Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judg. in L.C.Suit No. 482 of 2020
MHCC010089682019
Presented on : 28-08-2019
Registered on : 12-02-2020
Decided on : 09-09-2024
Duration : 5 Ys. 00 M. 12 Ds.
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
L.C. SUIT NO. 482 OF 2020
Ex.40
Maniklal S Tripathi
Aged about 88 years, Occ:Service,
Indian Inhabitant of Mumbai,
Add:19/63, 16/22, Pais Street,
Jacob Circle, Byculla,
Mumbai:400 011. .. Plaintiff
V/s.
1 The Municipal Corporation of
Greater Mumbai, a body incorporated
under the provisions of the Bombay
Municipal Corporation Act 1888 having
their Head Office at Mahapalika Bhavan,
Opp. V.T. Mumbai:400 001.
2 Asst. Municipal Commissioner
(B & E Ward) of Municipal Corporation
of Greater Bombay (Brihanmumbai
Mahanagar Palika), E Ward, Office Bld.,
10, Shaikh Haffizuddin Marg, Byculla,
Mumbai: 400 008. .. Defendants
Appearance:-
Adv. D. V. Sawant with Adv. Shukla for plaintiff.
Adv. Vazale for defendants/MCGM.
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2 Judg. in L.C.Suit No. 482 of 2020
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 09/09/2024.
JUDGEMENT
This is a suit for declaration and mandatory injunction.
2 Averments in the plaint are, as under:-
It is contended that the plaintiff is residing at the address
mentioned in the cause title. By this suit, the plaintiff has challenged
the threatened action of demolition of the alleged structure of the
owner/occupier by addressing the impugned notice to the
Chairman/Secretary of the Greater United Industrial Estate Co-
operative Society Ltd., C.S., No. 1963 Byculla Division, Pais Street,
Byculla consisting of 24 commercials Galas of which the plaintiff is in
the occupation and possession of (Gala No. 19/63, 16/22 deleted by
way of amendment) the area of the suit premises 20351 sq. mtrs (this
area is incorporated by way of amendment) at Sarafally Compound
(referred as, the said Gala) as particularly described in schedule 1 of the
plaint, pursuant to the NOTICE NO.E/DO1/ 207/351-MMC ACT/
E96N01/26-6-2019 and speaking order no Notice No u/s 351 of MMC
Act, bearing complaint no E/207/26-6-2019, NOTICE NO.E/DO1E/207/
351-MMC ACT/E96N01/26-6-2019 REF NO 94473 Dt.19/08/2019. The
said Gala was in the use and occupation of the plaintiff since prior to
1962. The plaintiff was illiterate and he was not able to understand the
worth of the impugned notice/order. The plaintiff has several
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documents to prove its existence that the said Gala has been in
existence since prior to the datum line. Those documents are -
“A. Copy of order dt. 12/4/96 in Suit No. 6534/1987
Maniklal S Tripathi V/s. MCGM.
B. Copy of letter no.WOE/8093/AE (800) E dated 7.3.78
in respect of NOC from your office at E Ward, 10 sk.
Harizuddin marg, byculla, Bombay:-400 008.
C. Copy of municipal licence no. 29986 of the year 1962-
1963.
D. Copy of summons no. 935/m 1962 issued by honorary
presidency magistrate, mazgaon,
E. Copy of old licence no. 8333 & new licence no.E/7061
dt. 15/12/67.
F. Copy of assessment from 1978 to till date by your
office.
G. Water bill of MCGM meter no W3591000 dt 24/8/2006.
H. Electricity bill in the name of maniklal.s.tripaathi.
J. Copy of letter dt 26/2/02,21/3/97,15/9/99,13/10/98,
15/6/93,7/3/2014 issued by defendants office.
K. Copy of plaintiffs letter dt 9/1/17, 5/10/01, 13/9/93 to
BEST OFFICE.
L. Copy of plaintiffs advocate letter dt. 16/6/94,
29/11/94,
I. Copy of proceeding in city civil suit (st) no 10097/16.
M. Copy of letter dt 11/9/93 issued by Kuldeep Pednekar
to defendants office.”
3 It is further contended that one builder is interested in the
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redevelopment of the entire site in which the said Gala is situated. The
plaintiff objected to the said redevelopment subject to following proper
procedure under DCR Rules for the redevelopment. Therefore, the
defendants have issued impugned notice and order which is too vague
i.e. without any proper description of the structure. The plaintiff
informed the officers of the defendants that the said Gala is in existence
since prior to 1962 by showing all the relevant documents which were
in his possession. After furnishing the documents, the officers of the
defendants personally visited the site and threatened to demolish the
said Gala without giving opportunity to the plaintiff. The plaintiff is not
given opportunity to prove his case, and no opportunity of hearing was
granted. The impugned notice/order is ex-facie, wrong and the
impugned order has been passed without giving reasoned order. The
impugned notice and order adversely affect the rights of the plaintiff.
The plaintiff, therefore, filed this suit.
4 The defendants resisted the suit vide written statement
Ex.2. It is contended that the suit is bad for want of notice under
Section 527 of the MMC Act 1888. The plaint also does not disclose the
cause of action for filing this suit. On routine inspection/usual round of
inspection on 26/06/2019, the concerned officer found unauthorized
construction of the suit structure i.e. unauthorized construction of open
land at Greater United Industrial Estate Co-op Society Ltd. C.S. No.
1963 Byculla Division, Pais Street, Byculla, as under-
01) Unauthorized construction of room adm. 5.50 M x 10.60
M using Brick masonry and G.I. sheet Roof of height 3.00 M.
02) Unauthorized construction of room adm. 5.50 M x 3.50 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
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03) Unauthorized construction of room adm. 5.50 M x 6.00 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
04) Unauthorized construction of room adm. 5.50 M x 2.85 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
05) Unauthorized construction of room adm. 5.50 M x 7.30 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
06) Unauthorized construction of room adm. 5.50 M x 3.10 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
07) Unauthorized construction of room adm. 5.50 M x 6.20 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
08) Unauthorized construction of room adm. 5.50 M x 4.80 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
09) Unauthorized construction of Ground + 1 floor room
adm. 6.00 M x 4.80 M using Brick masonry and G.I. sheet
Roof of ht. 5.50 M.
10) Unauthorized construction of room adm. 1.50 M x 3.00 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
11) Unauthorized construction of room adm. 2.50 M x 3.00 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
12) Unauthorized construction of room adm. 2.50 M x 4.20 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
13) Unauthorized construction of room adm. 2.50 M x 2.80 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
14) Unauthorized construction of room adm. 2.50 M x 3.00 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
15) Unauthorized construction of room adm. 4.30 M x 10.00
M using Brick masonry and G.I. sheet Roof of height 2.70 M.
16) Unauthorized construction of room adm. 5.30 M x 6.10 M
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using Brick masonry and G.I. sheet Roof of height 4.00 M.
17) Unauthorized construction of room adm. 3.00 M x 2.70 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
18) Unauthorized construction of room adm. 3.00 M x 2.00 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
19) Unauthorized construction of room adm. 3.00 M x 3.30 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
20) Unauthorized construction of room adm. 3.00 M x 5.30 M
using Brick masonry and G.I. sheet Roof of height 2.10 M.
21) Unauthorized construction of room adm. 4.90 M x 2.60 M
using Brick masonry and G.I. sheet Roof of height 2.50 M.
22) Unauthorized construction of room adm. 4.90 M x 2.60 M
using Brick masonry and G.I. sheet Roof of height 2.50 M.
23) Unauthorized construction of room adm. 4.90 M x 3.00 M
using Brick masonry and G.I. sheet Roof of height 2.50 M.
24) Unauthorized construction of room adm. 6.50 M x 1.50 M
using Brick masonry and G.I. sheet Roof of height 3.00 M.
25) Unauthorized construction of shed adm. 16.00 M x 5.00
M and 30 M x 4.00 M using Brick masonry and G.I. sheet
Roof of heig ht 4.50 M.
Unauthorized horizontal extension to the gala no. 11 adm.
25.00 M x 2.00 M and height of about 4.00 M.
Unauthorized horizontal extension to the gala no.10A adm.
13.00 M x 4.40 M and height of about 4.00 M, as mentioned
in the notice schedule.
5 The concerned officer thereafter, prepared the inspection
report and took photographs of the said unauthorized work. On inquiry,
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the owner/occupier failed to produce the permission as well as sanction
plan etc. Therefore, the report alongwith documents was forwarded to
the higher authority. The Designated Officer, E Ward, after going
through the entire documents concluded that the owner/occupier has
carried out the said unauthorized construction. Therefore, the notice dt.
26/06/2019 came to be issued under Section 351 of the MMC Act. By
the said notice, the addressee was informed by way of show cause to
produce the sanction plan or any other documentary evidence within
seven days from the receipt of the said notice. The plaintiff submitted
his reply through his advocate letter dt. 17/07/2019, 10/07/2019 and
16/07/2019 alongwith documents. The Designated Officer considered
the reply and documents submitted by the plaintiff and concluded that
notice structure is constructed without prior permission and the same
was not in existence since prior to the datum line. Therefore, the
Designated Officer passed the detailed and reasoned order dt
26/06/2019 directing the plaintiff to remove the notice structure within
seven days from the receipt of the said order. The plaintiff is the tenant
of the Corporation, therefore, it was necessary to take permission of the
concerned department of the defendants. However, the plaintiff has
erected the said construction without permission, therefore, notice has
been rightly issued. The defendants have also submitted the plan of
Estate Department prepared as per the Survey Sheet No. 322 to show
the location and status of the unauthorized structure. It is clear from the
said plan that there was no structure on the said land. The copy of
order dt. 12/04/1996 submitted by the plaintiff was issued for the
unauthorized construction of shade which was totally different from the
present notice structure. Moreover, notice bearing No.E/5/AEFB/E dt.
28/05/1987 under Section 351 was also for the different structure and
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the plaintiff is trying to mislead the Court. The plaintiff has to prove the
authenticity of the notice structure by producing an approved
plan/permission in respect of the notice structure but the plaintiff failed
to produce any such authenticated documents, therefore, the plaintiff
has no right to claim any relief in the suit. The copies of documents
filed by the plaintiff are in respect of Godown and not in respect of the
notice structure. Rests of the averments are denied in toto. It is thus,
contended that the suit is liable to be dismissed with costs.
6 On the basis of rival pleadings, I have framed the issues at
Ex.6. Those issues are reproduced here. My findings are recorded
thereon with reasons enumerated therein, as under.
Sr. No. ISSUES FINDINGS.
1 Does the plaintiff prove that the
impugned notice dt. 26/06/2019 issued
under Section 351 of the MMC Act 1888
and order dt. 19/08/2019 issued by the
defendant in respect of the notice
structure is illegal, bad in law and liable
to be quashed and set aside?
Negative
2 Whether the suit is bad for want of
notice under Section 527 of the MMC
Act 1888?
Negative
3 Whether the plaintiff is entitled to the
reliefs of declaration and injunction, as
prayed for?
Negative
4 What order and decree? As per final
order
R E A S O N S
7 During the course of arguments, the learned advocate for
the plaintiff emphasized mainly on a copy of order dt. 12/04/1996
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(Ex.11) passed by the Joint Municipal Commissioner (Z-I), Inspection
Extracts (Ex.16, 17) and notice Ex.18 dt. 28/05/1987 under Section
351 of the MMC Act. Reliance is also placed on the copies of license
(Ex.13, 15 and 20), summons (Ex.14) and tax-receipt (Ex.22). The
learned advocate for the plaintiff also invited the attention of this Court
towards the order dt. 17/10/2023 (Ex.28) passed by the Hon’ble High
Court in A. O. No. 830 of 2022 with I. A. No. 4111 of 2019 as well as,
the order dt. 08/03/2024 in I. A. No. 1160 of 2024 in A.O. No. 830 of
2022, and thereby submitted that in terms of the aforesaid direction,
the plaintiff has already vacated the suit premises by handing over the
possession thereof to the said society. The learned advocate for the
plaintiff thereby vehemently submitted that in spite of having sufficient
documentary evidence submitted to the defendants to show the
existence of the suit premises since prior to the datum line, the
defendants have passed the impugned speaking order directing the
plaintiff to remove the unauthorized construction. In support of his
submissions, the learned advocate for the plaintiff placed reliance on G.
J. Kanga and another V/s. S.S. Basha, 1992 (3) Bom.C.R.582.
8 On the other hand, the learned advocate for the defendants
/MCGM submitted that no any cogent and reliable documentary
evidence filed on record to prove the authenticity of the notice structure
or to prove its existence since prior to 01/04/1962 which is the datum
line to bring the same within the tolerated category. It is submitted that
the plaintiff has not given the specific description of the suit premises so
as to identify the exact location of the suit premises. It is, therefore,
vehemently submitted that the suit is liable to be dismissed.
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AS TO ISSUE NO.2 :
9 One of the submissions made by the learned advocate for
the defendants/MCGM is that the provisions of Section 527 of the
M.M.C. Act, 1888 are mandatory in nature. It was, therefore,
mandatory on the part of the plaintiff to issue first the statutory notice
under Section 527 prior to the filing of this suit against the MCGM. The
learned advocate for the MCGM, therefore, submitted that in the
absence of statutory notice, the suit itself is bad and liable to be
dismissed. On the other hand, the learned advocate for the plaintiff has
submitted that in view of the impugned notice and order, the plaintiff
was required to file the suit urgently. In these circumstances, there was
no scope for the plaintiff to issue the notice under Section 527 of the
MMC Act. In support of his submissions, the learned advocate for the
plaintiff placed reliance on Motilal Mahadev Sharma and others V/s.
Municipal Corporation of Greater Bombay 2005 SCC OnLine Bom 401
in which the Hon’ble High Court has specifically observed that there are
several rulings on this point that when the plaintiff wants to seek
immediate relief from the Court in the form of injunction, it is not
necessary for him to issue the statutory notice or wait till the notice is
served and the period prescribed under Section 527 is over.
10 Considering the ratio laid down by the Hon’ble High Court
supra, if the facts of the present case are taken into consideration, it is
apparent that after issuing the notice dt. 26/06/2019, the defendant
No.2 passed the impugned order dt. 19/08/2019 calling upon the
plaintiff to remove the notice structure within a period which is lesser
than the period as mentioned in Section 527 of the MMC Act. It is,
therefore, not expected on the part of the plaintiff to first issue the
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notice and thereafter, to wait until the period prescribed under Section
527 is expired. In these circumstances, I am, therefore, of the
considered view that no question arises of bar of Section 527 of the
MMC Act, 1888 for want of statutory notice on the part of the plaintiff.
Therefore, issue No.2 is answered in the negative.
AS TO ISSUE NO.1 & 3:
11 In order to substantiate the plaint averments, on behalf of
the plaintiff, Jayshankar Maniklal Tripati, a Constituted Attorney of the
original plaintiff is examined as PW-1 at Ex.8. On behalf of the plaintiff,
reliance is placed on the following documents-
Sr. No. Documents Ex.
1 Copy of power of attorney 10
2 Order dt. 12/04/1996 by Joint Municipal
Commissioner in BCC Suit No. 6534/1987
11
3 Letter dt. 07/03/1978 in respect of NOC from E
Ward, Byculla, Mumbai
12
4 Municipal License No. 29986/1962-63 Old and
New
13
5 Summons No. 935/M, 1962 by Honorary
Presidency Magistrate dt.28/08/1962
14
6 Old license no 8333 & new license no E/7061 dt.
15/12/1967
15
7 Inspection extract dt. 26/09/1988 16
8 Inspection Extract dt. 26/02/2002 17
9 Notice dt. 28/05/1987 18
10 Receipts dt. 13/03/1978 19 colly.
11 License Receipt dt. 1965 to 1974 20 colly.
12 Assessment bill 21
13 Property tax receipts 22
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12 Judg. in L.C.Suit No. 482 of 2020
14 Electricity bill 23
15 Adv. Letter dt. 16/06/1994 24
16 Notice dt. 26/06/2019 25
17 Order dt. 14/01/2020 in A.O. 830 of 2022 26
18 Order dt. 07/10/2023 in IA o. 26134 of 2022 in
A.O. 830 of 2022
27
19 Order dt. 17/10/2023 in A.O. 830 of 2022 28
20 Order in A.O. No. 830 of 2022 dt. 18/12/2023
and 08/03/2024
36
21 Documents received through RTI dt. 5/8/2024 37
12 On the other hand, on behalf of the defendant No.1 and
2/MCGM, Mr. Abrar S. Khan, Assistant Engineer, (B & F) is examined as
DW-1 at Ex.30. The defendants placed reliance on the following
documents-
Sr. No. Documents Ex.
1 Inspection report dt. 26/06/2019 with
photographs
32
2 Notice U/s. 351 dt. 26/06/2019 25
3 Speaking order dt. 19/08/2019 33
4 Plan dt. 04/12/2018 34
13 Claiming to be in the exclusive use, occupation and
possession of the suit premise, PW-1 Jayshankar, a Constituted Attorney
of the original plaintiff deposed that the defendant No.1/MCGM is the
landlord/owner and the plaintiff is the tenant of the suit property
situated a C.S. No. 1963 of Byculla Division, Pais Street, Byculla
admeasuring 203.51 sq. mtrs. According to this PW1, earlier one
Roshanlal Chadda was the predecessor in title/tenant of the suit
property.
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14 Thus, having regard to the claim of the plaintiff to be in the
exclusive use, occupation of the suit premises having area admeasuring
203.51 sq. mtrs, the plaintiff is not only bound to prove that he is
occupying the area of 203.51 sq. mtrs consisting of the Galas as
mentioned in para. 4 of the affidavit of evidence (Ex.8) but the plaintiff
is also required to prove that the suit property has been constructed as
per the approved plan or permission obtained from the competent
authority of the defendants. In the absence of approved plan or
permission, the plaintiff is bound to prove that the suit property is in
existence since prior to 01/04/1962 if it is a residential premises or if it
is a commercial premises, to prove its existence since prior to
17/04/1964 which is the datum line to bring the same in a tolerated
category.
15 In this regard, upon careful perusal of the entire plaint
averments coupled with the averments in the affidavit of evidence of
PW-1, it reveals that it is nowhere mentioned therein as to whether the
suit premises is occupied by the plaintiff as a residential premises or
whether it is in the use and occupation as a commercial premises.
Though PW-1 Jayshankar has deposed that the defendant No.1/MCGM
is the landlord/owner and the plaintiff is the tenant, this fact is also
nowhere pleaded in the entire plaint.
16 While deciding the controversy in the suit, it has to be
borne in the mind that the scope of the suit is restricted to the extent
only to decide the relief of declaration and permanent injunction
(claimed mandatory) in which the legality of the impugned notice dt.
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26/06/2019 issued under Section 351 of MMC Act 1888 and order dt.
19/08/2019 is under challenge. So also, it is also important to borne in
mind that the description of the construction as mentioned in the
schedule of the impugned notice is consisting 25 structures along with
two horizontal extensions to the Gala No.11 and 10A which have been
stated to be unauthorizedly constructed on an open land of the Greater
United Industrial Estate Co-operative Society Ltd., C.S. No. 1963 of
Byculla Division, Pais Street, Byculla. PW-1 Jayshankar in para. 4 of his
evidence deposed that the relief of declaration is sought challenging the
impugned notice and order in respect of the suit property situated at
C.S. No. 1963 of Byculla Division admeasuring 203.51 sq. mtrs.
Therefore, the plaintiff has to prove that the suit property admeasuring
203.51 sq. mtrs in C.S. No. 1963 is a part and parcel of the notice
structure as described in the schedule of the impugned notice and order.
17 While considering the aforesaid facts and circumstances in
the light of oral and documentary evidence, it is equally significant and
necessary to mention some undisputed facts and events which have
occurred during the pendency of the suit. As can be seen from the order
dt. 17/06/2023 (Ex.28) in A. O. No. 830/2022 with I. A. No. I.A. No.
4111/2019, the said appeal was preferred by the plaintiff challenging
the order of dismissal of the Notice of Motion No. 3429 of 2019. The
hon’ble High Court, during pendency of the A. O. No. 830 of 2022, by
adding the intervener/applicant Greater United Industrial Estate Co-
operative Society Ltd., in para 3 of the said order, issued certain
directions, as under -
“the learned counsel appearing for the Appellant and the
learned counsel appearing for the Intervenor agreed to the
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following arrangements:
i) The Intervenor-Society shall execute an agreement for
permanent alternate accommodation with the Appellant by
providing 21% area over and above the area currently in
occupation of the Appellant in the newly developed building.
ii) For the purpose of computing the exact area in
occupation of the Appellant, an official of the Municipal
Corporation shall pay visit to the suit premises and carry out
measurement thereof and give an intimation of the exact
area in occupation of the Appellant both to the Appellant as
well as Intervenor within a period of two weeks from today.
iii) The agreement for grant of permanent alternate
accommodation shall contain covenant for payment of
transit rent at the rate of Rs.70/- per Sq. Ft. commensurate
to the area currently in occupation of the Appellant. The rent
for period of 12 months from the date of vacation of the suit
structure shall be paid to the Appellant on the date of
vacation of the suit structure.
iv) The entitlements of the Appellant both to the permanent
alternate accommodation as well as transit rent would be
subject to the final result of the Suit.
v) The Intervenor-Society is permitted to file an application
in the pending suit of the Appellant seeking intervention and
as and when such application is filed, the City Civil Court
shall permit the Intervenor-Society to be impleaded as a
Party-Defendant to the suit.
4. Mr. Savant would submit that the Appellant would vacate
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the suit structure within a period of two weeks from today.
Statement is accepted.
5. In view of consensus prevailing between the parties,
nothing further needs to be adjudicated in the present
appeal.
6. The City Civil Court is requested to expedite the hearing
of the suit and shall make an endeavour to decide the same
as expeditiously as possible, preferably within a period of
one year from today. With the above directions, the Appeal is
disposed of. In view of disposal of Appeal, Interim
Application does not survive and stands disposed of.”
18 Moreover, the plaintiff himself has filed on record a copy of
order (Ex.36) dt. 18/12/2023. Perusal of this order reveals that after
passing the said order, in view of the preceipe taken out by the
intervener-society in a disposed of A.O. 830 of 2022 seeking
clarification with regard to the order dt. 17/10/2023, the Hon’ble High
Court passed the order dt. 18/12/2023 by observing that -
“
Mr. Sawant, the learned Counsel appearing for the
Appellant gracefully submits that at 10 a.m. on 19 December
2023 (tomorrow) the Appellant shall show the location of
Gala Nos.19/63 and 16/22 to the official of the Municipal
Corporation for the purpose of carrying of measurement in
terms of direction in para. No.3(ii) of the order dated 17
October 2023. The officials of the Municipal Corporation
shall carry out measurement of Gala Nos.19/63 and 16/22
and give an intimation of the exact area in occupation of
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both the galas to the Appellant as well as Intervenor
immediately after carrying out the measurement on 19
December 2023. The Appellant shall vacate the suit structure
and hand it over to the Intervenor.”
19 Another significant document filed on record is a copy of
the report (Ex.37) of Assistant. Engineer (B & F), E Ward dt.
03/01/2024 which is obtained under the Right to Information Act.
Upon careful perusal of this report, it reveals that the office staff of the
MCGM visited the premises at the Greater United Industrial Estate, C.S.
No. 1963 Byculla Division, Pais Street, Byculla on 25/10/2023
alongwith the appellant and the intervener for the measurements of the
structures (namely Gala no. 19/63 and 16/22) as directed in the order
dt. 17/109/2023. In this report (Ex.23), it is further mentioned that at
the time of the said visit, there were 14 structures found on the site out
of which one of the structures was partly collapsed and the remaining
13 structures are still standing freely. However, no documentary
evidence was shown by the plaintiff on the site to identify the two
structures (namely Gala no.19/63 & 16/22) as mentioned in the order.
It is also mentioned in the said report (Ex.37) that the plaintiff was
informed orally as well as by letter dt. 26/10/2023 to submit the
documents showing the ownership of the said structure to enable this
office to identify the two Galas under reference and to comply as per
the Hon’ble High Court order dt. 17/10/2023. Though the plaintiff is
stated to have replied to the said letter on 27/10/2023, failed to
submit documents to show the ownership of the said structure and also
to identify the structures under reference. Moreover, it is also
mentioned in the said report (Ex.37) that two Galas i.e. 19/63 & 16/22
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are not highlighted on any of the structures present on the site but are
the city survey nos. i.e. C.S. No. 1963 of Byculla Division & Plot No.
16/22 respectively.
20 Thus, considering the aforesaid circumstances, it reveals
that at one place, the plaintiff himself has filed a report dt. 03/01/2024
(Ex.37) about the visit of the staff of the Municipal Corporation on the
site on 25/10/2023 in which it is mentioned that that plaintiff has
failed to show the location of the suit premises at the time of the site
inspection. On the other hand, copy of the order dt. 08/03/2024 in
Interim Application No. 1160 of 2024 in A.O. No. 830 of 2022 shows
that before the hon’ble High Court the plaintiff has made a statement
through his counsel that pursuant to the order dt. 17/10/2023, he has
already vacated the suit premises on 01/11/2023. Moreover, to clarify
this position, nothing is produced on record nor the said society is
added as party defendant though parties to the said appeal were
granted liberty to add the said society as a party to the suit.
21 It is pertinent to note that after making the statement dt.
08/03/2024 before the Hon’ble High Court that the suit premises is
already vacated on 01/11/2023, the plaintiff has taken out the
Chamber Summons No. 1201 of 2024 in this suit on 18/06/2024 for
amendment in the plaint which came to be allowed on the same day. In
the affidavit in support of the Chamber Summons, the plaintiff has
contended at the time of filing of this suit, the plaintiff was in hurry due
to which area of the said Galas is not mentioned in the plaint and even
Gala number mentioned is also wrong as the same is the CTS number
and further contended that the Gala no. 1963 and 16/22 as mentioned
-- 18 of 22 --
19 Judg. in L.C.Suit No. 482 of 2020
in para. 2 of the plaint is a typographical error that has to be corrected
by mentioning the area of the suit premises as 203.51 sq. mtrs. by
replacing those Gala Nos. and thereby the plaint came to be amended
by mentioning the area of the suit premises as 203.51 mtrs. in the place
of Gala No. 19/63 & 16/22. These circumstances indicate that after the
site visit report (Ex.37) dt. 03/01/2024 for the measurement of two
Galas on 25/10/2023 as well as, after making the statement dt.
08/03/2024 in I. A. No. 1160 of 2024 that the suit premises is already
vacated on 01/11/2023, the plaintiff has thereafter, taken out this
Chamber Summons No. 1201 of 2024 for the amendment in the plaint.
Thus, it reveals that in order to fill up the lacunae i.e. the identity and
location of the suit premises, as mentioned in the site visit report
(Ex.37) the plaintiff has amended the plaint at a later stage. On the
contrary, it reveals that since after filing this suit till filing the I.A.
No.1160/24, the plaintiff has constantly maintained that he has
occupied the two structures i.e. Gala No. 19/63 & 16/22 while giving
the description of the suit premises.
22 Another significant thing to be taken into consideration is that
in the power of attorney (Ex.10) executed by the original plaintiff, it is
mentioned that the plaintiff is in possession of land/property known as
Pais Street and Sarafally Compound, Byculla(W) on which there are 7
Galas, 2 Rooms and 1 Attic Floor owned and possessed by him whereas,
in the plaint the plaintiff had earlier pleaded that he is occupying Gala
No. 19/63 & 16/22 at Saraf Ali Compound. On the other hand, in the
affidavit in support of the Chamber Summons, it is contended that he is
occupying nine (9) Galas. Thereafter, by way of amendment, the
plaintiff referred to the suit premises by mentioning the area 203.51 sq.
-- 19 of 22 --
20 Judg. in L.C.Suit No. 482 of 2020
mtrs in the place of Gala No. 19/63 & 16/22. In fact, nothing is
clarified as to on what basis he has ascertained this area of the suit
premises. These circumstances indicate that the plaintiff himself is not
sure to ascertain as to which premises he is actually occupying while
giving the description of the suit premises.
23 In the schedule of the impugned notice (Ex.25),
unauthorized construction has been described as 1 to 25 structures
constructed on the open land at Greater United Industrial Estate co-op
Society Ltd., C.S. No. 1963, Byculla Division, Pais Street, Byculla. Thus,
what can be transpired from the impugned notice (Ex.25) is that all
those structures are situated on the open land of C.S. No 1963, Pais
Street, Byculla Division. On the other hand, to prove the existence of
the suit premises, entire claim of the plaintiff is based on the earlier
notice (Ex.18) dt. 28/05/1987 which was issued under Section 351 as
well as order (Ex.11) dt. 12/04/1996 in which the Joint Municipal
Commissioner has withdrawn the said notice (Ex.18) by giving the
benefit of doubt to the plaintiff. After careful perusal of the notice
(Ex.18) and order (Ex.11), it reveals that the said premises has been
shown to be situated in C.S. No. 16/22, Sarafally Compound, Pais
Street, Jacob Circle, Byculla. On the contrary, as mentioned in the
impugned notice, those 1 to 25 stated to be situated on the land of C.S.
No. 19/63, Pais Street, Byculla Division. Considering the facts of the
present case, in my view, the ratio laid down in a case cited supra is not
applicable to the facts of the present case. Thus, having regard to all
these circumstances, I am of the considered view that there is nothing
on record either to determine the exact description of the suit premises
or to find out the exact location as to whether the same is the part and
-- 20 of 22 --
21 Judg. in L.C.Suit No. 482 of 2020
parcel of the notice structures. Resultantly, I come to the conclusion that
the plaintiff has utterly failed to prove that the suit premises is part and
parcel of the notice structures as described in the schedule of the
impugned notice and the order. Therefore, no question arises of
granting the reliefs of declaration and injunction, as prayed for. The
issue No.1 and 3 are, therefore, answered in the negative.
AS TO POINT NO.4.
24 In view of the aforesaid findings on the issue No. 1 to 3,
suit deserves to be dismissed. In the result, following order is passed.
ORDER
1 Suit stands dismissed.
2 In the peculiar circumstances, there is no order as to costs.
3 Decree be drawn up accordingly.
Date:09/09/2024. (R. M. Mishra )
Dictated on :09/09/2024. Judge, City Civil Court,
Typed on :18/09/2024. Gr.Mumbai.
Signed on :18/09/2024.
-- 21 of 22 --
22 Judg. in L.C.Suit No. 482 of 2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/09/2024. 03.25 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
09/09/2024.
JUDGMENT/ORDER signed by P.O.on 18/09/2024.
JUDGMENT/ORDER uploaded on 18/09/2024.
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