Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 2526 of 2019
IN
L.C.SUIT NO. 1594 OF 2019
(CNR No. MHCC010069442019)
Mr. Chandrashekaran Gopalkrishnan Shivan, )...Plaintiff.
Versus
The Municipal Corporation of Greater Mumbai )...Defendant.
Appearance:
Adv. Mr. Madakaikar a/w Mr. Redekar for plaintiff.
Adv. Mr. Dhumale for defendant/MMC.
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
DATE : 30th, NOVEMBER 2019.
(C.R.No.06)
O R D E R
This is a notice of motion taken out by the plaintiff for
temporarily restraining to the defendant Corporation from executing
and enforcing the show cause notice dated 07/06/2019 under section
351 of the MMC Act, 1988 and speaking orders dated 18/06/2019 and
21/06/2019 in respect of the suit structure. The defendant resisted
notice of motion by filing its reply. Read the present notice of motion,
affidavit of the plaintiff. Reply of the defendant Corporation, affidavit of
officer of corporation in support of the reply and affidavit in rejoinder of
the plaintiff to reply to the defendant. Heard both the learned counsels
on behalf of both the sides at length. Perused the record.
2. The plaintiff submitted that he is a lawful owner of a property,
being a large plot of land admeasuring an area of 9676 sq. mtrs. with
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several structures situated thereon, being plot no. 101, (Part) Dharavi
Division at Palwadi, Dharavi Cross Road, Dharavi, Mumbai 400017
and is in exclusive use, occupation and possession thereof since the year
1958 (hereinafter referred as 'suit property'). Several structures
situated and standing on the suit property were constructed by the
plaintiff which are owned and belonging to the plaintiff and in existence
since the year 1958. The subject matter of the suit property is one
structure of the plaintiff amongst several other structures situated on
the suit property constructed by tin sheet walls and asbestos sheet roof
situated and standing as the suit property ( hereinafter referred as ' the
suit premises'). The plaintiff is declared as an owner of the suit property
by adverse possession in pursuance of a Judgment and Decree dated
21/12/2006 passed by the Hon'ble Bombay City Civil Court in S.C.Suit
No. 3932 of 1999.
3. The plaintiff was shocked and surprised to receive a Notice
Bearing No. GN.DO2 GN/188/351MMC ACT/GN107 NO1/07062019,
dated 07/06/2019, in reference to one structure amongst his several
structures situated on the suit property and the said notice served on
the plaintiff on 10/06/2019. After receipt of the said notice the plaintiff
by his advocate letter dated 15/06/2019 replied to the suit notice
issued by the defendant and denied the allegations and contentions of
the defendant. The defendant Corporation passed first speaking order
dated 18/06/2019 without taking into consideration of the reply along
with documents produced by the plaintiff on dated 15/06/2019.
Thereafter, again by considering the documents and reply produced by
the plaintiff, the defendant/corporation passed the second order on
dated 21/06/2019. The notice issued by the defendant Corporation
under section 351 of MMC Act with malafide intention at the instance
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and instigation of Local Political Leaders/Builders/Developers to cause
illegal demolition of the suit premises by abusing the process of law and
to get access to the landlocked properties adjoining to the suit
property.
4. The plaintiff state that the structure situated on the suit property
including the suit premises as electricity supply therein. The plaintiff
possessed business license issued for business activities carried out in
18 structures situated in the suit property including suit premises. The
plaintiff has given his 18 structures including the suit premises on leave
and license by executing several agreements. The suit property and suit
premises are in existence since prior to 1958. The notice issued by the
defendant Corporation under section 351 of MMC Act with malafide
intention which is unlawful and illegal. The defendant/corporation
passed orders dated 18/06/2019 and 21/06/2019 without considering
and discussing the documents produced by the plaintiff in response to
the notice under section 351 MMC Act. The plaintiff is made out prima
facie case, Balance of convenience lies in favour of the plaintiff. The
plaintiff will suffer irreparable loss which will not compensate in terms
of money. Hence, this notice of motion.
5. In response to the notice of motion taken out by the plaintiff, the
defendant has submitted that as usual routine inspection, officers of the
defendant corporation has inspected the suit site on 07/06/2019 and at
the time of inspection, the officers of the defendant has detected the
unauthorized construction of shade structure with G.I. Sheet and M.S.
channel adm. size of 9.07 m x 7.9m having average height of 5.4m.
without prior permission of competent authority of MCGM. The officers
of the defendant has asked for permission and documents in respect of
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the said unauthorized work to the plaintiff. However, the plaintiff has
failed to produce the same. After making inquiry in the vicinity, it was
learnt that the said unauthorized construction work has been carried
out by the plaintiff without prior permission of the defendant
corporation. The officers of the corporation had taken out the
measurement of the suit structures and accordingly prepared the
inspection report at site. The officers of the defendant have also taken
out photographs regarding the said work. From the above said
photographs which clearly shows that the plaintiff has carried out the
unauthorized work in respect of the suit premises.
6. The concern officers of defendant Corporation has put up the said
inspection report before the Designated officer, Assistant Engineer
(B&F) G/N Ward for perusal and taking necessary action. After perusing
said inspection report, the Designated Officer G/N Ward i.e. Assistant
Engineer (B & F) department, prima facie came to the conclusion that
the plaintiff's has constructed unauthorized suit premises and
accordingly Designated officer G/N Ward issued show cause notice
under section 351 of the MMC Act dated 07/06/2019 to the plaintiff in
respect of the suit premises.
7. The defendant further submitted that the plaintiff's advocate by
letter dated 15/06/2019 given reply in response to the show cause
notice under section 351 of the MMC Act issued to the plaintiff. The
said reply has not been received to Assistant Engineer till passing the
order, therefore, the designated officer has passed speaking order on
dated 18/06/2019. Thereafter, the said reply dated 15/06/2019 of the
plaintiff received by the defendant office dated 19/06/2019. Thereafter,
considering reply and documents produced by the plaintiff through his
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advocate, the defendant Corporation has passed speaking order dated
21/06/2019. The defendant/corporation has followed due process of
law as laid down in the case of Sopan Maruti Thopte V/s Pune
Municipal Corporation before issuing notice under section 351 of
MMC Act and passed orders dated 18/06/2019 and 21/06/2019.
8. The defendant has further submitted that the two structures and
other one structure are situated in between Netrawala Compound
ground and adjacent Bhatia Nagar Road as shown in red colour in the
attached Google Map and rough sketch. At this stage, since there is no
motarable road to approach the open ground from the nearby main
road the open ground is filled with the garbage thrown by the nearby
slum dwellers and specially in monsoon period the water is get logged
in the open ground creating unhygienic condition. Due to obstruction of
these two unauthorized structures i.e. suit premises and other one
structure, the defendant is facing hard to provide Municipal services to
the slum dwellers in the locality. Therefore, if the suit premises is not be
removed, then garbage vehicle cannot approach to the mentioned open
ground and nearby locality and therefore, in the interest of public at
large, it is necessary to remove/demolish the suit structure. The plaintiff
has not made out prima facie case, Balance of convenience does not
lies in favour of the plaintiff and plaintiff will not suffer any
irreparable loss, if the notice of motion is rejected. Therefore, the
notice of motion of the plaintiff may kindly be dismissed.
9. The Ld. Counsel on behalf of the plaintiff argued that the plaintiff
is lawful owner of a land admeasuring of an area 9676 sq.mtrs with
several structures situated thereon the plot no.101. The suit premises is
one of the structure out of the several structures of the plaintiff. The
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plaintiff is declared as a owner of the suit property by the adverse
possession in view of the Judgment and decree dated 21/12/2006
passed by the Hon'ble Bombay City Civil and Sessions Court in S.C. Suit
No. 3932 of 1999. The suit property and suit structure are in existence
since prior to 1958. The notice under challenge issued by the
defendant/corporation at the instance of Local Political
Leaders/Builders/Developers. The defendant corporation has issued
illegal and malafide notice under section 351 of the MMC Act to the
plaintiff. The defendant without discussing, considering the reply filed
by the plaintiff in response to the notice under section 351 of the MMC
Act issued by the corporation passed illegal stereo typed orders dated
18/06/2019 and 21/06/2019. The Ld.counsel on behalf of the plaintiff
has submitted that the plaintiff has proved his prima facie case, Balance
of convenience is lies in favour of plaintiff and the plaintiff will suffer
irreparable loss, if the notice of motion is not granted in favour of the
plaintiff. Therefore, the plaintiff is entitled to protect suit premises till
final disposal of the suit.
10. The learned advocate on behalf of the plaintiff has placed his
reliance on the judgment reported in 2014(1)Mh.L.J.359 in the case
of Ramawatar Babulal Jajodia V/s. Municipal Corporation of
Greater Mumbai. The Hon'ble High court has held that, " Mumbai
Municipal Corporation Act, 1888, Sec.351Suit against order passed by
Assistant Commissioner in respect of suit premises Suit premises fall
within declared Slum area by a Government Gazette dated 2421977
Suit structure, if according to Corporation is unauthorized and so also
occupation, explanation sought and ordered to demolish, in view of
provisions of Slum Act, is required consideration Held, appellant being
owner cannot be treated as " unauthorized occupier" of suit premises.''
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11. The learned advocate on behalf of the plaintiff has placed his
another reliance on the judgment reported in 2018(5) AIR Bom R 165
in the case of Suresh Shankar Rokade V/s. Municipal Corporation of
Greater Mumbai and Another. The Hon'ble High Court has observed
in para no. 16 that, " Grant or refusal to grant temporary injunction is a
discretionary relief from the Court. Plaintiff or the defendant, as the
case may be, is required to point out that there exist prima facie case in
their favour for claiming injunction. It is also to be seen that balance of
convenience also lies in their favour. If the prayer of injunction is not
granted, as claimed by them, then in that event they will suffer
irreparable loss, which cannot be compensated in terms of money. If
these parameters are satisfied by them, the courts would readily grant
order of temporary injunction, pending the main cause before it.''
12. After hearing arguments of both the sides at length and after
scrutiny of the pleadings and documents on record, it appears to me
that in the present suit and in present notice of motion, the plaintiff
has challenged notice under section 351 of the M.M.C.Act dated
07/06/2019 and Speaking order dated 18/06/2019 and subsequently
passed speaking order dated 21/06/2019. It is the main dispute in
between the parties about the legality of the notice under section 351 of
the M.M.C. Act dated 07/06/2019 and Speaking orders dated
18/06/2019 and 21/06/2019. In order to see legality of the above said
notice and Speaking orders passed by the defendant corporation, I have
perused notice under challenge which is produced by the plaintiff at
Exh.D of the suit. Admittedly, this notice issued for unauthorised
construction of shed structure with GI sheet and MS channel and
Bamboo Adm. size 9.7m x 7.9m average height of 5.4 m Netrawala
Compound, Palwadi, Indira Nagar Road, Dharavi, Mumbai 400017.
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13. Admittedly, first speaking order passed by the defendant
Corporation dated 18/06/2019 without considering any documents and
reply of the plaintiff in response to the notice under challenge, but,
subsequent order passed by the defendants Corporation dated
21/06/2019, after considering reply dated 15/06/2019 and documents
produced on behalf of the plaintiff. On perusal of the speaking order
dated 21/06/2019, the corporation has held that documents produced
by the plaintiff are not proved that the notice structure is authorized or
notice structure is existence prior to 17/04/1964 which is a datum line
for residential structure to be in tolerated category.
14. On perusal of the documents produced on behalf of the plaintiffs
at Exh.'A' copies of judgment and decree dated 21/12/2006 passed in
S.C.Suit No. 3932 of 1999, at Exh.'B' Copy of registered declaration of
plaintiff, at Exh.'C' Copy of sketch plan annexed to the decree of
SC.Suit No. 3932 of 1999, at Exh.'E' Copy of Advocate's reply dated
15/06/2019 to the notice under challenge. Exhibit'H' Tabular chart
showing correct Gala Number of the structures of the plaintiff, at
Exh.'I"(colly), copies of eighteen slum notices dated 22/08/2017 issued
to the plaintiff by defendant Corporation and also perused other
documents produced on behalf of the plaintiffs. On scrutiny of the
documents, it appears to me that no any documents shows that the
notice structure is in existence since prior to datum line i.e. since prior
to 17/04/1964. The plaintiff has failed to produce C.T.S. Plan,
approved plan issued by EE (B.P) City11, authorized plan showing the
authenticity of the notice structure. The defendant Corporation has
produced Inspection report dated 07/06/2019, Google map and rough
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sketch, copy of notice under section 351 of the MMC Act dated
07/06/2019 and speaking order dated 21/06/2019. It clearly appears
that the plaintiff has made unauthorised constructions which is
mentioned in notice under challenge. Therefore, prima facie it seems
that the notice under section 351 of MMC Act issued by the defendant
Corporation and speaking order passed dated 21/06/2019 under
challenge are legal.
15. I have gone through the citations referred on behalf of the
learned advocate for the plaintiff. It appears that due respect the ratio
held in above citations are not applicable to the present case in my hand
due to defer of facts and circumstances.
16. From above my discussions, I come to the conclusion that, the
plaintiff has failed to prove prima facie case, balance of convenience
and irreparable loss, Therefore, plaintiff's is not entitled to protect the
suit premises. Hence, I have proceed to pass following order.
ORDER
Plaintiff's notice of motion no. 2526/2019 is hereby dismissed.
Date : 30/11/2019 (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on :30/11/2019
Transcribed on : 30/11/2019
Signed by HHJ : 06/12/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
07/12/2019 Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.06)
Date of Pronouncement of
Judgment/Order
30/11/2019
Judgment/order signed by P.O on 06/12/2019
Judgment/order uploaded on 07/12/2019
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