Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3337-19 in Suit No. 2376-19
CNR NO.MHCC0100911919
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3337 OF 2019
IN
L.C. SUIT NO. 2376 OF 2019
Yakub Usman Kapadia ......Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai and Anr. ...... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 25th September, 2019.
Appearance:
Ld. Adv. Mr. Ashok R. Pande for plaintiff.
Ld. Adv. Ms. Meena Dhuri for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon the notice
issued under Section 351 of the Mumbai Municipal Corporation Act,
1888 (hereinafter referred to as 'the MMC Act') dated 16.07.2019 and
the order dated 26.08.2019.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. The schedule of the notice dated 16.07.2019 reads as under:
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2 NM 3337-19 in Suit No. 2376-19
''1. Unauthorized encroach the house gully by way of
constructing of B M Wall and roof with ladi coba slab and used for
commercial purpose admeasuring size of 4.5m x 2.2m x 3.1m(ht)
without taken prior permission from competent authority i.e. MCGM,
(2) Unauthorizely encroach the common passage below staircase at
ground floor and used for commercial purpose without taken prior
permission from competent authority i.e. MCGM, (3) Unauthorized
horizontal extension of 1st floor at front side of the bldg by way of using
MS angle and ladi coba slab admeasuring size 5.10m x 2.65m x 2.10 m
(ht) without taken prior permission from competent authority i.e.
MCGM, (4) Unauthorized horizontal extension of 2nd floor by way of
suing MS angle section and ladi coba slab and roof with GI sheets
admeasuring size of 5.10m x 3.15m x 2.43m (ht) without taken prior
permission from competent authority i.e. MCGM.''
4. Pursuant to the notice, the plaintiff had submitted its reply on
24.07.2019 and had answered the notice as follows:
In response to the structure mentioned in the schedule of the
notice at Sr. Nos. I to IV, reads as under:
I. The first allegation at Sr. No. 1 in the schedule of your Notice
under reference i.e. ''Unauthorized encroach the house gully by way of
constructing of B.M. Wall and roof with ladi coba slab and used for
commercial purpose adm. size of 4.5m x 2.2m x 3.1m (ht) without taken
prior permission from competent authority i.e. M.C.G.M.''
(a) In this regard my client states that earlier on 22.01.2003 a
notice under Section 351 of the MMC Act was issued to the predecessor
in title of my client by name Mrs. Prafulla Sudhakar Shetty by making
similar allegation as made by you in your notice under reference and an
order of demolition was also passed by the then Assistant Municipal
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3 NM 3337-19 in Suit No. 2376-19
Corporation dated 07.05.2003, against which the said predecessor of
my client had filed a suit in Hon'ble City Civil Court, Mumbai, being
L.C. Suit No. 2354/2003 wherein the Hon'ble Court on 16.10.2010 was
pleased to decree the said suit in terms of prayer clauses (a) and (b)
and accordingly disposed off the said suit. Copy of the said order and
decree dated 16.10.2010 is enclosed herewith for your record and
perusal.
(b) Thus, in view of the said order and decree dated 16.10.2010
passed in the above suit, your allegation at Sr. No. 1 is absolutely false
and baseless and liable to be withdrawn forthwith.
II. The second allegation at Sr. No. 2 in the schedule of your Notice
under reference i.e.''Unauthorizely encroach the common passage below
staircase at ground floor and used for commercial purpose without taken
prior permission from competent authority i.e. M.C.G.M.''
(a) In this regard my client states that due to the oncoming
monsoon season my client has temporarily covered the common
passage below the stair case on the ground floor with plastic sheets to
protect the same from the rains for the coming 4 to 5 months of the
rainy season and as soon as the mansoon is over, my client shall remove
the same. Even otherwise for putting the said temporary rainy sheets
covering, no such permission is required from the defendants under the
provisions of the MMC Act, 1888, and it does not amount to any
construction or erection as alleged by you in your notice under
reference.
(b) Thus, as far as your allegation at Sr. No. 2 is concerned, there
is no such permanent encroachment in the common passage and your
allegation is absolutely false and frivolous and liable to be withdrawn
forthwith.
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4 NM 3337-19 in Suit No. 2376-19
III. The third allegation at Sr. No. 3 in the schedule of your notice
under reference i.e. ''Unauthorized horizontal extension of 1st floor at
front side of the building by way of using MS angle and ladi coba slab ad.
size 5.10 m x 2.65m x 2.10 m(ht) without taken prior permission from
competent authority i.e. MCGM.
(a) In this regard my client states that earlier on 11th July 2002
your office had issued a notice under Section 351 of the MMC Act, 1888
to my client wherein similar allegation is made in the said notice as
made by you in your present notice of extension of 1st floor level with
ladi coba ladi roof, B.M.Walls as shown in the sketch of the said notice.
Copy of the said notice under Section 351 of the MMC Act dtd.
11.07.2002 is enclosed herewith for your record and perusal.
(b) The said notice dated 11.07.2002 was replied by my client
vide his letter dated 23.07.2002 wherein my client clearly brought to
the notice of the then Assistant Municipal Commissioner who issued the
said notice that there is no such additions and alteration carried out by
him in the said premises and as a matter of fact after the purchase of
the said building, the shop on the Ground and First Floors were
renovated without any additions and alterations to the existing
structure and shop and the same is in existence prior to 1962, hence
requested to withdraw the said notice dated 11.07.2002 at the earliest.
Copy of the letter dated 23.07.2002 of my client in reply to the notice
dated 11.07.2002 is closed herewith for your record and perusal.
(c) In continuation to the said letter dated 23.07.2002, my client
further wrote a letter to the then Assistant Municipal Commissioner
informing him that in the year 1988 also a notice under Section 351 of
the MMC Act was issued for the same work and the action and the
notice was dropped by the then Joint Municipal Commissioner by order
dated 20.06.1996 and informed the said officer that thus the said notice
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5 NM 3337-19 in Suit No. 2376-19
dated 11.07.2002 is bad in law and the allegations made therein cannot
be termed as unauthorised. Copy of the said letter dtd. 29.07.2002 is
enclosed herewith for your record and perusal.
(d) As stated hereinabove, with regard to your allegation at Sr.
No. 3 is concerned, it is pertinent to note that with regard to said
allegations earlier two notices under Section 351 of the MMC Act were
issued to my client and his predecessor i.e. first notice was issued on
06.09.1988 which action and the notice was dropped by the then Joint
Municipal Commissioner by order dated 20.06.1996 and the second
notice was issued on 11.07.2002 to my client thereby also making
similar allegation as made in your present notice under reference.
Copies of the notice under Section 351 of the MMC Act dtd. 06.09.1988
and the order of the Joint Municipal Commissioner dated 20.06.1996
are enclosed herewith for your record and perusal.
(e) Thus, as far as your allegation at Sr. No.3 is concerned, your
present notice is absolutely bad and illegal, without application of mind
as the same is in line of the earlier notices under Section 351 of the
MMC Act dtd. 06.09.1888 and 11.07.2002 which action and notices are
already dropped and hence you have no authority to issue the present
notice by making similar allegation as made earlier and the said
allegation made in your present notice cannot be termed as
unauthorised.
IV. The fourth allegation at Sr. No. 4 in the schedule of your notice
under reference i.e. ''Unauthorized horizontal extension of 2nd floor by
way of using MS angle section and ladi coba slab and roof with GI sheets
admeasuring size of 5.10m x 3.15m x 2.43m (ht) without taken prior
permission from competent authority i.e. MCGM.''
(f) In this regard my client states that there is no such horizontal
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6 NM 3337-19 in Suit No. 2376-19
extension of 2nd floor as alleged by you in your notice under reference
and the said alleged horizontal extension is already in extension in the
plan duly approved and sanctioned by the Assistant Engineer (Building
and Factory) under File No. WOC/792/SEBI dated 20.12.1978. Copy of
the said approved/sanctioned plan dated 20.12.1978 is enclosed
herewith for your record and perusal.
(g) The said plan was tendered by the Architect of the said
building M/s. V.K.Chhapia and Company at the time of carrying out the
repairs to the said building and the same was approved and sanctioned
by the then Assistant Municipal Commissioner (B & F) Department on
20.12.1978.
(h) Thus, as far as your allegation at Sr. No. 4 is concerned, your
present notice is absolutely bad and illegal, without application of mind
inasmuch as all the allegations as made in your present notice under
reference are absolutely bad and illegal, false, frivolous, baseless and
made just in order to issue the present notice. The said allegations made
in your present notice cannot be termed as unauthorised.
5. The reply was considered by the defendant corporation and the
order dated 26.08.2019 was passed. The plaintiff was directed to
remove the unauthorised structure within seven days from receipts of
the order, failing which the same would be demolished by the
defendant corporation. The plaintiff was also informed his liability to
be prosecuted under Section 475A of the MMC Act.
6. Reverting back to the 2nd structure mentioned in the schedule of
the notice under Section 351 of the MMC Act, it was submitted by the
Learned Advocate that the unauthorised structure alleged is a
temporary structure. The plaintiff is willing to remove the same at any
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7 NM 3337-19 in Suit No. 2376-19
time. Considering the statement of the learned Advocate for the
plaintiff, it would be appropriate to direct the plaintiff to comply his
undertaking within fifteen days from the date of the order on notice of
motion.
7. The alleged unauthorised structure at Sr. No. 1 in the schedule of
the notice is unauthorised encroach the house gully by way of
constructing of B M wall and roof with ladi coba slab and used for
commercial purpose admeasuring size of 4.5m x 2.2m x 3.1m(ht)
without taken prior permission from competent authority i.e. MCGM.
The plaintiff tried to harp upon the earlier notice issued on
22.01.2003 to Mrs. Prafulla Sudhakar Shetty under Section 351 of the
MMC Act and order dated 07.05.2003. The plaintiff had challenged the
said notice in L.C. Suit No. 2354/2003. The suit was decreed on
16.10.2010 and the suit was accordingly disposed off. The plaintiff had
filed the copy of order and decree in the suit. It is the objection of the
defendant corporation that the notice dated 22.01.2003 and order
dated 07.05.2003 have not being submitted alongwith reply. It was
observed that the structure was enclosed with A/C roof and covered
rear side open space between two buildings which does not match with
the structure mentioned in the notice under Section 351 of the MMC
Act.
8. The prayer ''b” of the plaintiff in the plaint of the said suit read as
under:
''That, the Defendant, their servants, their agents, their
representatives, their constituents and any persons claiming through the
Defendants, be restrained by an order of permanent injunction from
demolishing the suit building known as ''Kapadia Chamber No. 1
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8 NM 3337-19 in Suit No. 2376-19
(formerly known as ''Chandnani Chambers)'' consisting of Ground plus
Four Floors lying and being at Street Nos. 417419 and Cadastral
Survey No. 1029 of Bhuleshwar Division and situated at Sheikh Memon
Street, Mumbai03, and/or any portion thereof including the notice
work mentioned in the Schedule of the suit notice pursuant to the suit
notice i.e. notice under Section 351 of the MMC Act, 1888 under Notice
No. C/DOC/221/351MMC Act/C137No1 16.07.2019 dated 16.07.2019
and impugned ed order dated 07.05.2003.''
9. It is not the case of the defendant corporation that the premises
mentioned in the prayer 'b' is something else than the notice structure.
The space between two buildings is alleged to be covered in the earlier
suit and now also in the present suit. It primafacie appears that the
structure mentioned in the notice and structure involved in L.C Suit No.
2354/2003 is the same.
It is the objection of the defendant corporation that the
structure does not match.
10. The notice shows that the space between two buildings is covered
by plaintiff, the earlier notice and the present notice shows the same
allegation. The earlier suit has reached finality.
11. The serial No. 3 in the schedule of the notice relates to the
allegation of unauthorised horizontal extension of 1st floor at front side
of the building by way of using MS angle and ladi coba slab
admeasuring size 5.10m x 2.65m x 2.10m(ht) without taken prior
permission from competent authority i.e. MCGM.
It is the contention of the plaintiff that the plaintiff was earlier
issued notice on 11.07.2002 under Section 351of the MMC Act. It is
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9 NM 3337-19 in Suit No. 2376-19
contended by the defendant that the plaintiff had not submitted any
document relating to the withdrawal of the notice dated 11.07.2002.
The defendant corporation does not dispute the structure mentioned at
Sr. No. 3 in the present notice and the structure mentioned in the notice
dated 11.07.2002 is not the same.
12. The plaintiff was positively contended that the notice is
withdrawn by the defendant corporation. It is not the case of the
corporation that pursuant to the notice dated 11.07.2002 any order was
passed. Impliedly, it seems that the corporation had refrained from
acting upon the notice dated 11.07.2002. The plaintiff contended that
the notice dated 20.06.1996 was issued in respect of similar allegation
mentioned in the present notice of motion.
13. The plaintiff had relied upon the order dated 20.06.1996. The
proceedings initiated against plaintiff under Section 351 of the MMC
Act were dropped by the corporation.
14. It is the objection of the defendant corporation that the allegation
in the notice dated 06.09.1988 and the present notice are different. It
is the fact that the defendant corporation had not made any submission
to show as to what was the fate of the notice dated 11.07.2002. The
non action on the part of the defendant corporation entitles the plaintiff
to seek the temporary injunction from the Court.
15. So far as the allegation regarding Sr. No. 4 in the schedule of the
notice that, the contention of the plaintiff is the extension in the plan is
approved and sanctioned by Assistant Engineer (Building and Factory)
under File No. WOC/792/SEBI dated 20.12.1978. It was for the
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10 NM 3337-19 in Suit No. 2376-19
plaintiff to explain the earlier position of the 2nd floor prior to 1978 by
providing appropriate measurement and the position after 1978. It is
the observation of the corporation that the location plan does not match
with the structure at present.
No such extension is shown in location plan therefore, does not
help the case of the plaintiff. The plaintiff is not entitled for temporary
injunction in respect of point No. 4 in the notice.
16. In facts and circumstances of the case, the plaintiff made out
primafacie case in respect of the structure mentioned in the schedule of
the notice at Sr. Nos. 1 and 3. The plaintiff had filed Undertaking to
remove the notice structure mentioned in the schedule of the notice at
Sr. No. 2. The plaintiff had failed to make out primafacie case in
respect of the structure mentioned in the schedule of the notice at Sr.
No.4. The plaintiff is entitled for temporary injunction so far as the
structure mentioned in the schedule at Sr. Nos. 1 to 3.
The plaintiff is not entitled for temporary injunction so far as
structure mentioned at Sr. No. 4. So far as the structure at Sr. No.2 is
concerned, the plaintiff to remove the construction mentioned in the
schedule of the notice at Sr. No. 2 within fifteen days from the date of
order.
17. The plaintiff to intimate the said fact of removal of the notice
structure to the defendant corporation. The corporation to submit the
reply to the Court thereafter to that effect.
In the result, following order is passed.
ORDER
1. The Notice of Motion No. 3337/2019 is partly allowed.
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11 NM 3337-19 in Suit No. 2376-19
2. The defendants corporation are hereby restrained from acting upon
the structure mentioned in the schedule of the notice dated 16.07.2019
at Sr. No.1 i.e. unauthorised encroach the house gully by way of
constructing of B M wall and roof with ladi coba slab and used for
commercial purpose admeasuring size of 4.5m x 2.2m x 3.1m(ht)
without taken prior permission from competent authority i.e. MCGM
also at Sr. No.3 i.e. unauthorised horizontal extension of 1st floor at
front side of the building by way of using MS angle and ladi coba slab
admeasuring size 5.10m x 2.65m x 2.10m(ht) without taken prior
permission from competent authority i.e. MCGM and order dated
26.08.2019 relating to the structure mentioned in the schedule of the
notice at Sr. Nos. 1 and 3 till the disposal of the suit.
3. The Notice of Motion stands dismissed, so far as the structure
mentioned in the schedule of the notice dated 16.07.2019 at Sr. No.4
i.e. unauthorised horizontal extension of 2nd floor by way of using MS
angle section and ladi coba slab and roof with GI sheets admeasuring
size of 5.10m x 3.15m x 2.43m(ht) without taken prior permission from
competent authority i.e. MCGM.
4. The plaintiff to remove the structure mentioned in the schedule of
the notice at Sr. No.2 i.e. unauthorizely encroach the common passage
below staircase at ground floor and used for commercial purpose
without taken prior permission from competent authority i.e. MCGM
within 15 days from the date of order. The plaintiff to intimate the
corporation. The corporation further to report about the removal of
encroachment shown at Sr. No. 2 in the schedule of the Notice to the
Court.
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12 NM 3337-19 in Suit No. 2376-19
5. The Notice of Motion 3337/2019 stands disposed off accordingly.
(Sanjay N. Yadav)
Judge,
Date : 25.09.2019 City Civil Court, Mumbai.
Dictated on : 25.09.2019
Transcribed on : 26.9.19 & 27.09.19
Signed by HHJ on : 03.10.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 03.10.2019 at 5.50 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
25.09.2019
JUDGMENT/ORDER signed by
P.O. on
03.10.2019
JUDGMENT/ORDER uploaded
on
03.10.2019
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