Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
NM 3355/2019 IN S.C. SUIT 2331/2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3355 OF 2019
IN
S.C. SUIT NO. 2331 OF 2019
CNR NO. : MHCC01-009185-2019
Billimoria Marbles and Stones Pvt. Ltd. …. Plaintiff
Versus
The Designated Officer and the Deputy
Estate Manager (I) ….Defendant
Appearance:
Advocate Shri. Zubin Dalal for Plaintiff.
Advocate Shri. N. Bhadang for Defendants.
CORAM : SMT. S.S. NAGUR,
JUDGE,
(C.R.NO.20)
DATE : 25/03/2021
ORAL ORDER
1. The Notice of Motion is filed by the plaintiff to
restrain defendant by temporary injunction from taking any
coercive steps by themselves or through their servants, agents or
officers in pursuance of notice dated 07.08.2019 till final decision
of the suit. The Notice of Motion is supported by affidavit of
C.P. Purohit, the authorized representative of the plaintiff.
Brief facts of plaintiff’s case is as under :-
2. The plaintiff is a company incorporated under the
-- 1 of 17 --
2 NM 3355/2019 IN SUIT 2331/19
Companies Act, 1956. The defendant is claiming to be the
Designated Officer of Bombay Port Trust, the Body constituted
and governed by the Major Port Trust Act, 1963 and by
notification published by the Government of Maharashtra dated
23.04.2018.
3. Plaintiff stated that the defendant served notice
dated 07.08.2019 on or about 09.08.2019 under the provisions of
Section 53-A of the MRTP Act, 1966. In the said notice, it is
alleged that the plaintiff has carried out unauthorized
construction in the suit premises. The contents of notice are sham
and nothing but a colourable exercise of power of the defendant.
The defendant has already filed proceeding for the same alleged
breaches and the same cause of action under the Public Premises
Act against the plaintiff. The appeal bearing Miscellaneous
Appeal No. 190 of 2018 is pending before City Civil Court. The
notice is null and void. The plaintiff has denied the contents of
the notice. The plaintiff has stated about the eviction
proceedings.
4. The plaintiff stated that the structure in the suit
premises is from inception. In the year 2011, notice was issued
but defendant didn’t take any action, which shows that there is
deemed permission granted by the defendant. The plaintiff has
also stated the grounds of nullity of the notice in para 8 of the
plaint. The plaintiff has apprehension that on the basis of above
notice, the defendant will demolish the suit premises. Hence the
Notice of Motion.
-- 2 of 17 --
3 NM 3355/2019 IN SUIT 2331/19
5. The defendant filed reply through affidavit of
Jasaskar Bose, Senior Assistant Estate Manager of defendant Port
Trust. The defendant has denied in toto the allegations in the
plaint. The defendant has come with a defence that the suit is
bad for misjoinder and non-joinder of necessary parties. The
plaintiff ought to have filed the suit against Board of Trustee of
the Port of Mumbai under Section 5 of the Major Port Trust Act,
1963 and not against one of its officers. The plaintiff has
suppressed facts, therefore he is guilty of suppressio very and
suggestio falsi. The Court has no jurisdiction to decide the suit
under Section 149 of the MRTP Act. The plaintiff failed to issue
notice under Section 120 of the Mumbai Port Trust Act.
Therefore, the suit is not tenable.
6. The defendant stated that a plot of land bearing RR.
No. 1623 admeasuring 363.72 sq.mtr. at Muzawar Pakhadi Road,
Elphistone Estate, Mumbai was initially let-out to Shri. A.P.
Hodiwala for three years from 01.12.1941 to 30.11.1944 to use
as Marble Cutting and polishing factory with electric power and
godown for storage for non-hazardious goods. The lease period
was renewed for a period of three years till 30.11.1947 and
thereafter the tenancy continued on a month to month basis.
7. The defendant stated that on the death of Shri.
Hodiwala on 21.11.1956, the tenancy was transferred in the
name of his wife and daughter i.e. Smt. N.A. Hodiwala and Smt.
V.S. Billimoria. On the death of Smt. Hodiwala on 14.09.1965,
the premises vested in the name of Smt. V.S. Billimoria and Shri.
N.A. Engineer. The name of Shri. Engineer was deleted and the
-- 3 of 17 --
4 NM 3355/2019 IN SUIT 2331/19
premises was transferred in the name of Smt. V.S. Billimoria, Shri.
Sorab N. Billimoria and Shri. Ardeshir S. Billimoria as joint
tenants. On request, MbPT agreed to grant a fresh lease in favour
of the plaintiff for a period of 30 years with effect from
01.05.1985. The terms and conditions of lease was forwarded to
the plaintiff vide letter dated 27.06.1985.
8. The defendant stated that since beginning the
plaintiff committed breach of terms and conditions and it was
notified by MbPT from time to time. On January, 1992 it was
observed that the entire premises was sublet to M/s. Carrier
Aircon Limited without permission of MbPT. During inspection on
30.03.2011 and survey on 26.04.2011, it was noticed that the
entire building was reconstructed with structural additions and
alterations with construction of entire new 2nd floor admeasuring
237.37 sq.mtr. The total unauthorized construction admeasured
about 617.93 sq.mtr. This increased the FSI to 1.996.
9. The defendant stated that during the inspection, it
was also noticed that the plaintiff has sublet the concerned
premises to Islamic International School for the purpose of
running a school. The plaintiff has not only parted with the
possession of the concerned premises, but also changed the user
of the same from Marble Factory and Godown to a school.
Therefore, MbPT terminated the tenancy of the plaintiff vide
notice dated 06.09.2012 and called upon the plaintiff to
handover vacant and peaceful possession of the concerned
premises to the MbPT within a period of one month from the date
of receipt of notice. The defendant has narrated the proceedings
-- 4 of 17 --
5 NM 3355/2019 IN SUIT 2331/19
of eviction.
10. The defendant stated that by various letters dated
07.04.2011, 15.10.2013, 05.11.2013, 23.12.2013 and
26.12.2013, the defendant has requested MCGM to take suitable
action against the unauthorized construction and the change of
user from workshop to a school, but no action was taken by
MCGM till date.
11. The defendant stated that in 2017 though the
proceeding was pending before the Learned Estate Officer,
Islamic International School was taken over by Niyaz Minority
Education and Welfare Trust run by Samajwadi party MLA
Mr. Abu Asmi Azmi. The article was published in Mumbai Mirror
dated 17.05.2017. The defendant again vide letter dated
31.05.2017 and 26.07.2017 issued letter to MCGM to take
necessary action against the concerned persons. The MCGM vide
their reply dated 01.08.2017 stated that, the plaintiff through
their Architect M/s. K.D. Associates submitted a proposal of
additions and alterations of building on concerned premises. The
same was rejected by MCGM vide their letter dated 10.09.1997
and 24.10.1997.
12. The defendant stated that on survey of the
concerned premises, it is found that there is a new signboard
which read “Avicenna International School” as per survey report
dated 29.05.2017. The notice dated 07.08.2019 was issued by
defendant under Section 53(1)(a) of MRTP Act for removal of
unauthorized construction. The plaintiff has changed the user
and has done unauthorized construction in the suit premises
-- 5 of 17 --
6 NM 3355/2019 IN SUIT 2331/19
without permission and consent of the defendant Port Trust.
Hence, prayed to reject the Notice of Motion.
13. In view of above pleading of the parties, following
points arise for my determination and reasons with findings
thereon are as under :-
POINTS FINDING
1) Whether the plaintiff has
made out a prima facie case?
No
2) In whose favour balance of
convenience lies?
Defendant
3) Who will suffer irreparable
loss?
Defendant
4) What order? Notice of Motion is rejected.
REASONS
14. Heard advocate Shri. Zubin Dalal for the plaintiff
and advocate N. Bhadang for the defendant. Perused the contents
of Notice of Motion and reply supported by affidavit. I have also
gone through the plaint and documents relied by both the
parties.
As to point no. 1
15. Advocate Shri. Dalal for the plaintiff has drawn my
attention to the documents relied by the plaintiff and defendant
to show that the plaintiff has not carried out any unauthorized
construction, but the construction in the suit premises are
approved plan dated 12.03.1987 by the MCGM. The eviction
-- 6 of 17 --
7 NM 3355/2019 IN SUIT 2331/19
proceeding is challenged in the Miscellaneous Appeal and it is
pending. The jurisdiction raise by the defendant is a triable issue.
The Educational Institution has been granted permission by the
Education Department of Government of Maharashtra. Therefore,
it cannot be termed as illegal occupant in the suit premises.
Balance of convenience is in favour of the plaintiff, as it will
affect the education of the children. Irreparable loss will cause to
the plaintiff, in case injunction is not granted.
16. Advocate for plaintiff has relied on authorities
reported in i) Bales Sardara Paracha Vs. Municipal Corporation of
Greater Bombay & Anr. : 2005(4) Bom.C.R. 577; ii) M/s.
Foreshore Co-op. Housing Society Ltd. Vs. Shri. Praveen D. Desai
& Ors. : 2004 (3) ALL MR 305; iii) Ram Swarup & Others Vs.
Shikar Chand and another : AIR 1966 Supreme Court 893; iv)
Jagdish Hari Thatte & Ors. Vs. Municipal Corporation of Greater
Bombay & Anr. : 2007 (1) Bom.C.R. 577;
17. On the other hand, advocate N. Bhandang for the
defendant argued that it is not disputed that the defendant no. 1
is the owner of the land. The lease was granted for industrial use.
There are additions and alterations in the suit premises. The
procedure for the development was not followed nor the
consent/permission of MbPT was obtained. Therefore, the
plaintiff has not made out any prima facie case. The defendant is
entitled to demolish the premises. The defendant has taken valid
action under Section 53 of the MRTP Act. Therefore, no prima
facie case has been made out against the plaintiff. Injunction
cannot be granted to continue illegality. There is a change in the
-- 7 of 17 --
8 NM 3355/2019 IN SUIT 2331/19
user of the premises. The Court has no jurisdiction to decide the
suit under Section 149 of MRTP Act. Law does not permit to
continue illegality. Hence, prayed to reject the Notice of Motion.
18. Advocate for defendant has relied on authority
reported in Sarina Esmeralda Lopez Vs. Vijay Goverdhandas
Kalantri & Anr. : 2015 (2) Mh.L.J. 603.
19. The defendant no. 1 is appointed as “Special
Planning Authority” under Section 40(1B) of Maharashtra
Regional and Town Planning Act, 1966 vide notification dated
23rd April 2018. The object to appoint the defendant no. 1 as
Special Planning Authority is in para 3 of Notification that,
“And whereas, considering the request of MbPT, and to
develop this area as a port with necessary amenities needed
for the port activities of the international standard and in
view of this to have a complete flexibility in Spatial
Planning, the Government is of the opinion that, in the large
public interest it is necessary to consider the request of
MbPT to appoint it as a Special Planning Authority”.
Clause 1(c) of the notification is as under :-
“Directs the Mumbai Port Trust to prepare and publish the
development proposals, and development control regulations
for the said notified area and to submit the same to the
Government for sanction after following due procedure
prescribed in the said Act. Till the publication of the Draft
development proposals and development control regulations
for these area as per the provision of the said Act, the
prevailing sanctioned Development plan (1991) and
Development Control Regulation (1991) shall be applicable”.
20. The above notification is issued under MRTP Act for
development of the MbPT, therefore the argument of the
advocate for plaintiff that the provisions of MRTP Act is not
applicable cannot be accepted.
-- 8 of 17 --
9 NM 3355/2019 IN SUIT 2331/19
21. The Special Planning Authority vide notice dated
13.08.2018 in the meeting of Special Planning Authority on 2nd
July 2018 vide Resolution No. 83 designated the following
officers for the purpose of exercise of the powers under Section
53, 54, 55 and 56 of the Act :-
Sr. No.
(1)
Designated Officer (2) Jurisdiction over area (3)
1 Dy. Estate Manager-I Estate Department Unit Nos.
9,10,13,11, Part of Unit
12(Sassoon Dock), 14 and 15
2 Dy. Estate Manager-II Unit Nos. 1,2,3,4,5,6,7 and 8
3 Chief Security Officer Entire SPA Jurisdiction
22. The notice dated 07.08.2019 issued to the plaintiff
and Avicenna International School stating the unauthorized
construction in the suit premises and were called upon :-
“(i) To produce certified copy of permission/approval
from Competent Authority for carrying out the said
construction/development work mentioned in the
schedule herewith written.
(ii) If no such permission for carrying out the said
construction work is obtained; then you should
immediately demolish the said construction work and
restore the land to its original condition i.e., condition
existing before the construction was carried out on the
land under reference.
Within 15 days from the date of receipt of this notice by
you”.
23. The Inspection Report dated 26.7.2019 and the
schedule with description of unauthorized development
completed in the year 2011 and existing till date with particulars
of the property is as under :-
-- 9 of 17 --
10 NM 3355/2019 IN SUIT 2331/19
Description of
premises
Contractual
relation
Type of construction
Plot bearing old R.R.
No. 1623 at Muzawar
Pakhadi Road,
Elphinstone Estate,
C.S. No. 1(Part),
Mazgaon Division,
Mumbai 400 010.
Lessee.
M/s. Billimoria
Marbles and
Stones Pvt. Ltd. /
illegal occupant,
Avicenna
International
School (Earlier
Islamic
International
School)
1) Totally new building
unauthorizedly constructed by
demolishing old structure and
constructing new classrooms,
toilets and other ancillary
facilities in
i) unauthorized ground floor of
area 251.37 Sq.m.
ii) unauthorized first floor of area
237.37 Sq.m.
ii) unauthorized second floor of
area 237.37 Sq.m.
2) Unauthorized change of user
of entire premises from marble
factory and workshop to a school.
24. The eviction proceeding under Public Premises
(Eviction of Unauthorized Occupants) Act, 1971 is pending under
adjudication. The plaintiff has relied on letter dated 27.06.1985
issued by MbPT to the plaintiff wherein fresh lease for 30 years in
lieu of existing 15-monthly lease was granted on terms and
conditions. The period of lease is shown as from 01.05.1985 and
expiring on 31.12.2015. The Clause ‘d’ shows the user that,
“(d) User : A first Class Marble Factory, Godown, Offices,
Workshops, Shops, Godowns, Weighbridge and such other
users as may be permitted by the Bombay Municipal Corpn.
A building costing a minimum of Rs.2,22,335.00 shall
be erected on the Plot and completed within 18 months from
the date the plot is handed over on lease. The plans and
specifications of the proposed building as also its elevation
shall have to be submitted for the Trustees’ approval through a
licensed Architect or Engineer on the Trustees’ approved list.
Such plans and specifications shall comply with all the
Municipal requirements and building Bye-laws in force at the
time of your submission and no work shall be carried out
without obtaining prior written approval of this Port Trust as
also of the B.M.C.”
-- 10 of 17 --
11 NM 3355/2019 IN SUIT 2331/19
25. Clause ‘k’ of the Agreement shows that,
“That you shall not assign or sell on ownership or enter into
any agreement for sale on ownership or otherwise, however,
part with possession of or transfer in any other manner your
interest in the whole or in any part of the said plot or in whole
or in any part of the building built or to be built on the said
plot without the prior written consent of the Board of Trustees
of the Port of Bombay and such consent shall either be
withheld or granted upon such terms and conditions
(including the payment by the lessees of the premium or
additional rent) as the Board may in their absolute discretion
decide”.
26. The plaintiff claims that he has carried out the
construction as per the consent of BPT and approval of MCGM.
The plaintiff has relied on the letter issued by BPT dated
12.03.1987. The said letter of approval is for additions and
alterations subject to terms and conditions stated therein. The
last line of the letter reads that, “a copy of the plan is returned
herewith duly signed in token of the approval” signed by Estate
Manager of Bombay Port Trust.
27. The plaintiff has relied on extract of Property Tax
issued by Municipal Corporation of Greater Mumbai with effect
from 01.04.2010 and 01.04.2015 of the suit property. The said
document is a xerox copy without signature of the concerned
person at page no. 3 till page no. 23 of the document filed on
record.
28. The plaintiff has also relied on the letter dated
15.10.2017 issued by Education Department of BMC to Niyaz
Ahmed Minority Educational and Welfare Trust granting
Recognition Certificate for the school under Sub-rule (4) Rule 11
of Right of Children to Free and Compulsory Education Rules,
2011 for the purpose of Section 18 of the Right of Children to
-- 11 of 17 --
12 NM 3355/2019 IN SUIT 2331/19
Free and Compulsory Education Act, 2009. Only because the
address of the suit premises is shown in the said Recognition
Certificate, it will not validate the unauthorized construction of
the plaintiff in the suit property.
29. The defendant has relied on the various letters
issued to the Bombay Municipal Corporation to remove the
unauthorized construction of the plaintiff, but it was not
removed. One of the notice is dated 26.07.2017 issued by
Mumbai Port Trust to the Assistant Municipal Commissioner, Dy.
Chief Engineer of Municipal Corporation stating therein that “the
lessee of the subject MbPT plot M/s. Billimoria Marbles & Stones
Ltd. has illegally sublet the premises to Islamic International
School, which is managed by Islamic Research Foundation (IRF)
run by Shri. Zakir Naik. Since the matter is sensitive, direction is
received and accordingly this office issued letter to Police Station
against subject breaches”. No action was taken by the Bombay
Municipal Corporation against the plaintiff. The plaintiff’s
contention that the construction shown in the report of 2011 is
the same carried out by them as per the approval in the year
1987 cannot be accepted, as the Inspection Report shows the new
construction in the suit premises. The defendant Mumbai Port
Trust has been appointed as Special Planning Authority to
develop the Port with necessary amenities needed for Port
activities of the international standard. Therefore, the action
taken by them under Section 53 of MRTP Act is valid and cannot
be said to be a nullity. It is not disputed that the Mumbai Port
Trust has taken proceeding against the plaintiff for their eviction
from the suit premises by terminating the tenancy of the plaintiff
-- 12 of 17 --
13 NM 3355/2019 IN SUIT 2331/19
by notice dated 06.09.2012. As per Government of India
Notification dated 19.09.1991, the premises falls under Coastal
Regulation Zone, the user of the premises under the development
plan is I-2 (Special Industrial Zone). The activity of the school is
in complete contravention of development plan.
30. The plaintiff is well aware that the suit premises is to
be used for the purpose it is leased out by the Mumbai Port Trust
then also it changed the user and has given it to the Educational
Institution to run the school. The change of user resulted in
Eviction Proceeding against the plaintiff and the Educational
Institutions.
31. I have gone through the authorities relied by both
the parties. Those authorities are on the point of jurisdiction of
the Court under Section 149 of MRTP. The plaintiff is facing
eviction proceeding. It cannot be said that because eviction
proceeding is pending for the same cause the defendant cannot
take action. The Bombay Port Trust did follow up the case for
removal of unauthorized construction but the Mumbai Municipal
Corporation failed to take action against plaintiff. Therefore, on
becoming the Special Planning Authority the defendant took
action to remove the unauthorized construction. The
unauthorized construction cannot get benefit of efflux of time.
The unlawful act will always be unlawful.
32. In the present facts of the case, the plaintiff though
is “occupier” under Section 2(17) of MRTP Act, but they have
parted with possession of the premises without consent of
Mumbai Port Trust to Educational Institutions and the said fact
has not been disclosed in the plaint. Thereby, the plaintiff has
-- 13 of 17 --
14 NM 3355/2019 IN SUIT 2331/19
suppressed the facts from the Court. The plaintiff has
subsequently filed the documents to show that the Educational
Institution has been granted recognition to run the school. The
said recognition by Educational Department of Municipal
Corporation is only to impart education and not for the suit
premises. The unauthorized construction by the plaintiff in order
to run the school is nothing but violation of the terms of lease
agreement with Mumbai Port Trust. They have not obtained
consent of the defendant before parting possession to the
Educational Institution to run the school. The documents relied
by the defendant shows unauthorized construction in the suit
premises. Hence, I hold that the plaintiff has not made out prima
facie case and answer point no. 1 in negative.
As to point nos. 2 to 4
33. The plaintiff has not made out prima facie case. The
documents filed by the defendant on record shows that in the
year 2011 the plaintiff has carried out unauthorized construction
in the suit premises without permission and consent of the
defendant Port Trust. The plaintiff has changed the user and has
handed over the possession of the suit premises to Educational
Institution is in the Industrial Zone. Under the guise of
Educational Institution, the illegality cannot be continued. The
suit is filed only to protect possession of unauthorized
construction in the suit premises. The unauthorized construction
cannot be continued. Therefore balance of convenience is not in
favour of the plaintiff. No irreparable injury will cause to the
-- 14 of 17 --
15 NM 3355/2019 IN SUIT 2331/19
plaintiff.
34. The defendant has been appointed as “Special
Planning Authority” under Section 40(1B) of the MRTP Act to
develop the area of the Port with necessary amenities needed for
the Port activities of International Standard. Therefore, balance of
convenience is in favour of the defendant. They will suffer
irreparable loss, as development activity for which they have
been appointed for will not be started and completed and it will
halt the process of their development activities. It will also affect
the smooth functioning of the transport of the industrial activities
of the country. Accordingly answering point no. 2 & 3, pass
following order :-
ORDER
1. Notice of Motion is rejected.
2. No order as to cost.
3. Accordingly, Notice of Motion is disposed of.
(S.S. Nagur)
Date : 25/03/2021 Judge
City Civil Court,
Greater Mumbai.
Dictated on : 25/03/2021
Typed on : 25/03/2021
Signed on : 26/03/2021
-- 15 of 17 --
16 NM 3355/2019 IN SUIT 2331/19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
26/03/2021 1.45 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.20)
Date of Pronouncement of
Judgment/Order.
25/03/2021
Judgment/order signed by P.O on 26/03/2021
Judgment/order uploaded on 26/03/2021
-- 16 of 17 --
17 NM 3355/2019 IN SUIT 2331/19
-- 17 of 17 --