Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 2197/18 (LCS 737/18)
MHCC010071002018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.2197 OF 2018
IN
LONG CAUSE SUIT No.737/2018
Khwaja Garib Nawaz Welfare Society … Plaintiff
- Versus -
Municipal Corporation of
Greater Mumbai ... Defendant
Appearance :-
Mr. Rajesh Singh, Advocate for plaintiff.
Mr. Khandagale, Counsel for Corporation/BMC.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 12/07/2023.
O R D E R
. This is suit for declaration that notice dated 30.8.2016
received by defendant/BMC to be declared as null, void and illegal and
for perpetual injunction. Plaintiff took out this notice of motion for
temporary injunction.
2. Briefly stated facts of the plaintiff’s case are that the
plaintiff is a public trust registered under provisions of Bombay Public
Trust Act having registration No. 525556. The plaintiff is in possession
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occupation of the Welfare Centre admeasuring 807 sq.ft (suit structure
situated at Govandi, Mumbai). In the year 2003 Corporation
constructed Welfare Centre and after NOC from concerned department
corporation handed over possession of the Welfare Centre subject to
terms and conditions. The parties have agreed to enter into articles of
agreement and plaintiff is allowed to use, occupy suit premises as per
the terms and conditions as per article of agreement. Since then the
plaintiff trust in possession of the notice structure and plaintiff has paid
necessary fees before taking possession.
3. The plaintiff regularly paid the annual rent till 2016 and
maintaining the record of programme organized by the plaintiff. The
plaintiff has issued letter for renewal of the ground and to accept
charges. The plaintiff is adhering all terms and conditions of the
agreement. However defendant/corporation taken physical possession
of the suit premises alleging that plaintiff has committed breach of the
terms and conditions of the agreement and received impugned notice
on 30.8.2016. The plaintiff has replied said letter on 9.9.2016 and
30.9.2016. But no any order has been passed. The trustees of the
plaintiff trust requested of office of corporation for personal hearing and
to consider documents but in vain. In view of the notice, plaintiff has
constrained to file this suit and taken out the Notice of Motion for
temporary injunction.
4. The defendant/corporation resisted notice of motion by filing
reply. At the outset it is stated that suit is not maintainable for want of
statutory notice under Section 527 of the Mumbai Municipal Act ( in
short M.M.C.Act.) So it is further stated that Welfare Centre has been
constructed out of the funds of counselor and was given to plaintiff
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association for carrying out social activities. However on inspection
dated 23.8.2016 it was found that plaintiff society is not running the
Welfare Centre for the purpose for which it was allotted and the
agreement was not renewed since 2009. It is further stated that
plaintiff society committed breach of clause No.28 of agreement. Then
the note was put up before Deputy Municipal Commissioner Zone-IV
revocation of agreement with the plaintiff society and after going
through the documents Deputy Municipal Commissioner passed the
order of cancellation of agreement as per the condition Nos.23 and 25
of the agreement. By the letter dated 24.9.2016 plaintiff society was
directed to submit photographs of the social programme conducted by
him but plaintiff failed to comply the said notice. Hence the Assistant
Commissioner M/East ward has taken possession of Welfare Centre and
handed over to MOH department for running DOT Centre. The
Corporation is running dispensary there. The plaintiff is not in
possession of the suit structure and it has suppressed this fact. This
shows that plaintiff has not come to the court in clean hand therefore it
is not entitled for any relief.
5. Points for determination alongwith findings thereon for the
reasons are as under :-
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out
prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
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3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No. 1 :-
6. The plaintiff filed copies of the documents alongwith plaint i.e.
registration certificate, various correspondence between plaintiff and
defendant. Payment receipts, copy of the article of agreement executed
between plaintiff and defendant/BMC.
7. The defendant/corporation has filed documents alongwith Exh.2
and letter of Assistant Commissioner dated 18.2.2009, Article of
agreement dated 15.3.2009, inspection report dated 22.8.2016, letter
from MOH dated 14.9.2016, letter dated 4.10.2016 by Deputy
Commissioner Corporation whereby permission to the plaintiff came to
be revoked.
8. It is the contention of plaintiff that as per Article of Agreement
the Corporation handed over possession of the structure plaintiff society
for carrying out social programme with certain terms and conditions as
per article of agreement. The plaintiff has challenged notice dated
30.8.2016 whereby plaintiff is directed to possession of the notice
structure within seven days as plaintiff has committed breach of the
conditions. It is the contention of the plaintiff that the owner committed
breach of the terms and conditions. The plaintiff by letters dated
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6.3.2010, 29.12.2014 and 10.4.2015, requested to defendant/ BMC to
renew the grounds permission and accept charges.
9. The advocate for the plaintiff submitted that the Corporation has
issued notice dated 30/8/2016. The plaintiff has replied said notice but
the Corporation has not passed order, therefore, the plaintiff filed this
suit directing the Corporation not to dispossess the plaintiff without
following due process of law. He relied on judgment upon Hon’ble High
court in the case of Mangesh Amar Ghorpade Vs. Kalyan Dombivali
Municipal Corporation [2003 GoJuris (Bombay HC) 1978) and Lily P.
Pandit Vs. Mumbai Municipal Corporation of Gr. Mumbai and Ors.
[2014 GoJuris (Bombay HC) 1654].
10. It is not disputed that the building of the Welfare Centre is
owned by the corporation and it was given in possession of the plaintiff
for using it for public Welfare Programme. The plaintiff agreed to use
said premises for welfare activities. As per the clause 3 of the agreement
possession of said premises shall always with the Assistant
Commissioner M/East Ward and plaintiff was only permitted to open
the said Centre for conducting Welfare Programme. It was duty of the
plaintiff to maintain the accounts properly and get audited. So also
furnish annual report of the activities. As per the clause 25 the
defendant/BMC reserved its right to withdraw the permission without
assigning any reason. As per the agreement of article the plaintiff/Trust
was permitted to use Welfare Centre for conducting social programme.
As per the terms of contract the defendant/corporation has reserved its
right to revoke permission without assigning any reason. It is the
contention of the Corporation that at the time of inspection it is noted
that plaintiff was using suit structure for commercial purpose.
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Defendant/Corporation relied on the photographs, in support of its
contention that the plaintiff are using the Welfare Centre for
commercial purpose. The photographs on record shows that chair,
cupboard and other material has been kept in the Welfare Centre.
Advocate for plaintiff submitted that the corporation has not followed
due process of law.
11. In the case in hand the plaintiff has challenged letter dated
30.8.2016 whereby plaintiff was directed to hand over possession of
Welfare Centre. As per article of agreement Corporation permitted the
plaintiff to use the premises for public welfare programme. It is also
agreed that the programme is to be arranged after approval of the
municipal authorities in advance. In the letter dated 30/8/2016 it is
alleged that the plaintiff/society has committed breach of the terms and
conditions of the agreement. Advocate for the Corporation submitted
that the plaintiff was permitted to use the premises for public welfare
programme. However, from the documents submitted by the plaintiff, it
appears that the plaintiff permitted to use the premises for marriage.
Advocate for defendant/Corporation submitted that on perusal of letter
dated 18/10/2020, it appears that the plaintiffs provided Welfare
Centre for marriage. In his submission, the marriage cannot be a public
welfare programme.
12. As per the terms of agreement the Corporation has reserved
the right to revoke permission without assigning any reason. It is not
disputed that the plaintiff is permitted to use Welfare Centre for public
welfare purpose. The agreement has been signed by both the parties. As
per the clause No.25 the Corporation has reserved its right to revoke
permission. If the agreement is terminated as per clause No.25, the
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plaintiff cannot claim that defendant/Corporation has not followed due
process of law. As per clause No.25 of the agreement permission can be
revoked, at any time, without assigning any reason. Thus, it appears
that the permission has been revoked as per the terms and conditions,
therefore, the plaintiff has no right to claim over welfare centre. It
appears that the Corporation has followed due process. Therefore, I
hold that the plaintiff has failed to make out prima facie case.
13. I have gone through the judgment relied by the plaintiff. In
the case of Mangesh Ghorpade (supra) notice under Section 260 of The
Bombay Provincial Municipal Corporation Act was given for demolition
of structure. In the case on hand, notice is not given under Section 351
or 354A of the M.M.C. Act for demolition of structure. In the case of Lily
P. Pandit notice for unauthorized structure was given and in that case,
Hon'ble High Court permitted the petitioner to file additional
documents. Thus, the facts of the case on hand and facts of the
judgments relied by the plaintiff are not identical. Hence with due
respect the judgments relied by the plaintiff are not applicable to this
case.
14. The Corporation submitted that due to breach of certain
condition corporation has been cancelled the permission, as per the
article of agreement, it is alleged that for the period of four years from
11.2.2015 the plaintiff has not paid the charges of renewal. It is not
disputed that the Welfare Centre is owned by the Corporation. The
plaintiff is seeking injunction against the corporation who is the owner
of the Welfare Centre. It is well settled that the injunction cannot be
granted against true owner. The defendant/Corporation has filed on
record report dated 20.9.2016 wherein it is mentioned that the
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structure of the Welfare Centre is required to Corporation for running
primary health Centre. It appears on record that plaintiff society
permitted to use the Welfare Centre for organizing the marriage. On
perusal of documents produced by the plaintiff permitted to use Welfare
Centre for marriage.
15. The plaintiff has not made out
prima facie. Balance of
convenience does not tilt in its favour. No irreparable loss or injury
would be caused to it if injunction is refused. I accordingly, answer
points No.1 to 3 in the negative and in answer to point No.4 pass
following order :-
O R D E R
Notice of Motion No.2197 of 2018 is dismissed with cost.
Date : 12/07/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
28/07/2023 05:25 p.m. Mrs. P. K. More
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 12/07/2023
ORDER Typed on 15/07/2023
ORDER signed by P.O. on 18/07/2023
ORDER uploaded on 28/07/2023
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