Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 3112/19 (LCS 2182/19)
MHCC010084912019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.3112 OF 2019
IN
LONG CAUSE SUIT No.2182/2019
Anuradha Holdings Private Limited … Plaintiff
Versus
Municipal Corporation
of Greater Mumbai & Anr. ... Defendants
Appearance :
Mr. Bhadang with Mr. Adke, Advocates for plaintiff.
Mrs. Tondwalkar, Advocate for defendant No.1.
Mr. Hardik Desai, Advocate for defendant No.2.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 14/02/2023.
O R D E R
. This is suit for declaration that notice under Section 53 (1)
of The Maharashtra Regional And Town Planning Act (in short the
M.R.T.P. Act) dated 25/6/2019 issued by the defendant/Corporation be
declared as illegal and bad in law and for consequential relief of
permanent injunction restraining defendant/Corporation or anybody
through it from taking any action in pursuance of notice and the
plaintiff taken out present Notice of Motion for temporary injunction
restraining defendant No.1/Corporation from taking action of
demolition against notice structure.
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2] Brief facts of the plaintiff's case are that plaintiff is a
Company incorporated under the provisions of The Companies Act,
1956. The plaintiff is owner of share certificates bearing No.15 and 16
issued by Universal Majestic Premises Cooperative Society Ltd. (in short
said building). The plaintiff is in possession of units No.701 to 712 on
7th floor admeasuring 2,508.36 Sq. Mtrs. and units No.801 to 812 on 8th
floor admeasuring 2,508.36 Sq. Mtrs. of said building (in short “suit
premises”).
3] It is further contended that by registered Agreements for
Sale dated 2/12/2015 defendant No.2 sold and conveyed the entire 7th
and 8th floors to the plaintiff on ownership basis. Prior entering into
Agreements for Sale dated 2/12/2015 defendant No.2 had given suit
premises to Loreal India Private Limited under registered Leave &
Licence agreements dated 24/8/2011 for a period of 5 years.
4] It is further contended that after execution of agreements
for sale dated 2/12/2015 and Agreements of Sale dated 24/8/2011 the
plaintiff alongwith defendant No.2 and Loreal India Private Limited
entered into a tripartite agreement dated 14/12/2015. It is further
contended that it is evident that the plaintiff never been in actual
physical occupation of said premises since execution of Agreements for
Sale dated 2/12/2015 and even prior thereto the actual possession has
either always been with defendant No.2 or Loreal India Private Limited.
5] It is further contended that all interiors and alterations in
said premises were carried out by defendant No.2 prior to execution of
agreements for sale dated 2/12/2015 and the plaintiff has purchased
said premises in the same condition as it was in existence prior to
execution of agreement for sale dated 2/12/2015. Prior to execution of
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agreements for sale dated 2/12/2015 defendant No.2 represented the
plaintiff that suit premises has been constructed as per sanctioned plan
and alterations were not carried out without due permission of requisite
authorities.
6] It is further contended that after execution of Agreements
for Sale the plaintiff received notice under Section 488 of The Mumbai
Municipal Corporation Act (in short the M.M.C. Act) to carry out
inspection of said premises. It is further contended that on inquiry it
was informed to the plaintiff that there are some alterations in suit
premises which are in deviation from sanctioned plan, however same
can be regularization upon payment of penalties. It is further contended
that the plaintiff through architect M/s. Kayam Design Consultants
submitted proposal for regularization dated 15/2/2019 to defendant
No.1. It is further contended that proposed alterations deals with
change of user and amalgamation of certain areas and no alteration of
any horizontal or vertical extension beyond approved plan.
7] It is further contended that building required fire audit as
directed by Mumbai Fire Brigade hence the plaintiff approached Chief
Fire Officer in respect of proposal dated 15/2/2019 and has paid a sum
of Rs.2,64,000/. It is further contended that the plaintiff's
regularization proposal dated 15/2/2019 and granting NOC by Chief
Fire Officer have resulted in deemed acceptance of said regularization
proposal. Defendant No.1 has not informed the plaintiff of any
additional compliance for approval of proposal within 60 days of receipt
of proposal dated 15/2/2019 as mandated by the Development Control
Regulations Rules.
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8] It is further contended that after completion of above
procedures the plaintiff received notice dated 14/6/2019 under Section
488 of the M.M.C. Act for inspection. It is further contended that
despite pending proposal and completion of all formalities the plaintiff
was shocked and surprised to receive notice under Section 53 (1) of the
M.R.T.P. Act dated 25/6/2019 calling upon the plaintiff to alter said
premises and on failure to comply the plaintiff would be liable for
prosecution.
9] It is further contended that the plaintiff replied notice on
22/7/2019. It is further contended that in the absence of rejection of
proposal within 60 days proposal deemed to be approved and no action
can be taken by defendant No.1. The plaintiff learnt that defendant
No.2 has already amended sanctioned plan so as to utilize balance FSI
with respect to building plot so also occupation certificate in respect of
approved amended plans is yet to be granted by defendant No.1. It is
further contended that the plaintiff submitted proposal dated
15/2/2019 to defendant No.1 holding defendant No.1 liable either to
accept or reject proposal within 60 days in absence thereof proposal
deemed to have approved.
10] It is further contended that defendant No.2 has already
amended sanctioned plan so as to utilize balance FSI and submitted
approval to defendant No.1 which is contrary to the representations
made to the plaintiff. Therefore, the plaintiff filed suit and took out
Notice of Motion for temporary injunction.
11] Defendant No.1/Corporation resisted Notice of Motion by
filing reply cum Written Statement below exhibit6. At the outset, it is
stated that suit is not maintainable for want of statutory notice under
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Section 527 of the M.M.C. Act. The plaint does not disclose cause of
action against defendant. This suit is to challenge notice under Section
53 (1) of the M.R.T.P. Act. The plaintiff has not given description of
property as per OrderVII Rule3 of The Code of Civil Procedure (in
short the C.P.C.). Merely, it has given description of suit property as
units No.701 to 712 of 7th floor and 801 to 812 of 8th floor though
notice has been given specific mentioning unauthorized development
beyond the sanctioned plan.
12] It is further stated that on 22/6/2019 during routine round
the officer of the Corporation noticed unauthorized development in the
nature of additions and alterations to the existing structure and it is
used for commercial purpose. The officer of the Corporation inquired
and came to know that one Mr. Parag Jaju is the owner of unauthorized
construction/development but the occupier failed to show permission or
amended sanctioned plan. Then the officer took measurements and
prepared Inspection Report and rough sketch. The plaintiff failed to
show permission or amended sanctioned plan, therefore, Inspection
Report and photographs were forwarded to designated officer of M East
Ward and after going it through he came to the conclusion that the
plaintiff has carried out unauthorized construction/development which
is not in accordance with sanctioned plan. Hence notice came to be
issued.
13] It is further stated that the plaintiff replied notice dated
25/6/2019 and the owner has admitted that he has carried out work
beyond approved plan and, accordingly, filed regularization proposal on
15/2/2019. It is further stated that society has appointed M/s.
Andurlekar & Associates as surveyor and M/s. Kalgutkar & Associates as
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architect for handling regularization process and requested three
months time. It is further stated that on 14/11/2019 Executive Engineer
intimated to Chairman of society that till date no regularization
proposal was submitted. Then secretary of society intimated on
21/11/2019 that architect is facing health problem and requested
further time.
14] It is further stated that society was only seeking time and
not filed regularization proposal to comply notice. After submitting
regularization proposal dated 15/2/2019 the plaintiff was asked to
submit necessary documents but the plaintiff neither complied nor
submitted completion plan/occupation certificate and on 15/7/2019
proposal was returned to architect for compliance. It is further stated
that the plaintiff has been given sufficient opportunity and time to
submit documents but the plaintiff failed to comply notice. The plaintiff
has not complied notice. Hence speaking order came to be passed on
21/1/2020 which is duly served upon the plaintiff.
15] It is further stated that regularization proposal has been
sent back on 15/7/2019 for compliance of completion plan/occupation
certificate which is treated to be rejected and the plaintiff has not
submitted documents as required by authority. Notice structure is
beyond sanctioned plan as such the plaintiff is not entitled for any
relief. On these grounds, the defendant No.1/Corporation prayed for
dismissal of Notice of Motion.
16] Defendant No.2 resisted Notice of Motion by filing reply
cum Written Statement below exhibit5. He admitted the execution of
Agreements for Sale in favour of the plaintiff on 2/12/2015, however
denied that physical possession was with it. It is further stated that
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defendant No.2 has not carried out interior work and alterations in suit
premises prior to execution of Agreements for Sale dated 2/12/2015
and the plaintiff purchased suit premises after verifying the sanctioned
plan. It is further stated that defendant No.2 has not represented the
plaintiff that suit premises were as per the sanctioned plan and no
alterations were carried out without due permission of the Corporation.
Defendant No.2 denied allegations against it. Defendant No.2 denied
that it informed the plaintiff about the alterations and additions and the
unutilized FSI will be used for regularization of the alterations and
additions. It is further stated that defendant No.2 is unaware of the
change of user. It is further stated that the entire building has been
constructed as per approved plan. This defendant denied allegations
against it. It is further stated that defendant No.2 has unnecessarily
been dragged into the litigation which defendant No.2 has no concern.
Lastly, it prayed for dismissal of Notice of Motion as well as suit.
17] 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 ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
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:: R E A S O N S ::
AS TO POINTS No. 1 TO 3 :
18] Learned advocate for the plaintiff submitted that the
plaintiff is a Company registered under the Companies Act. The plaintiff
has purchased entire 7th and 8th floors of the building known as
Universal Majestic vide registered Agreements for Sale dated
2/12/2015 from defendant No.2. Defendant No.2 had already given
said premises on Leave & Licence basis to Loreal India Pvt. Ltd. In
agreement for Sale between the plaintiff and defendant No.2 there is
recital regarding Leave & Licence agreement between defendant No.2
and Loreal India Pvt. Ltd. As such the plaintiff has never been in actual
possession of suit premises even after execution of Agreements for Sale
dated 2/12/2015. The interior work and additions and alterations with
respect to said premises was carried out by defendant No.2 prior to
execution of Agreements for Sale in favour of the plaintiff and the
plaintiff purchased suit premises in the same conditions as it existed
prior to execution of Agreements for Sale dated 2/12/2012 in its
favour.
19] Learned advocate for the plaintiff further submitted that
after receipt of notice from the Corporation under Section 488 of the
M.M.C. Act the plaintiff inquired with the officer of the Corporation and
it was informed that there were some additions and alterations in suit
premises. Defendant No.2 informed the plaintiff that there were some
alterations and addition in suit premises, however defendant No.2
assured that there is certain balance unutilized F.S.I. and plan will be
accordingly amended. Learned advocate for the plaintiff further
submitted that regularization proposal was submitted on 15/2/2019
alongwith documents, however the Corporation has not sanctioned
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approval or not refused regularization proposal and, therefore, in view
of the provisions of the M.R.T.P. Act, the proposal for regularization is
deemed to be allowed i.e. prior to deemed to be approved. Learned
advocate for the plaintiff further submitted that there are some internal
changes for conducting business and there is no vertical or horizontal
extensions, frame work which exceeds approved frame of the building
and beams and columns are not touched.
20] Learned advocate for the plaintiff further submitted that
regularization proposal was submitted to Building Proposal Department
as such action initiated by Building & Factory Department of defendant/
Corporation is not legal and correct. Learned advocate for the plaintiff
further submitted that the Corporation has not produced sanctioned
plan nor it is case of the Corporation that the entire building is illegal.
There are certain alterations and additions. Learned advocate for the
plaintiff further submitted that the regularization proposal was
submitted and it was incumbent upon defendant/Corporation to decide
regularization proposal within 60 days but it does not done so and,
therefore, there is deemed permission as per the provisions of the
M.R.T.P. Act. Learned advocate for the plaintiff further submitted that
the plaintiff has prima facie case. Building has been constructed as per
sanctioned plan and regularization proposal for alterations and
additions is deemed to be approved as such the plaintiff is entitled for
temporary injunction.
21] Learned advocate for the plaintiff filed written submission
below exhibit9 and compilation of documents reiterating contentions
in the plaint and oral submissions. The plaintiff filed rejoinder affidavit
and denied contentions in reply filed by defendant/Corporation.
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22] Learned advocate for the plaintiff relied on the judgment of
the Hon'ble Apex Court in the case of Live Oak Resort (P) Ltd. And
Another Versus Panchgani Hill Station Municipal Council And
Another [(2001) 8 Supreme Court Cases 329] in which the Hon'ble
Apex Court held that the authority may sanction or refuse a proposal,
there stands an obligation on the part of the authority to communicate
the decision and where no orders are communicated within 60 days
from the date of submission of the plan either by way of a grant or
refusal thereto the authority shall be deemed to have permitted the
proposed constructions. Learned advocate for the plaintiff further relied
on the judgment of the Hon'ble Apex Court in the case of Shree Ram
Urban Infrastructure Limited And Another Versus State of
Maharashtra And Others [(2019) 20 Supreme Court Cases 228] in
which the Hon'ble Apex Court held that, as per DCR Rules it is provided
that if within the period of 15 days, the permission is not refused it shall
be deemed to have been granted provided that the work is carried out
according to the sanctioned plan.
23] On the other hand, learned advocate for the Corporation
submitted that the plaintiff filed suit to challenge notice issued under
Section 53 (1) of the M.R.T.P. Act and as per Section 149 of the Act this
Court has no jurisdiction to entertain suit. Learned advocate for the
Corporation further submitted that the plaintiff admitted that there is
some work beyond the sanctioned plan rather, the plaintiff has
submitted regularization proposal. This clearly shows that the plaintiff
has carried out unauthorized development. It is contention of the
plaintiff that within 60 days defendant/Corporation has not intimated
the plaintiff as to refusal of regularization proposal and as per the
provisions of Section 45 (5) of the M.R.T.P. Act permission is 'deemed
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to be granted'. Learned advocate for the Corporation further submitted
that in order to claim benefits of deeming provision the proposal must
be in prescribed form and it should be complete. However, proposal
submitted by the plaintiff was incomplete and, therefore, the plaintiff is
not entitled for benefit of the deeming provision. In support of
submission learned advocate for the Corporation relied on the judgment
of the Hon'ble Bombay High Court in the case of GTL Infrastructure
Limited Versus The Dhule Municipal Corporation & Others
[(2011)6 MhLJ 215] in which the Hon'ble Bombay High Court held
that one can take benefit only if regularization proposal was made in
the prescribed form. Learned advocate advocate for the Corporation
further submitted that the plaintiff has not made out prima facie case. It
is further submitted that inspite of sufficient time the plaintiff has not
submitted necessary documents. Hence the plaintiff is not entitled for
equitable relief of temporary injunction.
24] The defendant/Corporation relied on Inspection Report and
photographs, notice under Section 53 (1) of the M.R.T.P. Act and
Speaking Order, letter sent to Chairman/Secretary, letter sent to
architect, copy of 2nd Inspection Report and copy of OnLine status etc.
25] Learned advocate for defendant No.2 submitted that the
plaintiff is seeking interim relief restraining the defendant/Corporation
from taking action based on the notice, however in suit there is no
prayer of injunction. It is well settled that interim relief is always
granted in the aid of final relief as such interim relief sought by the
plaintiff cannot be granted. Learned advocate for defendant No.2
further submitted that the plaintiff has not challenged speaking order
and the plaintiff has purchased suit structure after going through
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documents and sanctioned plan, therefore, the allegations against
defendant No.2 that it has carried out certain alterations and additions
cannot be considered. On these grounds, he prayed for dismissal of
Notice of Motion.
26] In support of submission learned advocate for defendant
No.2 relied on the judgment of the Hon'ble Apex Court in the case of
Union of India And Another Versus Bilash Chand Jain And Another
[(2009) 16 Supreme Court Cases 601] in which it is held by the
Hon'ble Apex Court that the High Court cannot direct the Regional
Transport Authority to grant bus permit as the grant of the permit is
entirely within the discretion of the Regional Transport Authority. Of
course, if the Regional Transport Authority rejects the application for
grant of permits arbitrarily or illegally the High Court can set aside the
order. He further relied on the judgment of the Hon'ble Bombay High
Court in the case of Appeal From Order (Stamp) No.11365 of 2016
M/s. Sanket Electroplast Versus Municipal Corporation of Gr.
Mumbai in which the Hon'ble Bombay High Court directed the
petitioner to submit regularization proposal with liberty to the
Corporation to take appropriate action.
27] The plaintiff filed suit for declaration that regularization
proposal dated 15/2/2019 is deemed to be approved by the
Corporation and notice dated 22/6/2019 be declared as null and void.
28] The plaintiff has taken out this Notice of Motion for
temporary injunction under OrderXXXIX Rule1 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
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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.
29] It is contention of the plaintiff that it has purchased suit
structure from defendant No.2 under registered Agreements for Sale
dated 2/12/2015. At the relevant time, suit structure was in possession
of Loreal India Pvt. Ltd. by virtue of Leave & Licence agreement. As
such, no physical or actual possession of suit structure was given to the
plaintiff and the plaintiff has purchased suit structure as it was existed.
Learned advocate for the plaintiff submitted that after notice under the
M.R.T.P. Act alleging unauthorized development defendant No.2
informed that there are alterations and additions but some FSI is
unutilized and, accordingly, regularization proposal was submitted by
the plaintiff. It is important to note here that the plaintiff has replied
show cause notice on 22/7/2019. The plaintiff through his letter dated
18/6/2019 informed designated officer that it has submitted
regularization proposal to the Building & Factory Department for
regularization of notice structure. Thus, it is clear that notice structure
is unauthorized. It is only contention of the plaintiff that regularization
proposal has been submitted by the plaintiff to defendant No.1/
Corporation under Section 44 of the M.R.T.P. Act. Learned advocate for
the plaintiff submitted that regularization proposal was sent on
15/2/2019. He further submitted that as per the provisions of sub
section (5) of Section 45 of the M.R.T.P. Act, “If the Planning Authority
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does not communicate its decision whether to grant or refuse
permission to the applicant within sixty days from the date of receipt of
his application, or within sixty days from the date of receipt of reply
from the applicant in respect of any requisition made by the Planning
Authority such permission shall be deemed to have been granted to the
applicant”.
30] Learned advocate for the plaintiff further submitted that
regularization proposal was submitted on 15/2/2019 and within a
period of 60 days the Corporation has not informed about refusal of
regularization proposal, therefore, in view of the provisions of
subsection (5) of Section 45 of the M.R.T.P. Act regularization proposal
is deemed to be approved by the Corporation. On the other hand,
learned advocate for the Corporation submitted that in order to get
benefits of deeming provision proposal shall be made in prescribed
format and as per the requirement of DCR rules, byelaws and
regulations for development. Hon'ble Bombay High Court in the case of
GTL Infrastructure Limited Versus The Dhule Municipal Corporation &
Others (supra) held that one can take benefit of deeming provision if
the proposal for regularization was made in the prescribed format. The
plaintiff has to show that the proposal for regularization was submitted
in the prescribed format. The plaintiff has not submitted the copy of
proposal of regularization. It is contention of the defendant/
Corporation that the plaintiff was directed to submit requisite
documents, however the plaintiff has not submitted said documents.
Hence the proposal for regularization was sent back to the architect on
15/7/2019. The plaintiff has not shown that he has submitted the
requisite documents alongwith the proposal for regularization i.e. the
regularization proposal was in prescribed format. Therefore, in view of
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the judgment of the Hon'ble Bombay High Court in the case of GTL
Infrastructure Limited Versus The Dhule Municipal Corporation &
Others (supra) the plaintiff is not entitled to take benefit of deeming
provision.
31] The provisions of Section 44 of the M.R.T.P. Act provide
that any person intended to carry out development of land shall make
application in writing to the Planning Authority for permission as
contemplated under Section 44 of the Act. Subsection (5) of Section 45
of the M.R.T.P. Act provides that the development proposal for which
the permission was applied must be inconformity with requirement of
all the relevant control regulations or byelaws. The plaintiff has not
shown that the development i.e. alterations and additions carried out
are inconformity with the DCR rules or byelaws. It also failed to show
that the regularization proposal was in the prescribed format.
Therefore, the plaintiff is not entitled for the benefit of deeming
provision.
32] It is contention of the defendant/Corporation that
regularization proposal was incomplete and inspite of direction the
plaintiff has not submitted necessary documents for regularization.
Therefore, plaintiff's application was returned to architect on
15/7/2019 for compliance of completion/occupation certificate. The
plaintiff has not produced on record any material on record to show
that it has submitted completion plan/occupation certificate as per the
requirement. On perusal of letter dated 29/2/2020 written by architect
of the plaintiff to Executive Engineer, M.C.G.M., it appears that the
plaintiff was informed to submit requisite compliance within 3 days,
otherwise the proposal will be recorded. The plaintiff informed
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concerned officer that suit has been filed in the City Civil Court and
matter is subjudised. There is nothing on record to show that the
plaintiff's proposal for regularization was in the prescribed format and
requisite documents were submitted by the plaintiff as per the
requirement.
33] The plaintiff is seeking relief of temporary injunction,
however it appears that inspite of granting sufficient time and
opportunity the plaintiff has not submitted necessary documents
alongwith regularization proposal. The conduct of a person seeking
equitable relief of injunction should be free from blame. However, in
the case on hand, it appears that inspite of sufficient time the plaintiff
has not submitted/provided requisite documents alongwith
regularization proposal. The plaintiff has not made out prima facie case
for grant of equitable relief of injunction. Balance of convenience does
not tilt in its favour.
34] I have carefully gone through the judgments relied upon by
the plaintiff, however facts of the cases relied by the plaintiff and the
facts of the case on hand are not identical hence with due respect the
observations laid down by the Hon'ble Apex Court in the said judgments
are not applicable to this case.
35] In view of my findings to points No.1 to 3 in the negative
the plaintiff is not entitled for temporary injunction. In the result, I pass
following order :
O R D E R
Notice of Motion No.3112/2019 is dismissed.
Date : 14/02/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
16/02/2023 03:20 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 14/02/2023
ORDER Typed on 15/02 and 16/02/2023
ORDER signed by P.O. on 16/02/2023
ORDER uploaded on 16/02/2023
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