Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.3559/2019 ..1.. In L.C. Suit No.2675/2019
CNR NO.MHCC010096682019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 3559 OF 2019
IN
L.C. SUIT NO. 2675 OF 2019
Mr. Asif Yusuf Shaikh,
Aged : 56 Years, Occ. : Business,
Residing At : Qureshi Nagar,
Kurla (East), Mumbai 400 070. ...Plaintiff
Versus
1. The Municipal Corporation of
Gr. Mumbai,
Having their Head Officer At :
Mahapalika Bhavan,
Mahapalika Marg,
Mumbai 400 001 Through
The Asst. Municipal Corporation of
Greater Mumbai, 'L' Ward Kurla,
S. G. Barve Marg Kurla,
Mumbai 400 070.
2. Shri Noora,
S/o Mrs. Kamrunnisa Mohammed Shafi
3. Shri Rais Husain Qureshi,
S/o Mrs. Kamrunnisa Mohammed Shafi
4. Shri Peer Mohd. Husain Qureshi,
S/o Mrs. Kamrunnisa Mohammed Shafi
Deft. No. 2 to 4 Residing At :
Qureshi Nagar, Kurla (East),
Mumbai 400 070.
5. Shre Sayyed Abbas,
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6. Shri Sayyed Wajid,
Deft. No. 5 and 6 Residing At :
Kadar Bldg., Qureshi Nagar,
Kurla (East), Mumbai 400 070.
7. Mr. Nadeem Abdul Hakim Khan,
Aged : 55 Years,
Residing At : 57 Shafiwali Bldg.
Opp. Badi Masjid, Haji Karamatali Road,
Quresh Nagar, Kurla (East),
Mumbai 400 070. ...Defendants
Appearance :
Mr. Neha Chhajalane, Advocate for Plaintiff.
Ms. Mhatre, Advocate for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI A. N. MARE (C.R.No.11)
DATE : 24TH OCTOBER, 2019.
O R A L O R D E R
The plaintiff has sought to restrain temporarily defendants
No.2 to 7 from further consrtucting upon the suit premises and to create
third party rights in suit property. Temporary injunction is also sought
against defendant No.1 to take legal action against defendants No.2 to 7
for raising illegal construction and to file compliance thereof before this
Court.
2. In brief the plaintiffs case is that, he is one of the tenants of
57, Mohd. Shafi Building (hereinafter referred as the suit building). The
suit building was originally consisting of ground plus three floors. The
landlord Mrs.Kamrunissa Mohd. Shafi had replied a notice issued by
defendant No.1 under Section 353 (B) of the MMC Act and has claimed
that the suit building consists of ground plus three floors. Later, on
19.11.2018 defendant No.1 issued a notice under Section 354A of the
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MMC Act. Mrs. Kamrunissa challenged said notice vide L.C. Suit(Stamp)
No.16048/2018, later registered as Suit No.661/2019. Vide a letter
dated 16.01.2019 the Assistant Engineer of defendant No.1 has stated
that the work of RCC slab at third floor at the suit premises was found
in progress and so action of contempt be taken against Mrs.Kamrunissa.
However, no action is yet taken. In the suit by Mrs. Kamrunissa,
defendant Corporation applied for appointment of Court Commissioner.
This Court had appointed the Court Commissioner who has reported
that the third floor stair case of the suit premises was closed by locking
the wooden door. On 04.05.2019 Mrs. Kamrunissa withdrew the suit
unconditionally. Defendant No.7 claiming to be purchaser of the suit
property has filed Suit Stamp No.5618/2019, later registered as Suit
No.1306/2019 seeking injunction against defendant Corporation not to
demolish the suit property, having ground plus five floors, without
following due process of law. He secured adinterim relief from this
Court without disclosing further construction.
3. Mrs. Kamrunissa has objected transfer of electricity
connection in favour of defendant No.7. She has lodged complaint with
Chunabhatti Police Station alleging cheating and breach of trust. In said
complaint she has claimed that there was no sale agreement between
herself and defendant No.5 and 6. She has also claimed that the
agreement for development was for ground plus three floors. But
defendants No.5 and 6 have started illegal work of fourth and fifth floor
and therefore, she withdrew her suit. She has also alleged that she was
misguided by defendants No.5 and 6 claiming that the illegal structure
was demolished on 20.05.2019. Though Suit No.1306/2019 is filed
claiming existence of building having ground plus five floors, further
illegal construction of sixth floor and onwards is going on. It is
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overburdening the building and entire building may collapse and may
cause loss of life and property of the tenants. The construction carried
above third floor of the suit property is illegal. Therefore, it is necessary
to restrain defendants No.2 to 7 from further raising illegal construction
and from entering into the suit premises for said purpose. It is necessary
to direct defendant No.1 to take legal action against the illegal
construction. Defendant No.1 is hands in glove with defendants No.2 to
6 otherwise the fourth, fifth and sixth floors construction could have
been disclosed before the Court and defendant No.1 could have acted
against it in absence of injunction from the Court.
4. Defendant No.7 has opposed the Notice of Motion
contending that since no relief is sought against defendant No.1 this
Court has no jurisdiction to deal with the present suit as this Court is
assigned the suits relating to MCGM. The plaintiff has equally
efficacious remedy of filing comprehensive suit. The injunction as
sought cannot be granted in the plaintiff’s favour. The plaintiff is
illegaly occupying his room and thus is not entitled to the relief. The
plaintiff is an accused in Mumbai Bomb Blast Case of the year 1993. He
is also one of the accused in FIR No.221/2019 and thus is not entitled
to any assistance from this Court. The plaintiff has no personal interest
in the suit building. The contents of paragraphs No. 1, 2, 11 to 13 of the
plaint are denied. However, the contentions in paragraphs No.3 to 10
are in connection with Court proceedings and so no comments are
offerred. The plaintiff has not joined the other occupants of the
building, occupying ground floor to sixth floors, and therefore, relief as
sought by the plaintiff cannot be granted as such occupants are
necessary parties and in their absence if any order is passed, the
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occupants will suffer the consequences. There is no work in progress in
the suit building as evident from the photograph taken on 12.10.2019.
5. Following points arise for determination against which
findings are recorded for the reasons to follow:
Sr. No. POINTS FINDINGS
1. Whether the plaintiff has made out
a primafacie case? In the affirmative.
2. Whether the balance of
convenience lies in plaintiff’s
favour?
In the affirmative.
3. Whether the plaintiff will suffer
irreparable loss if injunction as
sought is refused?
In the affirmative.
4. What Order ? Notice of motion is
made absolute as per
final order.
REASONS
AS TO POINTS NO.1 TO 4.
6. Plaintiff has produced on record a receipt dated 10.08.2018
revealing that he is tenant in Room No.14 of the suit building. Though
defendant No.7 has come with a case that the plaintiff is illegal
occupant, no explanation is offered in respect of the rent receipt dated
10.08.2018. Thus, primafacie it is evident that plaintiff is tenant in the
suit building and is occupying room No.14 therein. The documents such
as Ration Card, Electricity Bill, Aadhar Card submitted by the plaintiff
also support such contention.
7. The plaintiff has produced on record a copy of notice issued
by defendant No.1 under Section 353 (B) dated 09.04.2014 mentioning
therein that the building name Mohd. Shafiwali building is more than
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30 years old and so needs to be inspected by licensed structural
Engineer and his report be submitted to the Corporation. Plaintiff has
also produced a copy of reply dated 12.09.2017 by Mrs. Kamrunissa
mentioning therein that the suit building consisting ground plus three
floors is constructed much prior to 1990 and various tenants are
residing therein. It is further avered that she had appointed M/s. Samir
J. Mhatre for Structural audit of the building and he has classified said
building in C2B category requiring major repairs. The copy of such
structural audit report is also produced by the plaintiff revealing that
the suit building was of ground plus three floors on the date of its
structural audit in the year 2017. The plaintiff has also produced on
record report of officer of defendant No.1 Corporation observing that
unauthorized work of RCC flat of third floor of the suit building was
found in progress. Plaintiff has also produced on record the documents
revealing that at the instance of defendant No. 1 Corporation this Court
had appointed Court Commissioner in the suit filed by Mrs. Kamrunissa.
The Commissioner’s report dated 07.02.2019 is also produced on record
mentioning therein that the Commissioner's entry to third floor was
prevented since the entrance of third floor stair case was closed by
locking the wooden door. It also reveals from the documents filed by
the plaintiff that on 04.05.2019 Mrs. Kamrunissa withdrew the suit.
8. Defendant No.7 has not disputed all these aforesaid
proceedings and thus, it is clear that the landlord Mrs. Kamrunissa has
come with a case before this Court that the suit building was consisting
of ground plus three floors while filing the suit No.661/2019. Thus, the
documents clearly indicate that in the month of January 2019 the suit
building was having ground plus three floors.
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9. The plaintiff has also relied upon report submitted by
Assistant Commissioner, ‘L’ Ward, to the Senior Inspector of Police
Chunabhatti Police Station on 14.05.2019 mentioning there that the
illegal construction being carried out on the suit building and is still
continued. It is further mentioned that the building is located on the
slope of hill and the structure in question does not seem to be
technically stable which may lead to disaster and may endanger lives of
people whosoever are occupying suit building.
10. The documents produced on record reveal that the suit
building was originally a ground plus three floors structure and
apparently an illegal construction is being added to it. Defendant No.7
has not come with a case that the construction is being carried out with
the permission of Competent Authority i.e. defendant No.1 Corporation.
Thus, primafacie the construction activity is illegal. The photographs
produced by defendant No.7 reveal that at present a structure of ground
plus six floors is existing. However, apparently the portion of fifth floor
and sixth floor and seventh floor is unoccupied. It is also prima facie to
be considered that the illegal construction is endangering the stability of
the entire building as opined by the officer of defendant No.1
corporation. This court need not substitute its opinion about said aspect
but has to accept it as an expert's opinion.
11. Considering the totality of the circumstances therefore, a
tenant in said building, in which illegal construction is being carried out
endangering the stability of the said building, has a right to seek an
injunction to restrain the persons carrying out such illegal construction
which will endanger the life of the occupant i.e. the plaintiff and even
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others. Thus the objection to plaintiff's locus to seek injunction can not
be upheld.
12. Advocate for defendant No.7 submitted that since no relief
is sought again defendant No.1 Corporation this Court has no
jurisdiction to entertain present suit.
13. Bare perusal of the plaint reveals that relief is also sought
against defendant No.1 claiming that it failed to fulfill its official duty. A
declaration to that effect is sought. In view of this, submission advanced
by advocate for defendant No.7 cannot be accepted.
14. Advocate for defendant No.7 submitted that plaintiff has
equally efficacious remedy to approach defendant No.1 Corporation and
of filing a complaint. Since this is not done the plaintiff can not
approach the Court directly.
15. The submissions are apparently misconceived. An equally
efficacious remedy is to be understood as a remedy which allows a
person to seek all those relief which he can seek from the Court of Law.
It can not be accepted that defendant No.1 corporation is competant to
grant the plaintiff all those relief which he can seek from this Court.
16. Defendant No.7 has claimed that the plaintiff is an accused
in two cases and therefore is not entitled to any assistance from this
Court.
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17. Such arguments are simply to be rejected as a person
accused in a case does not lose his legal rights to protect his life and
property.
18. It is also contended by defendant No.7 that plaintiff has no
personal interest in respect of the suit building and so he cannot claim
injunction.
19. From the discussion above, it is clear that the plaintiff is a
tenant in the suit building. As already discussed such a person has every
right to claim an injunction to protect his life and property which is
threatened due to the illegal construction on a building endangering its
stability.
20. Advocate for defendant No.7 submitted that except 2 to 3
flats in the building, third party rights are created in all the remaining
flats. Therefore, according to him, the plaintiff cannot seek injunction to
restrain defendants from creating third party rights in the suit property.
21. It needs to be mentioned here that not a single document
in that regard is produced by the defendant No.7. Merely because a
statement is made, this Court can not presume, in absence of valid
documents, that third party rights are created and so the injunction as
sought cannot be granted as suggested by advocate for defendant No.7.
22. Advocate for defendant No.7 further submitted that the
plaintiff has suppressed an agreement dated 01.10.2018 entered into by
Mrs.Kamrunissa and others with the plaintiff and defendant No.6.
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According to him therefore, the plaintiff is guilty of suppression of
material facts.
23. The agreement cum no objection is not a registered
document. There is no whisper about this agreement in reply of
defendant No.7. It is nobody’s case that such agreement was ever
executed and acted upon. In these circumstances, the arguments based
upon such an agreement cannot be considered.
24. Advocate for defendant No.7 submitted that plaintiff’s son
has paid various amount to defendant No.7 for having a flat in the
proposed construction of the suit bilding. Relying upon the photocopy
of cheques, he submitted that plaintiff has suppressed this fact also.
25. There is nothing in the reply filed by the defendant No.7 to
disclose the purpose for issuance of such cheques or even issuance of
cheques by the son of plaintiff in favour of defendant No.6. Copies of
cheques reveal that all of those are undated. Therefore, it cannot be
even primafacie concluded that those are issued in connection with
securing of some premises in ongoing construction of the suit building.
26. Advocate for defendant No.7 also relied upon a copy of
F.I.R. and certain photographs claiming that the conduct of plaintiff is
bad. He also claimed that plaintiff himself has constructed various
illegal buildings and therefore is not entitled to injunction in this case.
He relied upon some photographs claiming those to be of such buildings
illegaly constructed by the plaintiff.
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27. It is the settled legal position that a person claiming an
equitable remedy has to make out a case for grant of such an injunction.
If he makes out such a case, his character unconncted with the subject
matter of the suit will be of no relevance to consider the grant of
injunction. Therefore the submissions on behalf of defendant No.7 can
not be considered. In this case defendants No.1 to 6 have not filed reply
though they are represented by the Advocates, except defendant No 4
against whom the suit has proceeded exparte.
28. Considering the totality of the circumstances, I hold that
plaintiff has made out a case for grant of injunction.
29. Advocate for defendant No.7 submitted that in connected
suit No.1306/2019 this Court has granted an injunction restraining
defendant Corporation from taking action against ground plus five
floors of the suit building without following due process of law.
Therefore, according to him injunction in this case cannot be granted.
30. Such submissions is to be straightway rejected on the
ground that, apparenlty defendants No.2 to 7 are indulging in illegal
construction. The injunction to restrain defendant Corporation has
nothing to do with the injunction sought in present case as plaintiff has
sought to restrain the defendants from raising illegal construction and
creating third party rights. So far as direction to defendant No.1
corporation is concered it can be given as it is its duty to act against the
illegal construction. This court is not directing it to remove the
construction bu to act against it as per law. Secondly, the injunction
operating against defendant No. 1 corporation in another suit is not to
act without following due process of law. Thus if this Court directs it to
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follow due process of law, such direction is not in conflict with the
injunction granted in connected suit. Hence, submission by advocate for
defendant No.7, in this regard, is not acceptable.
31. In the circumstances of this case, if the illegal construction
is allowed to be carried out, it will endanger the stability of the entire
building; thus, causing loss of life and property. Hence, the balance of
convenience lies in favour of the plaintiff. The case of irreparable loss is
also made out in above circumstances. Hence, I answer points No. 1 to
3 in the affirmative. In response to point No. 4, I pass following order.
ORDER
1. Notice of Motion No. 3559/2019 is made absolute
in terms of prayer clause (a), (b) and (c).
2. Defendants No. 2 to 7 are temporarily restrained
from raising any construction on the suit building
without permission of defendant No. 1.
3. Defendant No. 1 Corporation is directed to take
action in accordance with law against the illegal
construction made on the suit building.
4. Defendants No. 2 to 7 are restrained from creating
any third party interest in the suit building.
5. Costs in cause.
(A. N. MARE)
Judge,
Date : 24.10.2019 City Civil Court, Gr. Mumbai.
Dictated On : 24.10.2019
Transcribed on : 26.10.2019
HHJ Signed on : 04.11.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
04.11.2019 4.01 p.m. Mahendrasing D. Patil (H.G. Steno)
Name of the Judge H.H.J. SHRI. A. N. MARE
(Court Room No. 11)
Date of pronouncement of Order 24.10.2019
Order signed by P.O. on 04.11.2019
Order uploaded on 04.11.2019
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