Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3178/19 in Suit No. 2219/19. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3178 OF 2019
(CNR NO. MHCC01-008643-2019)
IN
LONG CAUSE SUIT NO. 2219 OF 2019
(CNR NO. MHCC01-008163-2019)
Mohd. Shakeel Khan ...Plaintif
Versus
The Asst. Municipal Commissioner ...Defendant
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 12th FEBRUARY, 2020.
Mr. V.T.Dubey, Advocate for Plaintif.
Mrs. Tondwalkar, Advocate for Defendant / MCGM.
ORDER
This is a motion taken out by plaintif to challenge
validity and legality of notice issued under Section 354A of
MMC Act dated 24/07/2019 and speaking order dated
03/08/2019. In schedule of said notice, the description of
work alleged to be unauthorized construction as mentioned by
designated ofcer of MCGM runs as follows :
“Schedule (Description of work)
U/a construction of (G+1) foor structure
admg. (10.66 m x 14.32 m x 6.70 m ht)
approximately by using M.S channel. Brick
Masonry wall and Ladi coba ladi slab at
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N/m No. 3178/19 in Suit No. 2219/19. 2 Order.
Gulam Rasool chawl, 246 old Agra road, Opp.
Kurla Police Station, Kurla (W) Mumbai – 400
070.”
2. Ld. Advocate V.T.Dubey for plaintif argued that the
description of suit premises as mentioned in plaint Para 1 is
1800 sq.ft. being ground plus frst foor with anti-loft situated
opposite to Kurla Police Station. Plaintif has sought a
permission of repairing which was granted by the defendant
MCGM on 19/11/2018. In view of previous notice in respect of
dilapidated structure, plaintif has completed structural audit
through Mr. Patra wherein plaintif has clearly mentioned
nature of structure as ground plus one storied with upper anti-
loft structure. There is no use of bricks but plaintif has used
siphorex blocks. The photographs produced by MCGM dated
07/08/2019 are not denied by plaintif. Plaintif has replied the
notice on 25/07/2019 wherein he referred structural report of
Orchid Consultant. There is no construction of second foor,
but plaintif has withdrawn wooden foor and replaced it with
cement fooring. Some important points of arguments of
plaintif runs as follows :
A) There is no additional FSI used by plaintif.
B) Wooden beam and tiled roof is not available,
therefore, plaintif has used M.S. angle and patra
shed.
C) There is no dimensional change in the structure.
D) The previous anti-loft / attic foor is completed by
plaintif, which is named as second foor by the
MCGM.
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N/m No. 3178/19 in Suit No. 2219/19. 3 Order.
3. Perused afdavit in support of documents and reply
submitted by Junior Engineer Mr. Kiran Sonawane vide Exh.2
and 4.
3A. Ld. Advocate Tondwalkar for MCGM submits that
notice dated 24/07/2019 is under challenge. The building
structure was in dilapidated condition, therefore MCGM has
issued notice under Section 353-B of MMC Act on 16/03/2018.
The impugned structure was dilapidated. The permission of
repairing was sought by plaintif, but he has withdrawn the
entire old structure and replaced with alleged structure. This
fact is specifcally mentioned in afdavit vide Exh.4 “Para 7(j)
that under the guise of repair permission plaintif has
demolished the original structure and reconstructed the same.
The speed of construction can be observed in photographs
vide Exh.5. Plaintif has received the suit premises in view of
Conveyance Deed dated 09/10/2012, wherein, no description
of property is given. The construction work of plaintif is
beyond the scope of tenentable repair as described under
Section 342 of MMC Act. It is claimed to reject the motion.
REASONS FOR ORDER
4. It is to note at the inception that Para No.7(j) as
mentioned in reply of MCGM vide Exh.4 is supported with
various photographs. The scope of Section 342 of MMC Act is
described in MCGM V/s. M/s. Sunbeam High Tech
Developers Private Ltd. (Order dated 24/10/2019
passed by Hon’ble Supreme Court in Civil Appeal No.
7627/2019), wherein, it is observed that tenentable repair
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N/m No. 3178/19 in Suit No. 2219/19. 4 Order.
include plastering, painting, changing foor tiles, replacement
of roof with same material, etc., but shall not include
replacement or removal of any structural members of load
bearing walls. In present case, ld. Advocate for plaintif
admits that wooden roof was not available, therefore he has
changed the roof and replaced with iron pillar. In various
photographs vide Exh.5, it clearly indicate that plaintif has
changed the roof with cement structure.
5. On perusal of letter issued by the MCGM dated
28/07/2014 attached with Page No.93 of the plaint, it clearly
indicate suit premises as “tiled chawl with frst foor”. Even in
structural audit proforma ‘B’ on Page No.90, number of storey
is ground plus one, beams and columns are wooden and roof
is of Manglore Tiles. On perusal of numerous photographs
submitted by both side, plaintif has used siphorex blocks and
iron pillars at vertical and horizontal space. This fact is also
admitted by ld. Advocate for plaintif that Manglore Tiles came
to be changed. On Page No.118 to 122 of plaint, old
photographs of Manglore Tiles with wooden structure came to
be refected. It clearly shows structural change by the
plaintif, which is beyond the scope of Section 342 of the MMC
Act.
6. In the letter of 28/07/2014 at Page No.94 of plaint,
the Asstt. Collector of ‘L’ Ward has mentioned the inspection
extract of the year 2009-10 which is in respect of ground and
frst foor titled as ‘Tiled Chawl’. There is one letter addressed
by plaintif in vernacular dated 11/12/2015, wherein plaintif
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N/m No. 3178/19 in Suit No. 2219/19. 5 Order.
has narrated the nature of suit structure, which was in crystal
terms as dilapidated structure. The material part is
reproduced as follows :
ßR;kuarj iqUgk fnukad%& 20@7@2015 jksth
egkuxjikyhdsyk vtZ dsyk- R;kuarj fnukad%&
21@10@2015 jksth vpkud bekjrhps eksBs ykdqM
rqVqu [kkyh dkslGys- ijarq lqnSokus thohr gkuh >kyh
ukgh- rsOgk eh vki.kkl fouarh djhr vkgs dh vki.k
bekjrhph igk.kh d#u HkkMsd#auk let nsÅu vkiyh
bekjr nq#Lrhckcr ijokuxh n;ky gh vki.kkl uez
fouarh-Þ
7. On perusal of Conveyance Deed dated 09/10/2012,
there is no detail description of suit premises came to be
purchased by plaintif.
8. In Tushar Guru Salien Vs State of Maharashtra
(Order passed by Hon’ble High Court dated 28/08/2019
in PIL 67/2017) in Para 5 it is observed that -
“Concerning a property, a suit to enforce or
protect an interest in the property which is
governed by a Municipal Statute, the interest
protected has to be with respect to a plea that
prima-facie, the structure which is being targeted
is an authorized structure. Meaning thereby, the
plaint must make an averment of the sanction
obtained from the Corporation and must make an
averment that the structure targeted is prima-
facie governed by the sanction. Merely pointing
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N/m No. 3178/19 in Suit No. 2219/19. 6 Order.
out defciencies in the notice or the authority of
the person issuing the notice is neither here nor
there. Thus, the sine qua non of such kinds of
suits is a positive assertion made with reference
to the sanctioned building plans.”
9. In Seema Arshad Zaheer V/s. Municipal
Corporation Of Gr. Mumbai [Order passed by Hon’ble
Supreme Court dated 05/05/2006 in Special Leave
Petition (civil) 9479/2005], in Para 30 it is observed as
follows :
"It is true that in cases relating to orders
for demolition of buildings, irreparable loss
may occur if the structure is demolished
even before trial, and an opportunity to
establish by evidence that the structure was
authorized and not illegal. In such cases,
where prima facie case is made out, the
balance of convenience automatically tilts in
favour of plaintif and a temporary
injunction will be issued to preserve status
quo. But where the plaintifs do not make
out a prima facie case for grant of an
injunction and the documents produced
clearly show that the structures are
unauthorized, the court may not grant a
temporary injunction merely on the ground
of sympathy or hardship. To grant a
temporary injunction, where the structure is
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N/m No. 3178/19 in Suit No. 2219/19. 7 Order.
clearly unauthorized and the fnal order
passed by the Commissioner (of the
Corporation) after considering the entire
material directing demolition, is not shown
to sufer from any infrmity, would be to
encourage and perpetuate an illegality."
10. In present case, no length, width and height of the
structure was given by the plaintif in description of the suit
premises. As observed above, there is no authorization of the
structure. Considering aforesaid discussion, there is no prima
facie case with plaintif.
11. In respect of fact in issue in present motion,
following are the important points to note :
A) There is no authorization of structure described by
the plaintif.
B) Plaintif himself admits that wooden beam, wooden
loft and Manglore roof came to be replaced by him
due to non-availability.
C) On perusal of various photographs, it clearly
indicate, under the garb of repair permission entire
building came to be demolished and reconstructed
by the plaintif.
D) On comparison with various photographs of old
structure from Page No.118 to 122 with
photographs of present structure, it can be boldly
conclude that plaintif has removed old structure
and reconstructed the building.
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N/m No. 3178/19 in Suit No. 2219/19. 8 Order.
12. The condition of the building was described by the
plaintif in letter addressed in Marathi dated 11/12/2015.
Therefore, MCGM has appropriately issued the notice dated
24/07/2019 and 16/03/2018. Resultantly, speaking order
dated 17/01/2020 appear to be correct and well reasoned.
There is substance to believe that under the garb of repair
permission, plaintif has reconstructed the building.
13. In result, balance of convenience do not lie in
favour of plaintif. All documents submitted on behalf of
MCGM are supported with afdavit of Junior Engineer Mr. Kiran
Sonawane. Various photographs submitted by defendant are
not denied by plaintif. It clearly shows structural change at
the hands of plaintif without proper permission. Therefore, no
irreparable loss will cause to plaintif. In net result, motion
deserves to be dismissed. Hence the order :
- ORDER -
1. Notice of Motion No. 3178/2019 stands dismissed.
2. MCGM to submit W.S. at the earliest to expedite
hearing.
3. N/m No. 3178/19 is disposed of accordingly.
(G.G.BHANSALI)
Judge, City Civil & Sessions Court,
Date : 12/02/2020. Mumbai.
1. Dictated on : 12/02/2020.
2. Transcribed on : 13 & 14/02/2020.
3. Signed on : 17/02/2020.
4. Delivered to Certifed :
Copy Section on
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N/m No. 3178/19 in Suit No. 2219/19. 9 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/02/2020. 12.02 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of
Judgment/Order
12/02/2020.
Judgment/Order signed by P.O. on 17/02/2020.
Judgment/Order uploaded on 18/02/2020.
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