Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO 3429 OF 2019
IN
STAMP NO.9555 OF 2019
( CNR NO.MHCC010093772019)
Maniklal S.Tripathi )...Plaintiff.
Versus )
The Municipal Corporation of Greater )
Mumbai and Anr. )...Defendants.
Appearance:
Advocate Mr.N.R.Tiwari for plaintiff.
Advocate Mr.B.S.Sutar for defendant/MMC.
CORAM: HIS HONOUR JUDGE
SHRI R.V.KOKARE
DATE : 04/12/2019 (C.R.No.06)
O R D E R
This notice of motion is taken out by the plaintiff for temporarily
restraining to the defendants from enforcing and executing the notice
under section 351 of MMC Act dated 26/06/2019 and in pursuant to
the said notice, Speaking order passed dated 19/08/2019 in respect of
suit premises. The defendants Municipal Corporation resisted this notice
of motion by filing their reply. Read the present notice of motion,
affidavit of the plaintiff in support of the notice of motion, reply of the
defendant Municipal Corporation and affidavit of employee of
defendant. Heard both the learned counsels on behalf of both the
sides at length. Perused the record.
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2. The plaintiff has submitted that they are inter alia challenging
the threatened allege action of vague manner of demolition of the
allege structure of the owner/occupier address to chairman/secretary
of Greater United Industrial Estate Coop Society Ltd. C.S.1963 of
byculla division, Pais Street, Byculla,Mumbai 24, consisting of 24
commercial gala of which plaintiffs is in occupation, enjoyment and in
possession of gala no. 19/63, 16/62 is at Sarafally Compound
( hereinafter referred to as the suit premises).
3. The suit premises was under the control and has been in use and
occupation of the said gala since 1962 datum line. The gala is in use
prior to 1962 and that as the plaintiff was illiterate, he was not able to
understand the worth of impugned notice/order and the plaintiff have
several documents to prove its existence of the said gala prior to 1962.
The plaintiff further submits that as one of the builder is interested for
redevelopment of the entire site on which the said galas situated, as
plaintiff herein objected subject to proper procedure under DCR Rule
for redevelopment and accordingly took shade of defendants for
issuing allege impugned notice/order against plaintiff which too is in
vague manner without any proper description of the structure. Inspite
of the plaintiff informing to the officers of defendant no.2 stating that
the said gale is prior to existence of 1962 and showing all the relevant
documents, the said officer of defendant no.2 has issued allege notice
under challenge. The plaintiff has submitted that some of the
documents which were in possession of the officer of the defendant no.
2.
4. The plaintiff has further submitted that after issuing the notice
under section 351 of MMC Act by the defendant Corporation, the
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defendant Corporation without considering the reply and documents
approached on behalf of the plaintiff passed stereo type speaking order
dated 19/08/2019.
5. The learned advocate on behalf of the plaintiff has argued that
the suit premises are in existence prior to 1962 i.e. datum line. Plaintiff
is in possession and occupation of the suit premises. The defendant
Municipal Corporation at the say of Builder issued illegal notice under
section 351 of MMC Act and threatened to the plaintiff that the
defendant Corporation will demolish the suit premises. After receipt of
notice under section 351 of MMC Act issued by the defendant
Corporation to the plaintiff. The plaintiff has submitted the documents
i.e. copy of order dated 12/04/1996 in Suit no. 6534/1987 Maniklal
S.Tripathi V/s. MCGM, the copy of letter no. WOE/8093/AE(800)E
dated 7/3/78 in respect of NOC from office at E ward, 10 sk.Hafizuddin
Marg, Byculla, Copy of Municipal Licence no. 29986 of the year 1962
63, Copy of summons no.935/m 1962 issued by Honourary Presidency
Magistrate, Mazgaon, Copy of old licence no. 8333 and new licence no.
E/7061 dtd.15/12/67, Copy of assessment from 1978 to till date by
defendant office, Water bill of MCGM meter no.W3591000
dt.24/08/2006, Electricity bill in the name of Maniklal S.Tripathi, Copy
of letter dtd.26/02/02, 21/03/97, 15/09/99, 13/10/98, 15/06/93,
7/3/2014 issued by defendant Corporation. The defendant Corporation
without mentioning the description of the property in the notice under
section 351 of MMC Act dated 26/06/2019, which is under challenge,
passed Speaking order dtd.19/08/2019, without considering the
documents produced by the plaintiff. Therefore, the notice under
section 351 of MMC Act and Speaking order dated 19/08/2019 which
are under challenge are unexecutable and illegal. Therefore, the said
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notice and Speaking order are not binding on the plaintiff in respect of
the suit premises. The plaintiff has made out prima facie case, balance
of convenience lies in favour of the plaintiff. The plaintiff will suffer
irreparable loss, if this notice of motion is not granted. Therefore, Ld.
advocate for the plaintiff has requested that the present notice of
motion may kindly be allowed.
6. In response to the notice of motion, the defendant Corporation
has submitted that on routine checking/as usual round of the concern
officer along with the staff found that the unauthorised construction of
suit structure therefore the suit site was inspected by concern officer on
26/06/2019. During inspection of the said suit site, it is found to the
said concern officer that unauthorised construction on open land at
Greater United Industrial Estate Coop Society Ltd. C.S.No.1963 of
Byculla division, Pais Street, Byculla, Mumbai which detailed
description described by the defendant Corporation in their reply in
para no. 6. Thereafter, Designated Officer 'E' ward after carefully going
through the same, came to the conclusion that the occupier/owner has
carried unauthorised construction on open land at Greater United
Industrial Estate Coop Society Ltd.C.S.No.1963 of Byculla division, Pais
Street, Byculla, Mumbai which are detailed description given in reply
cum written statement at Exh. 2 in para no. (b). Therefore, notice
issued under section 351 of MMC Act dated 26/06/2019 to the plaintiff.
The said notice was duly served to the plaintiff and same was
acknowledged by the plaintiff on 09/07/2019. By the said notice
addressee was informed that he has erected unauthorised construction
indicated in the sketch shown overleaf mentioned in the schedule of
notice without permission of the competent authority required under
the aforesaid act at above address. By the said notice, the plaintiff was
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directed to show sufficient cause as to why the said unauthorized work
should not be pulled down and requested to produce sanctioned plan or
any documentary evidence along with his reply within seven days from
the receipt of this notice.
7. The defendant Coronation has further submitted that after
receipt of the said notice the plaintiff submitted his reply through his
Advocate date 17/07/2019, 10/07/2019, 16/07/2019 to these
defendants Corporation along with documents but the plaintiff failed to
produce any documentary evidence to show that the notice is bad in
law or illegal. The officer of the defendant Corporation, after
considering the reply of the plaintiff along with documents in lieu of the
said shown cause notice and thereafter going through the entire office
record came to conclusion that the notice structure was constructed
without prior permission from the concern competent authority and was
not in existence prior to the datum line, therefore the notice structure is
unauthorised and the same is ought to be removed by the notice bearer
within stipulated time period mentioned in the said notice and order.
The defendant Corporation after considering the reply and documents
produced on behalf of the plaintiff passed reasoned Speaking order
dated 19/08/2019 under reference no.94473.
8. The learned advocate on behalf of defendant Corporation has
submitted that the plaintiff has constructed notice structure without
prior permission from the Competent Authority. The plaintiff is tenant
of defendant Corporation, therefore, it is necessary to take prior
permission of the defendant Corporation. Therefore, the defendant
Corporation issued notice under section 351 was rightly issued and
required to be executed in the interest of natural justice. The learned
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advocate for the defendant Corporation submitted the plaintiff replied
to the notice issued by the defendant Corporation and also submitted
that the documents and after considering reply and documents
produced on behalf of the plaintiff the defendant Coronation has passed
reasoned speaking order.
9. The learned advocate for the defendant Corporation further
submitted that on perusal of the documents attached with the plaint, it
is clear that the said assessment bills, tax receipts, assessment
extract report in respect of the godown property and not in respect of
present notice structure. Therefore, it is clear that plaintiff tried to
misguide this Hon'ble Court to get relief in his favour. It is also clear
that from the said facts plaintiff did not come with the clean hand to
get relief in the suit. The plaintiff is not made out prima facie case,
balance of convenience does not lies in favour of the plaintiff. The
plaintiff will not suffer any irreparable loss, if this notice of motion not
granted in his favour. On these grounds, the learned advocate on
behalf of defendant Corporation has requested that the present notice of
motion taken out by the plaintiff may kindly be rejected.
10. The learned advocate on behalf of the plaintiff has placed his
reliance on the judgment reported in MANU/MH/0518/1992 in the
case of G.J.Kanga and Ors. Vs. S.S.Basha. The Hon'ble High Court of
Bombay has held that, Constitution jurisdiction Sections 56,68 and
351 of Bombay Municipal Corporation Act,1888Municipal
Commissioner set aside an Order passed by Deputy Municipal
Commissioner dropping action of demolition under Section 351 Order
under section 351 admittedly involves determination of facts and
circumstances in which Deputy Municipal Commissioner found
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construction as authorized said order be treated as quasi judicial order
judicial orders cannot be revised unless specifically provided in statute
nothing in law entitles Municipal Commissioner to review Deputy
Commissioner's Order under Section 351 notice of review issued after
one year elapse of said period renders even a suit against initial order
barred by limitation held, review of Deputy commissioner's Order by
incompetent Municipal Commissioner set aside.''
11. After hearing the arguments advanced on behalf of both the
learned counsels on both the sides at length, after scrutiny of pleadings,
documents produced on behalf of both the sides on record, it appears
that it is not disputed that in the present suit and in the present notice
of motion, the plaintiff has challenged the notice under section 351 of
MMC Act issued by the defendant Corporation to the chairman/
secretary of Greater United Industrial Estate Coop Society Ltd. C.S.
1963 of Byculla division, Mumbai in respect of 25 commercial galas
including the plaintiff's gala No 19/63 and 16/22 and the Speaking
order passed by the defendant Municipal Corporation in response to the
notice under section 351 of MMC Act dated 26/06/2019. In the notice
under section 351 of MMC Act dated 26/06/2019, under challenge
issued for unauthorised construction on open land at Greater United
Industrial estate Coop. Society Limited C.S. No. 1963 of Byculla
division, Pais street, Byculla,Mumbai for 25 galas including suit
premises. There is no dispute that gala no.19/63 and 16/62 are the said
galas are the suit premises in the present suit.
12. The material dispute in between the plaintiff and defendant
Municipal Corporation that according to the plaintiff, the suit premises
are in existence since prior to 1992 i.e. prior to datum line. According to
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the defendant Municipal Corporation that the defendant is the owner of
the open land where the plaintiff have galas including suit premises
constructed by occupants including the plaintiff without prior
permission of the defendant Corporation. In order to prove the legality
of the notice and speaking order under challenge the plaintiff has
produced the documents under list. The copy of assessment produced
on behalf of the plaintiff at sr.no.F under list of documents. After
scrutiny of the said assessment, it appears that the said assessment is for
the year 20102011, the suit property shown in the name of present
plaintiff Maniklal Tripathi and Shri Roshanlal Chadda. The other
documents are copy of licence, copy of electricity bill etc. None of the
documents produced on behalf of the plaintiff as to shows that the
notice structure is in existence since prior to 1/04/1962. Moreover,
none of the documents have been produced on behalf of the plaintiff as
to show that he has obtained approval plan, any permission order for
authenticity of the notice structure from the competent authority. The
copy of notice which was issued in the year 1987 bearing
No.E/5/AE(BF)/E under section 351 of MMC Act was issued for
unauthorised construction of shed and notice structure mentioned in
the present notice under section 351 of MMC Act dated 26/06/19 under
challenge are different one. It is pertinent to note that in support of
contention of the defendant Corporation, the defendant has produced
plan showing block plan and Location plan , plot no. 3, East Agripada
Estate Scheme No. 32(North) bearing C.S. No. 1963 of Byculla Division
E ward. In the present plan, the unauthorised structure is not shown
any existence since prior to datum line. The defendant Corporation
before issuing notice under challenge prepared Inspection report and
taken photographs of unauthorised structure in respect of the suit
premises. It further shows that before issuing notice under challenge,
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the officer of defendant Municipal Corporation has prepared the
Inspection report and taken photographs . On scrutiny of the Speaking
order passed by the defendant Municipal Corporation dated
19/08/2019, it clearly shows that after considering the reply of the
plaintiff and other occupants and documents, the defendant Municipal
Corporation has passed reasoned order. Therefore, prima facie, it
reveals that the notice under section 351 of MMC Act dated
26/06/2019 and Speaking Order dated 19/08/2019 under challenge
are proper and legal. The plaintiff has not produced any documents as
to show that the suit premises is in existence since prior to datum line.
The plaintiff has also failed to prove that the authenticity of the suit
premises.
13. I have gone through the citations referred on behalf of the
plaintiff (supra) with due respect the ratio held in above citation is not
applicable to the present case in my hand due to defer of facts and
circumstances. Therefore, above my discussions, I come to the
conclusion that the plaintiff has failed to prove prima facie case,
balance of convenience and also failed to prove irreparable loss. So, at
this stage, the plaintiff is not entitled to protect the suit premises.
Hence, I have proceed to pass following order.
ORDER
Plaintiff's notice of motion no. 3429 of 2019 is hereby dismissed.
Date : 04/12/2019 (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 04/12/2019
Transcribed on: 05/12/2019
Signed by HHJ: 09/12/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
09/12/2019 Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.06)
Date of Pronouncement of
Judgment/Order
04/12/2019
Judgment/order signed by P.O on 09/12/2019
Judgment/order uploaded on 09/12/2019
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