Order 1

Order Details: Notice of Motion
Pdf Text: NM 198518 in Suit 131018 : 1 : Dt. 10.08.2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1985 OF 2018
(CNR NO. MHCC010067452018)
IN
SUIT NO. 1310 OF 2018
(CNR NO. MHCC010064992018)
Rumy Ravi Kumar ...Plaintiff
Versus
1. Municipal Corporation of
Greater Mumbai
2. Designated Officer,
Assistant Engineer (B & F) ...Defendants
CORAM : HER HONOUR JUDGE
SANJASHREE J. GHARAT
(C.R. NO. 08)
DATE : 10.08.2018.
Ld. Adv. Mr. Sachin Kadam for Plaintiff.
BMC Counsel Mr. Puranik with Adv. Ms. Tadvi
for Defendant / BMC.
ORAL ORDER
The present Notice of Motion is taken out by the
Plaintiff restraining the Defendant / Corporation from acting
upon the impugned Notice and Speaking Order passed. The
Plaintiff claims that he is in use, occupation and possession of
commercial premises which consists 3 shops which are
specifically described in Para No. 1 of the Plaint. The Plaintiff
claims that he is in use, occupation and possession of suit
premises since past more than 20 years.
2. It is the contention of the Plaintiff that originally
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there is staircase to reach the plinth level of the ground floor
to enter the suit premises. The Plaintiff has given the suit
premises on lease to ICICI Bank since last more than 18 years.
However, in view of the RBI Guidelines the Bank has to
provide ramps at the entrance of the Bank, so that the person
with disabilities / wheelchairs, users can enter the branches
and conduct business without difficulty. Therefore as per the
guidelines given by the RBI Plaintiff constructed the ramp in
place of staircase so that the persons with disabilities,
wheelchair can enter the Bank. Moreover, Society or
occupants of the building have also not raised any objection
for constructing ramp at the entrance of the Shop.
3. It is contention of the Plaintiff that first floor of
the building is owned by one Mrs. Sashi Kapoor. She intends
to use the first floor for Nursing Home. Therefore she is
required to construct the staircase from outside the building
to the first floor for emergencies. However for the said
staircase the ramp as well as shed constructed by the Society
is required to be removed. Therefore, she induced the BMC
officials to issue the Notice u/s. 351 of MMC Act on
16.02.2018. However the occupants of the building i.e.
officers of ICICI Bank did not hand over the said Notice to the
Plaintiff. Thereafter Speaking Order came to be passed on
17.03.2018. The Plaintiff challenged the said order by filing
L.C. Suit No. 1014 of 2018. In the said suit the Defendant
showed their willingness, readiness to consider the reply and
documents filed by the Plaintiff. Therefore said suit came to
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be disposed off on 12.04.2018. Thereafter Plaintiff
immediately filed reply on 17.04.2018. However the
mechanical order came to be passed by Defendant /
Corporation.
4. It is submitted that the said order came to be
passed without giving personal hearing to the Plaintiff.
Therefore Plaintiff prayed for adinterim injunction.
5. The Defendant / Corporation filed affidavit. It is
submitted on behalf of the Defendant / Corporation that the
Plaintiff carried out unauthorized construction of ramp.
Moreover it is pointed out that the Plaintiff admits that he had
demolished the staircase / steps and constructed the ramp for
which Plaintiff not produced any Sanction Plan for the said
construction. Therefore Defendant / Corporation claims that
the Notice structure is constructed in front of open space by
plaintiff by violating the Development Control Regulations
1991 and as such the said structure is unauthorized.
6. It is further submitted that the Designated Officer
has considered the documents filed by the Plaintiff alongwith
reply and passed the order which fulfills the norms of
Speaking order. Therefore, the Defendant / Corporation
submitted to reject the Notice of Motion filed by the Plaintiff.
7. Considering the rival submissions made on behalf
of both the parties following points arise for my
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determination and I answer the same together with reasons
thereon as under :
POINTS FINDINGS
1. Whether Plaintiff made out prima facie
case ? In the Negative.
2. Whether balance of convenience lies in
favour of Plaintiff ?
Does not Survive.
3. To whom irreparable loss will be
caused ?
Does not Survive.
REASONS
As to Point Nos. 1 to 3 :
8. The present suit is filed challenging the
impugned Notice and Speaking Order passed by the
Defendant / Corporation. Plaintiff claims that if adinterim
injunction as prayed by the Plaintiff is not granted, then
irreparable loss will be caused to him. Moreover entire
purpose of filing suit will be frustrated. Therefore, the present
Notice of Motion is taken out by the Plaintiff to restrain the
Defendant / Corporation by way of adinterim injunction from
acting upon impugned Notice and Order.
9. The grant of adinterim injunction is an equitable
relief. Therefore primafacie Plaintiff has to satisfy that he is
entitled for an equitable relief. Plaintiff claims that he is the
owner of 3 Shop premises which are specifically described in
Para 1 of the Plaint. He let out the said premises ICICI since
last more than 18 years. ICICI Bank has to run as per RBI
guidelines / rules. It is submitted that in view of the
guidelines issued by the Reserve Bank of India, the Bank has
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to provide ramp to the entrance of the Bank. Therefore
Plaintiff has constructed ramp in place of staircase so that
persons with disabilities / wheelchair users can enter Bank
branches.
10. Per contra, it is the contention of Defendant /
Corporation that the construction of the said ramp is violation
of Development Control Regulations. Therefore, the said
structure is unauthorised. It is brought on record that the
Notice came to be issued against Plaintiff u/s. 351 of MMC
Act. However, the Plaintiff claims that the said Notice was
served to the ICICI Bank but unfortunately the ICICI Bank's
Officers not pointed out the said Notice to the Plaintiff. As a
result he could not file reply to the said Notice. Thereafter the
Corporation passed Speaking Order on 17.03.2018. The
Plaintiff challenged the said order in L.C. Suit No. 1014 of
2018. The said suit came to be disposed off as defendant
showed their readiness to consider the reply filed by the
Plaintiff. The Plaintiff thereafter replied the Notice on
17.04.2018. After considering the reply and documents filed
by the Plaintiff Speaking Order came to be passed which is
under challenge. Therefore primafacie Speaking Order is
passed after giving opportunity to the plaintiff to give reply
and produce the documents in support of his his contention.
However, it is the grievance of the Plaintiff that the said
Speaking Order is passed mechanically without giving
personal hearing to the Plaintiff.
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11. In the present matter Plaintiff is challenging the
impugned Notice and Order. Before dealing with the merit of
the present motion it is necessary to see the Schedule
enclosed to the Notice issued u/s. 351 of MMC Act which is as
follows :
1. Unauthorized construction of shed over the
ramp portion leading to the basement using G.I.
Sheet Roofing and M.S. Sections.
2. Unauthorized construction of Watchmans
Cabin in brick masonry walls admeasuring 1.45m x
2.30m x 2.20m (height).
3. Unauthorized construction of Ramp by
ICICI Bank Ltd. at the entrance of the bank without
any approval of the planning authority Runwal
Residency, Plot bearing CTS No. 959 & 960 of
Village Chembur, D.K. Sandu Marg, Chembur,
Mumbai 400 071.
12. As per Schedule Plaintiff carried out
unauthorized construction of shed over the ramp portion and
unauthorized construction of watchman's cabin. It is the
contention of the Plaintiff that he had not carried out the
construction of shed and watchman's cabin and its belong to
the said society. Therefore he has no role to play if
Corporation initiates action for removal of unauthorized shed
and watchman's cabin.
13. Thirdly the Corporation alleged that the Plaintiff
constructed a ramp at the entrance of the bank without any
approval of the Planning Authority. The Plaintiff in Para 5 of
his Plaint admitted that he has constructed ramp. It is also
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not his contention that the said construction of ramp is
carried out with permission of Planning Authority. Even it is
not his contention that for construction of ramp no permission
is required. The Plaintiff is justifying his act of construction of
ramp on basis of guidelines given by the RBI. It is the
contention of Plaintiff that the suit premises is given to the
ICICI Bank and as per the RBI guidelines the ramp is
necessary for the persons with disabilities / wheelchair users.
14. In support of his contention he produced the
Circular issued by the RBI. I have gone through the said
Circular dated 21.05.2014. In the said circular itself it is
mentioned that ramp should be provided at the entrance of
Bank branches wherever feasible. Therefore it is not a
mandatory direction. Moreover RBI is not Planning Authority.
Therefore merely because Circular is issued by the RBI, the
parties can not carry out construction without observing the
regulation of Planning Authority. If at all the party wanted to
give the premises to the Bank and to construct the ramp he
has to submit the proposal for sanction of construction of
ramp. The Plaintiff not complied the said part. The Plaintiff
enclosed One Sketch Plan but it is not a Sanction Plan issued
by the Corporation. Moreover the Plaintiff claims that he
constructed the ramp at the place of staircase. However there
is nothing on record to show existence of staircase at the
place of ramp. It is alleged by the Defendant / Corporation
that said ramp is constructed in the open place available in
front of suit premises. The Plaintiff claims that the
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Corporation initiated action at the behest of one Mrs. Kapoor.
However even if it is admitted for a sake of argument that
action is initiated on Complaint of Mrs. Kapoor then also it is
to be seen whether there is any substance in the said
complaint or not. As said earlier Plaintiff himself admits that
he constructed the ramp for which he had not taken any
permission from Corporation. Moreover he observed silence
about the shed and watchman's cabin which according to
Defendant / Corporation is constructed by the Plaintiff.
Moreover the Plaintiff claims that Society and its occupants
not objected for construction of ramp. However merely
because the Society and occupants not objected for
construction of ramp. It will not dispense with requirement of
Planning Authority. Therefore, the impugned Notice issued
by the Corporation and Speaking Order passed is based on
factual situation available at the suit premises. The Plaintiff
himself admitted about the construction of ramp for which he
failed to point out any permission. Therefore Plaintiff failed
to make out prima facie case for grant of injunction. Hence, I
record my findings at Point No. 1 in Negative.
15. Since Plaintiff failed to make out primafacie case
question of balance of convenience and irrepairable loss will
not arise. Therefore I record my findings at Point Nos. 2 and
3 as does not survive and I proceed to pass following order :
ORDER
1. Notice of Motion No. 1985 of 2018 stands
rejected.
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2. Earlier order stands vacated.
(SANJASHREE J. GHARAT)
Judge
City Civil Court,
Date : 10.08.2018. Gr. Mumbai.
Dictated on : 10.08.2018.
Transcribed on : 14.08.2018.
Signed on : 21.08.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
23.08.2018 at 12.17 p.m. (Y.M. SAKHARKAR)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SMT. SANJASHREE J. GHARAT
(C.R. NO.08)
Date of Pronouncement of
JUDGMENT/ ORDER
10.08.2018
JUDGMENT/ORDER signed by P.O.
on
21.08.2018
JUDGMENT/ORDER uploaded on 23.08.2018
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