Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
(1) Notice of Motion No. 2138 of 2018 ( L.C.Suit No 1338 of 2018)
M/s Everlasting Properties LLP
a Limited Liability Partnership Firm, and
having its office at Elegant House,
Raghuvanshi Mills Compound,
11/12, Senapati Bapat Marg, Mumbai400 013
through its Authorized Signatory
Mr. Vipul Dhanvantrai Mehta ...Plaintiff
V/s
1Municipal Corporation for Greater Mumbai,
a local statutory body, having its office
inter alia at Mahapalika Building,
Mahapalika Marg, Fort, Mumbai 400 001
2 Assistant Municipal Commissioner,
G/South Ward, Municipal Office, N.M.
Joshi Marg, Mumbai 400 013 ....Defendants
(2) Notice of Motion No. 2139 of 2018 (L.C.Suit No 1339 of 2018)
Percept Advertising Limited
a Company registered under Companies
Act,1956, and having its office at P3,
Ground floor, Main Exit Gate, Raghuvanshi Estate,
11/12 Senapati Bapat Marg,Mumbai400 013,
through its Authorized Signatory
Mrs. Shweta Brijesh Solkar ..Plaintiff
V/s
1Municipal Corporation forGreater Mumbai
a Local Statutory body, having its office
inter alia at Mahapalika Building,
Mahapalika Marg, Fort, Mumbai 400 001
2Assistant Municipal Commissioner,
G/South Ward, Municipal Office, N.M.
Joshi Marg, Mumbai 400 013 ...Defendants
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(3) Notice of Motion No. 2154 of 2018 (L.C.Suit No 1359 of 2018)
M/s Renaissance Paints Pvt Ltd.
A company incorporated under the
Provisions of the Companies Act, 1956
having address at Warden House,
1st Floor, P.M.Road,Fort, Mumbai1
..Plaintiff
V/s
1 Designated Officer, Asst. Engineer (B & F),
G/South Ward, Municipal Office, N.M.Joshi
Marg, Lower Patel, Mumbai 400 013
2 Municipal Corporation of Greater Mumbai,
a Body Corporate Constituted under the Mumbai
Municipal Corporation Act, 1888 having its office
at Mahapalika Bhavan, Mahapalika Marg,
Opp: C.S.T, Fort, Mumbai 400 001
..Defendants
(4) Notice of Motion No. 2017 of 2018 ( L.C.Suit No 1241 of 2018)
Delux Polymer Private Limited
a company incorporated under the
Companies Act,1956 having its Registered
address at 1517, Ground Floor, Raghuvani
Mills Compound Senapati Bapat Marg,
Lower Parel, Mumbai 400 013 ..Plaintiff
Versus
1 Designated Officer, Asst. Engineer (B & F),
G/South Ward, Municipal Office, N.M.Joshi
Marg, Lower Patel, Mumbai 400 013
2 Municipal Corporation of Greater Mumbai,
a Body Corporate Constituted under the Mumbai
Municipal Corporation Act, 1888 having its office
at Mahapalika Bhavan, Mahapalika Marg,
Opp: C.S.T, Fort, Mumbai 400 001 ....Defendants
(5) Notice of Motion No.2145 of 2018 (L.C.Suit No 1361 of 2018)
1 Smt. Durgavati Ramkripal Jaiswar
Aged 56 years, Occ:
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2 Ramkripal Ramkaran Jaiswar
Aged 59 years, Occ:
Both of Mumbai, Indian Inhabitants,
carrying on business from Gala
Nos. G100 & G101, Ground Floor,
Behind Shree Krishna Temple,
Raghuvanshi Mills Compound ,
C.S. 107, Lower Parel Division
11/12 Senapati Bapat Marg,
Lower Parel, Mumbai 400 013 ..Plaintiffs
V/s
1 Designated Officer, Asst. Engineer (B & F),
G/South Ward, Municipal Office, N.M.Joshi
Marg, Lower Patel, Mumbai 400 013
2 Municipal Corporation of Greater Mumbai,
a Body Corporate Constituted under the Mumbai
Municipal Corporation Act, 1888 having its office
at Mahapalika Bhavan, Mahapalika Marg,
Opp: C.S.T, Fort, Mumbai 400 001 ....Defendants
(6) Notice of Motion No.2150 of 2018 (L.C.Suit No 1360 of 2018)
M/s Renaissance Paints Pvt Ltd
A Company incorporated under the
Provisions of the Companies Act,1956
having address at Warden House,
1st Floor, P.M.Road, Fort, Mumbai1 ..Plaintiff
V/s
1 Designated Officer, Asst. Engineer (B & F),
G/South Ward, Municipal Office, N.M.Joshi
Marg, Lower Patel, Mumbai 400 013
2 Municipal Corporation of Greater Mumbai,
a Body Corporate Constituted under the Mumbai
Municipal Corporation Act, 1888 having its office
at Mahapalika Bhavan, Mahapalika Marg,
Opp: C.S.T, Fort, Mumbai 400 001 ...Defendants
(7) Notice of Motion No.2148 of 2018 (L.C.Suit No 1358 of 2018)
Babulal Bohra of Mumbai, Indian Inhabitant,
Aged 67 years,
having address at 1st floor, Above
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The Bath Shop, Raghuvanshi Mansion,
Raghuvanshi Mills Compound,
Senapati Bapat Marg, Lower Parel,
Mumbai 400 013 ...Plaintiff
V/s
1 Designated Officer, Asst. Engineer (B & F),
G/South Ward, Municipal Office, N.M.Joshi
Marg, Lower Patel, Mumbai 400 013
2 Municipal Corporation of Greater Mumbai,
a Body Corporate Constituted under the Mumbai
Municipal Corporation Act, 1888 having its office
at Mahapalika Bhavan, Mahapalika Marg,
Opp: C.S.T, Fort, Mumbai 400 001
..Defendants
Advocate A.R.Pande and P.D.Gandhi for plaintiffs.
Adv.D.K.Vyas and Tavakkuli a/w Kumawat for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 18th July 2018.
(Court Room No.06)
COMMON O R D E R
(A) PROLOGUE.
1 Plaintiffs (in above suits) have taken out these notices of
motion to restrain the defendants i.e. Municipal Corporation, Greater
Mumbai and the designated officer, Municipal Corporation, Gr.
Mumbai, G South Ward from demolishing/pulling down the suit
premises on the basis of notices issued under section 351 of MMC
Act,1888 and orders passed there on till the decision of the suits on
merit.
2 Defendants in all suits have filed their detailed reply and
compilation of documents therefore all these notices of motion are
disposed of finally. The suit premises are situate on plot land survey no.
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107, Lower Parel Division,situated at 11/12 Senapati Bapat Marg,
Lower Parel, Mumbai 400 013 and in the compound of Raghuvanshi
Mills Limited In all notices of motion the parties have raised somewhat
similar points hence, all the notices of motion are hereby disposed of by
this common order.
(B) PLEADINGS OF THE PLAINTIFFS.
The summary of the plaints is as under:
Notice of motion no. 2138/18 (L.C.Suit No 1338/18)
3 Plaintiff is a limited liability Partnership Firm and having
its registered office at Elegant House, Raghuvanshi Mills Compound,
Senapati Bapat Marg, Lower Parel, Mumbai400 013. Plaintiff has
purchased suit premises i.e. Block No. 14 on the ground floor in
Raghuvanshi Mills Compound on 21/04/2004 by registered Sale Deed.
There were several buildings which were at one point of time used for
any ancillary purpose of the Raghuvanshi Mills. Since last more than
25 years the said Raghuvanshi Mill was closed down and the
management of the said Raghuvanshi Mill Limited sold their various
buildings. Plaintiff and its sister concerns have purchased various
structures/buildings in the Raghuvanshi Mill Compound. The
Raghuvanshi Mill Limited had obtained the permission for sale of the
said buildings and also revival of plan from appellate authority, BIFR.
4 The suit premises is assessed by the Asst. Assessor and
Collector of defendant no.1 The Asst. assessor and collector has given a
letter to the plaintiff to that effect. Thus, the suit premises is subject
matter of assessment. The date of first assessment is 141961.
5 Plaintiff has taken electricity connection in the suit
premises. Plaintiff has also obtained licenses from the concerned
department to run business. Plaintiff used to give the suit premises on
lease and licenses basis and now M/s Taurus Retail Private Limited is
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in possession of the suit premises.
6 On 25042005, the office of the defendant no. 2 had
issued a notice under section 351 of MMC Act, 1988 in respect of the
suit premises. Plaintiff had given detailed reply and put the correct
facts on record and thereby defendants had dropped the said notice.
7 Plaintiff further avers that defendant no. 2 has issued a
notice on 13/04/2018 U/s 351 of the MMC Act,1888 and alleged
unauthorized construction. Plaintiff has given detailed reply to the
defendant. Plaintiff has also requested the documents from the
defendants.
8 According to the plaintiff, the said notice is null, void and
against the principles of natural justice. Defendant no. 2 has not given
an opportunity of hearing to the plaintiff. Defendant no. 2 is not
designated officer as per the provisions of MMC Act. Defendants have
not followed the principles laid down in Shri Sopan Maruti Thopte
and another V/s Pune Municipal Corporation an another, 1996 (2)
ALL MR 383 and hence prayed to allow the notice of motion.
Notice of motion no. 2139/18 (L.C.Suit No 1339/18)
9 The plaintiff is a Company registered under the Companies
Act, 1956 and having registered office at P22, Raghuvanshi Mills
Compound , Senapati Bapat Marg, Lower Parel, Mumbai400 013.
Plaintiff is the owner and in possession of Block No P3 on the ground
floor of Main Exit gate in Raghuvanshi Mills Compound on plot no.
C.S.No. 107 of Lower Parel Division, situate at 11/12 Senapati Bapat
Marg, Lower Parel, Mumbai 400 013 (hereinafter same is referred as
suit premises) in this suit. Raghuvanshi Mill Compound is consisting
several buildings and which were used for ancillary purpose by the said
mill. Since last more than 25 years the said Raghuvanshi Mill was
closed down and the management of the mill sold various buildings to
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various companies. The plaintiff and their sister concerns have
purchased various structures/ buildings under the registered
documents from Raghuvanshi Mills Limited Plaintiff has purchased the
suit premises on 09/03/2004. The Raghuvanshi Mills Ltd had also
obtained the permission of the proposed revival plan from appellate
authority, BIFR.
10 Thereafter, plaintiff has taken electricity connection, water
connection in the suit premises. Now, plaintiff has given the suit
premises on lease to "M/s Happiness Bakers Private Limited (99 Pan
Cakes)" by registered agreement dated 1/8/2015.
11 The suit premises is assessed by the assessor and collector
of G South ward. The date of first assessment is 141961. Thus, the
plaintiff has not made any unauthorized construction of the suit
premises.
12 Plaintiff further avers that on 19/7/2013, the office of the
defendant no. 2 had issued a notice under section 354(A) of the MMC
Act, 1888 in respect of the suit premises. Plaintiff had given reply to the
notice and produced the documents. Plaintiff had approached to this
court. This court had directed to maintain statusquo. Thereafter,
defendants made statement that defendant will follow the due process
of law and accordingly the suit is disposed of.
13 According to plaintiff the suit premises is purchased by the
plaintiff on as is where is basis. However, defendant no. 2 has issued a
notice to the plaintiff dated 23/04/2018 U/s 351 of MMC Act. Plaintiff
has given reply and produced the documents and also asked certain
documents. However, defendants unilaterally passed the order dated
1/6/2018 and thereby directed the plaintiff to remove the notice
structure. The suit notice is bad in law and against the principles of
natural justice. Plaintiff is carrying business there. Hence prayed to
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allow the notice of motion.
Notice of motion no. 2154/18 (L.C.Suit No 1359/18).
14 Plaintiff is a company registered under the provisions of
Companies Act. Plaintiff is having its registered address at Fort
Mumbai1. Plaintiff is the owner of the premises i.e. Block No.7,
Ground Floor, Raghuvanshi Mansion, Raghuvanshi Mills Compound,
C.SNo. 107, Lower Parel, Division 11/12, Senapati Bapat Marg, Lower
Parel, Mumbai 400 013 (herein after same is referred as suit premises
in this suit)
15 M/s Okios Pvt Ltd is the predecessor of the plaintiff.
Plaintiff has acquired the suit premises by agreement dated
19/07/2003. The suit premises is subject to the property taxes. Plaintiff
has paid property taxes for the suit premises to the tune of Rs.
44,42,011/.
16 According to the plaintiff, previously defendants had
issued notice dated 17/01/2007. Plaintiff had filed suit bearing no.
1579 of 2007. This court decreed the suit on 5/01/2013. Thereafter
during pendency of the suit defendants issued notice U/s 354A of MMC
Act dated 23/11/2011. Plaintiff had challenged the notice by
instituting L.C.Suit No 2642 of 2011. Whereby the relief is granted in
favour of the plaintiff.
17 However, defendant issued a notice U/s 351 of MMC Act
dated 23/4/2018. Plaintiff immediately gave reply to the defendent
and remain present for the hearing. However, defendant no. 2 did not
consider the documents produced by the plaintiff and passed order
dated 1/06/2018. Thus, the impugned notice and order are passed
without application of mind. Defendants have not produced the
documents. The order is illegal and void and therefore prayed to allow
the notice of motion.
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Notice of Motion No.2017 of 2018 in L.C.Suit No 1241
of 2018.
18 The plaintiff is a company incorporated under the
Companies Act, 1956. Plaintiff company is having registered address at
1517, Ground floor, Raghuvanshi Mills Compound, Senapati Bapat
Marg, Lower Parel, Mumbai 400 013 .Plaintiff is the owner of the
premises being Unit No. 8(described as between Block No. 19 and 22A
in the impugned notice) Raghuvanshi Mills Compound , C.S.No. 107,
Lower Parel Division, 11/12 Raghuvanshi Mills Compound, Lower
Parel, Mumbai 400 013. (herein after same is referred to as the Suit
premises in this suit)
19 Plaintiff has acquired the suit premises and other premises
under an agreement of 1997. Plaintiff gives the suit premises on lease
and licence basis. At present one Little Naps is in possession of the suit
premises under leave and licence agreement dated 20/4/2016. Plaintiff
carries the business activities from the suit premises and has the
requisite licenses to run the business, However, defendant issued a
notice to the plaintiff U/s 351 of the MMC Act dated 23/4/2018.
Plaintiff gave reply to the defendant and asked the documents from the
defendants. However, defendant did not supply the documents and
passed the order dated 5/5/2018.
20 Plaintiff contended that defendants have passed the
unilateral order. The impugned notice and order are illegal, void and
without application of the mind. Therefore, plaintiff had approched to
this court by suit. This court had rejected adinterim relief. Plaintiff had
filed appeal bearing A.O.(St.) No 14797 of 2018. Hon'ble High Court
directed the defendant to supply the copies of documents (approved
plan and tikka sheet) to the plaintiff and thereafter pass the detailed
order. Accordingly, defendant no. 2 has passed the fresh order dated
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21/5/2018. The said order is illegal, null and void. No personal hearing
has been given to plaintiff. Defendants have not considered the reply
and documents of the plaintiff. Hence, prayed to allow the notice of
motion
Notice of Motion No.2145 of 2018 in L.C.Suit No 1361
of 2018.
21 The plaintiffs are Mumbai, Indian Inhabitants carrying
their business at G100 & G101, Ground floor, Behind Shree Krishna
Temple, Raghuvanshi Mills Compound, C.S.No. 107, Lower Parel,
Mumbai 400 013. Plaintiffs are owners of premises being Gala Nos G
100 and G101, Ground Floor, Behind Shree Krishna Temple,
Raghuvanshi Mills Compound, C.S.No. 107, Lower Parel Division,
11/12 Senapati Bapat Marg, Lower Parel, Mumbai 400 013. (herein
after same is referred to as a suit premises in this suit)
22 Plaintiffs have acquired the suit premises under registered
agreement of 2008. Plaintiffs have obtained necessary NOCS from the
Raghuvanshi Complex Management Association. Plaintiffs have
electricity bills, maintenance bills, shops and Establishment Certificate
and other documents on the address of the suit premises. The suit
premises is assessed by the Assessor and Collector, G South Ward vide
letter dated 1142017.
23 However, defendant issued notice to the plaintiff dated
23/4/2018 U/s 351 of the MMC Act. Plaintiff immediately gave reply
to the defendants and also enclosed documents. Thereafter,
defendants gave letters to the plaintiff to appear for personal hearing.
The defendants relied on the plan copy and Tikka Sheet. Plaintiff
denied the said documents.
24 According to the plaintiff, the defendants have passed
unilateral order. The order is passed without application of mind .
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Defendants have not given an opportunity of hearing to the plaintiffs.
Hence, prayed to allow the notice of motion.
Notice of Motion No.2150 of 2018 in L.C.Suit No 1360
of 2018.
25 The plaintiff is company incorporated under the provisions
of the Companies Act,1956 and having address at Warden House, 1st
floor, Fort, Mumbai1. Plaintiff is the owner of premises being premises
on the ground floor, Block No.7. Raghuvanshi Mansion, Raghuvanshi
Mills Compound, C.S No. 107, Lower Parel Division, 11/12, Senapati
Bapat Marg, Lower Parel, Mumbai13
26 Plaintiff has acquired the suit premises under an
agreement dated 19/7/2003. Plaintiff has obtained the various
documents such as leave and licence agreement, electricity bills,
telephone bills under its name.
27 M/s Okios Pvt Ltd is the predecessor of the plaintiff.
Plaintiff has acquired the suit premises by agreement dated
19/07/2003. The suit premises is subject to the property taxes. Plaintiff
has paid property taxes for the suit premises to the tune of Rs.
44,42,011/.
28 According to the plaintiff, previously defendants had
issued notice dated 17/01/2007. Plaintiff had filed suit bearing no.
1579 of 2007. This court decreed the suit on 5/01/2013. Thereafter
during pendency of the suit defendants issued notice U/s 354A of MMC
Act dated 23/11/2011. Plaintiff had challenged the notice by
instituting L.C.Suit No 2642 of 2011. Whereby the relief is granted in
favour of the plaintiff.
29 However, defendant issued a notice U/s 351 of MMC Act
dated 23/4/2018. Plaintiff immediately gave reply to the defendant
and remained present for the hearing. However, defendant no. 2 did
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not consider the documents produced by the plaintiff and passed order
dated 1/06/2018. Thus, the impugned notice and order are passed
without application of mind. Defendants have not produced the
documents. The order is illegal and void and therefore prayed to allow
the notice of motion.
Notice of Motion No.2148 of 2018 in L.C.Suit No 1358
of 2018
30 The plaintiff is a Mumbai, Indian Inhabitant. Plaintiff is the
owner of premises, being premises on the first floor, above The Bath
Shop, Raghuvanshi Mansion, City Survey No. 107, Lower Parel
Division,11/12 Raghuvanshi Mills Compound, Lower Parel, Mumbai
400 013.
31 Plaintiff has acquired the suit premises under an
agreement for sale dated 8/12/2003. Plaintiff is a member of
Raghuvanshi Complex Management Association . Plaintiff pays the
monthly maintenance bills to the Raghuvanshi Complex Management
Association. M/s Hyper Furniture Market was the predecessor of the
plaintiff. The defendants have assessed the suit premises.
32 However, defendants issued a notice U/s 351 of MMC Act
dated 13/4/2018. Plaintiff gave reply to the said notice. Defendants
have given letter to the plaintiff for personal hearing on 19/5/2018.
Plaintiff alongwith his advocate was present at the office of defendants.
Plaintiff has furnished documents however, the defendants did not
consider the documents produced by the plaintiff and passed order
dated 1/6/2018.
33 Plaintiff further avers the defendants have passed the
impugned order without application of mind. Defendants have not
supplied the documents to the plaintiff. The order is null and void and
hence prayed to allow the notice of motion.
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(C) PLEADINGS & DEFENCE OF THE DEFENDANTS.
34 In all the notices of motion defendants have filed the
affidavit in reply of designated officer defendant no. 2 namely Sunil
Janardhan Tawde, Asst. Engineer (B &F), G/South Ward. Defendants
have raised common defences that the notice structures are
unauthorized . The sum and substances of the defence of the
defendants is as follows:
35 According to defendants, plaintiffs have not given notice
U/s 527 of the MMC Act, 188. Plaintiffs have not given correct
description of the suit premises as per the mandate of order 7 rule 3 of
Civil Procedure Code, 1908. There is no cause of action to file the
present suit. Defendants have followed the due process of law. The
defendants have passed administrative order U/s 515 A of the MMC
Act. Therefore, suit is not maintainable.
36 Defendants denied that suit structures are authorized and
assessed prior in the year 1961. Defendants denied that an opportunity
of hearing was not given to the plaintiffs. Defendants denied that the
designated officer has passed the order without application of mind
and without considering the documents produced by the plaintiffs.
37 According to defendants, Khimji Bhagwandas Charity Trust
is the owner of the land i.e.C.S.No. 107, Lower Parel Division. The
Khimji Bhagwandas Charity Trust had given the land in C.S.No. 107 to
Raghuvanshi Mills on lease. The Raghuvanshi Mills had constructed
some of the structures for the ancillary of its Cotton Textile Mill. On
18/1/2018, Khimji Bhagwandas Charity Trust filed complaint to the
Government of Maharashtra about the unauthorized construction in
Raghuvanshi Mills Compound. Therefore, the secretary of the Hon'ble
Chief Minister referred the said complaint to defendant Municipal
Corporation. It is alleged in the complaint that occupants have made
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unauthorized construction, addition, alteration in the C.S.No. 107. It is
also alleged that there is a change of user. The trust had filed the suit
for recovery of possession in Small Cause Court, Mumbai. Suit is
pending.
38 Thereafter, the said complaint was received to the Building
and Factory Department of G South Ward. Accordingly the officer of
the corporation namely Rohan Kumawat, Jr. Engineer made inspectin
and he found unauthorized construction. He submitted his report to the
designated officer. The designated officer issued notice U/s. 351 of
MMC Act. Plaintiffs have given reply to the notices and also produced
documents. The construction of the suit premises is not in consonance
with approved plan of the year 19751977 and also Tikka sheet of land
record department. The designated officer has also given copy of
approved plan and tikka sheet to the plaintiffs. Thereafter personal
hearing was given to the plaintiffs. Plaintiffs could not produce the
documents to show that the said structure is authorized and threfore
the designated officer has passed the order and directed the plaintiff to
remove the unauthorized structure and in case of their failure to
remove the same the said structure will be demolished.
39 Defendants further contended that defendant/corporation
is a plaining authority performing the duties and liabilities as per the
provisions of MMC Act, 1888. Defendants have taken action against
the unauthorized construction carried out by the occupants. Recently in
Mumbai the incident of Kamla Mills Ltd took place and 14 persons
lost lives as there was no way to rescue them because of unauthorized
construction. The plaintiffs have violated the provisions of MMC Act,
1888, Maharashtra Regional and Town Planning Act, 1966 and
Development Control Rules, 1991. Therefore the defendants support
the impugned notices and orders and prayed to dismiss the notices of
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motion.
(D) ARGUMENTS.
40 Shri A.R.Pande advocate for the plaintiffs in N/M No.
2138/18 Suit No.1338/18 and N/M No. 2139/18 in L.C.Suit 1339/18
has raised the objection about the authority of defendant no. 2 i.e. the
designated officer for taking the action. According to him, only the
Commissioner is power to pass the orders. Defendant no. 2 is not
nominated as a designated officer therefore the entire action taken by
the designated officer is illegal, null and void. He further submitted
that the suit property is assessed by the Municipal Corporation.
Plaintiffs are the bonafide purchasers. Plaintiffs came in possession of
the suit property as a owner on the basis of registered agreement.
Plaintiffs have obtained necessary licenses from the concerned
departments to carry on their businesses. Plaintiffs have taken
electricity connection, water connection in the suit premises. The suit
premises are assessed by the Corporation in the year 1961. Therefore, it
cannot be said that the notice structure is unauthorized one.
41 He further submitted that previously defendants have
given notice U/s 351, 354 A of the MMC Act. Plaintiffs had given reply
to the defendants. Defendants had dropped the notice U/s 351 of the
MMC Act. This Court had granted statusquo in favour of plaintiffs. The
plaintiffs have purchased the suit premises as is where is basis.
Plaintiffs have invested the huge amount in the business. Plaintiffs
have given reply to the notice U/s 351 of the MMC Act. Defendants did
not give an opportunity of hearing. Defendants have passed the
unilateral and illegal order.
42 His further submission is that plaintiffs have challenged the
said notice and order by filing these suits. Now the dispute is
subjudice. Therefore, it is necessary to preserve the suit premises as on
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today. The plaintiffs have seriously disputed the action of defendants.
There are triable issues in the suits. Hence, he prayed to grant interim
relief till the decision of the suits on merit.
43 Shri P.D.Gandhi advocate for plaintiffs in N/M. No
2154/18 in L.C.Suit no. 1359/18, N/M No. 2017/18 in LC Suit
1241/18, N/M No 2145/18 in L.C.Suit 1361/18,N/M 2148/18 in
L.C.Suit 1358/18 and N/M No 2150/18 in L.C.Suit 1360/18 has
submitted that the defendants have not given an opportunity of hearing
to the plaintiffs. Defendants have breached the principles of natural
justice. Defendants have not supplied the documents to the plaintiffs
and passed illegal order. In respect of the approved plan and tikka
sheet he submitted that the said plan do not prove the authorization of
the suit premises. The plans are not authenticate and genuine. The
present notice does not talk of MRTP Act. Defendants have not
considered the judgment and decree in earlier suits. The burden is on
the defendants to prove that the structure is unauthorized. Defendants
have not discharged their burden. He further submitted that the
impugned notices and order are vague. The present notices are issued
at the instance of Khimji Bhagwandas Charity Trust. The dispute is a
private, therefore, the defendants machinery cannot be used to serve
the purpose of private person. The defendants have not followed the
due process of law. There are triable issues between the parties. Hence,
he prayed to allow the notice of motion. Ld Counsel Mr. P.D.Gandhi
has filed written statement at Exh.3. I have perused the same.
44 Shri A.R.Pandey and Shri P.D.Gandhi Ld. counsel of
plaintiffs are relied on the following rulings:
1Shri Sopan Maruti Thopte and another V/s Pune Municipal
Corporation an another, 1996 (2) ALL MR 383
2 In D.K.Pandit Versus Municipal Corporation of Gr. Bombay
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Appeal From Order No. 752/89
3 In Arvind Pradhanbai Dama Versus The Municipal Corporation
of Greater Mumbai Appeal from order No. 361 of 2013.
4 In Mrs Lilly P.Pandit V/s Municipal Corporation and others writ
petition (L)No 88 of 2014,
45 Shri D.K.Vyas advocate for defendant/corporation has
submitted that the plaintiffs have not obtained the permission from the
Commissioner to make constructions. Plaintiffs have raised
unauthorized construction. The defendants have taken the action as per
the law. He admitted that the action is initiated at the instance of
Khimji Bhagwandas Charati Trust, owner of the land. However, the
dispute is in respect of the unauthorized construction and the
defendant corporation has every right to take action against the
unauthorized construction. He has invited my attention towards the
agreement of sale in all suits. He submitted that the agreement are
executed by owners of Raghuvanshi Mills Limited. In fact, owners of
Raghuvanshi Mills Ltd are lessee of the land and they have no right to
execute such agreement. The structure is newly constructed therefore it
was necessary to follow the provisions of Maharashtra Ownership of
Town Planning Act. It was the duty of the plaintiffs to verify the
sanction plan, IOD, completion certificate before entering into an
agreement, however they purchased the suit premises and made
construction there on.
46 Shri D.K.Vyas, Ld Counsel for defendants further submitted
that the Khimji Bhagwandas Trust had leased the land bearing C.S.No.
107, Lower Parel, Mumbai to Raghuvanshi Mills Limited to run Cotton
Textile mill. Admittedly, Raghuvanshi Mills Ltd had constructed some
of the structures in ancillary to run the cotton textile mill. However,
the Raghuvanshi Mill closed down in the year 1985 and declared as a
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sick industry. Without the consent of the owner i.e. trust the owners of
Raghuvanshi Mills executed various agreements in favour of various
persons and thereby parted the possession of the pieces of land to
them. According to him, only the owner has right to sale the land. The
owners of the Raghuvanshi Mills and the plaintiffs did not stop here
and they made constructions on the land without the permission of the
Commissioner of the Corporation and are carrying their business there.
As per rule 59 of the Development Control Rules, 1951 in respect of the
sick industries, the owner can seek permission to dispose of the land
from BIFR. and if the newly purchasers wanted to redevelop the land
in that circumstances the permission of the Commissioner is
necessary . In the given cases no permission of the Commissioner has
been taken by the plaintiffs to redevelop the land in the Raghuvanshi
Mills Compound.
47 He has invited my attention towards approved plan and
tikka sheets. According to him, all the structures in approved plan were
old and for the ancillary to run the Cotton Textile Mill. Except this
there is no approved plan in the record of defendant corporation. The
structures as mentioned in the notices are absent in the approved plan
and tikka sheet. The designated officer had supplied the copies of
approved plan and tikka sheet to the plaintiff. However, plaintiffs did
not prove the authorization of the structure. Therefore, the said
structures cannot be protected. In support of his contention he relied
on:
1 Namdev Pandurang Panchal V/s Mumbai Municipal Corporation
of Greater Bombay and another 2006 MHLJ 194
2 In Esha Ekta Apartments Coop Hsg society Limited & Ors,2013
(2) ALL MR 901 (SC)
3 In Shanti Sports Club V/s Union of India (2009) 15 SCC 705
-- 18 of 37 --
19
(2010 (1) All MR 911.
4 Dipak Kumar Mukherjee V/s Kolkata Municipal Corporation &
Ors, 2013 (5) Supreme Court Cases 336.
5 Seema Arshad Zaheer & Ors V/s MCGM 2006 (5) Mh.L.J. 218.
6 In M.I. Builders (P) Ltd V/s. Radhey Shyam Sahu (1999) 6 SCC
464.
48 Shri A.N. Tavakkuli advocate for defendant corporation
has submitted that the plaintiffs have not followed the procedure
described in Development Control Rules. The notice structures are
apparently unauthorized. There is no evidence on record that the
notice structures are prior to datum line. He has invited my attention
towards the agreement of sale and according to him, in the agreement
of sale there is description of huge property and the suit property is
standing on a small chunk of land. Thus, the agreement of sale are also
suspicious. He has also submitted that according to plaintiff, the
structures which were situated in Raghuvanshi Compound Mill are
redeveloped. However, there is no any documentary evidence to show
that the said structures are redeveloped as per the sanction/permission
of the Commissioner of Municipal Corporation. Hence, he submitted to
dismiss the notices of motion.
(E) REASONS.
49 Here in the present suit Shri A.R.Pande Ld Counsel for
plaintiffs in suit nos. 1338/18 and 1339/18 has raised preliminary
objection that designated officer Shri Sunil Tawde has no authority to
issue the notice and pass the impugned order. Thus, the entire action
is illegal.
50 Shri Sunil Tawde is serving as a Asst. Engineer, B & F, G
South Ward. From the documents produced by defendants it appears
that the Municipal Commissioner Shri Ajoy Mehta has passed order U/s
-- 19 of 37 --
20
68 of the MMC Act and thereby appointed Shri Sunil Tawde as a
Designated Officer. Accordingly, the notification is published in the
Government Gazette dated 13/03/2012 and thus on that basis, the
designated officer Shri Sunil Tawde has taken action. Therefore, I do
not agree with the contention of Shri A.R.Pande, Advocate for plaintiffs
that the designated officer has no authority of taking action.
51 Here in the present suits as discussed in supra the
constructions (unauthorized constructions alleged by defendants ) are
situate in Raghuvanshi Mills Compound. The documents are some
what similar. However, I discuss each case independently.
Notice of Motion No. 2138 of 2018.
52 The notice is in respect of unauthorized construction of
shed with fiber sheets roofing and hollow square steel pipes adm 14.0
mtr x 2.7 mtr behind Block No.14 which is extension to the structure
Block No. 14 admeasuring 14.0 mtr x 9.4 mtr on Cotton Textile Mill
Land at Raghuvanshi Mill Compound.
53 From the documents produced by the plaintiff, it appears
that plaintiff has purchased the Block No.14 from owners of
Raghuvanshi Mills by sale deed dated 21/4/2004. In the sale deed in
clause (d) it has specifically mentioned that the suit is pending between
Raghuvanshi Mills and owners of the land in the Bombay City Civil
Court, However, the Raghuvanshi Mills has executed the sale deed as
the said mill is a sick company. It is to be noted that in the schedule of
the sale deed it has recited that the said property is admeasuring
33473.26 sq meter and the area of block no.14 is shown in the second
schedule as 1800 sq ft. The attachment consists the rough map only.
Plaintiff has produced the assessment extracts. In assessment receipts
it has mentioned that the property which is in possession of the plaintiff
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21
is firstly assessed on 1/4/1961. It also appears that plaintiff has given
the suit premises on lease and licence basis. I have perused the
documents produced by plaintiff, notice reply by the plaintiff.
54 It is to be noted that plaintiff has not produced any
approved plan. In the approved plan produced by defendants dated
26/4/1977 the said block no. 14 is shown in proforma A that the total
FSI consumed 0.92 and in a statement of structures in proforma B the
said block no. 14 is shown as a dispensary. In a tikka sheet there is no
mention of the structure of the plaintiff. Thus, from the evidence and
documents on record it appears that earlier there was dispensary of
Raghuvanshi Mills Limited and now there is a construction of the
plaintiff and he runs business there. Therefore it prima facie appears
that the suit structure is unauthorized.
Notice of Motion No. 2139 of 2018.
55 In the notice U/s 351 of the MMC Act, it is alleged that
plaintiff made unauthorized construction of commercial structure in the
open land admeasuring as shown in the sketch attached by using the
side brick mesonry walls and Ladi coba slab at M/s 99 Pancakes beside
exist gate in Raghuvanshi Mills Compound. The notice also alleges the
unauthorized change of user from Cotton Textile Mills use to
commercial use.
56 Admittedly, earlier the defendants have issued otice U/s
354 A of the MMC Act dated 19/7/2013. The agreement to sale do
show that plaintiff has purchased the suit premises from Raghuvanshi
Mills Limited subject to the litigation between Raghuvanshi Mill Ltd
and Khimji Bhagwandas Charity Trust. Plaintiff has obtained the
licences. The suit premises is assessed. The first assessment date is
shown as 141961. Now the question is whether the premises which is
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22
assessed by the corporation in the year 1961 is the same that of the suit
premises. Plaintiff has mostly relied on the assessment receipts. Plaintiff
has not filed any approved plan or any permission for authorization of
the said structure.
57 In the plaint, plaintiff has described the suit property as a
block 3A again in proforma B of the approved plan dated 26/4/1977
the statement of structure of 3A and 3B is structure and holding
bailing, spinning building, gas producing and singing machine and
excise inspectors office. Here in the present case plaintiff has not come
with a specific case that the structure is the same as was existing in the
approved plan. However, it appears that the defendant noticed about
the construction of the plaintiff and in the year 2013, notice U/s 354A
was given. This notice structure is also does not match with the
structure in the approved plan. Therefore plaintiff in this case is not
entitled for interim relief.
Notice of Motion No. 2154 of 2018.
58 The notice U/s 351 of the MMC Act is in respect of
unauthorized construction of commercial structure in place of electric
substation with brick mesonry walls and R.C.C slab admeasuring
12.44 mtr x 12.26 meters and having height 2.61 mtr and 7.81mtr as
shown in sketch attached at M/s Natuzzi Block No. 7, Raghuvanshi
Mills Limited. The notice also alleges unauthorized change of user
from Cotton Textile Mills use to commercial user. The agreement is
executed between plaintiff and the developer SGG Realtors and
developers Pvt Ltd. Plaintiff has purchased the suit premises. Alongwith
the plaint, plaintiff has produced the documents i.e. tax receipts and
payment of taxes by the plaintiff. However, it no way appears that the
suit premises is assessed in the year 1961 and the premises is the
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23
same.
59 Plaintiff has mostly relied on the judgment of this court in
L.C.Suit no 1579/07. The present suit was filed by Predecessor of the
plaintiff and thereby challenged the notice U/s 351 of the MMC Act. It
is true that my Ld Predecessor decreed the suit and declared that the
notice and order are illegal and bad in law.
60 It is pertinent to note that the notice in L.C. Suit No
1579/2007 was in respect of the unauthorized construction of
Mezzanine floor admeasuring 3.60 mtr x 21.0 mtr, 14.60 mtr x 6.30
mtr and 3.60 mtrx 14.70 mtr with floor height 2.45 mtr. However the
present notice and order is in respect of the unauthorized construction
of entire commercial structure in place of electric sub station.
Therefore, subject matter in earlier suit and the present suit are
different and it cannot be said that the earlier notice and order have
attained finality. Apart from this I have perused documents produced
by the plaintiff. It no way appears that the construction is authorized
and as per the sanctioned/approved plan of the Corporation.
61 The suit premises is having block no.7. In approved plan
dated 26/4/1977 in proforma B in statement of structures existing it
has mentioned that the block no. 7 is the area of sub station in the plan
of Raghuvanshi Mills. Now in this suit the disputed structure is
commercial structure. Hence it prima facie appears that the suit
structure is unauthorized.
Notice of Motion No. 2017 of 2018.
62 In the notice U/s 351 of the MMC Act it is alleged that
unauthorized construction of commercial show room on open land
admeasuring 20.16 mtr x 5.38 mtr and 11.59 mtr x 1.62 mtr and
having height 5.76 mtr with brick mesonry wall and A.C.sheet ,in
between block no. 19 and 22A in Raghuvanshi Mill Compound.
-- 23 of 37 --
24
63 Here in the present case, defendant specifically alleged in
the notice that the suit premises is in between plot no. 19 and 22A. It is
true that the suit premises is assessed by the defendant. However, the
assessment is not of the year 1961 and that to of the authorized
structures in the approved plan. It is to be noted that earlier ad interim
relief was refused to the plaintiff. Plaintiff had filed appeal A.O.(St)
14797/2018) in the Hon'ble High Court. There plaintiff raised
contention that defendants have not produced the documents i.e. tikka
sheet and approved plan. Hon'ble High Court directed the designated
officer to supply the documents to the plaintiff and after giving an
opportunity pass an order. Accordingly earlier order is set aside.
Defendant corporation has supplied the documents to the plaintiff but
plaintiff did not give any explanation and thus impugned order is
passed.
64 In the approved plan dated 26/4/1977, it appears that
there is open space in between the structure 19 and 22A. This open
space is used by the plaintiff for the construction . Thus, it cannot be
said that the said construction is authorized one.
Notice of Motion No.2145 of 2018.
65 The notice U/s 351 of the MMC Act is in respect of
unauthorized construction of a ground + 2 upper floors made up of
brick masonry walls and Ladi coba slab as shown in the sketch attached
on open land behind Shree Krishna Temple in Raghuvanshi Mills
Compound. Plaintiff came in possession of the suit premises by articles
of agreement in the year 2003. The agreement in respect of piece and
parcel of a land of ground situate at heins road . Thus the plaintiffs
have executed agreement in respect of open land. However, plaintiffs
have taken the licenses from the various departments and started their
-- 24 of 37 --
25
business. It is to be noted that in the assessment receipt the first
assessment date is shown as 141961.
66 In the plaint the said structure is described as a gala no. G
100 and G101. In the approved plan dated 26/4/1977 the said galas
are absent. It means that after execution of articles of agreement in the
year 2003 plaintiffs have constructed the commercial structure there.
67 Plaintiffs have not produced any document to show that
the said structure is authorized one. Hence, I find that the structure is
unauthorized.
Notice of Motion No.2150 of 2018.
68 The notice U/s 351 of the MMC Act is in respect of
unauthorized construction of commercial office adm. 20.43 meters x
17.76 mtrs. By using side brick mesonry walls and construction of
mezzanine floor at M/s Natuzzi at ground floor at Raghuvanshi
Mansion, Raghuvanshi Mill Compound. The notice also alleges
unauthorized change of user from Cotton Textile Mills use to
commercial user. The agreement is executed between plaintiff and the
developer SGG Realtors and developers Pvt Ltd. Plaintiff has purchased
the suit premises. Alongwith the plaint, plaintiff has produced the
documents i.e. tax receipts and payment of taxes by the plaintiff.
However, it no way appears that the suit premises is assessed in the
year 1961 and the premises is the same.
69 Plaintiff has mostly relied on the judgment of this court in
L.C.Suit no 1579/07. The present suit was filed by Predecessor of the
plaintiff and thereby challenged the notice U/s 351 of the MMC Act. It
is true that my Ld Predecessor decreed the suit and declared that the
notice and order are illegal and bad in law.
70 It is pertinent to note that the notice in L.C. Suit No
-- 25 of 37 --
26
1579/2007 was in respect of the unauthorized construction of
Mezzanine floor admeasuring 3.60 mtr x 21.0 mtr, 14.60 mtr x 6.30
mtr. and 3.60 mtrx 14.70 mtr with floor height 2.45 mtr. However the
present notice and order is in respect of the unauthorized construction
of entire commercial structure in place of electric sub station.
Therefore, subject matter in earlier suit and the present suit are
different and it cannot be said that the earlier notice and order have
attained finality. Apart from this I have perused documents produced
by the plaintiff. It no way appears that the construction is authorized
and as per the sanctioned/approved plan of the Corporation.
71 The suit premises is having block no.7. In approved plan
dated 26/4/1977 in proforma B in statement of structures existing it
has mentioned that the block no. 7 is the area of subject plan of
Raghuvanshi Mills. Now in this suit the disputed structure is
commercial structure. Hence it prima facie appears that the suit
structure is unauthorized.
Notice of Motion No.2148 of 2018.
72 The notice U/s 351 of the MMC Act is in respect of
unauthorized construction of commercial premises admeasuring 24.0
mtrsx26.88 mtrs by eracting B.M.Portion walls and construction of
frame work and M.S. steel Sections for Mezzanine floor adm. 24x0 mtr
x 9.77 mtr and also the change of user from Cotton Textile mills
structure to Commercial user.
73 Plaintiff has mainly relied on the notice/reply and speaking
order. It is pertinent to note that except this plaintiff has not produced
any other documents. In the plaint,plaintiff has given description of the
suit premises as premises on the first floor above the Bath shop,
Raghumanshi mansion, Raghuvanshi Mills Compound. However, the
-- 26 of 37 --
27
said structure is also absent in the approved plan dated 26/4/1977.
Therefore, plaintiff is not entitled for interim relief.
(F) LAW AND PROUNCEMENTS OF HON'BLE SUPREME COURT
AND HON'BLE HIGH COURT ON THE SUBJECT.
74 Section 351 of the MMC Act is in respect of buildings or
work commenced contrary to section 341. Subsection (i) authorizes
the Commissioner by notification in the Official Gazette to designate an
officer of the Corporation for the purpose of this section. Section 1A
gives power to the designated officer to initiate proceeding in respect of
the unauthorized construction. According to explanation to subsection
1A burden is on the person against whom notice is issued to show that
the construction is authorized. Subsection 2 prescribes that if such
person failed to show sufficient cause to the satisfaction of the
designated officer about the authorization of the structure then the said
structure shall be removed.
75 In catena of judgments Hon'ble Supreme Court and
Hon'ble High Court it is held that the proceeding of demolition is
drastic proceeding therefore, designated officer, being a quasi judicial
officer has to follow the principles of natural justice. There should not
be a departure of the rule of Audi alterem partem .
76 Here in the present suit plaintiffs have raised contention
that defendants have not followed the principle of natural justice. In
Shri Sopan Maruti Thopte and another V/s Pune Municipal
Corporation an another, 1996 (2) ALL MR 383 Hon'ble High Court
has laid down the procedure in para no. 19 and also directed that the
said procedure shall be followed by Municipal Corporation and
Municipal corporation constituted under B.P.M.C Act. Hon'ble High
Court in para no. 19 held that:
Hence, on the basis of the law as discussed above, it is directed
-- 27 of 37 --
28
that after 1st May, 1996, the Bombay Municipal Corporation or
the Municipal Corporations constituted under the B.P.M.C Act
would follow the following procedure before taking action Under
section 351 f the B.M.C Act or under Sec.260 of the B.P.M.C Act.
(i) In every case where a notice under section 351 of the
B.M.C Act/under sec. 260 of B.P.M.C Act is issued to a
party 15 days time shall be given for submitting the reply.
In case the party to whom notice issued sends the reply
with the documents, and shows cause, the Municipal
Commissioner or Deputy Municipal Commissioner shall
consider the reply and if no sufficient cause is shown, give
short reasons for not accepting the contention of the
affected party.
(ii) It would be open to the Commissioner to demolish the
offending structure 15 days after the order of the
Commissioner/Deputy Municipal Commissioner is
communicated to the affected person.
(iii) In case the staff of the Corporation detects the building
which is in the process of being constructed and/or
reconstructed and/or extended without valid permission
from the Corporation, it would be open to the
Commissioner to demolish the same by giving a short
notice of 24 hours after drawing a panchnama at the site
and also by taking photographs of such structure and/or
extension. The photographs should indicate the date when
the same were taken.
(iv) In case where the Municipal Corporation has followed
due process of law and demolished the unauthorised
structure and/or extension, if the same is reconstructed
without valid permission within a period of one year, it
would also be open to the Corporation to demolish the
same by giving a short notice of 24 hours.
(v) If the offending structure and or extension which is
assessed by the Corporation for two years, notice shall
provide for 15 days time to show cause. If the Deputy
Municipal Commissioner comes to the conclusion that he
requires assistance of the party, he may give an oral
hearing if he deems fit and proper before passing the
order. It is made clear that oral hearing is not at all
-- 28 of 37 --
29
compulsory but it is at the discretion of the authority.
(Vi) In any other case the Corporation is directed to issue a
show cause notice in case of any structure and/or
extension other than those mentioned in clauses (i) to (iv)
above. The Corporation shall provide for 7 days time to
show cause in such as case.
In D.K.Pandit Versus Municipal Corporation of Gr.
Bombay Appeal From Order No. 752/89 Hon'ble High Court held
that the notice is to be given to the owners and the said notice is
mandatory.
In Arvind Pradhanbai Dama Versus The Municipal
Corporation of Greater Mumbai Appeal from order No. 361 of 2013
Hon'ble High Court held that notice to the owner of the property is
must.
In Mrs Lilly P.Pandit V/s Municipal Corporation and
others writ petition (L)No 88 of 2014, Hon'ble High Court held that
there should be no departure of principles of natural justice.
77 Here in the present suits from the careful perusal of the
proceeding it appears that initially the officers of the corporation Rohan
Kumawat has taken measurement, thereafter notice U/s 351 of the
MMC Act is issued. Plaintiff gave reply to the notice and produced
certain documents. Thereafter again defendants supplied the
documents i.e approved plan of the year 197577 and also tikka sheet
to the plaintiff. It also appears that opportunity of hearing was given to
the plaintiffs and thereafter impugned orders are passed. Therefore it
cannot be said that the defendants have not followed the principle of
natural justice.
78 It is pertinent to note that defendants have taken action on
the basis of complaint filed by Khimji Bhagwandas Charity Trust.
-- 29 of 37 --
30
Admittedly, Khimji Bhagwandas Charity Trust is the owner of land C.S
No 107, Lower Parel. Raghuvanshi Mills Limited. In the complaint by
said Khimji Bhagwandas Charity Trust, it has specifically mentioned
that the lessee (Raghuvanshi Mills Limited) have no right to consume
the FSI or TDR or other development rights in respect of the demised
premises. It is true that the said trust has filed suit for recovery of
possession in the Court of Small Causes at Mumbai bearing no.T.E and
R Suit No. 5/6 of 2008. Plaintiffs in the present suits are defendants in
that suit and suit is pending. From the record it appears that the
subsequent redevelopments have not taken by consent of the landlord
Khimji Bhagwandas Charity Trust to alienate the property in favour of
the plaintiffs. It is not the allegations of the corporation that the
structures are in existence and consented by the landlords. On the
contrary according to defendant/corporation, the plaintiffs have made
new construction and using the premises for commercial purpose.
Therefore, the pending suit in a Small Cause Court, Mumbai does not
affect the right of defendants to take an independent action U/s 351 of
MMC Act.
79 I am aware that at the interim stage plaintiffs have to
prove the basic ingredients i.e prima facie case, balance of convenience
in their favour and irreparable loss in case of refusal of injunction. To
prove prima facie case there must be triable issues between the parties.
In Namdev Pandurang Panchal V/s Mumbai Municipal Corporation
of Greater Bombay and another 2006 MHLJ 194 Hon'ble High Court
held that the factual aspects of this matter is that land open which the
structure stand does not belong to the plaintiff even BMC has no
authority to regularize the structure on somebody else property.
Hon'ble High Court further held that the BMC found that there was no
sanction plan and second aspect of the matter was that the plaintiff
-- 30 of 37 --
31
failed to prove before BMC authorities that the structure was in
existence before the datum line. When the plaintiff has miserably failed
to prove his title over the property and failed to prove the existence of
the structure prior to 1972, has failed to prove that when he reerected
the structure in 2001, it was done by him with the permission of BMC
on the basis of sanctioned and approved plans, then the trial Court was
fully justified in dismissing the suit and rejecting the claim and
contention of the plaintiff.
80 Here in the preset case, the contention of plaintiffs that the
Raghuvanshi Mills Limited is a sick company and sold the premises to
the plaintiffs. The premises are redeveloped therefore it was
mandatory on the plaintiffs by rule 58 of Development Control Rules
1991 to procure the sanction of the Commissioner. It was also
mandatory on the plaintiffs to get plan approved from the
Commissioner. However, in this matters no such evidence has been
produced by the plaintiffs.
In Esha Ekta Apartments Coop Hsg society Limited &
Ors,2013 (2) ALL MR 901 (SC) Hon'ble Supreme Court held that
flat purchaser knowing full well that construction was unauthorized so
the flat purchaser cannot seek mandamus for regularization of
unauthorized/illegal construction. Municipal authorities cannot
encourage violation of sanctioned plans by not taking any action and
courts are also expected to refrain from exercising equitable
jurisdiction for regularization of illegal/unauthorized constructions.
Hon'ble Supreme Court further held that buyers can take appropriate
remedy against developers/builders
In Shanti Sports Club V/s Union of India (2009) 15 SCC
705 (2010 (1) All MR 911 (S.C)Hon'ble Supreme Court held that
"In the last four decades, almost all cities big or small, have
-- 31 of 37 --
32
seen unplanned growth. In the 21st Century, the menace
of illegal and unauthorized constructions and
encroachments have acquired monstrous proportions and
everyone has been paying heavy price for the same.
Economically affluent people and those having support of
the political and executive apparatus of the State have
constructed buildings, commercial complexes, multiplexes,
malls etc. in blatant violation of the municipal town
planning laws, master plans, zonal development plans and
even the sanctioned building plans. In most of the cases of
illegal or unauthorized constructions, the officers of the
municipal and other regulatory bodies turn blind eye either
due to the influence of higher functionaries of the State or
other extraneous reasons. Those who construct buildings
in violation of the relevant statutory provisions, master
plan etc and those who directly or indirectly abet such
violations are totally unmindful of the grave consequences
of their actions and/or omissions on the present as well as
future generations of the country which will be forced to
live in unplanned cities and urban areas. The people
belonging to this class do not realize that the constructions
made in violation of the relevant laws, master plan or
zonal development plan or sanctioned building plan or the
building is used for a purpose other than the one specified
in the relevant statute or the master plan, etc. such
constructions put unbearable burden on the public
facilities/amenities like water ,electricity, sewerage etc
apart from creating chaos on the roads. The pollution
caused due to traffic congestion affects the health of road
users. The pedestrians and people belonging to weaker
sections of the society, who cannot afford the lunary of
airconditioned cars are the worst victims of pollution.
They suffer from skin deceases of different types, asthma,
allergies and even more dreaded diseases like cancer. It
can only be a matter of imagination how much the
Government has to spend on the treatment of such persons
and also for controlling pollution and adverse impact on
the environment due to traffic congestion on the roads and
chaotic conditions created due to illegal and unauthorized
constructions. This Court has, from time to time, taken
cognizance of buildings constructed in violation of
municipal and other laws and emphasized that no
compromise should be made with the town planning
-- 32 of 37 --
33
scheme and no relief should be given to the violator of the
town planning scheme etc, on the ground that he has spent
substantial amount on construction of the building etc.
Unfortunately, despite repeated judgments by this Court
and the High Courts, the builders and other affluent people
engaged in the construction activities, who have over the
years shown scant respect for regulatory mechanism
envisaged in the municipal and other similar laws, as
also the master plans, zonal development plans
sanctioned plans etc. have received encouragement
and support from the State apparatus. As and when
the Courts have passed orders or the officers of local
and other bodies have taken action for ensuring
rigorous compliance with laws relating to planned
development of the cities and urban areas and issued
directions for demolition of the illegal/unauthorized
constructions, those in power have come forward to
protect the wrongdoers either by issuing
administrative orders or enacting laws for
regularization of illegal and unauthorised
constructions in the name of compassion and
hardship. Such actions have done irreparable harm to
the concept of planned development of the cities and
urban areas. It is high time that the executive and
political apparatus of State take serious view of the
menace of illegal and unauthorized constructions
and stop their support to the lobbies of a fluent class
of builders and others, else even the rural areas of
the country will soon witness similar chaotic
conditions".
Dipak Kumar Mukherjee V/s Kolkata Municipal
Corporation & Ors, 2013 (5) Supreme Court Cases 336 it is held
that :
"What needs to be emphasized is that illegal and
unauthorised constructions of buildings and other
structure not only violate the municipal laws and the
concept of planned development of the particular
area but also affect various fundamental and
constitutional rights of other persons. The common
man feels cheated when he finds that those making
illegal and unauthorized constructions are
supported by the people entrusted with the duty of
preparing and executing master plan/development
-- 33 of 37 --
34
plan zonal plan. The reports of demolition of
hutments and jhuggi jhopris belonging to poor and
disadvantaged section of the society frequently
appear in the print media but one seldom gets to
read about demolition of illegally/unauthorisedly
constructed multistories structure raised by
economically affluent people. The failure of the State
apparatus to take prompt action to demolish such
illegal constructions has convinced the citizens that
planning laws are enforced only against poor and all
compromises are made by the State machinery when
it is required to deal with those who have money
power or unholy nexus with the power corridors".
In Seema Arshad Zaheer & Ors V/s MCGM reported in
2006 (5) Mh.L.J. 218 Hon'ble Apex Court ruled that :
It is true that in cases relating to orders of demolition of
buildings, irreparable loss may occur if the structure is
demolished even before trial, and an opportunity to
establish by evidence that the structure was authorized and
not illegal. In such cases, where prima facie case is made
out, the balance of convenience automatically tilts in
favour of the plaintiff and a temporary injunction will be
issued to preserve status quo. But where the plaintiffs do
not make out a prima facie case for grant of an injunction
and the documents produced clearly show that the
structures are unauthorised, the Court may not grant a
temporary injunction merely on the ground of sympathy
or hardship. Exercise of discretion by granting a temporary
injunction when there is "no material" or refusing to grant
a temporary injunction by ignoring the relevant
documents produced, are instances of action which are
termed as arbitrary, capricious or perverse. Where the
lower Court acts arbitrarily, capriciously or perversely in
the exercise of its discretion, the Appellate Court will
interfere. To grant a temporary injunction, where the
structure is clearly unauthorized and the final order passed
by the Commissioner of the Corporation after considering
the entire material directing demolition would be to
encourage and perpetuate an illegality. Where there was "
no material" to make out a prima facie case and the High
Court in its appellate jurisdiction, was justified in
interfering in the matter and vacating the temporary
-- 34 of 37 --
35
injunction granted by the trial Court
In M.I. Builders (P) Ltd V/s. Radhey Shyam Sahu (1999)
6SCC 464 Hon'ble Supreme Court held that
" This Court in numerous decisions has held that no
consideration should be shown to the builder or any
other person where construction is unauthorised. This
dicta is now almost bordering the rule of law. Stress
was laid by the appellant and the prospective allottees
of the shops to exercise judicial discretion in moulding
the relief. Such a discretion cannot be exercised which
encourages illegality or perpetuates an illegality.
Unauthorised construction, if it is illegal and cannot be
compounded, has to be demolished. There is no way
out. Judicial discretion cannot be guided by
expediency. Courts are not free from statutory fetters.
Justice is to be rendered in accordance with law.
Judges are not entitled to exercise discretion wearing the
robes of judicial discretion and pass orders based solely on
their personal predilections and peculiar dispositions.
Judicial decisions wherever it is required to be exercised
has to be in accordance with law and set legal principals."
81 As discussed in preceding paragraphs plaintiffs have not
proved that the suit structures are authorized and constructed in
consonance with the sanctioned and approved plan by the Competent
Authority i.e. defendant Municipal Corporation, Gr. Mumbai.
Therefore, the said constructions cannot be protected by the order of
injunction.
(I) EPILOGUE.
82 From the above discussions, the relevant provisions of
Mumbai Municipal Corporation, 1888, Development Control Rules
1991 and the law laid down by Hon'ble Supreme Court and Hon'ble
High Court, I come to the conclusion that plaintiffs prima facie failed
to prove that the construction is either authorized or prior to datum
line. Therefore, balance of convenience does not lie in favour of the
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36
plaintiff and consequently no irreparable loss will be caused to the
plaintiff. Hence, I pass the following order:
ORDER
1 Notices of Motion Nos 2138/18 in L.C.Suit No. 1338/18,
2139/18 in L.C.Suit No 1339/18, 2154/18 in L.C.Suit No
1359/18, 2017/18 in L.C.Suit 1241/18, 2145/18 in L.C.Suit
No 1361/18, 2148/18 in L.C.Suit no 1358/18 and 2150/18 in
L.C.Suit No 1360/18 are hereby dismissed with costs.
2 Copy of the order be kept in L.C.Suit Nos
1339/18,1359/18,1241/18,1361/18,1358/18 and 1360/18.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on :18/7/18
Typed on :21/7/18
Signed by HHJ. : 23/7/2018
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37
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
2472018 Mrs. S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
18/07/2018
JUDGEMENT/ORDER signed by
P.O. on
23/7/2018
JUDGEMENT/ORDER uploaded
on
24/7/2018
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