Order 2

Order Details: Copy of Judgment
Pdf Text: 1 L.C.S. No.1445/18 [J]
MHCC010071822018
Presented on : 15/06/2018
Registered on : 18/06/2018
Decided on : 12/11/2024
Duration : YY MM DD
06 04 28
Exhibit-51.
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
LONG CAUSE SUIT No.1445 OF 2018
M/s. Pawani & Co.
A registered a partnership firm
having office situated at B-7,
Agfa Building,
Dr. Rajendra Prasad Road,
Mulund (W), Mumbai – 400 080
and originally said company having
office at 311, Hari Chambers,
Shahid Bhagatsingh Marg,
Mumbai – 400 023 … Plaintiff
- Versus -
Municipal Corporation of
Greater Mumbai a body
incorporated under the
provisions of M. M. C. Act
having its office at
Mahapalika Bhavan,
Mahapalika Marg,
Mumbai – 400 001
Through Asst. Engineer, (B & F)/
Designated Officer “T” Ward,
Lala Devidayal Marg, Mulund (W),
Mumbai – 400 080 … Defendant
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2 L.C.S. No.1445/18 [J]
Appearance :-
Mr. A. M. Saraogi, Advocate for plaintiff.
Ms. Pooja Nagarthwar, Advocate for defendant/M. C. G. M.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 12/11/2024.
J U D G M E N T
. This is suit to challenge notice dated 20/2/2018 issued
under Section 351 of The Mumbai Municipal Corporation Act (in short
M. M. C. Act) and for perpetual injunction restraining defendant B.M.C.
from implementing said notice and Speaking Order dated 6/6/2018.
2] Facts of case can be briefly stated as below :-
The plaintiff is a partnership firm and earlier it had filed
two Suits bearing No.640/2018 and 1012/2018. The first Suit No.
640/2018 came to be disposed on 6/3/2018 and second on 18/4/2018
with direction to defendant B. M. C. to consider reply submitted by the
plaintiff.
3] It is further stated that the plaintiff is in use, occupation
and possession of structure admeasuring 195 sq. mtrs. made up of brick
walll, A/C sheet roof at Pawani Plot, opposite Vipul Apartment, Bhakti
Marg, Mulund, Mumbai – 80 (in short 'suit structure'). The suit
structure is in existence much prior to 1961-62. The plaintiff is owner of
larger property bearing C. T. S. No.855, 856/1, 856A, 856B, 878A, 878B
of survey No.354 situated at Pawani Plot. In 1979-80 the plaintiff has
submitted proposal of development of said property and, accordingly,
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3 L.C.S. No.1445/18 [J]
plans were sanctioned by defendant B. M. C. vide letter dated
6/8/1980. Then, in 1995 the plaintiff made an application for repair
permission vide letter dated 15/11/1995 and defendant B. M. C. vide
letter dated 29/11/2011 called upon to make compliance of some
requirements. Then, by letter dated 24/4/1996 defendant B. M. C. has
granted repair permission.
4] It is further stated that since property in question has been
developed in 1980 and building came to be constructed, society of
building requested for bifurcation of assessment bill and, accordingly,
separate assessment bills have been issued by defendant B. M. C. since
1984. The plaintiff is having water and electricity supply to suit
premises. The property card as well as assessment bills show existence
of suit structure since last many years. In spite of that defendant B. M.
C. issued impugned notice. The plaintiff replied said notice on
24/2/2018. Defendant B. M. C. was bound to consider reply and pass
appropriate order, however, defendant B. M. C. bent upon taking action
of demolition, though structure is in existence, since many years. This
shows that the action initiated by defendant B. M. C. is with malafide
intention, without application of mind and verification of record.
5] It is further stated that considering the highhanded acts on
the part of defendant B. M. C. the plaintiff filed Suit No.640/2018
challenging validity of notice alongwith Notice of Motion and said suit
came to be disposed of on 6/3/2018 with leave to the plaintiff to
submit documents and additional reply. But the plaintiff could not
comply directions as it has applied for copy of said order. There were
directions of the Court to consider reply given by the plaintiff however,
defendant served copy of order upon the plaintiff on 16/3/2018 hence
the plaintiff filed second Suit No.1012/2018 which came to be disposed
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4 L.C.S. No.1445/18 [J]
of 10/4/2018. Thereafter, defendant B. M. C. passed final order. The
impugned order has been passed without application of mind and
without considering record. The order has been passed with
predetermined attitude to take action of demolition of suit structure.
The plan available with defendant clearly shows that the property in
question is disputed property as to whether it is reserved for garden or
not. Therefore, the plaintiff approached this Court and seeking relief of
declaration.
6] Defendant B. M. C. resisted suit by filing reply-cum- Written
Statement below exhibit-2. At the outset, it is stated that the plaintiff
has not given statutory notice under Section 527 of the M. M. C. Act.
The notice and order is executive or administrative act and same is not
open to challenge in the Court of law. The plaint discloses no cause of
action against defendant. The plaintiff has not described suit property to
sufficiently identify it and, therefore, suit is not maintainable. Further, it
is stated that this Court has no jurisdiction to try and entertain present
suit challenging notice issued by defendant B. M. C. under Section 351
of the M. M. C. Act in view of the provisions of Section 515A of the Act.
7] It is further stated that the officer of defendant B. M. C.
inspected suit site on 22/12/2017 and detected unauthorized
construction of ground floor structure by using RSJ, Ladi Coba and
brick masonry wall as shown in the sketch annexed to notice. Thereafter
impugned notice came to be issued to owner/occupier directing him to
show sufficient cause within 7 days as to why said unauthorized work
should not be demolished. In spite of receipt of show cause notice, the
plaintiff has not filed reply till 26/2/2018 and filed suit challenging
notice without waiting till passing of final order. The plaintiff has filed
premature suit without proving its case on merit. Thereafter, the
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5 L.C.S. No.1445/18 [J]
plaintiff filed reply as per order of this Court dated 6/3/2018. However,
inadvertently date of second reply was not mentioned in final Speaking
Order. Therefore, this Court directed B. M. C. to pass necessary order
and disposed of second suit on 10/4/2018.
8] It is further stated that thereafter defendant B. M. C. passed
final order on 6/6/2018 by considering replies dated 26/2/2018,
12/3/2018 and documents. The documents submitted by the plaintiff
show that there was a small A/C shed however, suit structure is a load
bearing Pakka structure. The plaintiff has not produced sanctioned plan
or permission for construction of notice structure. The plaintiff has not
produced a single document showing legality of notice structure.
Defendant B. M. C. has followed due process of law but the plaintiff has
constructed unauthorized structure without permission of defendant
B.M.C. Therefore, the plaintiff is not entitled for reliefs claimed and suit
is liable to be dismissed with costs.
9] On the basis of pleadings my learned Predecessor framed
the issues below exhibit-3 which are reproduced alongwith my findings
thereon for the reasons to follow :-
Sr.
No.
I S S U E S F I N D I N G S
1) Whether the plaintiff prove that the
notice issued by the defendant being
notice dated 28/2/2018 (20/2/2018)
issued under Section 351 of The
Mumbai Municipal Corporation Act
and order passed thereon being order
dated 6/6/2018 are bad-in-law and
illegal ? . . . In the negative.
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6 L.C.S. No.1445/18 [J]
2) Whether the defendant prove that the
present suit filed by the plaintiff is
not maintainable for want of notice
under the provision of Section 527 of
the M. M. C. Act . . . In the negative.
3) What order ? . . . Suit is dismissed with
costs.
- :: R E A S O N S ::-
10] In support of the claim on behalf of the plaintiff firm
Constituted Attorney Mr. Anil Kadam (P. W. 1) filed affidavit in lieu of
examination-in-chief below exhibit-4. Apart from oral evidence the
plaintiff relied upon following documents :-
Sr.
No.
Particulars of documents Exhibit
No.
1 Certified copy of order dated 6/3/2018 6
2 Certified copy of order dated 26/4/2018 7
3 Original Power of Attorney dated 26/4/2018 8
4 Copy of letter dated 15/11/1995 9
5 Letter dated 30/11/1995 10
6 Assessment bill dated 1/4/1992 11
7 Assessment bill dated 1/4/1993 12
8 Photocopy of water bill dated 25/2/2003 13
9 Electricity bill dated 5/4/2005 14
10 Electricity bill dated 13/2/2009 15
11 Assessment bill dated 25/12/2012 16
12 Assessment bill dated 22/5/2015 17
13 Assessment bill dated 22/5/2018 18
14 Assessment bill dated 1/3/2013 19
15 Assessment bill dated 22/2/2018 20
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7 L.C.S. No.1445/18 [J]
Sr.
No.
Particulars of documents Exhibit
No.
16 Assessment bill dated 22/5/2018 21
17 Notice dated 20/2/2018 22
18 Letter dated 24/2/2018 23
19 Letter dated 12/3/2018 24
20 Order dated 16/3/2018 25
21 Order dated 6/6/2018 26
22 Permission order dated 24/4/1996 27
23 Certified copy of order dated 30/6/2018 28
24 Order dated 8/5/2023 29
25 Printout copy of property card 32
26 Printout copy of property card 33
27 Printout copy of property card 34
28 Printout copy of property card 35
29 Printout copy of property card 36
30 Printout copy of property card 37
31 Printout copy of property card 38
32 Copy of payment receipt 39
11] On behalf of defendant B. M. C. Mr. Ladage, Assistant
Engineer, B & F filed affidavit in lieu of examination-in-chief below
exhibit-41. Apart from oral evidence defendant B. M. C. relied upon
following documents :-
Sr.
No.
Particulars of documents Exhibit
No.
1 Inspection report 43
2 Notice under Section 351 dated 20/2/2018 44
3 Speaking Order dated 6/6/2018 45
4 Speaking order dated 16/3/2018 46
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8 L.C.S. No.1445/18 [J]
AS TO ISSUE No.1 :-
12] Mr. Anil (P. W. 1) in his affidavit of evidence reiterated
contentions in the plaint. He deposed that the plaintiff-firm is in
possession of structure admeasuring 195 sq. mtrs. made up with B/M
wall and A/C sheet situated at Pawani plot and said structure is in
existence much prior to 1961-62. However, defendant B. M. C. issued
impugned notice, alleging that the plaintiff has constructed notice
structure without permission. It is further case of the plaintiff that it
replied show cause notice alongwith necessary documents. However,
defendant B. M. C. by misinterpreting documents, submitted by the
plaintiff, has passed final order and thereby threatened to demolish suit
structure. The plaintiff is having repair permission issued by defendant
B. M. C. dated 24/4/1996. However, Designated Officer has not
considered documents.
13] During cross-examination Anil (P. W. 1) admitted that in
1980 structure with B/M wall and I-Section wall with A/C sheet has
been constructed. He further admitted that the plaintiff has not filed
any document showing existence of structure prior to 1962.
14] Mr. Ladage (D. W. 1) in his affidavit in lieu of examination-
in- chief reiterated contentions in Written Statement. He deposed that
on 22/12/2017 the officer of the B. M. C. inspected suit site and noticed
unauthorized construction of suit structure. Accordingly, notice under
Section 351 of the M. M. C. Act dated 20/2/2018 has been issued to
owner/occupier. However, in spite of receipt of notice the plaintiff has
not replied it and filed earlier suits. Thereafter, as per directions of the
Court the plaintiff filed additional reply. The Designated Officer has
considered all the documents submitted by the plaintiff and passed final
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9 L.C.S. No.1445/18 [J]
order on 6/6/2018. The documents submitted by the plaintiff does not
prove legality of structure. The B. M. C. has followed due process of law
and hence suit is liable to be dismissed.
15] In the cross-examination it is tried to bring on record that
this witness is not having personal knowledge about suit structure and
facts of case. However, his testimony is neither shaken nor shattered
during cross-examination.
16] Learned advocate for the plaintiff filed written arguments
below exhibit-50 and also made oral submissions. He submitted that
notice is vague without mentioning details. The plaintiff had submitted
reply to notice however, defendant B. M. C. without considering reply
was bent upon to demolish structure, therefore, it had filed earlier suits,
wherein, the Court has directed to consider reply and pass final order.
Accordingly, Designated Officer passed Speaking Order however, he has
not considered documents submitted by the plaintiff. The plaintiff has
produced on record sanctioned plan as well as repair permission
showing legality of structure. However, Designated Officer has not
considered those documents and discarded same without valid reason.
The notice structure is in existence since prior to the datum line. It is
further submitted that as per letter dated 29/11/1995 B. M. C. called
upon to submit necessary documents for repair permission including
documents showing existence of structure prior to the datum line of
1/4/1964 and after compliance of documents the B. M. C. has granted
repair permission on 26/4/1996 this shows that suit structure is
legal/authorized. However, Designated Officer has not considered this
aspect and passed final order without application of mind and
considering documents. Therefore, the impugned order is illegal. It is
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10 L.C.S. No.1445/18 [J]
further submitted that the complaint was in respect of unauthorized
construction near Nita Apartment however, the witness of the B. M. C.
made total ignorance in respect of premises in respect of which
complaint was made. In the circumstances, the impugned notice is
illegal and bad-in-law and the plaintiff is entitled for decree as prayed.
17] Learned advocate for the plaintiff relied on following
judgments :-
a) Ramesh Hargonddas Divecha V/s. The Municipal Corporation of
Greater Bombay & Ors. (Writ Petition No.715 Of 1999) in which
it is held that, “
It would be a travesty of natural justice if the
plans are not disclosed to tenant and he is called upon to prove
legality of structure”,
b) Vadilal Maganlal Trevadia vs. Bombay Municipal Corporation and
others [2021 (1) Mh.L.J. 157] in which it is held in paragraph
No.49 as below :-
“
49. It is trite that if a person or authority alleges that a
structure is an unauthorized one, the authorization or the
permission must first be placed on record. Thereafter it has to be
shown as to how the structure has deviated from the
authorization or the permission. Obviously, the initial burden
would be on the person or the authority who alleges that the
structure is unauthorized.”
18] Learned advocate for the B. M. C. filed written submissions
below exhibit-51 and reiterated contentions in Written Statement. It is
submitted that suit is not maintainable for want of statutory notice
under Section 527 of the M. M. C. Act. The plaintiff failed to prove
legality of structure i.e. existence of structure prior to the datum line.
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11 L.C.S. No.1445/18 [J]
Defendant B. M. C. has followed due process of law. Therefore, suit is
liable to be dismissed.
19] I have given thoughtful consideration to the submissions
made by learned advocates for the parties.
20] The plaintiff has challenged notice issued by defendant
B.M.C. under Section 351 of the M. M. C. Act. The explanation to
Section 351 of the M. M. C. Act provides the word “to show sufficient
cause” would mean to prove that work mentioned in the notice has
been carried in accordance with the provisions of the M. M. C. Act. Sub-
section (2) of Section 351 of the M. M. C. Act mandates that if a person
fails to show sufficient cause to the satisfaction of designated officer,
then the designated officer may pass order of removal of notice
structure. Thus it is incumbent upon the plaintiff to show that notice
structure is constructed as per sanctioned plan or it is in existence prior
to the datum line of 1964.
21] It is case of the plaintiff that suit structure is in existence
since prior to 1961-62. It is well settled that the existence of structure is
to be proved on the basis of documentary evidence. Thus, the plaintiff
has to prove on the basis of documentary evidence that suit structure is
in existence since prior to the datum line. For that purpose, the plaintiff
placed reliance on exhibits-10 and 27 i.e. repair permission. It is
contention of the plaintiff that the plaintiff has applied for repairs of
suit structure and vide letter below exhibit-10 defendant B. M. C. called
upon it to submit proof of existence of structure prior to the datum line
of 1/4/1964 and, accordingly, the plaintiff submitted the proof showing
existence of structure. Thereafter B. M. C. vide letter below exhibit-27
sanctioned repair permission after satisfying existence of structure prior
to the datum line. The plaintiff has challenged notice under Section 351
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12 L.C.S. No.1445/18 [J]
of the M. M. C. Act and demolition order on the ground that structure is
in existence prior to the datum line of 1964. As stated earlier, the
explanation to Section 351 of the M. M. C. Act provides the word “to
show sufficient cause” would mean to prove that work mentioned in the
notice has been carried in accordance with the provisions of the M.M.C.
Act. In the circumstances, the plaintiff has to prove existence of
structure prior to the datum line on the basis of documentary evidence.
It is not disputed that defendant B. M. C. has granted permission for
repair. However, there is no material on record to show that the repair
permission was granted to notice structure. Moreover, repair permission
does not make structure authorized or prove that structure is in
existence prior to the datum line of 1964. In the circumstances, the
repair permission exhibits-10 and 27 relied by the plaintiff cannot be
said to be document showing existence of structure prior to the datum
line. On the contrary, Anil (P. W. 1) in cross-examination, admitted that
the plaintiff has not produced any document showing existence of
structure prior to 1962 and structure has been constructed in 1980. The
plaintiff has produced on record sanctioned plan or layout of survey
No.306 (D) A, 308C, 308 (part). This map is in respect of sanction of
layout and not sanction for construction of notice structure. Rest of
documents i.e. property card, water and electricity bills are subsequent
to the datum line and cannot be documents proving existence of
structure prior to the datum line.
22] It is case of the plaintiff that suit structure is in existence
prior to 1961 however, assessment bills relied by the plaintiff below
exhibits-11 and 12 show that A/C shed has been assessed first time on
1984. It is important to note here that notice has been issued to
structure made up of RSJ Ladi Coba slab and not to structure which is
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13 L.C.S. No.1445/18 [J]
assessed i.e. A/C shed. Thus, assessment bill do not support case of the
plaintiff that notice structure is in existence since prior to the datum
line of 1964. Apart from that it is important to note here that notice has
been issued to RSJ Ladi Coba slab structure and not to A/C shed. So
also in layout plan there is no reference of structure made up of RSJ
Ladi Coba slab and G/I shed. Thus, I hold that none of the documents
relied by the plaintiff shows existence of structure prior to the datum
line of 1964.
23] I have gone through the judgments relied by the plaintiff in
the matter of Ramesh Hargonddas Divecha V/s. The Municipal
Corporation of Greater Bombay & Ors. (supra) in that case, notice was
issued to the tenants calling upon him to prove authorization of
structure. In the case at hand, the plaintiff is not a tenant of notice
structure. Therefore, facts of case at hand and facts of said judgment are
not identical. In the matter of Vadilal Maganlal Trevadia vs. Bombay
Municipal Corporation and others (supra) the Hon'ble High Court
granted permission to reconstruct structure to the petitioner and there
was allegation by the B. M. C. that reconstructed structure was not as
per the permission granted by the Hon'ble High Court. In the case at
hand, facts are not similar. Hence the said judgment is not helpful to the
plaintiff.
24] As stated earlier, the plaintiff has miserably failed to prove
existence of structure prior to 1964. None of the documents relied by
the plaintiff show existence of structure prior to the datum line.
Defendant B. M. C. issued notice under Section 351 of the M. M. C. Act
and passed a reasoned order by considering reply and documents
submitted by the plaintiff. No fault could be found in the procedure to
be followed before taking demolition action. Therefore, I hold that the
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plaintiff has failed to prove that the impugned notice is illegal and bad-
in-law and, accordingly, I answer issue No.1 in the negative.
AS TO ISSUE No.2 :-
25] The present suit has been filed to challenge notice issued by
defendant/B. M. C. under Section 351 of the M. M. C. Act. Defendant
B. M. C. took defence that in absence of statutory notice under Section
527 of the M. M. C. Act suit is not maintainable. Admittedly, the
plaintiff has not given statutory notice under Section 527 of the M.M.C.
Act before filing present suit. As per the provisions of Section 527 of the
M. M. C. Act there is bar for filing suit in respect of any act done in
pursuance or execution of the act or any neglect or default in the
execution of this Act without statutory notice under Section 527 of the
M. M. C. Act.
26] Learned advocate for the plaintiff submitted that the
plaintiff has taken out Notice of Motion for urgent relief. He further
submitted that it is settled principle of law that when plaintiff wants to
seek immediate relief from the Court in the form of injunction it is not
necessary for him to wait till the period of statutory notice is over.
27] It is useful to refer the judgment of the Hon'ble High Court
in the case of Motillal Mahadev Sharma and others Versus Municipal
Corporation of Greater Bombay (2005 SCC OnLine Bom 401) in which
it is held that,
“
Plaintiff filed suit for declaration and also for consequential relief of
injunction against Corporation and when the plaintiff wants to seek
immediate relief from the Court in the form of injunction, it is not
necessary for him to issue statutory notice or wait till the statutory
notice is served and the period prescribed under section 527 of the
Act is over”.
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28] In above referred judgment the Hon'ble Bombay High Court
held that if plaintiff want to seek immediate relief from the Court in the
form of injunction it not necessary for him to issue statutory notice and
wait till the period prescribed under Section 527 of the M. M. C. Act is
over. In the case in hand, the plaintiff had taken out Notice of Motion
for temporary injunction restraining the defendant B. M. C. from taking
any action on the basis of notice under challenge. Therefore, in view of
above referred judgment I find no substance in contention of defendant
B. M. C. that suit is not maintainable for want of statutory notice under
Section 527 of the M. M. C. Act. Accordingly, I answer issue No.2 in the
negative.
AS TO ISSUE No.3 :-
29] In view of my negative finding as to issue No.1 the plaintiff
is not entitled for the reliefs claimed. Accordingly, I answer issue No.3 in
the negative and in answer to issue No.4 pass following order :-
O R D E R
1] Suit is dismissed with costs.
2] Decree be drawn up accordingly.
Date : 12/11/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT.”
19/11/2024 11:15 a. m. V. V. Kulkarni
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
JUDGMENT
12/11/2024
JUDGMENT Typed on 18/11/2024
JUDGMENT signed by P. O. on 19/11/2024
JUDGMENT uploaded on 19/11/2024
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