Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION N0.3000 of 2019
IN
L.C.SUIT NO.2148 OF 2019
(CNR NO.MHCC010082062019)
Shri Jatin Ajit Meher )...Plaintiff.
Versus )
The Municipal Corporation of Greater )
Mumbai )...Defendants.
Appearance:
Advocate Mr.Kharat for plaintiff.
Advocate Mr.B.S.Sutar for defendant/MMC.
CORAM: HIS HONOUR JUDGE
SHRI R.V.KOKARE
DATE : 21/12/2019 (C.R.No.06)
O R D E R
This notice of motion is taken out by the plaintiff for temporarily
restraining to the defendants from enforcing and executing the notices
under section 89 of MRTP Act, dated 26/09/2016 and 15/05/2019 and
Speaking Order dated 15/07/2019. This notice of motion resisted on
behalf of defendant Corporation by filing its reply. Read the present
notice of motion, affidavit of the plaintiff in support of the notice of
motion, reply of the defendant Corporation and affidavit of employee
of defendant. Heard both the learned counsels on behalf of both the
sides at length. Perused the record.
2. The plaintiff has submitted that the House No. 18B, Meher Niwas
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Mori Road, Mahim(West), Mumbai16 ( hereinafter referred to as 'the
suit premises' for the sake of brevity). The suit premises is in existence
since prior to 1940. The plaintiff's grand father late Mr.Bhikoba
Mahadeo Mer @ Meher has acquired the suit premises and he possessed
of land original Plot No.80, Cadastral Survey No.1451 and house
standing thereon bearing House No.18B. After demise of grand father
of the plaintiff, his heirs and legal representatives are in possession of
the suit premises including the plaintiff. Plaintiff's grand father late
Mr.Bhikoba Mahadeo Mer @ Meher has purchased the suit premises,
land original Plot No.80 and house standing thereon bearing House
No.18B, by registered Conveyance Deed dated 26/02/1940. The
original plot no. 80, has been changed to Final Plot No.833 under the
Town Planning Scheme. The plaintiff has further submitted that the
suit premises is assessed by the Municipal Corporation in the year
196162 for the first time under GWard No.6010.
3. The plaintiff has further submitted that the defendant
Corporation had issued notice dated 16/08/2003 calling upon the co
owners of the suit premises to vacate the suit premises. After receipt of
the said notice, the coowners of the suit premises replied the said
notice by their reply dated 12/09/2003. Thereafter, nothing has
happened in the matter for about 13 years and again suddenly the
defendant has issued another notice dated 15/07/2015 alleging about
construction and thereby calling upon the owners to submit documents
in respect of the suit premises. The plaintiff has replied the said notice
by his reply dated 05/08/2015 and also furnished various documents in
respect of the suit premises to the defendant Corporation. The
defendant Corporation has issued another notice dated 26/09/2016
under section 89 of the MRTP Act., calling upon the coowners of the
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suit premises to vacate the suit premises. The plaintiff replied the said
notice dated 02/11/2016. Thereafter, again defendant has issued
other notice dated 27/03/2017. The plaintiff replied the said notice by
his reply dated 08/05/2017. Again defendant issued notice dated
15/05/2019 alleging about extension of the suit premises. The plaintiff
has replied the said notice by his reply dated 27/05/2019 and
24/06/2019. The defendant again issued notice dated 28/06/2019
calling upon the plaintiff for hearing on 02/07/2019. After hearing on
02/07/2019, the defendant Corporation has passed Speaking Order
bearing No.ACGN/509/AEPT(I) dated 15/07/2019.
4. The plaintiff has challenged in the present suit and in the notice
of motion the impugned notice under section 89 of the MRTP Act dated
26/09/2016 and 15/05/2019 and Speaking Order dated 15/07/2019
bearing No.ACGN/509/AEPT(I)dated 15/07/2019, stating that the
defendant Corporation has issued the notice and Speaking order under
challenged with malafide intention and is illegal, null, bad in law and
void.
5. The learned counsel on behalf of the plaintiff has argued that
the plaintiff's late grand father Mr.Bhikoba Mahadeo Mer @ Meher has
been purchased the land original Plot No.80, Cadastral Survey No. 1451
by way of registered Conveyance Deed dated 26/02/1940. The original
plot no.80 is changed to Final Plot No. 833 under the Town Planning
Scheme. The suit premises is assessed by the defendant Corporation in
the year 196162 under GWard No. 6010. The defendant Corporation
has been issued various notices in respect of suit premises to the owners
of the suit premises including the plaintiff. Therefore, the plaintiff has
challenged in the present suit and in the present notice of motion, the
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impugned notices under section 89 of MRTP Act, dated 26/09/2016
and 15/05/2019 and Speaking Order dated 15/07/2019. The said
notices and Speaking order are under challenged are illegal, null and
bad in law. The suit premises is in existence since last 85 years old.
Therefore, the plaintiff is entitled to protect the suit premises till final
disposal of the suit. The plaintiff has made out prima facie case, the
balance of convenience is also lies in favour of plaintiff. The plaintiff
will suffer irreparable loss, if this notice of motion is not granted. On
these grounds, the Ld. Counsel on behalf of the plaintiff has requested
that present notice of motion may kindly be allowed.
6. In response to the notice of motion taken out by the plaintiff, the
defendant Corporation filed its reply submitting therein that on receipt
of complaint and on usual round of inspection, the officer of the
defendant has visited/inspected the suit site on 16/06/2015 i.e. Meher
Niwas, Room No.18B, Mori Road Mahim, Mumbai16, when it was
observed the plaintiff has carried out illegal construction/encroachment
of brick masonry wall in the adjoining plot having F.P.No.835 and 836
of Mahim division. After inspecting the suit premises, the officer of the
defendant had issued a letter dated 15/07/2015 to the owner/occupier.
By the said letter, the plaintiff /owner/occupier was called upon to
produce documentary evidence showing the authorization of the suit
structure and to produce the permission if obtained from the Competent
Authority of defendant Corporation. In response to the said letter dated
15/07/2015, the plaintiff/owner/occupier has given reply through his
advocate by letter dated 05/08/2015 and contended that the said
letter/notice are false frivolous and vexatious and same is denied.
7. The defendant Corporation has further submitted that again on
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receipt of complaint in respect of the suit premises and on usual round
of inspection, the officer of the defendants had again visited the suit
site. When it was noticed that the structure occupied by the plaintiff is
standing on the F.P.No.833, however, some part portion of the said
structure is extended by the plaintiff which is now existing on eastern
side of Final Plot No.835 and 836. The defendant Corporation has
further submitted that the implementation of Town Planning Scheme
III/development at F.P.No.835 and 836 is already in a progress and the
owner of the said plot is also requested to the Corporation that to
remove the said encroachment at their plot as the same causing
obstruction and delay in the development work. Therefore, the
Assistants Commissioner, G/North ward had issued the notice under
section 89 of MRTP Act dated 26/09/2016 to the owner/occupier. The
Assistant Commissioner, G/North ward vide his letter dated
09/08/2017 has intimated to plaintiff regarding the hearing was
arranged on 11/08/2017 at about 3.00p.m. at the office of the Assistant
Commissioner,G/North Ward. Inspite of giving opportunity to the
plaintiff by letter dtd.09/08/2017, the plaintiff neither approached to
the office of Assistant Commissioner, G/North Ward for hearing nor
submitted any other single documentary evidence showing that the
existing portion of F.P.No.835 and 836 is authorized one.
8. The plaintiff has failed to produce any documentary evidence
showing that the extended part portion of the said structure i.e.
F.P.No.835 and 836 is authorized one. Therefore, the Assistant
Commissioner, G/North ward had issued a letter dated 15/05/2019 to
the plaintiff and informed that the Government of Maharashtra has
sanctioned Town Planning Scheme No.III and said T.P.Scheme came
into force take effect from 01/03/1961 and was further informed that
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on and after the date of which a final scheme came into force and also
as per the Sec. 88 of MRTP Act 1966, all lands acquired by the planning
authority shall unless it is otherwise determined in such scheme. During
the site visit, it is noticed that the structure occupied by the plaintiff is
standing on plot no. 833, however, some part portion of said structure
is extended by the plaintiff which is now existing on eastern side of the
F.P.835 and 836. It is also learned that extended part portion of said
structure was removed in the year 2010 by the plaintiff. It is further
directed to the plaintiff to remove extended portion of the structure
which is existing one eastern side of F.P. No. 835 and 836 immediately
without fail within 7 days.
9. The defendant Corporation has further submitted that in response
to the said letter dated 15/05/2019, the plaintiff/owner/occupier has
given a reply through his advocate by letter dated 27/05/2019. The
officer of the defendants i.e. Assistant Commissioner, G/North ward has
given a letter dtd.28/06/2019 and 03/07/2019 regarding the hearing is
again arranged respectively on 02/07/2019 and 05/07/2019 and
accordingly the hearing was given to the plaintiff on 05/07/2019.
10. The defendant Corporation has further submitted that after giving
hearing and after considering the documents of the plaintiff, the
Assistant Commissioner, G/North Ward came to the conclusion that
plaintiff did not submit any authentic documents and also committed
that the said extended structure were demolished in the year 2010 and
same were reconstructed again. Inspite of giving sufficient opportunity
to plaintiff to remove said encroachment on F.P.No.835 and 836, but
the plaintiff has failed to do so and as per plane table survey plan
submitted by Architect of F.P.835 and 836, it is clearly reflecting the
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unauthorized construction carried out by the plaintiff at F.P.No. 835
and 836. The defendant Corporation submitted that the plaintiff has
not made out prima facie case, the balance of convenience does not lie
in favour of the plaintiff. The plaintiff will not suffer any irreparable
loss, if the notice of motion is rejected.
11. In support of contentions of the plaintiff, the plaintiff has
produced documents i.e. Copy of the registered Conveyance Deed dated
26/02/1940 in respect of the suit premises at Exh.A of the plaint (at
page no. 14 to 24), Copy of the assessment tax bills issued in respect of
the suit premises for the year 201819 which is (at Exh.B of the plaint
at page nos.25 to 28), Copy of the notice u/s. 89 of Maharashtra
Regional and Town Planning Act 1966 in respect of the suit premises
and reply given by the plaintiff dated 12/09/2003 (at Exh.C colly. of
the plaint at page no 29 to 35), Copy of the notice issued by
defendant Corporation dated in respect of suit premises dated
15/07/2015 and Reply given by the plaintiff dated 05/08/2015 (at
Exh. D colly. of the plaint at page nos. 36 to 38), Copy of Notice
dated 26/09/2016 and Reply given by the plaintiff dated 02/11/2016
(at Exh.E colly. of the plaint at page no. 39 to 43), Copy of the BMC
Notice dated 27/03/2017 and Reply given by the plaintiff dated
08/05/2017 (at Exh. F colly. of the plaint at page nos. 44 to 45),
Copy of the Notice issued by the defendant Corporation dated
15/05/2019 and Reply given by the plaintiff dated 27/05/2019 &
24/06/2019 (at Exh. G colly. of the plaint at page nos. 46 to 53),
Copy of the BMC Notice dated 28/06/2019 to the plaintiff (at Exh.H
of the plaint at page no.54), Copy of Speaking Order dated
15/07/2019 (at Exh.I at page nos. 55 to 57).
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12. After scrutiny of the pleadings of both the parties, documents
produced on behalf of the both the sides and after hearing arguments
advanced on behalf of both the sides at length, it is admitted facts in
between the plaintiff and defendant are that the plaintiff is the owner
and possessor since his forefather bearing original plot no.80, Cadastral
Survey No.1451 and house standing thereon bearing House No.18B i.e.
suit premises. The original plot no.80, has been changed to final Plot
No.833 under the Town Planning Scheme. It is not disputed that
adjacent to the house of the plaintiff bearing no. 18B and on final plot
no. 833, there are final plots no.835 and 836. It is further admitted fact
in between the parties are that in the present suit and in the present
notice of motion, the plaintiff have challenged notice issued by the
defendant Corporation to the plaintiff in respect of the suit premises
under section 89 of Maharashtra Regional and Town Planning Act
1966 dated 26/09/2016 and 15/05/2019 and Speaking Order dated
15/06/2019.
13. The documents produced on behalf of the plaintiff are the entire
structure of the house bearing no.18B which is on final plot no. 833.
The notice issued by the defendant Corporation u/s. 89 of The
Maharashtra Regional and Town Planning Act 1966 dated 26/09/2016
and 15/05/2019 are not entire structure of the suit house bearing
House No.18B on final plot no.833, but both the notices are for
unauthorized encroachment part portion of the structure of the plaintiff
which includes walls and toilet blocks is extended over the adjacent plot
having F.P.No.835 and 836. There is no any documents produced on
behalf of plaintiff as to show authenticity of notice structure under
challenged. It is pertinent to note that before passing the Speaking
Order dated 15/06/2019, the defendant Corporation given hearing to
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the plaintiff and after considering the reply produced on behalf of the
plaintiff, the defendant Corporation has passed Speaking Order dated
15/06/2019.
14. Admittedly, the notice under challenged i.e. notice dated
26/09/2016, issued by the defendant Corporation in respect of the suit
premises under section 89 of The Maharashtra Regional and Town
Planning Act 1966. Section 89 of The Maharashtra Regional and Town
Planning Act 1966 deals the Power of Planning Authority to evict
summarily On and after the day on which a final scheme comes into
force, any person continuing to occupy under the final scheme may, in
accordance with the prescribed procedure be summarily evicted by the
Planning Authority or any of its officers authorized in that behalf by
that authority. Admittedly, the issued notices under challenged in
respect of the suit premises are for implementation of Town Planning
Scheme III. Therefore, the defendant Corporation has power to evict the
suit premises, in view of section 89 of The Maharashtra Regional And
Town Planning Act 1966.
15. From above my discussions, I come to the conclusion that prima
facie notices issued by the defendant Corporation under section 89 of
The Maharashtra Regional And Town Planning Act 1966 dated
26/09/2016 and 15/05/2019 and Speaking Order dated 15/06/2019
are legal and rightly issued by the defendant Corporation in respect of
the suit premises. The plaintiff has failed to prove prima facie case,
balance of convenience does not lies in favour of the plaintiff. The
plaintiff will not suffer any irreparable loss if this notice of motion is to
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be rejected. Hence, I have proceed to pass following order.
ORDER
1. Notice of motion no. 3000/2019 is hereby rejected.
2. Cause in cost.
Date : 21/12/2019 (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 21/12/2019
Transcribed on: 21/12/2019
Signed by HHJ: 21/12/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
21/12/2019 Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.06)
Date of Pronouncement of
Judgment/Order
21/12/2019
Judgment/order signed by P.O on 21/12/2019
Judgment/order uploaded on 21/12/2019
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