Order 4

Order Details: Notice of Motion
Pdf Text: Combine Order in N/m No. 3351/19 & 3362/19 1
in Suit 2363/19.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3351 OF 2019
(CNR NO. MHCC01-009162-2019)
AND
NOTICE OF MOTION NO. 3362 OF 2019
(CNR NO. MHCC01-009198-2019)
IN
L. C. SUIT NO. 2363 OF 2019
(CNR NO. MHCC01-008961-2019)
The Kurla Dawoodi Bohra Masjid &
Kabristan Trust ...Plaintifs
Versus
Municipal Corporation of Greater Bombay ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 13th FEBRUARY, 2020.
Mr. B.P.Shukla, Advocate for Plaintifs.
Mrs. Tondwalkar, Advocate for Defendants No.1 / MCGM.
Mr. G.B.Naik, Advocate for Defendant No.2.
COMBINE ORDER
This is a combine order below Notice of Motion No.
3351 and 3362 of 2019. In view of notice dated 24/08/2019
issued by MCGM as per schedule, following is unauthorized
structure erected by plaintif over Zainee Shopping Complex,
Kurla (West) :
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Combine Order in N/m No. 3351/19 & 3362/19 2
in Suit 2363/19.
SCHEDULE
“U/a construction/Erection of MS Angles and
G.I. Pipes admg (18.30m X 21.5m X 2.8m
Height.) Approximately over, Ground + 1
structure Known Zainee Shopping Complex,
Opp. Akash Talkies, Kurla West Mumbai-70.”
2. Ld. Advocate B.P.Shukla submits that mezzanine
floor was converted in first floor and it was regularized. In the
year 1973, it was mezzanine floor. Plaintif has deposited
required charges of regularization, therefore by any stretch of
imagination, it cannot be called as unauthorized construction
of first floor. There was erection of patra shed roof over the
terrace measuring 18.30 x 21.50 to avail the premises for the
people to tender prayers / namaz. It is admitted that Suit No.
542/2017 was preferred by plaintif to challenge the notice
under Section 354 of MMC Act dated 08/07/2013. There is no
horizontal or vertical extension of suit premises. Due to local
politics, defendant no.2 has made a complaint to MCGM and
therefore impugned notice has been issued against the
plaintif.
3. Perused reply submitted by MCGM alongwith list of
documents. Perused documents submitted by defendant no.2.
Perused allegation as mentioned in Chamber Summons No.
1833/2019.
4. Ld. Advocate Tondwalkar for MCGM submits that
admittedly suit premises is the same in Suit No. 542/2017 and
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Combine Order in N/m No. 3351/19 & 3362/19 3
in Suit 2363/19.
present suit. In description of suit premises, no patra shed
was mentioned by plaintif in Suit No. 542/2017. It is
requested to peruse photographs dated 23/08/2019 and
27/08/2019 alongwith afdavit of Mr. Amol Patil, ofcer of
MCGM which clearly shows erection of tin shed and speed of
construction. There is an afdavit of Mr. Sumeet Jagdale,
ofcer of MCGM in respect of ground plus first floor shed
erected by plaintif. It is concluded that plaintif has converted
first floor into commercial shops and the object behind
authorization of first floor to provide space for prayers / namaj
converted in commercial space and on the same ground
plaintif has erected patra shed over the terrace. It is
requested to reject the motion.
5. Ld. Advocate G.B.Naik for defendant no.2 submits
that he is one of the occupant in Shop No.38. It is requested
to peruse notice dated 16/07/1994, reply dated 18/07/1994
and reply of MCGM. It is requested to compare photographs of
the suit premises alongwith photographs of 1994. There are
numerous documents to conclude that first floor was titled
unauthorized. In order dated 28/12/1995 for regularization of
first floor, it was specifically mentioned that it shall not be
used for residence or commercial purpose. In order dated
01/09/1994, it is clearly observed that plaintif has used more
FSI than permissible FSI. It is claimed to reject the motion.
REASONS FOR ORDER
6. On comparison with description of suit premises of
present suit and description given in Suit No. 542/2017, it is
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Combine Order in N/m No. 3351/19 & 3362/19 4
in Suit 2363/19.
crystal clear that there is no reference of shed as mentioned
in present suit. It clearly indicate impugned structure is
illegal. Admittedly, first floor was illegally constructed by
plaintif, however, considering object of its erection to use it
for prayer, it appear to be regularized by the MCGM.
7. The history narrated by defendant no.2 in his
afdavit in reply to the motion vide Ex.10, it is specifically
mentioned that first floor was regularized for the specific
religious object. Prior to 1994, the first floor was with
asbestos roof and no ladi coba was there, which was later on
converted with floor of slab by the plaintif. The material part
is reproduced as follows :
“It is clear that the said plaintif have
violated undertaking given to Defendant
No.1 that they shall utilize the unauthorized
structure of the 1st floor for Namaz / Prayer
only. The said plaintif have converted the
said 1st floor for commercial use and given
galas on the 1st floor for carrying out their
business and industrial and manufacturing
work by installing heavy duty machineries.
Apart from the same now plaintif has
commenced unauthorized construction of 2nd
floor roof which Defendant No.1 has given
notice U/s 53 of MRTP Act, 1966.”
“Now the said plaintif taking law in
their own hand carrying out unauthorized
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Combine Order in N/m No. 3351/19 & 3362/19 5
in Suit 2363/19.
construction of second floor thereby putting
the life and property of the occupants on the
ground floor in danger as the said structure
was initially of ground floor upto year 1994
and hence cannot bear the additional burden
of two unauthorized structure constructed
without permission from competent
authorities and the unauthorized
construction of shops on 1st floor and
additional 2nd floor is not done with the
supervision of the Architect and without any
specific architectural design which is atmost
necessary to build the building having
necessary strength. The said construction is
also constructed in violation of the FSI norms
and hence cannot be regularized.”
8. In Para 35 it is mentioned that how first floor came
to be converted by plaintif.
“The actual position prior to year 1994
was that the Zainee shopping complex was
consisting of ground floor with sloppy
Asbestos roof and there was no ladi-caba
roof prior to year 1994. That means there
was absolutely no terrace to the said Zainee
Shopping complex in the year prior 1994.”
9. The application of plaintif trust dated 18/07/1994
was submitted for minor repairing. In a letter dated
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Combine Order in N/m No. 3351/19 & 3362/19 6
in Suit 2363/19.
01/09/1994 addressed by MCGM in Note No.3, details of area
and FSI are narrated as follows :
“3. The plans are submitted for the built
up area of 1472.68 Sq.Mts. as against the
plot area of 838.40 Sq.Mt. as per P.N. Cards.
F.S.I. proposed to be consumed is more than
permissible F.S.I. one.”
10. The Deputy Commissioner of MCGM proceeded for
detail order on 05/09/1994 which shows checkered history of
suit premises and how plaintif has abused the situation being
used for religious prayer.
“It was, however, observed firstly that,
the original structure had no flat roofing but
was with sloping roof. In the repair
permission, the permission was granted
with sloping roof with A.C. sheets. However,
while repairing the structure, you have
constructed a flat roof with ladi coba
thereby constructing an additional first floor
upon the old structure. Thus the first floor
is completely unauthorised.
Secondly, while repairing the structure,
you have carried out extention to the
ground floor structure. The said
unauthorised construction consists of 6
rooms admeasuring 10” x 11’ each with
brick masonary walls and ladi coba roof.
The said extended unauthorised
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Combine Order in N/m No. 3351/19 & 3362/19 7
in Suit 2363/19.
construction has also covered open space of
the old building.
Thirdly, while repairing the structure,
you have constructed brick masonary
partition walls in the ground floor portion of
the structure, thereby subdividing the
ground floor into various rooms in violation
of the provisions of B.M.C. Act.
Fourthly, you have also changed the
mode of construction in as much as by
replacing the slopping A.C. sheets roof with
flat laddi-coba slab with R.S. Js. and
supported on steel stanchions at ceilings of
ground and first floor.”
“Your proposal submitted to the E.E.
(B.P.)E.S. on 10.8.1994 has been already
rejected and intimation of rejection was
given to you as well as your architect Shri
Noor Tarwala under No.CE/3448/BPES/AL dt.
1.9.1994. In the said rejection letter, E.E.
(B.P.) has inter-alia pointed out that as
against the plot area of 838 sq.mts., the
built-up area shown in the plans submitted
by the architect worked out to 1472.68
sq.mts.”
11. There are numerous photographs submitted by
defendant MCGM and defendant no.2 on Page No.51 and 52
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Combine Order in N/m No. 3351/19 & 3362/19 8
in Suit 2363/19.
which shows there was no covered roof over the suit premises.
On perusal of photographs dated 23/08/2019 and 27/08/2019,
it shows the speed of the work of erection of the shed. It is
neither tenentable repair nor it is essential repair.
12. There is no afdavit submitted by plaintif to
counter aforesaid material brought by defendant no.2 that
first floor is in use for commercial purpose and leased out to
various shops. There is no submission on behalf of plaintif
that first floor is used for the same purpose for which the
regularization was granted by the MCGM. It clearly indicate
violation of the condition whereby first floor was regularized
by the MCGM.
13. Ld. Advocate for defendant no.1 MCGM relied on
Tushar Salian Vs State of Maharashtra - 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 as 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
out defciencies in the notice or the authority of
the person issuing the notice is neither here nor
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Combine Order in N/m No. 3351/19 & 3362/19 9
in Suit 2363/19.
there. Thus, the sine qua non of such kinds of
suits is a positive assertion made with reference
to the sanctioned building plans.”
14. In Mr. Mohd. Zuber Vs. MCGM – AFO 27460/2016
dated 15.10.2016, the Hon'ble High Court observed as
follows:
“Though the opportunity was given to the
appellant to prove the legality of the said
construction, he has failed to prove the same,
either before the Assistant Municipal
Commissioner or even before the Trial Court or
this Court. Merely saying that he has not carried
out the construction and he has only changed the
A.C. sheet roof is not sufcient. Hence, in the
absence of any evidence proving the permission
or the plan sanctioned for such construction, the
Trial Court has rightly held that the said
construction is illegal and unauthorized and the
Municipal Corporation was perfectly justifed in
taking action against the said construction.
Therefore, no interference is warranted in the
fnal order passed by the Assistant Commissioner
and by the Trial Court.”
15. Following are important points to note :-
a) Plaintif is failed to clarify what was the object when
first floor was regularizedn whether for same object,
it is in use today ?
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Combine Order in N/m No. 3351/19 & 3362/19 10
in Suit 2363/19.
b) How much is area of plot and FSI consumed by
plaintif ?
c) Plaintif is failed to submit any photograph of old
structure alongwith impugned shed (alleged to be
unauthorized by MCGM).
16. It is settled law that plaintif must show approved
plan. In present case, plaintif has already used additional FSI
and therefore there is no prima facie case. The balance of
convenience do not lie in favour of plaintif. It will cause no
irreparable loss to the plaintif as structure erected appear to
be unauthorized. Hence the order :
- ORDER -
1. Notice of Motion No. 3351/2019 and 3362/2019
stands dismissed.
2. Both above Notice of Motions are disposed of
accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 13/02/2020. Mumbai.
1. Dictated on : 13/02/2020.
2. Transcribed on : 14 & 15/02/2020.
3. Signed on : 17/02/2020.
4. Delivered to Certified :
Copy Section on
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Combine Order in N/m No. 3351/19 & 3362/19 11
in Suit 2363/19.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/02/2020. 12.29 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
13/02/2020.
Judgment/Order signed by P.O. on 17/02/2020.
Judgment/Order uploaded on 18/02/2020.
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