Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.3434/19 (LCS 3112/19)
MHCC010093632019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.3434 OF 2019
IN
LONG CAUSE SUIT No.3112/2019
Rajendra H. Jaiswal … Plaintiff
- Versus -
1] Municipal Corporation of
Greater Mumbai
2] Asst. Engineer
3] Asst. Commissioner
4] Chairman/Secretary
Shankar Smruti C.H.S.L. ... Defendants
Appearance :-
Mr. J. S. Kalanke, Advocate for plaintiff.
Mrs. Mhatre, Advocate for defendants No.1 to 3.
None for defendant No.4.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 17/06/2023.
O R D E R
. This is suit challenging the notice dated 25/7/2019 issued
by the defendant/Corporation under Section 351 of The Mumbai
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Municipal Corporation Act (in short the M.M.C. Act) and Speaking
Order dated 19/8/2019 and for permanent injunction restraining the
Corporation from implementing notice and demolishing structure and
the plaintiff has taken out present Notice of Motion for temporary
injunction.
2] Briefly stated facts of the plaintiff’s case are that father of
the plaintiff is in use, occupation and possession of notice structure vide
agreement dated 9/5/1987. Suit structure is situated in Shankar Smruti
C.H.S. The plaintiff is in use and possession of the premises for more
than 30 years and running a garage. It is further stated that when he
was put in possession of suit premises one Babu Vaman Rao, builder
and developer, was the owner of building. It is further stated that the
plaintiff was in possession of a shop admeasuring 9’ X 20’ in Borate
Chawl.
3] It is further stated that the plaintiff has not carried out any
illegal work or construction. The plaintiff has submitted various
documents but Designated Officer passed Speaking Order without
considering the documents. The plaintiff is having various documents
showing his possession. The plaintiff paid assessment taxes. Suit
premises is part of the approved plan.
4] It is further stated that when suit premises was handed
over by the previous owner to the society no objection was raised by
defendant No.4/society. It is further stated that the defendant/
Corporation is assisting the builder who has hatched criminal
conspiracy, disconnected electricity connection, so that, the plaintiff
should vacate suit premises and got issued notice. Therefore, the
plaintiff filed suit and taken out Notice of Motion for grant of interim
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relief restraining defendant/Corporation from demolishing notice
structure. Balance of convenience lies in his favour. If temporary
injunction is not granted he will suffer irreparable loss or injury.
5] Defendant/B.M.C. opposed Notice of Motion by filing reply-
cum-Written Statement below exhibit-2. At the outset, it is stated that
suit as well as Notice of Motion is liable to be dismissed in view of the
amended provisions of Section 515A of the M.M.C. Act as this Court has
no jurisdiction to try and entertain present suit. The plaintiff has not
given statutory notice before filing suit under Section 527 of the M.M.C.
Act, therefore suit is liable to be dismissed on this count also. Notice is
executive or administrative act or order and same is not open to
challenge in a Court of law. The plaint discloses no cause of action.
6] It is further stated that on receipt of complaint from
defendant No.4/society regarding the illegal construction on the ground
floor of Shankar Smruti C.H.S. the officer of the Corporation visited suit
site and noticed unauthorized construction in stilt area using brick
masonry wall and M/S grill as shown in the sketch which is part of the
impugned notice. The occupier/owner not produced any document to
show authenticity of structure, therefore, the officer of the Corporation
prepared inspection report and forwarded same to Designated Officer,
who after going through inspection report came to the conclusion that
notice structure is not authorized. Hence Designated Officer issued
impugned notice calling upon the plaintiff to produce documents
showing authorization of structure within 7 days. The notice has been
duly served upon the plaintiff. Even though, the plaintiff replied the said
notice, but failed to produce documents showing authorization of
structure. Accordingly, Designated Officer after going through reply and
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documents, passed reasoned order directing the plaintiff to remove
notice structure within 7 days failing which same will be demolished.
7] It is further stated that defendant/Corporation has followed
due process of law. The plaintiff has not produced any document to
prove authorization of notice structure, therefore, the plaintiff is not
entitled for relief of temporary injunction. On these grounds,
defendant/Corporation prayed for dismissal of Notice of Motion.
8] Points for determination alongwith findings thereon for the
reasons are as under :-
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 ? . . . Yes.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . Yes.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . Yes.
4) What order ? . . . Notice of Motion is
made absolute.
- :: R E A S O N S ::-
AS TO POINTS No. 1 TO 3 :-
9] Learned advocate for the plaintiff submitted that the
plaintiff was in possession of a shop at Borate Chawl which was owned
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by one Chandrakant Borate. Said Chandrakant Borate executed PoA
granting development rights in favour of the builder/developer Babu
Rao with condition to settle with the tenants/occupants. Accordingly,
developer Babu Rao allotted suit premises to the plaintiff as a
temporary accommodation. It is further submitted that suit premises is
part and parcel of the sanctioned plan of Shankar Smruti building,
however on the instigation of builder the Corporation has issued show
cause notice to help builder and vacate the building.
10] Learned advocate for the plaintiff further submitted that
notice structure has been constructed as per the sanctioned plan. The
plaintiff is having various documents showing possession for more than
30 years however, without considering documents and application of
mind Designated Officer passed speaking order. Therefore, the plaintiff
is entitled for interim relief.
11] On the other hand, learned advocate for the Corporation
submitted that defendant/Corporation has received complaint from
defendant No.4/society in respect of unauthorized construction carried
out by the plaintiff. Accordingly, inspecting officer visited suit site and
noticed unauthorized construction in stilt area of building as shown in
the schedule. Inspecting officer took photographs and prepared
inspection report. At the time of inspection the officer demanded
document showing authorization of notice structure, however the
plaintiff did not produce document, therefore, inspecting officer
forwarded inspection report to Designated Officer who after considering
documents issued impugned notice. It is further submitted that the
plaintiff has replied said notice but not produced any document
showing authenticity of notice structure. Accordingly, Designated
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Officer passed speaking order and the Corporation has followed due
process of law. It is further submitted that construction is illegal and
unauthorized. As such, the plaintiff is not entitled for any relief.
12] The plaintiff has challenged notice issued under Section
351 of the M.M.C. Act, alleging that the plaintiff has carried out
unauthorized construction without sanction/permission of the
Corporation. The plaintiff has challenged notice on various grounds. It
is contention of the plaintiff that suit premises is in existence for more
than 30 years and part of the sanctioned plan i.e. structure has been
constructed as per the sanctioned plan. The plaintiff has produced on
record photocopy of the sanctioned plan at exhibit-H annexed to the
plaint. However, learned advocate for the plaintiff is unable to show
that suit premises is part of the sanctioned plan and constructed as per
plan approved by the Corporation.
13] The plaintiff has produced on record various documents i.e.
payment receipt, occupation permission and police complaint etc.
However, none of the documents produced on record by the plaintiff is
sufficient to prove that suit premises has been constructed as per the
sanctioned plan. It is not case of the plaintiff that notice structure is in
existence prior to the datum line of 1/4/1962 fixed for commercial
structure. The plaintiff has not produced permission or any document to
show that suit premises has been constructed as per the sanctioned
plan.
14] Learned advocate for the plaintiff submitted that it is well
settled that in every case where a notice under Section 351 of the
M.M.C. Act or under Section 260 of the B.P.M.C. Act is issued to a party
15 days’ time shall be given for submitting reply. If a party to whom
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notice has been issued sends reply with documents Designated Officer
shall consider reply and pass speaking order and if no sufficient cause is
shown give short reasons for not accepting the contention of the
affected party. It would be open to Corporation to demolish notice
structure within 15 days of order passed by Designated Officer. He
further submitted that in this case, second notice is not as per law.
15] In this case, after submitting reply Designated Officer
passed speaking order and not accepted reply and documents and
thereby directed the plaintiff to remove suit premises or to show
permission within 7 days. This shows that second notice is not as per
the directions given by the Hon’ble Bombay High Court in Sopan Maruti
Thopte And Another vs. Pune Municipal Corporation And Another (AIR
1996 Bom 304). Admittedly, as per the second notice i.e. speaking order
the plaintiff was directed to remove suit premises within 7 days. This
shows that notice is not as per the guidelines issued by the Hon’ble High
in Sopan Maruti Thopte And Another vs. Pune Municipal Corporation
And Another (supra). In the case of Municipal Corporation of Greater
Mumbai & Ors. Versus M/s Sunbeam High Tech Developers Pvt. Ltd.
(Civil Appeal No.7627 of 2019) the Hon’ble Apex Court held that after
the judgment of Sopan Maruti Thopte’s case the Legislature has enacted
a provision and the first period has been curtailed from 15 to 7 days but
second direction has not been interfered with by the Legislature. It is
further held that in terms of direction No.2 in Sopan Maruti Thopte’s
case 15 days notice has to be given and in said case 7 days notice has
been given before demolishing structure. Hon’ble Apex Court in
Municipal Corporation of Greater Mumbai & Ors. Versus M/s Sunbeam
High Tech Developers Pvt. Ltd. held that second notice which is not as
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per the direction of Sopan Maruti Thopte’s case is illegal and action of
demolition without following procedure prescribed by law is illegal.
16] In the case on hand, it appears that defendant/Corporation
has not followed procedure prescribed by law i.e. second direction of
giving 15 days notice before demolition is not followed. As such, I find
substance in the contention of learned advocate for the plaintiff that the
Corporation has not followed due process of law. In the circumstances, I
am of the opinion that the plaintiff has made out
prima facie case.
Balance of convenience tilts in his favour. If temporary injunction is
refused the plaintiff will suffer irreparable loss or injury. Therefore, I
answer points No.1 to 3 in the affirmative and in answer to point No.4
proceed to pass following order :-
O R D E R
1] Notice of Motion No.3434/2019 is made absolute in terms of
prayer clause (a).
2] Defendant/B.M.C. is temporarily restrained from implementing
second notice till decision of suit.
3] Defendant/B.M.C. is at liberty to issue fresh second notice as per
the directions given by the Hon’ble High Court in Sopan Maruti
Thopte’s case.
Date : 17/06/2023. ( 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.”
01/07/2023 03:00 p.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 00/00/2023
ORDER Typed on 28/06/2023
ORDER signed by P.O. on 30/06/2023
ORDER uploaded on 01/07/2023
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