Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.2009/18 (L.C.S. No.1845/18)
MHCC010065752018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.2009 OF 2018
IN
LONG CAUSE SUIT No.1845/2018
Mr. Haidar Islam Fahimulla … Plaintiff
- Versus -
The Commissioner & 2 Ors. ... Defendants
Appearance :-
Mr. Vikas Murudkar, Advocate for plaintiff.
Mrs. Jyoti Mhatre, Advocate for defendants No.1 and 2.
Mr. R. P. Khobragade, Advocate for defendant No.3.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 10/05/2024.
O R D E R
. This is suit to challenge notice under Section 351 of The
Mumbai Municipal Corporation Act dated 31/1/2018 and Speaking
Order dated 17/5/2018 and for perpetual injunction. The plaintiff has
taken out present Notice of Motion for temporary injunction under
Order-XXXIX Rule-1 of The Code of Civil Procedure (in short the C.P.C.)
restraining defendant B. M. C. from enforcing notice.
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2 N/M. No.2009/18 (L.C.S. No.1845/18)
2] In brief, facts of the plaintiff's case are that :-
The plaintiff is occupier of shop namely M/s. Samrat
Marble and doing business of marble cutting and polishing from long
decades. The plaintiff is in continuous use, occupation and possession of
suit structure. The suit structure was affected during communal riots
took place in Mumbai in 1992-93 and the relevant documents relating
to suit structure are burnt and destroyed. The owner of M/s. Kadri Tin
Factory allowed predecessor of the plaintiff to carry out business after
said tin factory was shut down on humanitarian ground without
altering or erecting any construction. The notice structure is in existence
since long decades. The Corporation has issued shop and establishment
certificate. The plaintiff is having electricity connection at the address of
suit structure and he is paying municipal taxes since 1995. However, the
Corporation has issued impugned notice, alleging that the plaintiff has
carried out unauthorized construction. The plaintiff has replied show
cause notice and explained that the notice structure is old and tolerated.
However, Designated Officer has not considered reply and documents
and passed demolition order at the instigation and behest of builder
who alleged to have purchased said property. Thus, notice as well as
Speaking Order is illegal and bad-in-law. Therefore, the plaintiff is
entitled for interim injunction as prayed.
3] Defendant B. M. C. opposed Notice of Motion by filing
reply-cum-Written Statement below exhibit-4. 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. The plaint discloses no cause of action and,
therefore, suit is not maintainable. Further, the plaintiff has not given
details of immovable property to identify sufficiently hence suit is not
maintainable under Order-VII Rule-3 of the C. P. C. As per amended
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3 N/M. No.2009/18 (L.C.S. No.1845/18)
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 in the
Court with clean hands and not produced a single document to prove
that structure is constructed as per permission of Competent Authority
or it is protected under the slum policy. It is further stated that the
officer of the Corporation inspected suit structure and noticed
unauthorized construction of shop with MS sheet wall and GI sheet roof
as shown in the sketch attached to notice. Thereafter impugned notice
was issued directing the plaintiff to show sufficient cause. The plaintiff
has replied show cause notice but before passing Speaking Order the
plaintiff filed earlier suit. The Corporation has considered reply and
documents submitted by the plaintiff and followed due process of law.
The plaintiff has failed to prove that notice structure is legal and
authorized. Therefore, the plaintiff is not entitled for temporary
injunction. The Corporation has also filed additional affidavit and
denied contentions in amended plaint and prayed for dismissal of suit
as well as Notice of Motion.
5] The defendant No.3 has been added as per order in
Chamber Summons No.1007/2018 dated 5/12/2023. However, he has
not filed reply.
6] 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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4 N/M. No.2009/18 (L.C.S. No.1845/18)
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 :-
7] The plaintiff relied upon documents
viz. shop and
establishment certificate, trade licence, electricity bill, assessment bill,
impugned notice, order passed by this Court and Speaking Order etc.
8] Defendant No.1/B. M. C. relied on copies of inspection
report, impugned notice and Speaking Order etc.
9] Learned advocate for the plaintiff submitted that notice
structure is in existence since long and the plaintiff is running marble
shop in the name and style Samrat Marble and the plaintiff is having
shop and establishment certificate issued by defendant B. M. C. The
plaintiff is paying necessary taxes. The plaintiff is having electricity
connection and assessment bill. However, at the instigation of builder
the Corporation has issued impugned notice, alleging that the plaintiff
has carried out unauthorized construction of notice structure.
Defendant B. M. C. has not considered documents in proper manner
and passed mechanical order. Therefore, impugned notice and Speaking
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5 N/M. No.2009/18 (L.C.S. No.1845/18)
Order is illegal and bad-in-law. Hence the plaintiff is entitled for interim
injunction as prayed.
10] On the other hand, learned advocate for defendant B. M. C.
submitted that the plaintiff has not produced a single document on
record to show that notice structure is legal and authorized. None of the
documents relied by the plaintiff prove legality of structure. It is further
submitted that the plaintiff has failed to prove that notice structure is
legal/authorized. Therefore, plaintiff is not entitled for reliefs claimed.
11] I have given careful considerations to the submissions made
by both sides and material on record.
12] The plaintiff has challenged notice under Section 351 of the
M. M. C. Act. As per the proviso to Section 351 of the M. M. C. Act the
words “to show sufficient cause” would mean to prove that the work
mentioned in the notice is carried out as per the provisions of the
M.M.C. Act. Sub-section (2) of Section 351 of the M. M. C. Act
mandates that if a person fails to show sufficient cause to the
satisfaction of designated officer, then the designated officer may pass
order of removal of notice structure. Thus it is incumbent upon the
plaintiff to show that notice structure is constructed as per the
sanctioned plan of the B. M. C. or it is in existence prior to the datum
line of 1962.
13] Thus, as per the explanation to Section 351 of the M. M. C.
Act the burden lies upon the noticee to prove that work mentioned in
notice is carried out in accordance with the provisions of Sections 337,
342 and 347 of the M. M. C. Act. For that purpose, the plaintiff relied
upon Shop and Establishment certificate issued to Samrat Marble in the
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name of Haider Islam. It appears that said certificate has been issued in
2017. The plaintiff has further relied upon electricity bill of January
2018. As per said bill date of supply of connection is 1/1/1987. The
plaintiff has produced on record assessment bill No.313720320000 of
Kadri Tin Factory Compound. The said structure has been first time
assessed on 1/4/1995. Thus, all the documents are after 1987. None of
the documents establishes existence of structure prior to the datum line
of 1964. It is contention of the plaintiff that notice structure is in
existence from long decade. However, the existence of structure is to be
proved on the basis of documents and averment that notice structure is
in existence since long or long decades has no consequences under the
law. The relief of temporary injunction is discretionary and equitable
relief and cannot be granted merely on asking by party. Temporary
injunction cannot be granted to protect an illegal act and continuing the
fruits of illegality. Therefore, I hold that no case made out to grant
temporary injunction as prayed. Balance of convenience does not lie in
his favour. Thus, there is no question of causing irreparable loss or
injury if injunction is refused. 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 : 10/05/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
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7 N/M. No.2009/18 (L.C.S. No.1845/18)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
07/06/2024 03:50 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 10/05/2024
ORDER Typed on 06/06/2024
ORDER signed by P. O. on 07/06/2024
ORDER uploaded on 07/06/2024
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