Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.2001/18 (L.C.S. No.1996/18)
MHCC010065552018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.2001 OF 2018
IN
LONG CAUSE SUIT No.1996 OF 2018
Abdullah 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 N/M. No.2001/18 (L.C.S. No.1996/18)
2] Brief facts of the plaintiffs’ case are as under :-
The plaintiff is using structure admeasuring 726 square feet
with AC 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 in 1995 purchased the land with structure
thereon admeasuring 1,460 square yards equivalent to 1,220.72 square
meters. The plaintiff is having electricity connection at the address of
suit structure. In June 2011 he made application for regularization of
structure as per order of the Hon'ble High Court in Appeal From Order
No.398 Of 2011. The said application is still pending for the
consideration. However, 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. The suit
structure is totally different than described in show cause notice. 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
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3 N/M. No.2001/18 (L.C.S. No.1996/18)
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
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 :-
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4 N/M. No.2001/18 (L.C.S. No.1996/18)
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 :-
6] The plaintiff relied on copies of Index-II to prove the tile
over C. T. S. No.723, 7/12 extracts, electricity bill, shop and
establishment licence, copy of application for regularization, 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,
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 700 square feet situated at situated at
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5 N/M. No.2001/18 (L.C.S. No.1996/18)
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
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.
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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.
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. None of the documents relied by the
plaintiff proves legality/ authenticity of structure. Merely he took stand
that structure is in existence since long. None of the documents
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produced by the plaintiff shows that notice structure is legal and
authorized.
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 demolition
report dated 26/5/2018 and 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 C. T. S. 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, trade licence, payment receipts etc.
However, none of the above document proves authenticity of structure.
The plaintiff has produced on record copy of application for
regularization in respect of structure situated on C. T. S. No.723.
However, the plaintiff has not submitted copy of application alongwith
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reply to show cause notice. The plaintiff has not brought on record any
material to show that the regularization application was in respect of
notice structure. Merely it is stated that proposal for regularization of
structure standing on C. T. S. No.723. It is important to note here that
total eight suits are filed by different plaintiffs in respect of structures
situated on C. T. S. No.706 and 723. There is no material on record to
show that regularization application is in respect of notice 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 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.
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 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
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that demolished structure has been reconstructed. The plaintiff has not
shown that he has not reconstructed structure. The material on record
prima facie shows that the plaintiff reconstructed the structure. The
plaintiff has failed to prove that notice structure is legal and authorized.
None of the documents relied by the plaintiff proves authenticity of
notice structure. 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. The plaintiff is seeking relief of temporary injunction but
they have not placed on record true facts. In the 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
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10 N/M. No.2001/18 (L.C.S. No.1996/18)
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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