Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.2302/18 (LCS No.1755/18)
MHCC010074562018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.2302 OF 2018
IN
LONG CAUSE SUIT No.1755/2018
Nootan S. Bhat … Plaintiff
- Versus -
Municipal Corporation of
Greater Mumbai & Anr. ... Defendants
Appearance :-
Mr. Bipin Joshi, Advocate for plaintiff.
Mr. Om Suryavanshi, Advocate for defendants.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 05/08/2023.
O R D E R
. This is suit to challenge notice issued by defendant/B.M.C.
under Section 53 (1) of The Maharashtra Regional And Town Planning
Act (in short the M. R. T. P. Act) dated 2/5/2014 and the plaintiff has
taken out Notice of Motion for temporary injunction under O-XXXIX
Rule-1 of The Code of Civil Procedure (in short the C. P. C.) temporarily
restraining defendant/B.M.C. from implementing or acting upon order
dated 28/6/2018.
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2] In short, the plaintiff's case is that the plaintiff/firm is
owner of Natraj Cinema situated at C.T.S. No.901, S. N. Acharya Marg,
Chembur, Mumbai. One Mr. Modilal Kachra is a tenant of Natraj Cinema
and he is consistently making frivolous complaints to B.M.C. due to suit
for eviction against him. It is further stated that on the basis of
complaint defendant/B.M.C. has issued impugned notice. The plaintiff
has replied said notice on 28/1/2016 alongwith building plan and
amended plans. Then Designated Officer has passed order on
29/6/2016 directing the plaintiff to remove notice structure. Therefore,
the plaintiff was constrained to file Suit No.2574/2016 and the Court
has granted interim relief. The subject-matter of the present suit is order
dated 7/6/2018 in respect of unauthorized work i.e. (a) horizontal
extension of shops on the ground floor, Natraj Cinema building made up
of brick masonry walls, rolling shutter, roof covered by A/C sheets
admeasuring (i) 3.30 meters X 1.60 meters, (ii) 3.30 meters X 1.60
meters (iii) 3.30 meters X 1.60 meters, (iv) 3.30 meters X 1.60 meters
(v) 1.87 meters X 1.60 meters and (b) unauthorizedly encroached/
covered the corridor using of office, cabin lounge by using brick
masonry walls, roof covered by R.C.C. slab admeasuring 5.80 meters X
5.50 meters.
3] It is further stated that the construction of R.C.C. work and
rolling shutter is permanent in nature. The various documents and
plans relied by the defendants clearly show that Designated Officer
ignored subsequent event and material on record and passed speaking
order without application of mind. Notice structure has been
constructed as per the approved plan which is amended from time to
time. The building of Natraj Cinema has been constructed prior to 1962
and from time to time additions/alterations have been approved by the
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Corporation. However, without considering reply and documents
submitted by the plaintiff Designated Officer passed speaking order.
Thus, speaking order is illegal, bad-in-law and, therefore, the plaintiff
constrained to file this suit and taken out Notice of Motion.
4] Defendant/B.M.C. opposed Notice of Motion by filing reply-
cum-written statement. At the outset, it is stated that suit is not
maintainable for want of statutory notice under Section 527 of The
Mumbai Municipal Corporation Act (in short the M. M. C. Act). The
plaint discloses no cause of action. The plaintiff has not given
description of property, therefore, suit is liable to be dismissed under
Order-VIII Rule-3 of the C. P. C.
5] It is further stated that on receipt of complaint in respect of
unauthorized construction at Natraj Cinema the officer of the
Corporation visited site and inspected the premises on 9/9/2014 and
noticed unauthorized construction as shown in schedule to notice. By
the said notice occupier is directed to restore the premises as per last
sanctioned plan bearing No.C/2793/BPES/MISC/AM dated 23/8/1976
or to apply under Section 44 of the M. R. T. P. Act for retention of work.
Said notice has duly been served upon the plaintiff.
6] The plaintiff replied said notice on 2/5/2014 and again on
26/5/2014 given additional reply and requested for personal hearing.
Then again on 16/12/2014 submitted reply with certain plans.
Thereafter, this office called remarks from Building Proposal
Department and gave personal hearing to the plaintiff as well as the
complainant. Thereafter Assistant Engineer, M/West passed speaking
order on 29/6/2016 in which unauthorized construction at serial No.3
of notice was held as unauthorized and for rest of points in notice was
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kept in abeyance. In pursuance of said order defendant/B.M.C. issued
notice under Section 488 of the M.M.C. Act for demolition of
unauthorized encroachment at corridor i.e. structure at serial No.3.
However, the plaintiff obtained ad-interim injunction from this Court.
7] The complainant had preferred appeal to the Deputy
Municipal Commissioner, Zone-V against the order of Assistant
Commissioner, M/West dated 29/6/2016. Deputy Municipal
Commissioner, Zone-V directed to take search of original approved plans
and pass order. Then as per the directions of Dy. Municipal
Commissioner, Zone-V remarks were called from Executive Engineer,
Building Proposal (ES) and obtained the plans. It revealed that proposal
pertains to regularization of existing snacks bar and including kitchen to
retail shop on ground floor of Natraj Cinema building. However, plan
dated 2/2/1984 was not traceable. After perusing material on record
i.e. sanctioned plan Designated Officer passed fresh speaking order on
8/6/2018 whereby Designated Officer observed that notice structure
described at serial No. (1) horizontal extension of shops on the ground
floor Natraj Cinema building by using brick masonry walls, rolling
shutter, roof covered by A.C. sheets admeasuring (i) 3.30 meters X 1.60
meters, (ii) 3.30 meters X 1.60 meters (iii) 3.30 meters X 1.60 meters,
(iv) 3.30 meters X 1.60 meters (v) 1.87 meters X 1.60 meters, (2)
unauthorizedly construction of stalls by using M.S. sheet rolling roof
covered by A.C. sheet roof admeasuring 23.60 meters X 1.20 meters (3)
unauthorized encroached/ covered the corridor by using of office, cabin
lounge by using brick masonry walls, roof covered by R.C.C. slab
admeasuring 5.80 meters X 5.50 meters is illegal and unauthorized.
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8] The plaintiff has not challenged order dated 29/6/2016
holding that notice structures are constructed beyond the sanctioned
plan. The plaintiff has failed to establish that notice structure is in
existence prior to the datum line. The plaintiff has neither submitted
application for regularization of notice structure nor produced
documents showing authorization of notice structure.
9] It is further submitted that Defendant/B.M.C. has followed
due process of law. The plaintiff has not submitted documents proving
authenticity of notice structure. Therefore, the plaintiff is not entitled
for any relief.
10] 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 ? . . . Yes.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . Yes.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . Yes.
4) What order ? . . . Notice of Motion is
made absolute.
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- :: R E A S O N S ::-
AS TO POINTS No. 1 TO 3 :-
9] The plaintiff produced on record copies of order dated
29/6/2016, impugned notice, order, licences, reply, orders of the
Assistant Municipal Commissioner and Deputy Municipal Commissioner,
order of this Court, letters etc.
10] Defendant/B.M.C. produced on record copies of complaint,
inspection report, impugned notice, order, notice under Section 488 of
the M. M. C. Act, order of Dy. Municipal Commissioner, speaking order
etc.
11] Learned advocate for the plaintiff submitted that notice
structure is in existence prior to 1962. It is further submitted that main
theater building alongwith commercial building consisting of ground
plus 2 upper floors were constructed in 1961 as per the sanctioned plan
bearing No.GB/1900/A/1961 thereafter additions/alterations have
been carried out as per the plan sanctioned in 1963, 1966, 1976, 1983,
1987, 2008 and lastly 2012. However, without considering the
sanctioned plan and documents submitted by the plaintiff Designated
Officer passed speaking order holding that notice structure is
unauthorized. He further submitted that in 2016 Assistant
Commissioner by order dated 29/6/2016 came to the conclusion that
due to non-availability of the corresponding files it is not possible to
record findings about structure at serial No.1, 2 and 4 to 6. then in the
appeal preferred by the complainant Dy. Municipal Commissioner
directed Designated Officer to obtain files and pass speaking order.
Accordingly, Designated Officer passed order. However, he has not
considered the documents submitted on record. In his submission, the
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Corporation has not followed due process of law. Therefore, the plaintiff
is entitled for temporary injunction.
12] Advocate for the Corporation submitted that the plaintiff
has not produced documents i.e. permission/approved plan proving
authenticity of notice structure. It is further submitted that the plaintiff
was given opportunity of hearing and to submit documents.
Accordingly, after considering documents and reply Designated Officer
has passed speaking order. Therefore, the plaintiff is not entitled for any
relief.
13] The plaintiff has taken out this Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 of the C.P.C. Plaintiff is
seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a
prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
14] I have given thoughtful consideration to the submissions
made by learned counsel for the parties and material on record.
15] The plaintiff has challenged notice stating that notice
structure is in existence prior to the datum line and it is also challenged
on the ground that same is not in accordance with the provisions of the
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M. R. T. P. Act. Learned advocate for the plaintiff pointed out that as per
Section 53 of the M. R. T. P. Act notice of not less than a month is
required to be given. However, in the case on hand, by impugned notice
the plaintiff is directed to remove structure within 30 days. This shows
that notice is not in accordance with the provisions of the Act. The
plaintiff has challenged notice on the ground that notice is not as per
the provisions of Section 53 of the M. R. T. P. Act. Therefore, it is
necessary to reproduce provisions of Section 53 of the M. R. T. P. Act :-
“53. Power to require removal of unauthorised development.-
(1) Where any development of land has been carried out as indicated
in sub-section (1) of Section 52, the Planning Authority may, subject to
the provisions of this section, serve on the owner a notice requiring him,
within such period, being not less than one month, as may be specified
therein after the service or the notice, to take such steps as may be
specified in the notice-
(a) in cases specified in clause (a) or (c) of sub-section (1) of
Section 52, to restore the land to its condition existing before the
said development took place ;
(b) in cases prescribed in clause (b) or (c) of sub-section (1) of
Section 52, to secure compliance with the conditions or with the
permission as modified :
Provided that, where the notice requires the discontinuance of any use
of land, the Planning Authority shall serve a notice on the occupier also”
16] Section 53 (1) of the M. R. T. P. Act provides that if any
development of land has been carried out as indicated in sub-section (1)
of Section 52 of the M. R. T. P Act notice to the owner requiring him
within a period not less than month be served for taking steps. Thus, it
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is clear that notice under Section 53 (1) of the M. R. T. P Act needs to
be given of not less than a month. However, in the case on hand, the
impugned notice directs the plaintiff to remove structure within 30
days. Thus impugned notice is not as per provisions of law. There is no
notice of period not less than months as contemplated by Section 53 (1)
of the M. R. T. P. Act. Advocate for the plaintiff further submitted that
thus there is jurisdictional error while issuing notice under challenge.
On perusal of notice under challenge, it appears that notice under
challenge is not given as per the provisions of Section 53 (1) of the M.
R. T. P. Act. There is no notice of period of not less than one month as
contemplated by Section 53 (1) of the M. R. T. P. Act. Hon'ble Bombay
High Court in the case of Kishor S/o Ramalu @ Rambhau Telang Versus
The Municipal Commissioner, Nagpur Municipal Corporation & 3 Ors.
(Second Appeal No. 491 Of 2012) held that if the notice under Section
53 (1) is not of period of not less than month it cannot be said that
notice is under Section 53 (1) of the said Act. Therefore, in view of the
facts and circumstances of the case and judgment of the Hon'ble
Bombay High Court I find considerable force in submission of learned
advocate for the plaintiff that the Corporation has not followed due
process of law. It is well settled that drastic action of demolition cannot
be taken without following due process of law. In the case in hand, it
prima facie appears that the Corporation has not followed due process
of law and there is no notice as per Section 53 (1) of the M. R. T. P. Act,
therefore, the plaintiff is entitled for relief of temporary injunction.
Balance of convenience tilts in favour of the plaintiff. If temporary
injunction is refused the plaintiff would suffer irreparable loss.
Accordingly, I answer points No.1 to 3 in the affirmative and in answer
to point No.4 pass following order :-
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O R D E R
Defendant/B.M.C. is temporarily restrained from taking
action against notice structure pursuant to impugned notice and
speaking order till decision of suit.
Date : 05/08/2023. ( 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.”
19/08/2023 03:10 p.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 ORDER 05/08/2023
ORDER signed by P.O. on 19/08/2023
ORDER uploaded on 19/08/2023
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