Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.3508 of 2019
CNR:MHCC01-009556-2019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.3508 OF 2019
IN
L.C.SUIT NO.904 OF 2013
Sudhir Kailashchandra Gupta .. Plaintiff
V/s.
The Municipal Corporation of
Gr. Mumbai .. Defendant
Appearance:-
Adv. B. P. Shukla for plaintiff.
Adv. Mrs. Rawade for defendant/BMC.
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 16/10/2023.
ORDER
This notice of Motion is taken out by the plaintiff for
issuing the order of temporary injunction restraining the defendant
from demolishing the suit premises pursuant to the notice dt.
26/10/2012 issued U/sec. 354-A of the MMC Act and notice dt.
09/02/2013 in respect of the suit premises, pending the hearing and
decision of the suit.
2 The plaintiff is in use, occupation and possession of the
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shed bearing Unit No. 13, admeasuring 49’ x 20’, made of patra shade
with M.S. angles and A.C. sheet roof, situated on plot No. 173-C/10,
Mazgaon Reclamation Street, Lakdi Bunder, Mumbai (hereinafter
referred to as the suit premises). The plaintiff is the tenant of the suit
premises owned by the Bombay Port Trust and he is regularly paying
rent of the suit premises to the Bombay Port Trust. The Assistant
Manager Bunder, Dock Department has issued rent receipt in the name
of the plaintiff. There is electricity connection provided in the suit
premises and the plaintiff is receiving electricity bills towards the
consumption of electricity at the address of the suit premises. The
Architect Talegaonkar Associates issued a letter dt. 23/02/20045 issuing
certificate of consumption of FSI by mentioning that the suit premises is
in the nature of semi permanent structure. However, on some false
complaint, the Junior Engineer of the defendant issued notice dt.
26/10/2012 U/sec. 354-A of the MMC Act by alleging that the plaintiff
has unauthorizedly constructed patra shed by using M.S. angles and
directed the plaintiff to produce the documentary evidence within 24
hours. The plaintiff could not reply to the said notice and filed L.C. Suit
No. 5100 of 2012 and also moved for ad-interim relief on 07/12/2012.
However, the Hon’ble Court found that no reply is given and thereby
refused to grant ad-interim relief. The said suit was thereafter,
withdrawn by the plaintiff on 14/01/2013.
3 The plaintiff thereafter, replied to the impugned notice
through a letter dt. 13/12/2012 denying all the allegations and
requested to withdraw the said notice. Since, earlier suit was
withdrawn, therefore, the officers of the defendant removed some
portion of A.C. sheet roof without communicating any order or decision
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by considering the reply of the plaintiff. The plaintiff is carrying on
business of storage of steel materials in the suit premises, therefore, he
has repaired the said portion of the roof with same material which does
not require any permission U/sec.342 or 347 of the MMC Act. Though
reply to the impugned notice was filed by the plaintiff, defendant did
not pass any order and again issued notice dt. 09/02/2013 by alleging
that the plaintiff has reconstructed the suit premises and directed the
plaintiff to demolish the suit premises within 24 hours from the receipt
of the notice. The plaintiff duly replied to the said notice through letter
dt. 13/02/2013 denying all the allegations and requested the defendant
to withdraw the said notice. However, the officers of the defendant
came to the suit premises and threatened the plaintiff to demolish the
suit premises any time. The plaintiff, therefore, filed this suit and
prayed for interim relief.
4 The defendant resisted the Notice of Motion mainly on the
ground that on 25/10/2012, the defendant received a complaint from
one Ikmal Ahmed Khan regarding unauthorized construction in the plot
No.173C, Reti Bunder, Darukhana, Mumbai, therefore, the officers of
the defendant inspected the suit premises on 26/10/2012. At that time,
it was found that the aforesaid work of unauthorized erection was in
progress. After taking the photographs, panchanama was prepared
towards the said unauthorized work. At that time, the plaintiff failed to
produce any permission or sanction plan towards the said work. Thus,
the notice dt. 26/10/2012 was issued U/sec. 354A calling upon the
owner/occupier/user to stop the said unauthorized work by directing to
produce the permission within 24 hours. However, the plaintiff failed to
do so. After one and half months, the plaintiff moved before the Court
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on 08/12/2012, without giving prior notice to the defendant. However,
the Court did not pass any order on the ground that there is no urgency
for granting ad-interim relief. Thereafter, the notice structure was
demolished by the defendant on 08/12/2012 by following due process
of law with the help of police force. The defendant also took
photographs of the demolition carried out on 08/12/2012. However, by
suppressing all these facts, the plaintiff filed this suit.
5 On 09/01/2013, the defendant received a complaint from
said Ikmal Khan regarding unauthorized work of reconstruction by one
Shahid Khan in the suit premises. Therefore, on 04/02/2013, the
officers of the defendant inspected the suit site and found that the
notice structure which was already demolished on 08/12/2012 has
been reconstructed. The defendant, therefore, issued 24 hours notice dt.
09/02/2013 to the owner/occupier/user of the said premises by calling
him to demolish the reconstructed structure within 24 hours. Said
notice was pasted on the suit site on 11/02/2013. The defendant had
arranged schedule of demolition of the notice structure on 20/02/2013.
However, at that time, police protection was not provided, therefore,
the work of demolition was not carried out on 20/02/2013. Meanwhile,
the plaintiff filed this suit and obtained ad-interim order by misleading
the Court. The plaintiff has no right to challenge the same notice in
respect of which earlier suit was filed and withdrawn by the plaintiff.
The documents relied upon by the plaintiff do not mention the notice
structure and the plaintiff is shown to be the tenant of the said plot.
Rest of the averments are denied in toto. It is thus, contended that the
Notice of Motion is liable to be dismissed with costs.
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6 Considering the rival submissions, following points arise for
my determination. My findings are recorded thereon with reasons
enumerated therein, as under.
Sr. No. POINTS FINDINGS.
1 Whether the plaintiff has made
out a prima facie case?
Negative
2
Whether balance of convenience
lies in favour of the plaintiff? Negative
3
Whether the plaintiff will suffer
irreparable loss, if interim reliefs
are not granted, as prayed for?
Negative
4 What Order ? As per final order
REASONS
AS TO POINTS NO.1 TO 3.
7 Having regard to the submissions advanced by the learned
advocates for the parties, I have carefully gone through the respective
pleadings and copies of documents on record. There cannot be any
doubt that by letter dt. 04/02/1971, Bombay Port Trust had directed
the plaintiff to contact the Assistant Manager, Bunders for the transfer
of plot No.173C in Block No.10 at Lakri Bunder and by letter dt.
19/02/1971, the plaintiff was further directed to accept the letter of
acceptance for transfer of aforesaid plot No. 173C in block No. 10 by
accepting the terms and conditions. Accordingly, by issuing the Charge
Certificate dt. 20/03/1971, the plaintiff was handed over the possession
of plot of land No. 173C in Block No.10 at Lakri Bunder, Mazgaon
Reclamation Estate. However, so far as the description of the suit
premises is concerned, the plaintiff has come with a case that he is in
use, occupation and possession of patra shed admeasuring 49’ x 20’,
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made of patra sheet with M.S. angles and A.C. sheet roof on the plot
No.173C.
8 In this context, the plaintiff has also filed a copy of
certificate dt. 23/02/2004 issued by Talegaonkar Associates to show
that the suit premises is in the nature of semi permanent structure.
However, in the aforesaid correspondence made by or with the Bombay
Port Trust, it is nowhere specifically mentioned that any kind of
structure/shed is in existence on the said plot. Moreover, copy of
certificate issued by Talegaonkar Associates is also a private document
and no any supporting affidavit is failed in support of this certificate.
9 So far as patra shed shown to be constructed in the suit
premises is concerned, the plaintiff himself has come with a case that
the defendant issued the notice dt. 26/10/2012 U/sec. 354A which was
not replied by the plaintiff and the plaintiff had filed L.C. Suit No. 5100
of 2012. The plaintiff himself has contended that ad-interim relief in
that suit was refused by the Court on 07/12/2012, therefore, said suit
was withdrawn on 14/01/2013. The plaintiff himself has further
contended that he had replied to the impugned notice U/sec.354A
through his advocate letter dt. 13/12/2012 and after the said suit was
withdrawn, the defendant removed some portion of AC sheet roof
without communicating any order or decision by considering the reply
of the plaintiff. Having regard to all these circumstances, it is apparent
that after issuance of the notice dt. 26/20/1012 U/sec.354A, the
plaintiff had filed L.C. Suit No. 5100 of 2012 challenging the said notice
and said suit was withdrawn on 14/01/2013. It is also not in dispute
that the notice structure as shown in the notice dt. 26/10/2012 was
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demolished by the defendant on 08/12/2012. It was, therefore,
incumbent on the part of the plaintiff to make it clear as to whether L.C.
Suit No. 5100 of 2012 was withdrawn unconditionally or it was
withdrawn by the plaintiff with permission to file fresh suit under Order
23 Rule 1 (3) of Code of Civil Procedure. However, nothing is made
clear nor any copy of order is filed on record by the plaintiff to clear this
position.
10 Moreover, in para. 16 of the plaint, the plaintiff has
specifically contended that in view of withdrawal of earlier suit, the
defendant removed some portion of AC sheet roof without
communicating any order or decision by considering the reply of the
plaintiff, therefore, he had repaired the said portion of roof with same
material which does not require permission under Section 342 or
Section 347 of the MMC Act. All these circumstances clearly indicate
that after demolition of the said unauthorized construction on
08/12/2012, the plaintiff has carried out the work of construction in
the suit premises without seeking necessary permission towards the said
work. In view of withdrawal of L.C. Suit No. 5100 of 2012 challenging
the notice dt. 26/10/2012 U/sec.354-A, in my view, action of
demolition dt. 08/12/2012 carried out by the defendant either legal or
illegal, remains no more res integra. In my view, withdrawal of L.C. Suit
No. 5100 of 2012 challenging the legality of the notice dt. 26/10/2012
U/sec. 354A by the plaintiff amounts to waiver of the rights because the
notice structure mentioned in the said notice dt.26/10/2012 was
thereafter, demolished on 08/12/2012.
11 So far as the notice dt. 09/02/2013 is concerned, it is
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pertinent to note that the said notice has been issued by the defendant
on being found that the plaintiff has reconstructed the said structure
which was already demolished on 08/12/2012. Therefore, the plaintiff
was called upon to remove the said structure within 24 hours after
receipt of the said notice. In this context, it will not be out of place to
refer the guidelines laid down by the Hon’ble Supreme Court in a
landmark judgment of Municipal Corporation of Greater Mumbai & Ors.
V/s. M/s. Sunbeam High Tech Developers Private Ltd., in Civil Appeal
No.7627 of 2019 dt.24/10/2019. In this case, the Hon’ble Supreme
Court has reproduced the directions which were issued by the Hon’ble
Bombay High Court in Sopan Maruti Thopte and Anr. V/s. Pune
Municipal Corporation and Anr. in which the Hon’ble Bombay High
Court has referred to various provisions of law and issued necessary
directions. As per directions (iv), it has been directed that in case where
the Municipal Corporation has followed due process of law and
demolished the unauthorised structure and/or extension, if the same is
reconstructed without valid permission within a period of one year, it
would also be open to the Corporation to demolish the same by giving a
short notice of 24 hours.
12 In this backdrop, it can be seen that earlier structure was
demolished by the defendant on 08/12/2012 in terms of notice dt.
26/10/2012 issued U/sec. 354A of the MMC Act and thereafter, the
plaintiff himself has contended that he has repaired said portion of
demolished structure, though it is contended that same does not require
any permission under Section 342 and Section 347 of the MMC Act.
Therefore, I am of the considered view that the subsequent notice
dt.09/02/2013 by giving 24 hours time has been given in the aforesaid
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context to remove the reconstruction which has been erected by the
plaintiff within a period of one year from the date of earlier demolition
dt.08/12/2012. There is nothing on record except a certificate of
Architect Talegaonkar Associates which is a private document to show
that any such authorized structure was erected on the said plot.
Considering the aforesaid circumstances including withdrawal of earlier
suit in which notice dt. 26/10/2012 U/sec.354A was challenged, clearly
demonstrate that the plaintiff himself has waived his right to challenge
the said notice issued U/sec. 354A. Therefore, no question arises of
protecting the said reconstructed structure which is indisputably erected
without seeking any permission from the competent authority. Thus, in
view of these reasons, points No.1 to 3 are answered in negative.
AS TO POINT NO.4.
13 In view of aforesaid findings on the point Nos.1 to 3,
following order is passed.
ORDER
1 Notice of Motion No.3508 of 2019 is hereby dismissed.
2 Costs in cause.
3 Notice of Motion stands disposed off accordingly.
Date:16/10/2023. (R. M. Mishra )
Judge, City Civil Court,
Dictated on :16/10/2023. Gr.Mumbai.
Typed on :16/10/2023.
Signed on :16/10/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
16/10/2023 05.50 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
16/10/2023.
JUDGMENT/ORDER signed by P.O.on 16/10/2023.
JUDGMENT/ORDER uploaded on 16/10/2023.
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