Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3441/21 @ 3421/19 (LCS No.2452/19)
MHCC010111602021 MHCC010093442019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.3421 OF 2019
ALONGWITH
NOTICE OF MOTION No.3441 OF 2021
IN
LONG CAUSE SUIT No.2452/2019
Cheddanagar Gymkhana &
Recreation Centre … Plaintiff
- Versus -
The Municipal Corporation
of Greater Mumbai ... Defendant
Appearance :-
Mr. P. S. Bhosle h/f. Mr. S. K. Bhosle, Advocates for plaintiff.
Counsel Mr. Vikrant Parshurami with Mr. Om Surayavanshi, Advocates
for defendant/M.C.G.M.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 05/10/2023.
COMMON - ORDER
. This is suit challenging notice issued by defendant/B.M.C.
under Section 354A of the M. M. C. Act dated 26/8/2019 and speaking
order dated 3/9/2019 and for perpetual injunction restraining it from
implementing impugned notice and the plaintiff has taken out Notice of
Motion No.3421/2019 for temporary injunction and defendant/B.M.C.
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has taken out Notice of Motion No.3441/2021 for vacating ad-interim
protection as there is change in circumstance.
2] In brief, facts of the plaintiff's case are that :-
The plaintiff is a charitable trust registered under the
provisions of the Maharashtra Public Charitable Trust Act, 1950 and
rendering services to its members and nearby public for various sports
activities. The federation of Housing Society by its resolution
transferred all the rights to promote sports and recreational activities to
the plaintiff. The plaintiff/Trust maintaining and providing playgrounds
to the children and citizens of Chheda Nagar. The plaintiff received
various complaints that ball goes out of the playground. Therefore, the
plaintiff decided to put net around the ground. The plaintiff has not
carried out any construction and only erected M/S channel frame.
However, the plaintiff/society received impugned notice under Section
354A of the M. M. C. Act whereby it is alleged that the plaintiff has
carried out unauthorized construction of M/S channel frame and P.C.
P.C. work. The plaintiff replied show cause notice. The plaintiff moved
draft Notice of Motion on 30/8/2019 and on that day, the plaintiff
received speaking order. The Court found that the Corporation has not
considered documents, therefore, defendant/B.M.C. agreed to withdraw
order dated 27/8/2019 and passed fresh order. The designated officer
passed fresh speaking order on 30/9/2019, however order is without
application of mind, as fixing of net for sports activities does not come
under the definition of 'structure' or 'building'. As such, notice as well as
speaking order are illegal and bad-in-law. Therefore, the present suit to
challenge notice and speaking order.
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3] Defendant/B.M.C. opposed Notice of Motion by filing reply.
At the outset, it is stated that defendant/B.M.C. issued stop work notice
under Section 354A of the M. M. C. Act to the plaintiff and the plaintiff
was directed to produce documents/permission for ongoing
construction. However, the plaintiff challenged said notice by way of
present suit. This Court directed the Corporation to pass fresh speaking
order by considering reply filed by the plaintiff. Defendant/B.M.C.
passed fresh speaking order on 30/9/2019 which is challenged by the
plaintiff. This Court after hearing the parties held that triable question is
raised by the plaintiff and hence granted ad-interim relief. However,
under the garb of ad-interim relief the plaintiff did not stop erection
work. The plaintiff by taking order with wrong interpretation continued
with further erection without permission. The plaintiff has not shown
permission for erection of structure. The officer of the Corporation
visited site on 14/10/2019 and noticed that the plaintiff has not
stopped work. Accordingly, the officer has prepared inspection report,
took photographs. The plaintiff has carried out unauthorized
construction without permission, therefore, it is necessary to vacate ad-
interim relief.
4] It is further stated that the plaintiff carried out construction
without permission of competent authority in violation of Sections 337
342 and 347 of the M.M.C. Act. Hence Notice of Motion is liable to be
dismissed.
5] The points for determination alongwith findings thereon
for the reasons are as under :-
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Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out
prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No. 1 TO 3 :-
6] Heard learned advocate for the parties. Perused Notice of
Motions, affidavits in support thereto, reply, rejoinders and record and
proceeding.
7] Learned advocate for the plaintiff submitted that the
plaintiff is rendering services to the public at large and providing sports
activities like cricket, badminton, football etc. since many years. The
recreation hall is maintained by the plaintiff/Trust and said recreation
ground is situated in Chheda Nagar colony. The children plays cricket,
football, hockey and sometimes ball goes out of the ground and the
plaintiff has received complaints from the senior citizens. Therefore, in
order to avoid untoward incident the plaintiff decided to erect net.
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However, the Corporation issued impugned notice to stop the work
without application of mind. He pointed out that erection of M/S frame
on a ground and P.C. and not falls under the definition of construction
or building. In support of his submission he relied on the circular of the
Corporation of the years 2016 and 2020. He further submitted that in
similar matters the Hon'ble High Court has granted ad-interim
protection to the plaintiff. He further submitted that defendant/B.M.C.
has not followed the guidelines of the Hon'ble High Court in the case of
Sopan Maruti Thopte Versus P.M.C.
8] On the other hand, learned counsel for the Corporation
submitted that the plaintiff commenced the work of unauthorized
erection of M/S channel frame admeasuring 31 X 35 square meters with
height 11 meters and P.C.C. work. He submitted that as per the
provisions of the M. M. C. Act no person can carry out or erect any
building without permission of the Corporation. It is further submitted
that as per the provisions of the M. M. C. Act building includes house,
outhouse, stable, hut, shed or every other structure made up of any
material or metal. Thus, structure of M/S angle falls under the
definition of building. However, the plaintiff commenced the work of
erection of notice structure without permission of the Corporation. It is
further submitted that this Court granted ad-interim protection whereby
the Corporation was restrained from taking action. However, under the
garb of interim protection the plaintiff continued the construction.
Therefore, the plaintiff is not entitled for interim protection and prayed
for vacation of ad-interim protection.
9] The plaintiff has challenged notice under Section 354A of
the M. M. C. Act on the ground that erection of M/S frame and PCC
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work does not fall under the definition of construction. It is not
disputed that the plaintiff/Trust has erected M/S frame admeasuring 35
X 30 square meters with the height of 11 meters and PCC work. It is
only contention of the plaintiff that such structure does not fall under
the definition of building or construction and for that purpose the
plaintiff placed reliance on the circulars issued by the Corporation in
2016 and 2020. As per the said circulars, a nylon and such type of
transparent nets for protection of the grounds are not to be considered
as a construction. However, in the case on hand, it is admitted that the
plaintiff has carried out work of erection of M/S frame as shown in the
notice. As per Section 3 (S) of the M. M. C. Act building means and
includes house, outhouse, stable, shed, hut and every other such
structure whether of masonry, bricks, wood, mud metal or any other
material whatever. Thus, definition of building is inclusive of house,
outhouse, stables, shed, hut and every other such structure whether of
masonry, bricks, wood, mud, metal or any other material. The circulars
relied by the plaintiff of the years 2016 and 2020 is in respect of fixing
of net. However, as per Section 3 (S) of the M. M. C. Act structure
made up of any material including brick, wood, mud, metal or any
other material is called as a building. In the circumstances, I find no
substance in the submission of learned advocate for the plaintiff that
notice structure do not fall under the category of building. As per
Section 337 of the M. M. C. Act every person who intends to erect a
building must give notice of his intention to the Commissioner.
However, admittedly in this case, no notice has been given by the
plaintiff. The plaintiff has not taken permission of the Corporation for
carrying out ongoing construction. Thus, I hold that the plaintiff has
commenced erection of structure without permission of competent
authority.
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10] The plaintiff also challenged notice on the ground that the
Corporation has not followed due process of law i.e. the Corporation
has not followed guidelines of the Hon'ble High Court in Sopan Maruti
Thopte's case and circular dated 11/8/2000. It is submitted that the
officer has not prepared panchanama and took photographs of the
ongoing construction. However, inspecting officer has prepared
inspection report showing date and status of ongoing construction and
also took photographs. Inspection report and photographs has been
taken by a public servant while discharging his duty. At this stage, there
is no reason to discard inspection report and photographs. Therefore, I
am of the opinion that there is sufficient compliance of the directions of
the Hon'ble High Court in Sopan Maruti Thopte's case. The plaintiff has
not produced document showing permission for ongoing construction.
Thus, I am of the opinion that the plaintiff has commenced work of
erection of notice structure without permission. The Corporation has
followed due process of law. Thus, I hold that the plaintiff has not made
out
prima facie case for grant of interim injunction. Balance of
convenience does not tilt in its favour. Accordingly, I answer points No.1
to 3 in the negative and in answer to point No.4 pass following order :-
O R D E R
1] Notice of Motion No.3421/2019 is dismissed.
2] In view of dismissal of Notice of Motion No.3421/2019, Notice of
Motion No.3441/2021 for vacating ad-interim injunction is
disposed of.
Date : 05/10/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
11/10/2023 11:15 a.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 05/10/2023
ORDER Typed on 08/10 and 09/10/2023
ORDER signed by P.O. on 10/10/2023
ORDER uploaded on 00/00/202
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