the structure has been constructed in accordance with the
provisions of Section 337, 342 and 347 the M. M. C. Act or notice
structure is tolerated structure i.e. it is in existence prior to the datum
line of 1962 or 1964 or it is protected under the Slum Act and censused
by Competent Authority. It is pointless to say that structure is in
existence since long or it is authorized has no consequence in the law.
The legality of the structure is to be proved by documentary evidence
i.e. sanctioned plan or document showing existence of structure prior to
the datum line or photo-pass. It is contention of the plaintiff that the
Corporation has issued shop and establishment certificate, therefore,
notice structure is authorized. However, mere issuance of shop act
licence does not by itself, bestow legality on the structure. There is
remark to that effect on the licence issued by the B. M. C. None of the
documents relied by the plaintiff proves legality/authenticity of
structure. Thus, I hold that the plaintiff has failed to establish the
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legality of structure. Therefore, the plaintiff is not entitled for any relief
as claimed.
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 plaintiffs 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 photographs
clearly show that notice structure has been demolished by B. M. C.
13] The plaintiff has relied upon copy of Index-II to show that
the plaintiff has purchased the land bearing CTS No.723 alongwith
structure standing thereon having area 1,220.72 square feet. However,
there is no reference of area and description of structure in the said
Index-II. The Index-II cannot be said to be a document proving legality
of structure. The plaintiff has further relied on copies of 7/12 extracts,
mutation entry, electricity bill, payment receipts etc. However, none of
the above document proves authenticity of structure. The legality of
structure is to be proved on the basis of documentary evidence
viz.
sanctioned plan, document showing existence of structure prior to the
datum line or photo-pass. However, the plaintiff has not produced a
single document on record to show that notice structure has been
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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.
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.
photographs filed by the defendant B. M. C. shows that entire structure
is demolished. However, it is contention of the plaintiffs that structure is
partly demolished but the plaintiffs have not produced photographs
with date to show that B. M. C. has demolished structure partly. The
additional affidavit filed by the officer of defendant B.M.C. dated
30/10/2023 alongwith photographs show that demolished structure has
been reconstructed. I hold that the plaintiff has failed to prove that
notice structure is legal and authorized.
15] 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
already demolished. The plaintiff is seeking relief of temporary
injunction but they have not placed on record true facts. In the
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circumstances, the plaintiffs are 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 05:15 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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