Final Order 1

Order Details: Notice of Motion
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Order in NM 2629/2019 in Suit 2006/2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2629 OF 2019
IN
S.C.SUIT NO.2006 OF 2019
(CNR NO. MHCC01-007234-2019)
Mr. Yakub Usman Kapadia …. Plaintiff
Versus
Mumbai Port Trust & Anr. ….Defendants
Appearance:
Advocate A.R. Pande for Plaintiff.
Advocate Roopadaksha Basu for Defendants.
CORAM : SMT. S.S. NAGUR,
JUDGE,
(C.R.NO.20)
DATE : 18/03/2021
ORAL ORDER
1. The Notice of Motion is filed by plaintiff thereby
seeking temporary injunction against defendants, servants,
agents, representatives, constituents and any person claiming
through the defendants be restrained from taking action against
plaintiff including demolition, in part or full of the suit structure
consisting of ground floor, mezzanine floor and terrace floor
situated at Cadastral Survey No. 129 of Princess Dock Division, in
pursuance of notice dated 29.06.2019 under Section 53(1) of
Maharashtra Regional Town Planning Act, 1966 (MRTP Act).
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2. The Notice of Motion is supported by affidavit of
plaintiff Yakub Usman Kapadia. He has adopted the contents of
the plaint. The plaintiff is claiming to be in possession of the suit
property purchased from Mr. Gigani Abdul Hamid Abdul Majid by
registered document dated 19.01.2011. The said person
purchased the property from Mrs. Anup Jagtar Singh by
registered document dated 27.08.2008.
3. The plaintiff has challenged the notice dated
29.06.2019 issued by defendant on various grounds stated in the
Notice of Motion and in plaint. The plaintiff has apprehension
that on the basis of the said notice the defendant will demolish
the construction of the suit property. Hence, the Notice of Motion.
4. The defendant filed reply through affidavit of
Jasaskar Bose, the Sr. Assistant Estate Manager of defendant no.
1. The defendant no. 1 has denied the contents of Notice of
Motion in toto. The defendant stated that the plaintiff has no
locus standi to file the suit. The Court has no jurisdiction to
decide the suit, as absolutely barred under Section 149 of the
MRTP Act. The plaintiff is an unauthorized occupant in
possession of the structure of the suit property without any
permission or authority of defendant no. 1. It is admitted that the
defendant no. 1 is sole and absolute owner of the suit property.
The documents relied by the plaintiff are documents permitting
repair of a godown structure and not any permission being
obtained from any competent authority to carry out construction
of first and second floor. The construction has been carried out
recently. The same is evident from survey of defendant no. 1.
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5. The defendant has initiated eviction proceeding
under Public Premises (Eviction of Unauthorized Occupants) Act,
1971 against occupants including plaintiff bearing case no. EO/E-
285 of 2019. Hence prayed to dismiss the Notice of Motion.
6. The plaintiff has filed rejoinder affidavit to the reply
of defendant and has denied the contents of reply affidavit. Both
the parties have stated the case laws and their ratio in the
pleading.
7. In view of above pleading of the parties, following
points arise for my determination and reasons with findings
thereon are as under :-
POINTS FINDING
1) Whether the plaintiff has
made out a prima facie case?
No
2) In whose favour balance of
convenience lies?
Defendant
3) Who will suffer irreparable
loss?
Defendant
4) What order? Notice of Motion is rejected.
REASONS
8. Heard advocate A.R. Pande for plaintiff and advocate
Roopadaksha Basu for defendant. Perused contents of Notice of
Motion and reply supported by affidavit. I have also gone through
the plaint and documents relied by both the parties.
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As to point no. 1
9. The main objection of the plaintiff is the
appointment of the defendants as special planning authority and
their power to adjudicate and/or issue the notices for demolition
under MRTP Act. The defendant no. 1 has been conferred with
the Special Planning Authority by notification of Government of
Maharashtra dated 23.04.2018. The heading of the notification
shows that, the power is conferred under Section 40(1B) of
Maharashtra Regional Town Planning Act, 1966. The purpose of
conferring the power is to develop the area as a Port with
necessary amenities needed for the port activities of the
International standard and in view of this to have a complete
flexibility in spatial. The clause 1C of the notification states that
the direction is given to the Mumbai Port Trust to prepare and
publish the development proposals and development control
regulations for the said notified area and to submit the same to
the Government for sanction after following procedure prescribed
in the said Act.
10. The above notification is published under
Maharashtra Town Planning Act. Therefore, the objection raised
by the plaintiff about the maintainability of defendant no. 2 to act
as Special Planning Authority cannot be considered by this Court.
11. The plaintiff has disputed the appointment of the
officers to carry out the function as a Special Planning Authority.
The Special Planning Authority by notice dated 13.08.2016 has
delegated the powers under Section 53(8) of MRTP Act, 1966.
The name of the designated officer for the purpose of exercise of
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powers of the planning authority has been conferred to the
designated officers and their jurisdictional area as under :-
Sr. No.
(1)
Designated Officer (2) Jurisdiction over area (3)
1 Dy. Estate Manager-I Estate Department Unit Nos.
9,10,13,11, Part of Unit
12(Sassoon Dock), 14 and 15
2 Dy. Estate Manager-II Unit Nos. 1,2,3,4,5,6,7 and 8
3 Chief Security Officer Entire SPA Jurisdiction
12. The plaintiff’s challenge of the authority to the
officers of the defendant cannot be considered at this stage and
by this Court as per the above notification of Government of
Maharashtra. These powers are conferred to the defendant as a
Special Planning Authority and its officers by following the
procedure.
13. Section 2 (17) of MRTP Act defines, “occupier”
includes tenant, an owner in occupation of, or otherwise using his
land a rent free tenant in every land and any person in lawful
possession of any land who is liable to pay to the owner
compensation of the use and occupation of the land. Section
2(18) of the Act defines “Owner” includes any person for the time
being receiving or entitled to receive whether on his own account
or as agent, trustee, guardian, manager or receiver for another
person or for any religious or charitable purpose, the rents or
profits of the property in connection with which it is used.
14. It is not disputed by the plaintiff that defendant no.
1 a Bombay Port Trust is owner of the suit property. The plaint
para 5 states that defendant no. 1 is the owner and landlord of
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the suit property. The plaintiff in para no. 7 of the plaint stated
that the suit property was occupied by the original tenant Major
Jagtar Singh since prior to 1950 and after his demise widow of
Major Jagtar Singh by name Mrs. Anup Jagtar Singh became the
Administratix interalia all the suit property and defendant no. 1
has recorded the name of Mrs. Anup Jagtar Singh as its tenant by
virtue of letter of administration in respect of the suit property.
15. The plaintiff claims to be occupier of the suit
property which is purchased by him by registered Deed dated
19.01.2011 from its earlier occupant Mr. Gigani Abdul Hamid
Abdul Majid. The registered Deed is filed at Exhibit ‘A’ to the
plaint. It doesn’t disclose that consent of defendant no. 1 is
obtained to induct the plaintiff as its tenant and/or occupier of
the suit property. On the contrary, the person who has executed a
registered Deed dated 27.08.2008 too doesn’t have any authority
to let out the premises of defendant no. 1, who himself has claims
to have been purchased from the original occupant Mr. Anup
Jagtar Singh who is widow of Jagtar Singh and as per the
Heirship Certificate issued by the Hon’ble High Court. The
Heirship Certificate issued by the Hon’ble High Court did not
confer the pwers to Mrs. Anup Jagtar Singh to transfer the
property without consent of defendant no. 1.
16. The above facts discloses that the plaintiff himself
and its previous occupant was not lawful tenant/occupier of the
suit premises as they did not obtain consent of defendant no. 1.
The defendant no. 1 then too has issued notice under Section 53
of the MRTP and has given opportunity to the plaintiff to remove
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the unauthorized construction. The plaintiff has disputed that
there is any unauthorized construction and has relied on the
permission granted to its original lessee to repair the premises in
the year 1960. That document will not help the plaintiff to confer
legality to the unauthorized construction noticed by the
defendants.
17. The defendants have relied on the documents i.e.
inspection report and the report of Architect to show that from
time to time there is increase in construction of the suit property
as under produced along with reply dating back to the year 1995
till 2019.
i)Certificate of F.S.I. consumption of B.P.T plot No.
p.p. 1190 dated 12th Aug.1995.
Zone : C-1 zone as per sanctioned development plan
of B-ward of Bombay Municipal Corporation with
partly affected by reservation with partly affected by
reservation of Housing of Dishoused and T.P. Scheme.
Certificate of F.S.I Consumption :
Certified that we have surveyed the aforesaid plot on
22.07.95. The dimensions of sides etc. of the said
plot are measured on site along with existing
structures thereon. The plot area so worked out is
724.74m2 which tallies with the area stated in the
ownership/tenancy agreement of B.P.T authority. The
F.S.I consumption as per existing site condition site
condition and on the basis of D.C. Regulation
No.32(42)of Part-I and 35(1), commercial
zones(1)& 38(6) of part-II & III respectfully is I.o
only.
ii) Annexure C shows the survey report dated
26/09/95; 19/04/08; 21/04/11. The comparative
statement of built up area and F.S.I since 1995 is
summarized in Note Sheet as under:-
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Sr.
No.
Date of
survey
Report
submitted
by
Built up
area
F.S.I. Remarks
1 22/07/
1995
Tenant’s
Architect
724.83
m2
1 pg. 407 of
Vol II
2 26/09/
2005
Mbpt
Surveyor
763.69
m2
1.05 Pg. 5 of
Vol. III
3 19/04/
2008
Mbpt
Surveyor
843.42
m2
1.16 Pg. 147 of
Vol. III
4 21/04/
2011
Mbpt
Surveyor
1417.68
m2
1.96 Pg. 243 of
Vol III
5 02/12/
2016
Mbpt
Surveyor
2119.12
m2
2.92 Present
Survey
Report
iii) The letter dated 10/02/2014 by defendant to
Municipal Commissioner of Greater Mumbai to
demolish unauthorized construction and revoke any
permission granted earlier.
iv) The photographs showing the construction in the
suit premises. These photographs at this stage
cannot be considered as most of the photographs are
not clear.
18. The Plaintiff has relied on the following documents: -
i) The notice of Bombay Municipal Corporation dated
27/01/1960 under Section 354 of the Bombay
Municipal Corporation Act to pull down the ruinous
condition structure. The description of that structure is
as under:-
a) Replacement of old decayed wooden post &
Beam’s with New Bem’s & Post,
b) Replastering to brick masonary wall on
rear side of the premises,
c) Repair/Replace the old decayed wooden
Joist & Planks on 1st and terrace floor,
d) To repair the broken G.I. Sheet roof
above terrace,
e) To repair decayed wooden staircase
from ground to mezzanine & Terrace
Floor.
ii) The letter issued by D.K.Mistery Architect-Engineer
dated 15.02.1960 to Bombay Municipal Corporation to
grant permission to the existing godown with
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mezzanine floor and covered terrace.
iii) The letter dated 05.07.1960 issued by D.K.Mistery
to Bombay Municipal Corporation informing that as
per approval the repair work is completed.
iv) The letter dated 24.03.1960 issued by defendant
No.1 to the original lessee had granted permission to
carry out the repair but also cautioned not to
encroach on the adjoining portion of defendant No.1.
v) The permission granted by Bombay Municipal
Corporation dated 20.04.1960 .
vi) The notice issued by defendant No.1 dated
29.06.2019 to plaintiff and the original owner and the
earlier occupier under section 53(1)(a) of MRTP Act.
The Schedule is annexed to the notice showing the
type of completed unauthorized construction as
under:-
Description
of Premises
Contractual
relation
Types of
Construction
Status of
Construction
Plot bearing
old PR No.
1190
Elphinstone
Estate,
Mumbai
400009
Lessee, Mrs.
Anup Jagtar
Singh as
administratix
of estate of the
deceased late
Major Jagtar
Singh/ illegal
occupant Shri.
Yakub
Kapadia,
Proprietor of
M/s. Kapadia
Property Pvt.
Ltd.
(1) u/a
construction
of 1st floor,
(2) u/a
construction
of 2nd floor,
(3) u/a
covering of
open space.
Completed
vii) The reply dated 05.07.2019 to the notice dated
29.06.2019 by plaintiff to the defendant wherein the
similar contents as stated in the plaint about non
applicability of MRTP Act is stated in the notice reply.
19. Advocate for plaintiff and defendant has drawn my
attention to the map annexed to the plaint and reply. The
contention of advocate of plaintiff is that as per the said Map
there is no unauthorized construction. On the other hand,
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advocate for defendant stated that the unauthorized construction
is there. The defendant has relied on the documents to show the
unauthorized construction of the suit premises.
20. Advocate for plaintiff has relied on authorities
reported in
i)Laxman Barkya Wadkar (Since deceased through legal heir
and representative) & Ors. Vs. Mumbai Municipal Corporation of India
(BHC) in F.A. No. 1635 of 2010 dated 05.05.2011; ii) Mr. Yogesh Megaji
Gada Vs. The Municipal Corporation of Greater Mumbai & Anr. (BHC) in Writ
Petition No. 2243 of 2013 dated 10.04.2014; iii) Abdul Karim Mansoori Vs.
Municipal Corporation of Greater Mumbai in Writ Petition No. 2237 of 2013
(BHC) dated 13.09.2013; iv) Ram Swarup & Ors. Vs. Shikar Chand & Ors. in
Civil Appeal No. 116 of 1964 (SC) dated 10.11.1965; v) S. Vanathan
Muthuraja Vs. Ramalingam & Ors. in Civil Appeal No. 3039 of 1986 (SC)
dated 03.04.1997; vi) Dhruv Green Field Ltd. Vs. Hukam Singh and Ors. in
Civil Appeal No. 4565 of 2002 (SC) dated 05.08.2002; vii) Krishan Lal Vs.
State of J & K in Civil Appeal No. 964 of 1991 (SC) dated 25.02.1994; viii)
Abdulla Bin Ali and Ors. Vs. Galappa & Ors. (SC) in Civil Appeal No. 1812 of
1982 dated 01.02.1985; ix) Ramesh Chand Ardawatiya Vs. Anil Panjwani
(SC) in Civil Appeal No. 7919 of 2001 dated 05.05.2003; x) Dhulabhai &
Ors. Vs. The State of Madhya Pradesh & Ors. (SC) in Civil Appeal Nos. 260 to
263 of 1967 dated 05.04.1968; xi) Shiv Kumar Chadha & Ors. Vs. Municipal
Corporation of Delhi (SC) in Civil Appeal Nos. 2531-33 of 1993 dated
04.05.1993; xii) South Delhi Municipal Corporation & Anr. Vs. Today homes
& infrastructure Pvt. Ltd. (SC) in SLP No. 24282 of 2016 dated 19.08.2019.
21. Advocate for defendant has relied on authorities reported
in
Sarina Esmeralda Lopez Vs. Vijay Goverdhandas Kalantri & Anr. : 2015(2)
Mh.L.J. 603.
22. Advocate Pande for plaintiff has drawn my attention
to various authorities relied by him on the point of jurisdiction of
this Court that the notice issued by the defendant is a nullity.
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Therefore bar under Section 149 of MRTP is not applicable. The
various grounds are stated in the plaint as well as in the Notice of
Motion stating that the notice dated 29.06.2019 is null and void.
23. I have gone through the authorities relied by both
the parties. In the authorities relied by both the parties, in those
facts of the case they are occupants/owners. In those authorities,
those persons are not unauthorized occupants. In the present
facts of the case, the documents on record discloses unauthorized
construction in the suit property carried out by the plaintiff who
failed to disclose his right, title and interest in the suit property.
24. The plaintiff is relying the documents of 1960 to
show the permission of authorized construction in the suit
property stating that it is mezzanine floor and roof. It is for the
plaintiff to show prima facie that the constructed portion of the
repairs of the year 1960 was the same as present also. The period
of almost 59 years have passed and plaintiff is relying upon the
permission of the year 1960. The said permission of repair to
show that it is the same today without the proof of the same will
not suffice for the plaintiff to claim injunction from restraining
defendant from taking action to remove the unauthorized
construction.
25. The documents relied by the defendant show
unauthorized construction in the suit property that too by the
unlawful occupier without consent of the defendant no. 1. There
is nothing on record filed by the plaintiff to show that he is
paying rent and/or any amount for occupation to defendant no.
1. Nor there is any document by plaintiff’s predecessor to show
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that they are paying rent and/or any amount for their possession
in the suit premises. Under such circumstances, they cannot be
terms as authorized occupant of the suit property as per Section
2(17) of the MRTP Act. Hence, I hold that the plaintiff has not
made out any prima facie case to grant any relief in the Notice of
Motion and answer point no. 1 in Negative.
As to point nos. 2 to 4
26. The point no. 1 is answered in negative. The plaintiff
failed to prima facie prove that he is authorized “occupier” of the
suit premises. The plaintiff disputed the authority/power of the
defendant. The notification of Government of Maharashtra and
the notice issued by Special Planning Authority to the officers of
the defendant no. 1 shows that they are authorized to issue the
notice under MRTP Act and take necessary actions to remove the
unauthorized construction. Therefore, the challenge of the
plaintiff to the action of the defendant to take necessary steps to
remove unauthorized construction is proper and valid.
27. The main object of conferring power of Special
Planning Authority to defendants is to develop the area owned by
Bombay Port Trust to develop as a Port with necessary amenities
needed for the port activities of the International standard.
Therefore, I hold that the plaintiff has no locus standi to
halt/obstruct the development of defendant no. 1 only to gain
unauthorized possession in the suit premises. The plaintiff is not
disputing the ownership of defendant no. 1. Therefore, he cannot
obstruct the development activities of the defendant no. 1 only to
keep his possession intact.
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28. The plaintiff will not suffer any irreparable loss nor
the balance of convenience is in favour of plaintiff as he himself is
a unauthorized occupant. On the contrary, the defendant will
suffer irreparable loss as they will not be able to develop the area
of Bombay Port Trust for which special powers has been assigned
for them .The development of the port trust area is necessity of
the time to get international standard and smooth functioning of
the port trust which is going to help the future of the
transportation to the foreign countries and help the nation for its
progress. Hence, I hold that irreparable loss will cause to the
defendant and balance of convenience is in favour of defendant.
Accordingly answering point no. 2 and 3, pass following order :-
ORDER
1. Notice of Motion is rejected.
2. No order as to cost.
3. Accordingly, Notice of Motion is disposed of.
(S.S. Nagur)
Date : 18/03/2021 Judge
City Civil Court,
Greater Mumbai.
Dictated on : 18/03/2021
Typed on : 18/03/2021
Signed on : 19/03/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
19/03/2021 2.45 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.20)
Date of Pronouncement of
Judgment/Order.
18/03/2021
Judgment/order signed by P.O on 19/03/2021
Judgment/order uploaded on 19/03/2021
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