Final Order 1

Order Details: Notice of Motion
Pdf Text: (CNR No.: MHCC010099072019) 1 Notice of Motion No. 3637/2019
in L.C. Suit No. 1258/2016.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3637 OF 2019
IN
L.C. SUIT NO. 1258 OF 2016.
Adalat Hussain Bashir Qureshi ……………………. …. PLAINTIFF.
V/s.
MCGM and another ....…………………………….. …. DEFENDANTS.
CORAM : SHRI. S.H. SALUNKHE.
(Court Room No.11).
DATED : 12th March, 2025.
APPEARANCES :
Mr. Pratap F. Singh, the Ld. Advocate for Plaintiff.
Mr. V.G. Shinde, the Ld. Advocate for Defendant/MCGM.
*****
01. This is suit to challenge legality of notice dtd. 12.01.2016,
u/s. 351 of the MMC Act and subsequent Order dtd. 30.05.2016, in
respect of 1st floor structure, described in para-1 of the plaint. The
plaintiff has taken out this Notice of Motion (‘the NM’), under Order
XXXIX of the Civil Procedure Code,1908 (CPC)for temporary injunction.
02. The defendant/BMC opposed the NM, by filing written
statement below Exhibit 2. Perused the record and proceeding. Heard
both the parties.
03. Considering the record and proceeding, the point for
determination, along-with my finding and the reasons therefor, are as
under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has made out prima
facie case in his favour? …..........…......…. …In the negative.
(ii). Whether balance of convenience lies in
favour of the plaintiff? ….…..…............…. …In the negative.
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(CNR No.: MHCC010099072019) 2 Notice of Motion No. 3637/2019
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(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted?.….................. …In the negative.
(iv). What Order? …..........….…....................... …As per final Order .
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
04. Ld. Advocate for the plaintiff submitted that the plaintiff is
the tenant of the structure, consisting of ground+mezzanine floor, as
described in para-1 of the plaint. The plaintiff has acquired the suit
structure from earlier tenant as per the agreement for sale, executed in
the year 1997. Ld. Advocate for the plaintiff further submitted that
notice structure is in existence since 1962 and the plaintiff along-with
his family residing in the suit structure since last several years. The
plaintiff has replied show cause notice along-with documents. However,
designated Officer discarded the documents, holding that the document
does not prove the existence of structure prior to datum line. He further
submitted that designated Officer overlooked the document submitted
by the plaintiff and passed the stereo type Order, without application of
mind. Hence, the impugned notice is illegal and bad in law and the
structure needs to be protected, till decision of the suit.
05. At conclusion,the Ld. Advocate for the plaintiff filed written
notes of arguments. It is submitted that notice structure is in existence
prior to datum line of 1962 and same is situated in slum area. Hence,
BMC has no authority to take action against the suit structure. Further it
is submitted that the BMC has not followed the guidelines in the matter
of Sopan Maruti Thopte V/s. Pune Municipal Corporation and Lily
Pandit Vs. MCGM, relied to buttress submission that the Speaking Order
has been passed without considering the reply, which itself is violation
of BMC Rules.
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(CNR No.: MHCC010099072019) 3 Notice of Motion No. 3637/2019
in L.C. Suit No. 1258/2016.
06. Per contra, Ld. Advocate for the BMC submitted that there
is no pleading that the notice structure has been constructed as per
permission or plan approved by BMC. The plaintiff has not produced
single document on record to show that the notice structure is legal and
authorized. It is further submitted that BMC being planning authority,
has authority to take action against the unauthorized construction,
within jurisdiction of municipal area, irrespective of whether structure
is on slum area or with in area of MHADA. He further submitted that
the designated Officer has considered each and every document
submitted by the plaintiff and passed the reasoned Order. The plaintiff
has failed to prove legality of the structure, hence, the NM is liable to be
dismissed.
07. I have given thoughtful consideration to the submission
made by the Ld. Advocates of the parties. The plaintiff has challenged
the notice u/s. 351 of the MMC Act on various ground mentioned in the
plaint. The main ground to challenge the notice is,that the suit structure
is situated in slum area and cut of date for structure situated in slum
area is 01.01.1995 and now which is extended to 01.01.2000. However,
the designated Officer insisted for document prior to 1964. It is
important to note that in written submission it is submitted that the suit
structure is constructed prior to 1962. This submission is beyond the
pleading. Rather, contrary to the case pleaded by the plaintiff that the
suit structure is in existence prior to 01.01.1995. It is next contention of
the plaintiff that the notice structure is situated at slum area. But the
plaintiff has not pleaded in which CTS number or survey number, suit
structure is situated. Merely, it is pleaded that the suit structure is Room
No. 7, Haji Namdar, Doodhwalal Chawl No. 53-A, Qureshi Nagar, Kurla
(E), Mumbai-70.
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(CNR No.: MHCC010099072019) 4 Notice of Motion No. 3637/2019
in L.C. Suit No. 1258/2016.
08. The plaintiff has produced on record photocopy of Govt.
notification, issued u/s. 3 and 4 of the Mah. Slums Areas (Improvement,
Clearance and Redevelopment) Act, 1971. However, there is no
reference of Haji Inamdar Dhoodhwala chawl in the said notification.
Hence in absence of CTS number or survey number it is difficult to hold
that the suit structure is situated in slum area. Be that as may be, it is
well settled that each and every structure situated in slum area is not
protected under the slum act and the structure, to whom the photo-pass
has been issued by the competent authority is protected. It is not the
case of the plaintiff that the photo-pass has been issued to the suit
structure. In the circumstances, I find no substance in the plaintiff’ case
that the suit structure is situated in the slum area and protected as per
the slum Act.
09. It is next contention of the plaintiff that the notice structure
is situated in slum area. Therefore, the defendant/BMC has no authority
to take action against it. However, full Bench of the the Hon'ble Bombay
High Court in the case of Jilani Building at Bhiwandi Versus Bhiwandi
Nizampur Municipal Corporation & Ors) (Suo Motu Public Interest
Litigation No.1 Of 2020 held in paragraph No.74 that,
“74. We are, thus, of the clear opinion that the MCGM being a
Planning Authority for the entire Greater Mumbai area (excluding those
areas in which by law other planning authorities are appointed), the
MCGM has jurisdiction to exercise all powers under the MMC Act as
also the MRTP Act and the Slums Act, to take action against illegal
structures as permissible in law, not only in regard to all such areas
within its jurisdiction, but also the slum areas falling under the Slums
Act, except when a demolition order has been made under the Slums
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in L.C. Suit No. 1258/2016.
Act. We find that even Section 4 of the Slums Act would cast no
embargo on the MCGM to take appropriate action in regard to any
buildings which are unauthorized and/or dilapidated. Per se, Section 4
does not prohibit the planning authority to exercise any of its authority
in regard to the structures of the nature Section 4 would contemplate
either before the area is declared as a “slum area” or after it is declared
as a “slum area”. It is nobody’s case that prior to an area being declared
as slum, the planning authority namely the MCGM would not have any
authority under the MMC Act and the MRTP Act to take action against
unauthorized construction in such areas in regard to structures in these
areas. From a holistic reading of the provisions of the Slums Act as
discussed above, it is difficult to conceive that merely because an area is
declared to be a slum under Section 4, the planning authority would
lose its control and authority to regulate the structure by implementing
the provisions of the MMC Act and the MRTP Act in the event the
structures are dilapidated and/or in any manner unauthorized.”
10. In view of the above referred judgment, I find no substance
in the contention of the plaintiff that the BMC has no authority to take
action against the notice structure.
11. The plaintiff has challenged legality of the notice, u/s. 351
of the MMC Act, therefore the burden lies upon the plaintiff that the
notice structure is constructed as per permission or plan approved by
the BMC or it is tolerated structure. As earlier stated, there is no
pleading as well as of the document on record to show that the notice
structure has been constructed as per plan approved by the BMC or it
was existed since prior to datum line of 1962. Thus, I hold that no case
made out for granting interim injunction as prayed. The balance of
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in L.C. Suit No. 1258/2016.
convince does not tilts in favour of the plaintiff. Accordingly, I answer
point Nos. 1 to 3 in the negative and in answer to point No. 4, I pass the
following Order :
-: ORDER :-
(i). Notice of Motion No. 3637/2019 stands dismissed.
(ii). Notice of Motion No. 3637/2019 is, accordingly,
disposed of.
(S.H. Salunkhe)
Mumbai. Judge,
Dated : 12.03.2025. City Civil Court, Mumbai.
Directly typed on computer on :12.03.2025.
Draft given to HHJ on :15.03.2025.
Checked and Signed on :15.03.2025.
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(CNR No.: MHCC010099072019) 7 Notice of Motion No. 3637/2019
in L.C. Suit No. 1258/2016.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
17.03.2025 at 11.38 a.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri Salunkhe
(Court Room No.11).
Date of Pronouncement of Judgment/Order 12.03.2025.
Judgment/Order signed by P.O. on 15.03.2025.
Judgment/Order uploaded on 17.03.2025.
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