Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Common order in NM 2468-19 in SU 1281-19
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
COMMON ORDER
IN
NOTICE OF MOTION NO. 2468 OF 2019
IN
L.C. SUIT NO. 1281 OF 2019
AND
CONTEMPT NOTICE OF MOTION NO. 4147 OF 2018
IN
NOTICE OF MOTION NO. 4056 OF 2018
IN
L.C. SUIT NO. 2811 OF 2018
Oriental Contractors Pvt. Ltd.
Through its Authorize Signatories Mohammed
Salim Fida Hussain Chohan and Mohammed
Nadeem S. Chohan …...Plaintiffs
Versus
The Municipal Corporation of Gr. Mumbai & Ors. ..... Defendants
AND
Mohd. Salim Fidahussain Chohan .....Plaintiff
Versus
1. The Municipal Corporation of Gr. Mumbai & Anr ..... Defendants
AND
3. Mr. Harshal Kale & Ors. …......Respondents
Contemnors
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 21st January, 2020.
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2 Common order in NM 2468-19 in SU 1281-19
Appearance:
Ld. Adv. Mr. A.R. Pande for the plaintiff.
Ld. Adv. Mr. Shaikh for defendant/MCGM.
ORDER
1. The plaintiff by this Notice of Motion No. 2468/2019 seeks
temporary injunction restraining the defendant corporation from acting
upon the Notices issued under Section 354A of the Mumbai Municipal
Corporation Act, 1888 (hereinafter referred to as 'the MMC Act') dated
14.07.2016, 23.06.2017 and 23.10.2018 and Order dated 21.05.2019.
In the contempt Notice of Motion No. 4147/2018 in Notice of
Motion No. 4056/2018 in L.C. Suit No. 2811/2018, one of the prayer
was restraining the defendant from demolishing the notice structure.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. It is admitted fact that the plaintiff was issued three notices.
The Schedule of the Notice dated 23.06.2017 reads as under:
''Unauthorised pulldown and reconstruction of front
portion of building known as 8387, Dr. A. M Road in M S I sections
framework of columns and beams.''
The Schedule of the Notice dated 23.10.2018 reads as under:
''Unauthorised vertical extension work at 4th floor on
existing 3rd floor bldg 69/85 Petladi Building, Aatmaram Merchant
road, Marine Lines East, Fanas Wadi, Kalbadevi, Mumbai, Maharashtra
02, India by way of using M S I section for columns and beams, roof
covered with ladi coba slab admeasuring 12.00 mt x 9.00 mt x 3.00 mt.''
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The Schedule of the Notice dated 14.07.2016 reads as under:
''Unauthorised reconstruction of bldg. known as 8387, Dr.
A.M.Road in MSI section framework of columns (an isolated footings)
and beam with ladi coba slab and B.M. wall.''
4. The allegations against the plaintiffs are reconstruction of
building, unauthorised pull down and reconstruction of front portion of
the building, unauthorised vertical extension work at 4th floor on
existing 3rd floor.
5. The plaintiff claims to be the owner of Petladi building by virtue
of deed of conveyance dated 20.09.2013. It is pleaded that M.H.A.D.A.
through M.B.R.R.B. had informed that building needed repairs. The
estimate was prepared and forwarded to Board by the plaintiff. Notice
under Section 89 of M.H.A.D.A. Act was issued. Check list was
prepared. It is stated that the board has verified the building to be
ground + 4 floors. It is stated that deed of conveyance shows the
existing of 3rd and 4th floor. It is stated that false complaints are filed
against the plaintiff, therefore notice dated 23.10.2018 was issued.
The plaintiff had challenged the notice dated 23.10.2018. The
plaintiff had filed Contempt Notice of Motion No. 4147/2018 alleging
that the defendant had demolished major portion of 4th floor inspite of
order of statusquo. The plaintiff further was issued notices on
14.07.2016, 23.06.2017. The notices were replied by the plaintiff. The
reply was considered and order was passed on 21.05.2019.
The plaintiff had submitted the documents with reply. The
documents were considered and speaking order was passed.
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Sr. No. Documents
1 A letter from Adv. Shobit Shukla on behalf of you on dtd.
24.10.2018
2 A letter issued by Deputy Chief Engineer/Z1, MRB & R Board
on dtd. 25.02.2015
3 Board work order issued by Executive Engineer, C2 Div. MBR
& R Board on dtd. 15.12.2014
4 Letter written by M/s. Master Planners to Executive Engineer,
C2 Div, MRB & R Board on dtd. 02.06.2015
5 Letter issued by Executive Engineer, C2, Div, MBR & R Board
to Shri Sanjay Choksey dtd. 28.05.2015
6 Copy of notice issued by Executive Engineer, C2 Div, MBR &
R Board u/s 89 (1) of MHADA Act 1976.
7 Copy of documents submitted by Executive Engineer, C2 Div,
MBR & R Board to Executive Engineer Building Proposal on
dtd. 19.01.2016
8 Copy of Conveyance deed on dtd. 30.09.2013
9 Copy of letter issued by Executive Engineer, C2 Div, MBR & R
Board on dtd. 27.07.2017
10 Copy of Assessment bill issued by Assessor & Collector on dtd.
04.04.2009
6. It is argued by the plaintiff that the building was in dangerous
condition. The M.H.A.D.A. through M.B.R.R.B. informed plaintiff that
suit building needed repair the building and called upon the resident to
vacate the building. The notice was issued under Section 89 of the
M.H.A.D.A. Act. Check list was prepared. It is submitted by the
plaintiff that letter was issued to Board stating they have repaired the
portion of 4th floor. It is alleged that 4th floor is in existence. It is stated
that the plaintiff is not carrying out the construction. The repairs are
carried out by M.H.A.D.A. Notice under Section 354A of the MMC Act
is uncalled for.
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7. The learned Advocate for the plaintiff relied upon following
judgments:
(a) in case of Sopan Maruti Thopte and Ors. Vs. Pune Municipal
Corporation and Ors.
(b) in case of MCGM & Ors. Vs. Sunbeam hightech Pvt.Ltd.
(c) in case of Tushar Guru Salien Vs. State of Maharashtra & Ors.
8. It is argued by the learned Advocate for defendant that it was
found at the time of filing of Suit No. 2811/2018 that unauthorised
construction was in progress. The photographs were taken by the
corporation. A new constriction was undertaken by the plaintiff. It is
contended that under the guise of repairs, entire portion has been
reconstructed. The construction was in progress. The construction and
addition construction was found in March 2019. It was submitted that
inspite of stop work the construction was in progress. The portion
subsequently was constructed after the orders of statusquo. The other
portion is demolished. It is contended that construction described in
the notice was in progress therefore notice was issued on 23.10.2018.
The reply of the plaintiff was considered and speaking order was
passed.
It is contended that notice of motion is not tenable and deserves
to be dismissed.
9. The plaintiff claims to be the owner of the suit building on the
basis of deed of conveyance dated 20.09.2013. The plaintiff pleaded in
plaint that conveyance itself shows the existence of 3rd and 4th floor in
the suit building. The plaintiff had purchased the suit property on
20.09.2013. The plaintiff had nor produced any sanctioned plan to
show the existence of 4th floor in the sanctioned plan.
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10. Admittedly, the plaintiff is issued three notices. The schedule of
three notices again reads as under:
The Schedule of the Notice dated 23.06.2017 reads as under:
''Unauthorised pulldown and reconstruction of front
portion of building known as 8387, Dr. A. M Road in M S I sections
framework of columns and beams.''
The Schedule of the Notice dated 23.10.2018 reads as under:
''Unauthorised vertical extension work at 4th floor on
existing 3rd floor bldg 69/85 Petladi Building, Aatmaram Merchant
road, Marine Lines East, Fanas Wadi, Kalbadevi, Mumbai, Maharashtra
02, India by way of using M S I section for columns and beams, roof
covered with ladi coba slab admeasuring 12.00 mt x 9.00 mt x 3.00 mt.''
The Schedule of the Notice dated 14.07.2016 reads as under:
''Unauthorised reconstruction of bldg. known as 8387, Dr.
A.M.Road in MSI section framework of columns (an isolated footings)
and beam with ladi coba slab and B.M. wall.''
11. It appears that at the time of filing of Suit No. 2811/2018 the
plaintiff does seem to have challenged the other two notices, other than
notice dated 23.10.2018. The earlier two notice now are challenged by
the plaintiff. It is the specific case of the corporation that the plaintiff is
not carrying out repairs. New construction is being carried out by the
plaintiff.
So far as the allegations in three notices are concerned, it was for
the plaintiff to explain each and every construction amounting to
repairs not a fresh construction. The plaintiff had not produced any
concrete evidence to show that it were repairs were being carried out
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and not fresh construction. The burden was on the plaintiff to show
that M.B.R.R.B. was carrying out the repair. The 1st notice is dated
14.07.2016 clearly states that reconstruction of bldg. known as 8387,
Dr. A.M.Road in MSI section framework of columns (an isolated
footings) and beam with ladi coba slab and B.M. wall. was being carried
out.
12. The said notice was not challenged in filing of Suit No.
1281/2019. The plaintiff does not seem to have any grievances in
respect of the said notice. Further unauthorised pull down and
reconstruction of front portion of the building was alleged in the notice
dated 23.06.2017. The said notice also does not seem to be challenged
by the plaintiff till 2019.
The notice dated 23.10.2018 is challenged in Suit No.
2811/2018. The unauthorized construction vertical extension work at
4th floor on existing 3rd floor was alleged. The plaintiff was expected to
explain that it was reconstruction and not a fresh construction.
Admittedly, the plaintiff had not produced on record the
sanctioned plan of the building. The permission for the construction
alleged in the three notices are also not produced by the plaintiff.
Therefore it is beyond dispute that permission was only for repairs and
not for new construction. The correspondence on record show that
permission was given for repairs. The plaintiff had not produced the
permission from corporation for new construction.
13. The Hon'ble High Court in A.O. Nos. 446 of 2018 to 448 of 2018
in paragraph Nos. 13 and 14 had observed as follows:
''13. As regards, the submission that in view of Proviso to Section
44 of the MRTP Act, permission of Municipal Corporation was not
required, it would be needful to reproduce the said Section as under:
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''44. Application for permission for development
[(1) Except as otherwise provided by rules made in this behalf,
any person not being Central or State Government or local authority
intending to carry out any development on any land shall make an
application in writing to the Planning Authority for permission in such
form and containing such particulars and accompanied by such
documents, as may be prescribed.
[Provided that, save as otherwise provided in any law, or any
rules, regulations or bylaws made under any law for the time being in
force, no such permission shall be necessary for demolition of an existing
structure, erection or building or part thereof, in compliance of a statutory
notice from a Planning Authority or a Housing and Area Development
Board, the Bombay Repairs and Reconstruction Board or the Bombay
Slum Improvement Board established under the Maharashtra Housing and
Area Development Act, 1976]
[(2) Without prejudice to the provisions of subsection (1) or any
other provisions of this Act, any person intending to execute (an Integrated
Township Project] on any land, may make an application to the State
Government, and on receipt of such application the State Government
may, after making such inquiry as it may deem fit in that behalf, grant
such permission and declare such project to be [an Integrated Township
Project] by notification in the Official Gazette or, reject the application.]''
(Emphasis supplied)
14. Thus, as per this Proviso, no permission shall be necessary for
''demolition'' of an existing structure, erection or building or part
thereto. Therefore, what it contemplates is that permission from the
Municipal Corporation shall not be necessary when the demolition of
the existing structure is in compliance of a statutory notice received
from a Planning Authority or a Housing and Area Development Board
or the Bombay Repairs and Reconstruction Board of the Bombay Slum
Improvement Board established under the Maharashtra Housing and
Area Development Act, 1976, This Proviso nowhere states that even for
carrying out the repairs as per the said notice or for carrying out totally
a new construction at the site, the permission from the Municipal
Corporation is not required. Such permission is always necessary
except when the dilapidated building is to be demolished, but so far as
erection of the building is concerned, it has to be done as per the
procedure laid down in the MMC Act. Even for the repair work as
already observed by the Trial Court, the compliance has not been done
by the appellants of obtaining IOD and CC from the Municipal
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Corporation. Now admittedly the construction of suit building is
completed upto 10th floor. As rightly submitted by the learned counsel
for the respondent, the appellant has cleverly not given the description
of the earlier building, thereby trying to mislead the Court.''
It is clear from the above referred judgment that even for carrying
out repairs as per notice under MMC Act or for carrying out totally new
construction at the site, the permission of corporation is required. Such
permission is necessary except when dilapidated building is to be
demolished and for erection of building it as to be as per procedure
under the MMC Act.
14. It needs to be mentioned that inspite of two earlier notices, 3rd
notice was required to be issued to plaintiff. It seems that inspite of
consecutive notices, the plaintiff seem to have carried out further
construction.
The notices challenged by the plaintiff in the present suit allege
fresh construction. Fresh construction has to be with permission.
Admittedly, no permission for fresh construction from corporation is
produced by the plaintiff. Inspite of notice the plaintiff appears to has
carried out fresh construction. The plaintiff was required to be issued
three notices for fresh construction. The plaintiff under the garb of
repairs cannot be permitted to carry out fresh construction.
The plaintiffs has failed to make out the primafacie case in their
favour. The balance of convenience does not lies in favour of the
plaintiffs. The plaintiffs would not be put to irreparable loss, if the
injunction is refused. In the result, following order is passed.
ORDER
1. The Notice of Motion No. 2468 of 2019 in L.C. Suit No. 1281 of
2019 is dismissed.
2. The prayers in Contempt Notice of Motion No. 4147/2018 in Notice
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of Motion No. 4056/2018 in L.C. Suit No. 2811/2018 for restraining
the defendant corporation from acting upon the Notice issued U/s
354A of the MMC Act dated 23.10.2018 is rejected.
3. The Notice of Motions stands disposed off accordingly.
(Sanjay N. Yadav)
Judge,
Date : 21.01.2020 City Civil Court, Mumbai.
Dictated on : 21.01.2020
Transcribed on : 23.01.2020
Signed by HHJ on : 29.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 29.01.2020 at 10.47 a.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
21.01.2020
JUDGMENT/ORDER signed by
P.O. on
29.01.2020
JUDGMENT/ORDER uploaded
on
29.01.2020
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