Final Order 1

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Pdf Text: 1 Order on MA 34-18 in L.C.SUIT 1209-14
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON MISC. APPLICATION NO. 34 OF 2018
(CNR no. MHCC010073022018)
IN
LONG CAUSE SUIT NO. 1209 OF 2014
(CNR no. MHCC010031972014)
Arvind Dayaram Rajgor ]
E27 Ground Floor, Mukand Staff CHS, ]
LBS Road, Ghatkopar West, Mumbai 86 ]....Plaintiff
V/s
1. Mumbai Municipal Corporation of ]
Greater Mumbai ]
Office of the Executive Engineer, ]
Building & Proposal Department, ]
Opp. Raj Legacy, Vikhroli (W), Mumbai 83. ]
2. Mukand Staff Co Op. Hsg. Soc. Ltd. ]
Vrindavan, L.B.S. Marg, ]
Ghatkopar (W), Mumbai 86. ]
3. Godrej Projects Development Pvt. Ltd. ]
Godrej Coliseum, C201, 2nd floor, ]
Nr. Lokmanya Pan Bazar, ]
Somaiya Hospital Rd., Behind Everard Nagar, ]
Sion (E), Mumbai 22. ]....Defendants
Appearances:
Ld. Advocate Mr. Rajgor for the Plaintiff.
Ld. Advocate Ms. Patil for defendant/BMC.
Ld. Advocate Ms. Amruta Sawant for defendant no. 2.
Ld. Advocate Mr. Patel for defendant no. 3.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 12th July, 2019
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2 Order on MA 34-18 in L.C.SUIT 1209-14
O R A L O R D E R
1. This is an application for making inquiry into offence referred to
in clause(b) of subsection(1) of section 195 of The Code of Criminal
Procedure, 1973 filed by the plaintiff.
2. Contentions of the plaintiff shorn of unnecessary details are as
under :
The plaintiff filed instant suit against MCGM(defendant no.1) for
permanent injunction for alleging that it did not follow procedure
prescribed in Government Circulars and against Society (defendant no.
2) for setting aside the forged Power of Attorney. In his affidavit in
reply dated 07.05.2014 to the notice of motion(for temporary
injunction), Shri Nakul Manohar Patil, Sub Engineer, Building &
Proposal Department of defendant no.1/MCGM, has made statement in
paragraph no. 5 "I say that the applicant has taken out notice of motion
and challenging the I.O.D. & sanctioned plan issued by the Corporation
after following due process of law". The Government resolution of Co
operation Department dated 19.10.2011 and circular dated 15.04.2013
specifically direct Defendant no. 1/MCGM to obtain N.O.C. from the
concerned Deputy Registrar of Cooperation Department. By the said
G.R. It is the incumbent upon Defendant no. 1 to obtain N.O.C. of the
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concerned Deputy Registrar of Cooperative Societies. However, the
same is not obtained and purported N.O.C. submitted by the Architect
has been accepted which is in fact no N.O.C. at all. since the same is
conditional upon the Developer complying the provisions of G.R. dated
09.01.2009. The defendant no. 1/MCGM has not followed said
directions and issued I.O.D. and sanctioned plans and made false
statement before this Court. Therefore, the plaintiff has prayed for
initiating inquiry under Section 340 of The Code of Criminal Procedure,
1973 as it is expedient in the interest of justice that inquiry should be
made into the offences punishable under Section 171, 182, 200 of IPC
committed by the Executive Engineer, Building and Proposal, ES/II
under whose instructions the said Affidavit was being prepared.
3. The defendant/MCGM has filed reply contending inter alia as
under: :
Contents of the application are totally false. Circular dated
15.04.2013 was withdrawn by the Government. The instant application
is made to delay the suit and to harass the officer of defendant/MCGM.
In the G.R. dated 03.01.2009, it is specified that "Local Authority should
obtain prior permission from respective Deputy, Assistant Registrar for
redevelopment project". In continuation to that defendant/MCGM
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issued a circular which said, "Cooperative Marketing & Textile Division,
Government of Maharashtra has issued a directive no. SAGRUYO
2007/Case no. 554/2014 (s) dated 03.1.2009 regarding redevelopment
of Cooperative Housing Society building/s. In this directive
redevelopment guidelines have been provided. Desk Officer, Co
operative Marketing & Textile Division in his corrigendum dated
19.10.2011 to directive no. SAGRUYO 2007/Case no. 554/14(s) dated
03.1.2009 has specified, whose Legal Authority should obtain prior
permission from respective Deputy/ Assistant Registrar for
redevelopment project. Incidentally, that at the time of submitting
proposal of redevelopment of Cooperative Housing Society building/s,
it is hereby made mandatory to verify certificate obtained by the
respective Deputy Assistant Registrar that the redevelopment guidelines
provided in direction issued by the Cooperative Marketing & Textile
Division, Government of Maharashtra vide directive no. SAGRUYO
2007/Case no. 554/14(s) dated 03.1.2009 and corrigendum dated
19.10.2011 to the said directive no. SAGRUYO 2007/Case no.
554/14(s) dated 03.1.2009 have been complied."
Building & Proposal Department of defendant MCGM handles
more than 1000 projects of redevelopment annually. It is not expected
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from planning authority to obtain N.O.C. in person for each and every
redevelopment project. The wording clearly states that, "prior
permission should be obtained." Accordingly, the respective Co
Operative Society obtained the N.O.C. for redevelopment of the
building from concerned Deputy Registrar. The Architect, being
appointed professional for submitting building proposal, had submitted
the NOC along with the relevant necessary documents. Accordingly, in
this case also, the society has obtained the NOC for redevelopment from
concerned Deputy Registrar and the appointed Architect has submitted
the NOC to the office of Building & Proposal Department. The said NOC
is prescribed as per the procedure laid down in the G.R. The defendant
no. 1 has not committed any offence. Therefore, there is no substance in
the application and the same be rejected.
4. Considering rival contentions, following points arise for my
determination. Findings on those points for the reasons mentioned
thereunder are as follows:
Sr.
No. POINTS FINDINGS
1. Whether inquiry into any offence
referred to in Section 195 of Cr.P.C. is
necessary ?
In the Negative.
2. What order ? Application is rejected.
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R E A S O N S
AS TO POINT NO. 1:
5. The main allegation made in the application is that the officer of
defendant no.1 namely Nakul Patil, Sub Engineer, Building & Proposal
Department, in his affidavit in reply dated 07.05.2014 made false
statement that the IOD and Sanctioned Plan was issued in respect of the
suit building after following due process of law. The learned advocate
for the plaintiff has pointed out that the defendant/MCGM has not
followed due process of law because as per G.R. dated 19.10.2011
defendant/ MCGM was duty bound to obtain NOC from concerned
Deputy Registrar of Cooperative Department but instead of obtaining
such NOC, defendant/MCGM has relied upon NOC submitted by the
Architect of defendant no. 2 Society. According to him, by not following
the G.R. and mentioning in the affidavit that due process of law is
followed by defendant/MCGM the officer namely Nakul Patil has
committed offence under Sections 177, 182 and 200 of I.P.C. and
therefore, the inquiry under Section 340 of the Code of Criminal
Procedure 1973 be initiated. After going through both G.R.s dated
19.10.2011 and circular of defendant MCGM dated 15.04.2013, the
latter circular has considered G.R. dated 19.10.2011. In last paragraph
of the circular it is mentioned "Incidentally, that at the time of
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submitting proposal for redevelopment of cooperative building/s, it is
hereby made mandatory to verify certificate obtained by respective
Deputy Assistant Registrar that the redevelopment guidelines provided
in directive Assistant of Cooperative Marketing and Textile Division,
Government of Maharashtra vide a directive no. SAGRUYO 2007/Case
no. 554/14(s) dated 03.01.2009 and corrigendum dated 19.10.2011 to
above directive have been complied". On the basis of this circular the
defendant MCGM has granted IOD after receipt of NOC dated
31.01.2012 of Deputy Registrar, Cooperative Societies, "N" Ward,
Mumbai. Therefore, there is no prima facie material to hold that false
information is given in the affidavit in reply by the officer Nakul Patil.
As stated hereinearlier, the plaintiff is challenging validity of IOD issued
by the defendant no. 1/MCGM for redevelopment of building of
defendant no. 2. If it will be proved that the defendant/MCGM has not
followed Government Resolutions while issuing IOD the plaintiff may
get the decree in his favour. It is not the case that the defendant MCGM
has issued IOD without considering or in absence of the NOC granted
by Deputy Registrar, Cooperative Societies. Therefore, merely because
the defendant no. 1 interpreted the G.R.s differently than what plaintiff
understood therefrom, it will not entail the defendant no. 1 for criminal
liability. The citations relied upon by the plaintiff are not applicable to
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the facts narrated above. For the reasons given above I do not find
merits in the application. Points no. 1 and 2 answered in the negative
and following order:
ORDER
1. Miscellaneous Application no. 34 of 2018 is rejected.
sd/
(C. V. Marathe)
Judge,
Date : 12.07.2019 City Civil Court, Gr. Mumbai.
Dictated on : 12.07.2019
Transcribed on : 12.07.2019
Signed by HHJ on : 19.07.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 19.07.2019 at 4.50 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
12/07/2019
JUDGMENT/ORDER signed by
P.O. on
19/07/2019
JUDGMENT/ORDER uploaded
on
19/07/2019
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