Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.:MHCC010072842018. 1 Notice of Motion No. 2260/2018
in L.C. Suit No. 1799/2013.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2260 OF 2018.
IN
L.C. SUIT NO. 1799 OF 2013.
Bharat Ashok Manek. ............………………….. …. PLAINTIFF.
V/s.
MCGM + 2. ….....……………………………….. … DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 11th July, 2023.
APPEARANCES :
Mr. Bipin Joshi, Ld. Advocate for the Plaintiff.
Mrs. Smita Chavan, Ld. Advocate for the Defendant/ MCGM.
*****
01. The plaintiff has taken out the Notice of Motion (for brevity
‘the NM’), to restrain defendant No.1 from executing the notice of dtd.
10.04.2013 issued U/s. 354A of the MMC Act, against the suit premises.
Perused this NM, accompanying affidavit and reply of the defendants. I
have gone through the written submissions on NM, filed by the plaintiff
and defendant No.1.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in her favour? …..........….................
Common Finding
Yes, till defendant
No.1 follows the
due process of
law.
(ii). Whether balance of convenience lies in
favour of the plaintiff? ….…..…............... …
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim reliefs, as
prayed for, are not granted?.…................
(iv). What Order? …..........….…...................... …As per final Order.
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CNR No.:MHCC010072842018. 2 Notice of Motion No. 2260/2018
in L.C. Suit No. 1799/2013.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are interconnected, to maintain the brevity,
I am taking the same for a joint discussion. By filing this suit and NM,
the plaintiff contended that he is in use of the suit premises, comprising
of Ground + 2 upper floors. Initially, it was occupied by M/s. Hindustan
Breweries and Bottling Ltd. Company and it was transferred the same in
favour of the plaintiff and his father in virtue of agreement of sale dated
06.09.2008. He also has the assessment bills, ration card, passport, etc.
pertaining to the suit premises. Surprisingly, by issuing the notice dated
10.04.2013, the defendant contended that by illegally demolishing the
earlier structure, the plaintiff found carrying re-construction of the same
with MS section, admeasuring 16.1 X 11 X 9.1 meter. However, he did
not carry any such construction. He replied this notice on 13.04.2013.
Still, on 18.04.2013, the Officers of defendant visited the suit premises
and threatened to demolish the same. Therefore, he had to file the suit,
along-with this NM. At this stage, he supported his contentions by filing
the Agreement of sale, Property Register Cards, Assessment bills, Tax
receipts, etc.. He further relied upon the cases of Vijay International Pvt.
Ltd. Vs. Commissioner, Municipal Corp., in Writ Petition No.1323/2005,
dated 28.06.2006, M/s. Shah and Co. Vs. M.C.G.M., in Civil Application
No.127/2013, dated 31.01.2013, Sopan Maruti Thopte Vs. Pune M.C.,
AIR 1996 Bom. 304 and Muni Sarvat Swami Jain S.M.P. Sangh Vs. Arun
Nathuram Gaikwad, AIR 2007 SC 38. Assailing the NM, defendant No.1
contended that initially on 03.12.2012, in view of the routine inspection
the plaintiff found carrying some construction and it was in progress. As
such, the inspection report was drawn, photographs were taken and the
notice dated 03.12.2012, U/s. 354-A of the MMC Act, was issued. As he
did not reply the said notice, initially, the matter proceeded ahead. On
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CNR No.:MHCC010072842018. 3 Notice of Motion No. 2260/2018
in L.C. Suit No. 1799/2013.
03.01.2013, the plaintiff replied this notice, informing that he applied
for permission to carry repairs. Defendant No.1 called the remark from
concerned department and he was informed that submission of letter is
not submission of proposal by the plaintiff. Later, the said site was kept
under observation. However, on 10.04.2013, the plaintiff found carrying
illegal construction by demolishing the existing structure. The same was
in progress. Hence, the photographs were taken and this notice came to
be issued. He replied the same on 15.04.2013 and after considering his
stand, on 27.04.2013 the Speaking Order was passed. In support of his
contentions, at this stage, he relied upon the documents, filed as per list
at Exhibit 12, in the form of the notices, photographs, letters to Police
Station, notice reply and the Speaking Order. Whereas, defendant No.2
contended that the plaintiff carried said construction by demolishing the
old structure. He is not having any sanction plan or permission therefor.
04. Having considered the rival submissions, at the outset, it is
to be noted that it is nowhere the plaintiff’s case that after securing due
permission from defendant No.1 or as per the sanction plan, this notice
structure was brought into existence. That is why, even when the plaint
averments are silent on this aspect of due permission/sanction plan. On
the contrary, he trying to justify this structure by contending that it was
already existing. More so, it is assessed to the taxes and he did not carry
any such construction. With reference to his contentions, here, it is to be
noted that by the notice dated 10.04.2013, defendant No.1 is targeting
'unauthorized demolition' of the existing structure and its re-erection, in
given dimension. However, perusal of the documents i.e. the Agreement
of sale, Property Register Cards, Assessment bills, Tax receipts, etc.. now
relied by the plaintiff, do not co-relate with such a description of notice
structure. Therefore, it is nowhere established that this notice structure
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CNR No.:MHCC010072842018. 4 Notice of Motion No. 2260/2018
in L.C. Suit No. 1799/2013.
existed since long. Nor, the plaintiff could not substantiate that he only
carried 'minor repairs' to the suit premises. On this backdrop, it can be
safely inferred that he couldn't show authenticity of the notice structure.
Much less, he could satisfy that it is otherwise protected by law. Hence,
the ratios laid in the cases of Vijay International Pvt. Ltd. and M/s. Shah
and Co., Cited Supra, are not helpful to the plaintiff.
05. Continuing the discussion, here, it wouldn't be out of place
to mention that defendant No.1 issued the notice dated 10.04.2013 vide
Section 354-A of the MMC Act. As per his say, even prior to issuance of
this notice, on 03.12.2012, the said construction was found in progress
and therefore, the identical notice was given. Moreover, on 10.04.2013,
the plaintiff again found carrying such a construction and therefore, he
issued this notice. He contended that on both the occasions, he took the
photographs of the said construction and once drew inspection report as
well. However, the record is silent to assume on-going status of the said
construction. Needless to say that provisions of Sections 351 and 354-A
of the MMC Act operates in two different spheres. Further, Sect. 354-A
of the said Act has nothing to do with the aspect of demolition. Here, it
would be helpful to place reliance on the case of Sopan Maruti Thopte,
Cited Supra. In this case, the Hon’ble Bombay High Court pleased to lay
down some guidelines to be followed by defendant No.1 while targeting
the unauthorized structures. As such, he is required to draw a sketch of
the alleged construction and the panchnama. He is also expected to take
photographs, having digital details about the date, time and place of the
said construction. However, apparently, this exercise has not been done
by defendant No.1. This being a position, I am of the opinion that till he
follows the due process of law, the notice structure is to be protected. I
may make it clear that this finding should never be stretched to legalize
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CNR No.:MHCC010072842018. 5 Notice of Motion No. 2260/2018
in L.C. Suit No. 1799/2013.
the notice structure, as even the plaintiff failed to show its authenticity.
It simply means that defendant No.1 is at liberty to proceed against the
notice structure, by following the due process of law. Hence, I answered
point Nos. 1 to 3 in accordingly and in answer to point No. 4, I pass the
following Order :
-: O R D E R :-
(i). Notice of Motion No. 2260/2018 is partly allowed.
(ii). Defendant No.1, his agents, his servants and anybody
else claiming through him are hereby restrained from
proceeding against the notice structure, in view of the
notice dtd. 10.04.2013 and the Order dated 27.04.2013,
except by following the due process of law.
(iii). Notice of Motion No. 2260/2018 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 11.07.2023. City Civil Court, Mumbai.
Dictated on : 11.07.2023.
Typed on : 12.07.2023.
Checked and Signed on : 15.07.2023.
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CNR No.:MHCC010072842018. 6 Notice of Motion No. 2260/2018
in L.C. Suit No. 1799/2013.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
17.07.2023 at 2.43 p.m.
Name of the Stenographer
Ms. Manisha D. Hirole
Name of the Judge (with Court Room No.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 11.07.2023
Judgment/Order signed by P.O. on 12.07.2023
Judgment/Order uploaded on 15.07.2023
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