Final Order 2

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 2778 OF 2019
IN
L.C. SUIT (STAMP) NO. 6416 OF 2019
Bright Brothers Enterprises Builders and Developers )...Plaintiff.
Versus
The Municipal Corporation of Greater Mumbai )
& Ors. )...Defendants.
Appearance:
Ld. Advocate Mr.V.P.Shastri for plaintiff.
Ld. Advocate Mr.Vikrant Parshurami a/w. Mr.B.S.Sutar for
defendant/BMC.
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
DATE : 06/11/2019 (C.R.No.06)
O R D E R
This notice of motion has taken out by the plaintiff for
temporarily restrained to the defendants from enforcing the
Notice Number E/DO2 E/209/531MRTPACT/E 47 No1/09/08/2016
Dt.09/08/2016, Notice number ACE/274 SRABLDG. Dt. 13/4/2017,
Notice Number ACE/678/SRA BLDG Dt.01/04/2019 and Notice
Number ACE/804 SRA BLDG Dt. 14/06/2019 till final disposal of the
suit.
2. Brief facts of the case of the plaintiff.
The present suit is filed by the plaintiff for declaration and
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injunction under section 34, 37 and 38 of The Specific Relief Act 1963
r/w. Section 9 of C.P.C. Along with order 39 Rule 1 and 2.
The property situated at C.S.No.774 of Byculla Division Building
No 18.20 bearing cess. No.E1400 and E1401, situated at 5th
Kamathipura, Mumbai400089( hereinafter referred to as the suit
property).
3. The plaintiff is a Company/partnership firm incorporated under
the provisions of the Indian Partnership Act 1932. The plaintiff was
appointed as a Developer in respect of suit property. The land on which
the redevelopment of the existing building was supposed to be carried
out by the plaintiff was owned by MHADA and hence the plaintiff was
required to seek NOC from MHADA for the proposed redevelopment
and hence MHADA vide its letter dated 26th August 2009 granted NOC
for the redevelopment of the said plot. (Hereto annexed and marked as
ExhibitA is the copy of letter dated 26th August 2009 issued by
MHADA in favour of the plaintiff). Vide the said letter MHADA had
granted NOC for carrying out redevelopment of the property set out
with FSI of 2.5 or the FSI required for rehabilitation of existing
occupiers plus 50% incentive FSI whichever is higher in accordance
with the modified DC regulations 33(7). The terms and conditions for
carrying out redevelopment on the said plot was set out by MHADA
vide its letter dated 26th August 2009.
4. Pursuant to the NOC granted by MHADA, the plaintiff applied for
permission for carrying out development along with tentative plans with
the defendants, and the defendants vide its letter dated 16th January,
2010, granted IOD for construction of the suit property u/s.346
of the Municipal Corporation Act vide its letter
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No.EB/CE/EB/5/33/E/A/B5/A. The copy of IOD issued by the
defendants here to annexed and marked as Exh.'B' to the plaint. The
defendant vide its letter dated 15th May, 2010 issued commencement
certificate carrying out redevelopment work of the suit property as per
the sanction plans. Initially the commencement certificate was granted
upto 14th May, 2011 and the said commencement certificate for further
extended by the defendants by their validation dated 21st September,
2012 and commencement certificate was granted for the entire 23
floors pursuant to the approved plan dtd. 16th January 2010( Hereto
annexed and marked as Exhibit 'C' is the copy of the commencement
certificate dated 15th May 2010 issued by the defendants in favour of
the plaintiff. The defendant no. 1 is the MCGM and is the authority for
sanctioning of the plans and the Development Control Rules and further
provisions of MCGM Act and MRTP Act. The defendant No.2 is th Asstt.
Municipal Commissioner of the said region where the subject matter
property situated whereas the defendant no. 3 is the officer of
defendant no. 1 who is involved in discharging duties in respect of grant
of planning permission in the building proposal department. The
defendant no. 4 is the ward officer of EWard who has been assigned
with the duties of enforcing the acts.
5. The plaintiff further submitted that the defendants issued notice
dated 9th August 2016 under section 53(1)of the MRTP Act calling
upon to the plaintiff to demolish certain portion of the structure which
is annexed along with the letter dated 9th August 2016 ( Notice is
annexed and marked as Exhibit 'D'). After the receipt of the letter dated
9th August 2016(Exhibit 'D') the plaintiff carried out the correction in
the work and further demolished all the temporary structures in the
building as per the notice issued by defendant. The plaintiff requested
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the defendant of Eward to consider the amended plans submitted by
him which was in consonance with the existing Development and
regulations and accordingly the amended plans of the building proposal
with fungible FSI as per revised DCR 35(4) for sale and rehabilitation
component submitted by plaintiff to the defendant and the plaintiff
further express their desire to pay the necessary changes necessary for
carrying out regulations plans( Annexed and marked as exhibit 'E' is the
copy of letter dated 29th November, 2016 issued by the plaintiff to the
defendants).
6. The plaintiff further sates that the defendant once again issued a
letter dated 13th April 2017 under section 488 of the M.M.C.Act calling
upon the developers i.e. the plaintiff as well as some of the eight
occupiers of the suit premises that the defendants under power vested
in the section 68 of the M.M.C.Act alongwith section 488 of the said act
shall carry out demolition in respect of the premises and is owned by
the various occupiers ( here to annexed and marked as Exh.'F'). After
the receipt of the letter dated 13th April, 2017. The plaintiff by the
letter dated 17th April 2017 addressed to the defendants setting out
that the plaintiffs have already demolished the temporary structure and
the structures of the parking floors and refugee are in the said
redeveloped building as per the preferences of the MCGM and notices
issued by defendants under MRTP Act. The plaintiff also called upon
defendants representative/authorized representative to visit the said
site and inspect the redeveloped building. The plaintiff further
submitted that they have already submitted the amended plans at the
building proposal with fungible FSI as per revised DCR 35 (4) for sale
and rehabilitation component which was existing on the said lay out
remaining to be utilized. The plaintiff states that they had also
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expressed their intent to pay the changes/premium as required for
approving the amended plans .(Here annexed and marked as Exh.'G').
7. The plaintiff further states that the defendants by its letter dated
01/04/2019 issued to the occupiers of the building of various floors
issued notice under section 68 of M.M.C. Act read with section 488 of
M.M.C. Act informed the flat occupiers set out therein that the
defendant shall demolish the notice structure as per notice dated
09/08/2016 as exhibit 'D' to the plaint. ( hereto annexed and marked as
Exh. 'H' is the copy of letter dated 01/04/2016. The defendants once
again issued a notice dated 14.06.2019 which has been pasted on the
building where the redevelopment has taken place and have threatened
to demolish the floor nos 5, 6, 7, 8, 12, 15, 19, 20 and 23 of the suit
property under which redevelopment have been taken place ( The copy
of the letter dtd. 14.06.2019 is hereto annexed and marked as Exh.'I').
A perusal of the said letter and the earlier dated 01/04/2019 will show
that in the present letter the floors have increased in the present three
additional floors have been added.
8. The plaintiffs further states that notices dated 09.08.2016,
1/4/2019, and 14.6.2019 the defendants have purported to pass an
order for removal/demolition of the alleged unauthorised work carried
out by the plaintiff served on 14.06.2019 within 48 hours without
giving any hearing and describing as to why the floors set out under
the notice is illegal. The plaintiff has been deprived with the
opportunity to set up his case by of allowing the production of
documents/sanctioned premises etc as per stipulated time period or
notice. This is with regard to the fact that the plaintiff has demolished
the construction in parking area, refugee area and temporary
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accommodation and have submitted amended plans in respect of the
remaining flats alleged to be unauthorised. The amended plans was
submitted vide Exh. J to which there is no reply till date. Hence, this
notice of motion.
9. The defendants resisted this notice of motion by filing reply cum
written statement. Brief reply of the defendants are as under.
The defendants denied averment in the notice of motion and
plaint. It is the contentions of the defendants are that the present suit
and notice of motion are not maintainable. The plaintiff has failed to
give statutory notice under section 527 of the Bombay Municipal
Corporation Act. The plaintiffs have challenged the notice under
section 53(1) of MRTP Act, hence this court has no jurisdiction to try
and entertain the present suit as per provision of section 149 of MRTP
Act dated 09.08.2016 bearing no. E/D02E/209/531
MRTP/E47NO1/09/08/2016 and subsequently notices issued under
section 488 of the MMC Act in lieu of 53(1) notice. Hence, it is
important to note that the plaintiff challenged the notice after 3 years.
Thereafter, notice of motion as well as the suit is misconceived,
malafide and nothing but abuse the process of law and the forum
provided by this Hon'ble Court and to take advantage of his own illegal
actions.
10. The defendants have further submitted that the plaintiff has made
baseless claims of filing amended plans etc. but the said
statement/averment is without any documentary proof. The plaintiff
has not annexed any copy of any amended plan. The plaintiff has
merely written to the defendant to consider some plans as per the
statement of plaintiff but the plaintiff has failed to follow the due and
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settled process of seeking approval of an amended plan which the
plaintiff, being in the construction business is required to have
knowledge about.
11. The defendants have further submitted that the plaintiff has
illegally constructed as pointed out in the notice at Exh.'D' to the plaint
and the same is required to be demolished and for the said purpose the
defendant had already initiated the appropriate procedure and was
proceeding to act on their notice following due process of law and have
given all possible opportunities at all times to the plaintiff to putforth
their bonafide but the plaintiff has time and again accepted the
illegalities and irregularities and the same is matter of record and
despite the said acceptance, the plaintiff has gone ahead and further
made illegal additions, constructions, modifications and alterations as
stated in the notice of the defendants at Exh. 'D' to the plaint. On the
other hand, the plaintiff has been sleeping over the entire process and
has never taken any appropriate steps. The plaintiff is merely pushing
the blame on the defendant no. 1 and its officer in order to gain
advantage out of the inaction and illegal action on the part of the
plaintiff.
12. The defendants further state that the plaintiff has not come with
clean hands and suppressed material facts from this Hon'ble Court. The
plaintiff has abused the process of law and whereas the defendants have
followed due process of law and initiated the necessary action within
the four corners of law. The plaintiff has not made out any prima facie
case. It will cause irreparable loss and damage to the defendant no. 1
and further it will send out a wrong message to the people at large and
will lead to miscarriage of justice and cause immense loss and injuries
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to the defendant Corporation. Hence, present notice of motion of the
plaintiff may kindly be dismissed with costs.
13. Heard both the learned counsels on both sides at length, perused
notice of motion of the plaintiff, reply of the defendants hereon.
Perused record.
14. Following points arise for my consideration. I have recorded my
findings thereon with reasons below.
POINTS FINDING
1. Whether the plaintiff proves prima facie
case ? No
2. Whether balance of convenience lies in
favour of the plaintiff ? No
3. Whether the plaintiff proves irreparable loss,
if this notice of motion is not granted in its
favour ? No
4. What order ? As per final order
As to point Nos. 1 to 3:
15. On perusal notice of motion of the plaintiffs, plaint, reply cum
written statement of the defendants, affidavit of both the parties, it
appears to me that it is admitted facts that the property situated at
C.S.No.774 of Byculla Division Building No.18.20, bearing Cess No. E
1400 and Ex1401, situated at 5th Kamathipura, Mumbai is the suit
property. It is further admitted facts that the defendant no.1/Municipal
Corporation of Greater Mumbai issued first notice bearing no.
E/D02E/209/531MRTP Act/E47N01/09/08/2016 dated 09.8.2016,
( Exhibit 'D'), under section 53(1) of MRTP Act calling upon the
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plaintiff to demolish certain portion of the structure which is mentioned
in the said notice. The defendant no.1 issued 2nd Notice bearing No.
ACE/274/SRABLDG dated 13th April 2017 under section 488 of MMC
Act which is at Exhibit 'F' ) calling upon developer i.e. plaintiff as well
as some of the occupiers of various floors of the suit building for
demolition in respect of the premises which are owned by the various
occupiers. The defendant no.1 issued 3rd Notice No ACE/678/SRA
BLDG dated 01/04/2019 (which is at 'H') to the plaintiff and various
occupiers of various floors of the suit premises under section 68 of the
MMC Act read with Sec. 488 informed the occupiers that the defendants
shall demolish notice structure as per notice dated 09.8.2016. The
defendant no. 1 issued 4th Notice No. ACE/804/SRA BLDG, Dtd.
14.6.2019 ( which is at Exhibit 'I') to the plaintiff and occupiers wherein
threatened to demolish the floor numbers 5, 6, 7, 8, 12, 15, 19, 20 and
23 of the suit premises under which redevelopment have been taken
place.
16. The learned counsel on behalf of the plaintiff has vehemently
argued that the plaintiff was appointed as a developer in respect of the
suit property. The land on which the redevelopment of the existing
building was supposed to be carried out by the plaintiff was owned by
MHADA. MHADA vide its letter dated 26th August, 2009 granted NOC
for the redevelopment of the said plot. Copy of letter dated 26th
August, 2009 issued by MHADA in favour of plaintiff is annexed and
marked as ExhibitA. Vide the said letter, MHADA had granted NOC for
carrying out redevelopment of the suit property with FSI of 2.5 or the
FSI required for rehabilitation of existing occupiers plus 50% incentive
FSI whichever is higher in accordance with the modified DC regulations
33(7) pursuant to the NOC granted by MHADA. The plaintiff applied for
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permission for carrying out development along with tentative plans with
the defendants and the defendants vide its letter dated 16th January
2010 granted IOD for construction of the suit property. ( The copy of
IOD issued by the defendant Municipal Corporation of Greater Mumbai
is marked as Exhibit 'B'). Pursuant to approved plans dated 16th
January 2010, issued by the defendant/Corporation the plaintiff
constructed building of 23 floors. Copy of C.C.dated 15th May 2010 is
annexed and marked at Exhibit 'C'.
17. The learned counsel for the plaintiff further argued that as per
notice issued by the defendants/Corporation to the plaintiff dated 9th
August 2016 which the plaintiff annexed with the plaint as marked as
Exhibit 'D'. The plaintiff carried out the corrections in the work and
demolished all temporary structure in the building. The plaintiff further
requested to the defendants to consider the amended plans submitted
by the plaintiff which was in consonance with the existing development
and regulations and accordingly the amended plans of the building
proposal with fungible FSI as per revised DCR 35 (4) for sale and
rehabilitation component submitted by the plaintiff to the defendants
and the plaintiff further express their desire to pay the necessary
charges for carrying out regulation plans. Copy of letter dtd.29th
November, 2016 issued by the plaintiff to the defendants is annexed
with the plaint is marked at Exhibit 'E'.
18. The learned counsel on behalf of the plaintiff further submitted
that the alleged construction of notice issued by the defendants to the
plaintiff as well occupiers untill the consideration of the amended
proposed regulation plan, the plaintiff is entitled to protect the suit
premises.
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19. The learned advocate for the defendants argued that the plaintiff
has failed to give statutory notice under section 527 of the Bombay
Municipal Corporation Act to the defendants before filing of the suit.
The plaintiff has made baseless claims of filing amended plans etc. but
the said statement is without any documentary proof. The plaintiffs
have not produced any amended plaint for regulation. The plaintiff has
illegally constructed as pointed out in the notice at Exh. 'D' to the plan
and the same is required to be demolished and for the said purpose the
defendant had already initiated the appropriate procedure and was
proceeding to act on their notice following due process of law and have
given all possible opportunities at all times to the plaintiff to putforth
their bonafide but the plaintiff has time and again accepted the
illegalities and irregularities and despite the said acceptance the
plaintiff has made further illegal additions, construction, modification
as stated in the notice of demolition.
20. The learned counsel of the defendants argued that the plaintiff
has not come with clean hands. The plaintiff has admitted that he has
constructed illegal and unauthorised construction. The plaintiff has not
made out prima facie case, balance of convenience is not in favour of
the plaintiff. The plaintiff will not suffer any irreparable loss if this
notice of motion is not granted in favour of the plaintiff. Hence, this
notice of motion may kindly be dismissed with costs.
21. On scrutiny of the pleadings of both the parties and arguments
advanced on behalf of both the sides, it appears that it is admitted that
the plaintiffs have challenged notices bearing No.E/DO2 E/209/531
MRTPACT/E 47 No1/09/08/2016 Dt.09/08/2016, Notice number
ACE/274 SRABLDG. Dt. 13/4/2017, Notice Number ACE/678/SRA
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BLDG Dt.01/04/2019 and Notice Number ACE/804 SRA BLDG
Dt.14/06/2019. It is material dispute in between the parties are that
according to the plaintiff the notices mentioned above issued by the
defendant Corporation are illegal. The plaintiffs after receipt of first
notice under section 53(1) of MRTP Act dated 09/08/2016 demolished
temporarily construction which are mentioned in the notice of the
defendant dated 09/08/2016. According to the defendant Corporation,
the plaintiffs have constructed unauthorised construction beyond the
limit of sanction plan. The unauthorised construction mentioned by the
defendant Corporation in the first notice under section 53 (1) of MRTP
Act dated 09/08/2016 which are mentioned in the schedule. The
plaintiffs have not removed and demolished the unauthorised
construction which are mentioned in the first notice dated
09/08/2016. Therefore, the notices mentioned above issued by the
defendant Corporation are legal .
23. In order to ascertain that whether the plaintiff has made
unauthorised construction in the suit building which are mentioned in
the first notice under section 53(1) of MRTP Act dated 09/08/2016 and
despite of receipt of the notice, the plaintiffs are not removed or
demolished the said construction. So, I have scrutinized the documents
produced on behalf of the plaintiffs under list of documents. The notice
issued by the defendant Corporation to the plaintiff under section 53(1)
of the MRTP Act 1966 dated 09/08/2016, is produced by the plaintiff at
Exh.'D'. It appears that in the schedule of the said notice, the
unauthorised construction and alteration shown in the schedule of the
said notice. After receipt of the said notice at Exh.'D', the plaintiff issued
letter to the defendant Corporation dated 29/11/2016 which is Exh.'E'.
On scrutiny of the said letter the plaintiff has mentioned that the
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plaintiffs have removed or demolished of the temporary structures in
the said building and the plaintiffs have submitted the amended plans
at the building proposal with fungible FSI as per revised DCR 35(4). It
means according to the plaintiffs, the plaintiffs have demolished
unauthorised construction which are mentioned in the notice dated
09/08/16 which is at Exh. 'D'. The notice under section 488 of the MMC
Act issued by the defendant Corporation dated 13/04/2017 stating that
the defendant will come on the suit premises for demolition dated
17/4/17 as per the notice dated 09/08/2016. The said notice is
produced by the plaintiffs at Exh.'F'. The plaintiffs again issued letter to
the defendant Corporation dated 17/04/2017 stating that the plaintiffs
have already demolished unauthorised structure which are mentioned
in the notice issued by the defendant dated 09/08/2016. The said letter
is produced by the plaintiff at Exh.'G'. The defendant Corporation issued
notice dated 01/04/19 stating that the defendant corporation will come
at the suit premises and demolished the unauthorised structure on 2/3
April 2019 as per the notice dated 09/08/2016. The said notice dated
01/04/19 is at Exh.'H'.
23. From the above mentioned documents produced on behalf of the
plaintiffs, it appears that the plaintiffs have admitted unauthorised
construction by letter dated 29/11/2016 which is at Exh.'E' and the
letter dated 17/04/2017 which is at Exh.'G'. It is pertinent to note that
the plaintiffs have not produced any documents as to show that the
plaintiffs have demolished unauthorised structure which are mentioned
in the notice given by the defendant Corporation under section 53(1) of
MRTP Act dated 09/08/2016. The plaintiffs have also not produced any
documents as to show that the defendant Corporation sanctioned the
amended plans of the plaintiffs. Therefore, the plaintiffs have not
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proved prima facie case, balance of convenience also not lies in favour
of the plaintiffs . The plaintiffs will not suffer any irreparable loss, if this
notice of motion is rejected. As such, the plaintiffs is not entitled to
protect the suit structure. Hence, I proceed to pass following order.
ORDER
Plaintiffs notice of motion no.2778/2019 is hereby dismissed.
Date :06/11/2019 (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on: 06/11/2019
Transcribed on:07/11/2019
HHJ signed on: 08/11/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
08/11/2019 5.00 p.m. Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.06)
Date of Pronouncement of
Judgment/Order
06/11/2019
Judgment/order signed by P.O on 08/11/2019
Judgment/order uploaded on 08/11/2019
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