Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.2375 OF 2019
MHCC010065542019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.2375 OF 2019
IN
IN L.C. SUIT NO. 1080/2019
Mr. Vijay Naval Chauhan … Plaintiff
Versus
The Municipal Corporation of
Greater Mumbai & Others ... Defendants
Appearance :
Adv. Mr. P. R. Moses for plaintiff.
Adv. Ms. Rawade for MCGM/Defendant
CORAM : H. H. J. SHRI. S. H. SALUNKHE
Court Room No. 4.
DATED : 21/07/2022.
O R D E R
The plaintiff has taken out this notice of motion under Order XXXIX
Rule 1 of the Code of Criminal Procedure, 1908 (in short 'C.P.C.') for
temporary injunction, restraining defendant/ corporation from dispossessing
the plaintiff from the suit premises and or in any manner disturbing plaintiff's
possession till the decision of the suit.
2. In brief facts of the case as under :
The plaintiff and his family is in use, occupation of tenanted premises
-- 1 of 8 --
2 NM No.2375 OF 2019
bearing Room no. C6, ChawlC, Ground Floor structure, Madhav Kunj, M.G.
Road, Ghatkopar (West), Mumbai situated at CTS No. 3063 to 3074 and
3102 to 3110, (in short 'suit premises'). The plaintiff's deceased father Late
Naval Bhanji Chauhan was monthly contractual tenant in respect of Room
no.C6 together with suit structure. The plaintiff and his family is staying in
the Room no. 6 together with suit structure since his childhood. The plaintiff
and his family were regularly paying rent to the landlord Mrs. Monghibai
Madhavji Joshi . Said property Madhav Kunj was purchased by M/s. Divya
Constructions who was collecting rent from the plaintiff. The plaintiff is
having Ration Card and other documents having address of the suit premises.
After death of original tenant Late Naval Chauhan, the plaintiff is in
occupation and possession of the suit premises together with suit structure.
M/s. Ami Housing Private Limited purchased said property i.e. Madhav Kunj
from M/s. Divya Construction. The landlord has filed Writ Petition in Hon'ble
Bombay High Court. The plaintiff has filed R.A. D suit in the court of Small
Causes, Mumbai. The plaintiff is having rent receipt for the year 1962 dated
04/04/1962 and 03/09/1962, so also for the year 1974 and 2006. The
plaintiff is in possession of Electric bill for March, 1969 and April, 1994. The
plaintiff is having assessment bill in respect of Madhav Kunj building.
3. The present landlord wants to develop suit property and is using
machinery of defendant No. 1 to pressurize the plaintiff. Defendant/
Corporation had issued notice dated 07/11/2016 calling upon to plaintiff to
demolish notice structure and alleged construction of Shed with M.S. Pipe and
A.C. Sheet stating it is unauthorized construction. The plaintiff thereafter
approached to office of Defendant/ Corporation and shown all the documents
in his possession and informed that the notice structure is in existence since
many years. The officer of the Defendant/ Corporation has not taken any
action. Then again Defendant/ Corporation issued notice dated 07/07/2017
calling upon plaintiff to remain present with all documents. Accordingly,
plaintiff shown all the documents. Thereafter, Defendant/ Corporation vide
notice dated 01/03/2019 called upon plaintiff to remove the notice structure
-- 2 of 8 --
3 NM No.2375 OF 2019
without considering documents. There is apprehension that Defendant/
Corporation will demolish notice structure. Hence, plaintiff has filed suit for
declaration and taken out Notice of motion for temporary injunction. The
plaintiff has filed affidavit in support of Notice of motion.
4. Defendant/ Corporation filed affidavit in support of documents.
Defendant/ Corporation denied contention in the plaint as well as Notice of
motion. It is further contended that suit is not maintainable for want of
statutory notice under section 527 of the MMC Act. It is further contended
that as per amended Sec. 515 A of the MMC Act, this court has no jurisdiction
to entertain the present suit. The notice is executive or administrative act or
orders and the same cannot be open to challenge in the court of Law. It is
further contended that plaintiff has not made out prima facie case for grant of
injunction. Therefore Notice of motion be dismissed with costs.
5. On the basis of pleadings, following points arises for my determination,
I have recorded my findings thereon for reason to follow:
Sr.
No.
P O I N T F I N D I N G S
1. Whether the plaintiff has made out
prima facie case ?
. . .
Yes.
2. Whether the balance of conveyance
lies in favour of the plaintiff ?
. . .
Yes.
3. Whether the plaintiff would suffer
irreparable loss if the temporary
injunction is refused ?
. . .
Yes.
4. What Order ? . . . Notice of Motion is
partly allowed.
REASONS
AS TO POINT NO.1 TO 3:
6. Learned advocate for plaintiff submitted that plaintiff's father was
-- 3 of 8 --
4 NM No.2375 OF 2019
contractual tenant of the Room no. C6 since prior to the datum line. The
plaintiff's family is in use and occupation of the Room no. 6 alongwith notice
structure since prior to the datum line. However, landlord in collusion with
the Corporation issued notice under section 351 of the MMC Act for
demolition of notice structure alleging that suit structure is unauthorized.
Learned advocate submitted that notice itself is bad in law and defective on
the ground that in the notice the Room no. C3 has been mentioned instead of
Room no. C6. Advocate further submitted that it is alleged that the plaintiff
carried out illegal construction. However, notice under section 354 (A) of the
MMC Act was given. The notice was given to the premises bearing Room no.
C3 and plaintiff is in possession of C6, this shows that Defendant/
Corporation has not followed due process. He pointed out that plaintiff's
father was a contractual tenant in respect of Room no. C6 alongwith suit
structure. Learned advocate for plaintiff submitted that the plaintiff has
having the rent receipt prior to datum line. He submitted that rent receipt has
been issued by original landlord Mrs. Monghibai Madhavji Joshi to the father
of plaintiff for the period 1960/61. He submitted that suit structure has been
assessed by the BMC in the year 1961. In submission of the document i.e. rent
receipt and assessment bill shows that suit structure is in existence prior to
datum line and this suit structure is protected structure. As such notice issued
by Corporation is illegal. On this basis of these submissions advocate for
plaintiff prayed that temporary injunction may kindly be granted.
7. On the other hand advocate for the Corporation submitted that plaintiff
has not produced any document on record to show that notice structure is in
existence prior to datum line. Advocate further submitted that in the
assessment bill suit structure is not shown and this clearly shows that suit
structure was not existence prior to datum line. It is further submitted that
rent receipt produced by the plaintiff are in respect of Room no. C6 and not
in respect of the notice structure. It is further submitted that notice structure
was demolished by the Corporation in the year 2019. However, plaintiff
reconstructed the same. Advocate for Corporation submitted that the plaintiff
-- 4 of 8 --
5 NM No.2375 OF 2019
has to make averment that suit structure is authorised structure or it is
protected structure and merely pointing out deficiencies in the notice is not
sufficient. In support of this submission advocate for defendant relied on
Judgement of Hon'ble Bombay High Court in the case Public Interest
Litigation No. 67 of 2017 in Tushar Guru Salian V/s. State of Maharashtra
and Others . In which it is held that, plaintiff must make an averment of the
sanction obtained from the Corporation and must make averment that structure
is sanction and merely pointing out deficiencies in the notice is not sufficient.
8. In the light of submission made by Learned advocate for the parties it is
to be seen whether plaintiff has made out prima facie case. Plaintiff has taken
out this Notice of motion for temporary injunction under Order XXXIX Rule
1 of the Civil Procedure Code. The person seeking relief of temporary
injunction has to make out prima facie case and so also that plaintiff
will suffer irreparable injury and balance of conveyance lies in his
favour. The burden to prove these three necessities lies on the person
seeking injunction. It is also well settled that for grant of injunction it is
not necessary to have a iron cast case, the prima facie case means the
case for enquiry. It is contention of plaintiff that plaintiff's father Late
Naval Chauhan was the tenant of Room no. C6, Madhav Kunj, M.G.
Road, Ghatkopar (West), Mumbai and original landlord was Mrs.
Monghibai Madhavji Joshi. The tenanted premises Room no. C 6 is
located in Chawl No. C of Madhav Kunj. It is further contention of
plaintiff that Room no. C6 alongwith notice structure is in existence
prior to 196162.
9. The plaintiff has challenged notice under section 351 of the MMC
Act on the ground that the suit structure is in existence prior to datum
line. In support of his contention the plaintiff produced on record rent
receipt issued by the then landlord Mrs. Monghibai Madhavji Joshi in
favour of his father Naval Chauhan. The plaintiff has produced rent
-- 5 of 8 --
6 NM No.2375 OF 2019
receipt prior to datum line. Some of the rent receipt are of the year
196061. The Corporation has produced on record assessment bill of
Madhav Kunj building. It appears that Madhav Kunj building has been
assessed in the year 1961. It is the contention of the defendant that
notice structure does not included in assessment bill. The Designated
Officer while passing order observed that the assessment record does
not includes notice structure. On the other hand plaintiff contended
that he is in possession of the Room no. C6 together with notice
structure since prior to datum line. The aforesaid document produced
on record i.e. rent receipt and assessment bill prima facie established
existence of the Room no. C6 prior to 1962. Defendant/ Corporation
denied that suit structure has been assessed prior to datum line. The
assessment extract has been issued by the Corporation. It is for the
Corporation to explain on what basis it come to conclusion that suit
structure is not assessed for property tax in the year 1961. However, no
explanation in this behalf has been given by the Corporation. At this
stage the document produced by the parties themselves are sufficient to
demonstrate prima facie that suit structure must have been existence
since prior to datum line. Thus, whether suit structure was in existence
since prior to datum line, requires to be decided after recording
evidence of the parties after the trial.
10. In my view, the plaintiff need to give the opportunity to prove his
case at the trial and particularly as to whether suit structure was in
existence prior to datum line. Therefore, on the basis of document
which I have referred above, the plaintiff is entitled for temporary
injunction in terms of prayer clause (b) of the Notice of motion till
disposal of the suit. The plaintiff has made out prima facie case and
balance of conveyance lies in favour of the plaintiff. The plaintiff is
claiming possession of the notice structure on the basis of the
-- 6 of 8 --
7 NM No.2375 OF 2019
documents i.e. rent receipt and he is residing in the suit premises with
family. As such he would be suffer irreparable injury if his shelter is
taken away. Therefore, Notice of motion is allowed in terms of prayer
clause (b). Therefore, I answer point no.1 to 3 in the affirmative and in
answer to point no.4 pass following order.
ORDER
1. Notice of Motion No. 2375 of 2019 is partly allowed in terms of prayer
clause (b).
2. Costs in cause.
3. Notice of Motion No. 2375 of 2019 is disposed of accordingly.
Date : 21/07/2022 ( S. H. SALUNKHE )
Adhoc Assistant Sessions Judge,
Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
22/07/2022 02:40 p.m. Samruddhi Jadhav
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 21/07/2022
ORDER signed by P.O. on 22/07/2022
ORDER uploaded on 22/07/2022
-- 7 of 8 --
8 NM No.2375 OF 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
–/07/2022 –01:25 p.m. Samruddhi Jadhav
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 21/07/2022
ORDER signed by P.O. on /06/2022
ORDER uploaded on –/06/2022
-- 8 of 8 --