Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 324519 IN SU 229719
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO.3245 OF 2019
IN
L.C. SUIT NO.2297 OF 2019
Pradeep Hairiram Oberoi ]...Plaintiff
Versus
The Municipal Corpn. of Gr. Mumbai ]...Defendant
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 23rd September, 2019.
Mr. Mohit Jadhav, Advocate for Plaintiffs.
Mr. Parshurame, Advocate for defendant/B.M.C.
O R A L O R D E R
1. By this Notice of Motion plaintiff is seeking interim injunction to
restrain defendant from executing impugned Notice issued under
Section 354A of the MMC Act.
2. In brief plaintiff's case is that, he is owner of the structure
measuring 912 sq.ft. constructed with brick masonry walls having A.C.
sheet roof situated at C.T.S. No.250, bearing Census No.TXC, 1 4/5, at
Sunita Estate, next to TVS Show room, near Gurudwara, Bhandup
(West), Mumbai 400 078 (hereinafter to be referred as the "Suit
Premises").
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3. The original structure was measuring 2,000 sq.ft. Druing widening
of L.B.S. road structure measuring 1090 sq.ft. was removed. Thus, the
suit premises is measuring 912 sq.ft. The Census Certificate stands in the
name of plaintiff and his brother. The Tahsildar has issued N.A. orders
in the year 1997 and 1999. Suit premises is very old and is divided into
4 Galas being used as Godown to store different materials. The roof of
suit premises was damaged and the goods kept in the suit premises were
badly damaged. In order to prevent further loss, plaintiff has replaced
the A.C. Sheet roof. The suit premises exits since prior to 1960.
Defendant has issued impugned notice falsely alleging ongoing
construction. Plaintiff has replied impugned notice. Plaintiff was
apprehensive of action. Therefore, he instituted L.C. Suit No.2181 of
2019. By an order dated 2.8.2019 this Court directed the defendant to
pass Speaking Order. The defendant passed Speaking Order on 3.8.2018
and served it on the plaintiff on 5.8.2019. Dissatisfied with said order
plaintiff filed present suit. The suit premises is also protected by the
policy of tolerating the structures in slum area existing prior to the year
1995.
4. Defendant has opposed the Notice of Motion contending that, after
passing of Speaking Order the plaintiff has illegally continued
construction work as stated in the notice under challenge. The work was
going on till 20.8.2019. Plaintiff is abusing the process of law. The
plaintiff has applied for repairs of the existing garage on 5.7.2019 which
does not include the illegal structures that are being constructed by the
plaintiff adjacent to his garage. Plaintiff has produced the documents
pertaining to the garage. The plaintiff began with illegal construction
activity and it is still in progress. The construction is being raised in an
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open area adjacent to plaintiff's garage. On receipt of complaint,
defendant's officer visited the site and found the work in progress.
Consequently, a notice was issued to the plaintiff directing to produce
relevant documents / permission pertaining to said work. Plaintiff has
filed reply dated 31.7.2019 alongwith documents. A Speaking Order is
passed by the concerned officer on 3.8.2019 directing the plaintiff to
remove said unauthorized work. This Court had granted protection to
the plaintiff vide order dated 2.8.2019 in Suit (St.) No.2181 of 2019 for
a period of two weeks from receipt of the speaking order. The plaintiff
has misused the protection granted by this Court. A Court
Commissioner was also appointed by this Court who visited the notice
structure on 20.8.2019. Officer of defendant accompanied him and took
the photographs of the notice structure. The shutters of said galas were
opened on the instructions of the Court Commissioner and it was seen
that there was no electricity and no provision for electricity. There was
very low visibility. Defendant's officer also took photographs, when the
photographer accompanying Court Commissioner also took photographs.
In first shop, there were ciporex blocks and plaster & flooring
incompletely done. There was no provisions for electricity connection in
another shop, flooring work is still in progress. In another shop there
was similar condition. In the last shop, rear wall was unplastered and
ciporex blocks were stacked. Entire work was ongoing. The plaintiff has
not made out a case for seeking injunction. Plaintiff has not come with
clean hands before the Court.
5. Following points arise for determination against which findings are
recorded for the reasons to follow:
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Sr. No. POINTS FINDINGS
1. Does plaintiff prove a prima facie case
in his favour?
In the negative.
2. Whether the balance of convenience lies
in plaintiff’s favour?
In the negative.
3. Whether the plaintiff will suffer
irreparable loss if injunction as sought
is refused?
In the negative.
4. What Order ? Notice of motion is
dismissed.
REASONS
As to point Nos.1 to 4.
6. Plaintiff has relied upon a copy of Census Certificate dated
18.12.1980 for a structure measuring 2000 sq.ft. issued in the name of
plaintiff and his brother. According to the plaintiff's case out of this 2000
sq.ft. structure presently structure measuring 912 sq.ft. exists. However,
the plaint nowhere discloses the measurement of each of the 4 galas.
The plaintiff has also relied upon the letter by Tahsildar, Kurla requiring
the plaintiff and his brother to remain present for hearing to assess the
user of land for non agricultural purpose. These documents do not
advance plaintiff's case further as no measurement of each shop is
mentioned in the plaint and as per plaintiff's case only 912 sq.ft.
structure presently exists.
7. Considering the contentions of the parties, this Court had
appointed the Court Commissioner to visit the premises and submit the
factual report. The photographs produced by the Court Commissioner
reveal that in photograph annexure 'A' ciporex blocks are seen stacked.
The walls apparently are of ciporex blocks however, are painted with
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faint brown colour to depict those to be of brick masonry walls.
Photograph annexure 'B' reveals that the floor is yet incomplete and the
walls do not indicate any provision for electricity connection and points.
Photograph 'C' reveals almost similar picture. Photographs 'E' and 'F' also
reveal same circumstances. Photographs 'G' and 'H' further reveal that,
in the shops seen in those photographs, there is absolutely no provision
for electricity connection and points. Photograph 'K', 'J' and 'I' reveal
that tarpaulin is supported by bamboos and is existing in front of & to
some extent on the shops.
8. The photographs are taken by the Commissioner on 21.8.2019 at
07.55 p.m. as mentioned in report Exh.6. What is evident from the
photographs taken by the Commissioner is that the flooring work of two
of the shops is incomplete. Wall of a shop is made up of ciporex blocks.
Unused ciporex blocks are still lying in one of the shops. There is
absolutely no provision in any of the shops to provide electricity. Thus, it
reveals that the shops are absolutely new. Had these shops been used as
suggested by the plaintiff there should have been the provision for
electricity points and electricity. It is not the plaintiff's case that even
walls are plastered, as in the plaint he has come with a specific case that
only tenantable repair of replacement of roof was carried out. In such
circumstances, absence of electricity lights and electricity points on all
the walls of all the 4 shops, prima facie, reveal that these are newly
constructed shops of which some work is still going on.
9. Defendant has also produced on record the photographs taken on
20.8.2019. Those reveal the construction of walls using ciporex blocks
and incomplete flooring. Thus, the photographs taken by the defendant
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and produced at Exh.4 and the photographs produced by the Court
Commissioner with report reveal same state of affairs. At Exh.2 plaintiff
has produced inspection report dated 30.7.2019 mentioning ongoing
construction. With affidavit Exh.7 the defendant has produced on record
a complaint lodged with its office alleging ongoing construction. The
photographs attached to said complaint clearly reveal ongoing
construction. The nursery seen in the photographs filed with list Exh.7
can easily be seen in the photographs taken by the Court Commissioner.
Thus, the place of ongoing construction cannot be disputed by the
plaintiff.
10. The circumstances revealing from the photographs are clear
enough to indicate that plaintiff has tried to hide the construction of
ciporex blocks by painting those with faint brown colour to depict those
to be of B.M. Walls. The photographs Exh.7 reveal ongoing construction
whereas the photographs produced with Exh.4 reveal that the
construction is on the verge of completion. Notice under Section 354A of
the MMC Act is dated 30.7.2019 itself. Thus, it is clear that despite
receipt of impugned notice, plaintiff has not stopped the ongoing
construction.
11. In such circumstances, the opinion expressed by the Court
Commissioner in Exh.6 revealing that suit premises is being used as
godown to store different types of material cannot be considered. One
fails to understand as to how the Court Commissioner can reach such
conclusion though the shops are seen to be empty with no such material
which can be kept in godown.
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12. Once it is brought on record that the ciporex blocks are found
existing in one of the shops and that walls of ciporex blocks are also seen
in the photographs, it is for the plaintiff to explain as to how the ciporex
blocks walls are seen though the plaintiff claim that the suit premises is
having B.M. Walls. Absence of explanation in this regard strengthens
defendant's case and prima facie reveals that plaintiff is hiding or
suppressing material facts from the Court.
13. Advocate for plaintiff relied upon Muni SuvratSwami Jain S.M.P.
Sangh Vs. Arun Nathuram Gaikwad and others, (2006) 8 S.C. Cases 590
wherein Hon'ble Bombay High Court has held that
"It is seen that no notice under the provisions of
Section 351 has been issued by the Municipal
Commissioner in this matter against the
appellant. In the special leave petition, it is
clearly mentioned by the appellant that the
Corporation had issued a notice to stop the work
under Section 354A of the BMC Act. No reference
is made to any notice under Section 351 of the
Act. It is specifically mentioned that the affidavit
which was filed on behalf of the Corporation had
categorically stated that after the service of stop
work notice under Section 354A no work was
carried out. Respondent 1 is fully aware that the
provisions of Section 354A of the Act deals with
stopwork notice whereas the provisions of section
351 of the Act deals with show cause notice for
demolition of unauthorized structure. The
grievance of the appellant herein has been that
without issuing a notice under Section 351 of the
Act and without giving an opportunity to the
appellant of being heard the structure of the
temple could not be ordered to be demolished by
the High Court. The power under Section 351 of
the Act, in our opinion, has to be exercised only by
the Municipal Commissioner and it is left to the
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Municipal Commissioner under the provisions of
Section 351(2) either to order or not to order the
demolition of the alleged unauthorized temple. In
fact, Respondent 1 by himself through his
Advocate's letter dated 16.4.2005 (annexed to his
counteraffidavit) requested the municipal
authorities to take action under Section 351 of the
Act. At the time of admission of this special leave
petition, the provision of Section 351 of the Act
was pointed out by the learned Senior Counsel to
show that the Municipal Commissioner had only
been conferred the power under the said
provisions to demolish or not to demolish the
unauthorized structure and, therefore, the High
Court ought not to have issued a mandamus for
demolition of the temple before any order was
passed by the Commissioner on the question of
demolition. The provisions of Section 354A have
nothing to do with the question of demolition."
14. In the authority cited supra, the admitted fact was that after
issuance of 354A notice no further construction was carried out.
Therefore, the Hon'ble Supreme Court has observed that demolition
cannot be carried out under Sub Section 2 of Section 354A of the MMC
Act. However, the facts in this case are different as the plaintiff has not
stopped the ongoing construction despite receipt of notice under Section
354A.
15. Advocate for plaintiff also relied upon a Circular dated 29.4.2006
issued by the defendant. Said circular provides in Clause 4 that,
"It is made clear that in case where an
unauthorized construction is completed, even though
very recently, a Notice under Section 351 of the
M.M.C. Act should be issued and no action under
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Section 354 A of the M.M.C. Act should be taken
against such construction".
16. In this case the circular could not be made applicable as after
receipt of notice under Section 354A of the MMC Act, the plaintiff did
not stop ongoing construction.
17. Advocate for plaintiff also relied upon the Judgment dated
15.4.1999 of Hon'ble Bombay High Court in Appeal From Order
No.257 of 1999 in the case of Govardhan Ramnaresh Singh Vs. The
Municipal Corporation of Greater Mumbai, wherein it is held that
"In the present case on the face of the notice itself it is
clear that by the time notice under Section 354A was
issued and given to the noticee construction was complete
and was in occupation."
18. The Hon'ble Bombay High Court has observed that, if a person has
raised any unauthorized construction before notice under section
354A(1) was issued, the remedy to the Corporation is under Section 351
of the BMC Act and not under Section 354A.
19. The Hon'ble Bombay High Court has also observed that
“SubSection (2) of Section 354A provides the
remedy to the Commissioner to remove such
unauthorized construction if the erection of the
building or execution of the work is not stopped by
the person within the period specified in the notice
given under subsection (1). The condition precedent
for invocation of power under subsection (2) of
section 354A is noncompliance of the notice by the
noticee given under subsection (1) of Section 354A."
20. In view of observations of the Hon'ble Bombay High Court thus, if
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after receipt of a notice given under Sub Section 1 of Section 354 of the
MMC Act the construction is not stopped then the action lies under Sub
Section 2 of Section 354A of the MMC Act.
21. In this case, the circumstances clearly indicate that despite the
receipt of notice under Sub Section 1 of Section 354A of the MMC Act,
plaintiff has continued the construction. In such circumstances,
defendant has every right to act against the notice structure under Sub
Section 2 of Section 354A of the MMC Act. It is also to be noted that
plaintiff has suppressed material facts from this Court and has come with
a false version. Thus, his conduct is not equitable. The circumstances,
therefore, indicate that plaintiff is not entitled to the equitable remedy of
injunction. The plaintiff has failed to make out a prima facie case. In
case of such nature, no balance of convenience lies in plaintiff's favour.
The case of irreparable loss is also not made out. Consequently, I answer
point Nos.1 to 3 in the negative and in response to point No.4 pass
following order:
ORDER
1. Notice of Motion is dismissed with costs.
(A.N. MARE)
Judge,
23.09.2019 City Civil Court, Mumbai.
Dictated On : 23.09.2019
Transcribed on : 24.09.2019
HHJ Signed on : 24.09.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
25/09/19 11.50 a.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
23.09.2019
JUDGEMENT /ORDER signed by
P.O. on
24.09.2019
JUDGEMENT /ORDER uploaded on 25.09.2019
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