Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M.3776/19 (LCS 600/18)
MHCC010102482019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.3776 OF 2019
IN
LONG CAUSE SUIT No.600/2018
Rupesh Pawar … Plaintiff
Versus
1] M.C.G.M. & 3 Ors. ... Defendants
Appearance :
Mr. P. B. Joshi, Advocate for plaintiff.
Mrs. Rawade, Advocate for defendants.
CORAM : S. H. SALUNKHE,
JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 08/10/2022.
O R D E R
. The plaintiff has taken out Notice of Motion under Order
XXXIX Rule1 of the Code of Civil Procedure (C.P.C. in short) for
temporary mandatory injunction for permitting him to reconstruct
structure admeasuring 14' X 15' with height 8' + 9' Sq. Ft. situated at
Altaf Nagar, Golibar Road, Ghatkopar (in short suit structure) and
further direction to defendant to pay compensation to the plaintiff
against illegal demolition of suit structure.
2] It is contended that the plaintiff filed suit for declaration
that notice issued by the Corporation under Section 354A of The
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Mumbai Municipal Corporation Act (in short the M.M.C. Act) dated
29/11/2016 as well as Speaking Order and action of demolition of
structure by the defendant is null, void and nullity. It is further
contended that the plaintiff is residing in suit structure since last several
years. The plaintiff is having ration card, voters' card and telephone bill
at the address of suit structure. It is further contended that suit
structure was initially standing in the name of one Mr. Prakash Chonde
and the plaintiff has purchased suit structure from erstwhile owner/
occupier in 2003 for consideration of Rs.4,50,000/. The erstwhile
owner has handed over all the documents to the plaintiff including
survey receipt, ration card, copy of notice from election office and
receipt of gas connection. The defendant/Corporation has issued stop
work notice under SectionA of the M.M.C. Act. The plaintiff replied to
the concerned officer stating that suit structure does not come under
the purview of Section 354A of the M.M.C. Act and the same is situated
in survey No.86 and declared as a slum by the Collector. It is further
stated that the plaintiff produced all the documents but the defendant/
Corporation without considering documents and without giving
opportunity of hearing passed order of demolition and demolished
structure on 19/8/2017.
3] It is further stated that the defendant/Corporation issued
notice at a different address and demolished suit structure for which no
notice has been given. It is further stated that on 28/11/2016 i.e. just
one day before serving notice the plaintiff sought permission to carry
out repairs but instead granting permission the defendant No.4 issued
stop work notice to the plaintiff. It is further stated that Pehalwan
Chawl is situated at a different location and Tarun Vikas Mandal
Mandal is situated at a different location, therefore, notice dated
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29/11/2016 is just misleading. The said notice is not in respect of suit
structure which is demolished on 29/11/2016. Suit structure is covered
under the Protected Slum and suit structure is in existence since prior to
1995. Suit structure is situated in C.T.S. Nos.86 and 87 and the said
C.T.S. No.86 has been declared as a slum and suit structure is protected
structure. On 16/7/2018 the Additional Collector sent letter to the
defendant/Corporation stating that the plaintiff's structure is prior to
1/1/2000 and same is protected as per the Government policy.
4] The Collector by letter dated 10/10/2018 informed the
defendant that as per the Government notification dated 16/9/1977
that the C.T.S. No.86 is declared as slum. However, the defendant/
Corporation has unauthorizedly demolished suit structure. Therefore,
the defendant be directed to reconstruct suit structure and/or in the
alternative the plaintiff be permitted to reconstruct suit structure. The
plaintiff has taken out present Notice of Motion for temporary relief
permitting him to reconstruct suit structure and for consequential relief.
5] The defendant/Corporation resisted Notice of Motion by
filing reply. At the outset, it is contended that suit is not maintainable
for want of statutory notice under Section 527 of the M.M.C. Act. Notice
and order are executive or administrative acts and same are not open to
challenge in the Court of law, therefore, suit is not maintainable. The
plaint discloses no cause of action against the defendant.
6] It is further stated that the plaintiff has not produced any
document showing permission of competent authority for erection of
structure or approved plan of the competent authority or authorization
of notice structure. Hence the Corporation has issued notice under
Section 354A (2) of the M.M.C. Act. as such, suit is not maintainable.
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The defendant/Corporation has given opportunity to the plaintiff to
produce permission of competent authority for erection of notice
structure or proving authorization but the plaintiff failed to produce
documentary evidence.
7] It is further stated that the plaintiff has failed to show
permission, therefore, the officer issued stop work notice under Section
354A of the M.M.C. Act in respect of unauthorized ongoing
construction on open space admeasuring 14 X 15 Sq. Ft. with height
(8+9)/2 Ft. with B/M walls at AndheriGhatkopar Link Road, Pehalwan
Chawl, Ghatkopar. The plaintiff was directed to stop construction and
to produce permission of competent authority within 24 hours which
was duly served upon the plaintiff and the plaintiff replied said notice
on 30/11/2016. Then after considering reply and documents the
defendant passed a detailed order 28/12/2016 by which the plaintiff
was directed to remove structure forthwith. The defendant has followed
direction of this Court and due process of law. Then the defendant
arranged demolition on 19/8/2017 and demolished structure by
following due process of law. Therefore, the plaintiff is not entitled for
any relief. The plaintiff has not shown permission or sanction plan of
competent authority or not shown document showing authenticity of
structure. Therefore, the plaintiff is not entitled for any relief.
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 ? . . . No.
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2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
:: R E A S O N S ::
AS TO POINTS No. 1 TO 3 :
9] The plaintiff has taken out this Notice of Motion for
temporary injunction under OrderXXXIX Rule1 of the C.P.C. Plaintiff is
seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hands.
10] Learned counsel for the plaintiff submitted that suit
structure is protected structure and it is situated in slum area, therefore,
the M.C.G.M. has no authority to take any action against suit structure.
Slum authority under the Slum Act has authority to take action against
unauthorized construction in slum area. In support of submission he
relied on the provision of Section 3 (z) (1) of the Slum Act.
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11] Learned advocate for the plaintiff further submitted that
suit structure is situated in C.T.S. No.86 which is declared as a slum and
suit structure is in existence prior to 1/1/1995 and as per the
Government policy suit structure is protected. It is further submitted
that suit structure is situated in slum area and, as such, the defendant/
Corporation has no authority to take action. Learned advocate for the
plaintiff submitted that suit structure has been censused by the
competent authority and census receipt has been issued in the name of
Mr. Prakash Chonde. Learned advocate for the plaintiff further
submitted that the initial burden as to how the structure has deviated
from the authorization is upon the M.C.G.M. However, the Corporation
has not shown as to how the structure is illegal. In support of
submission learned advocate for the plaintiff relied on the judgment of
the Hon'ble Bombay High Court in Vadilal Maganlal Trevadia vs.
Bombay Municipal Corporation and others [2021(1) Mh.L.J.157] in
which it is held in paragraph No.49 that,
“49. It is trite that if a person or an authority alleges that a structure is
an unauthorized one, the authorization or the permission must first be
placed on record. Thereafter it has to be shown as to how the structure
has deviated from the authorization or the permission. Obviously, the
initial burden would be on the person or the authority who alleges that
the structure is unauthorized. In such circumstances, the most crucial
document would be the original or initial authorization/permission”.
13] Learned advocate for the plaintiff further submitted that
documents produced by the plaintiff needs to be considered at trial. In
support of this submission he relied on the judgment of the Hon'ble
Bombay High Court in Shri Ramawatar Babulal Jajodia Vs. Municipal
Corporation of Greater Mumbai [2014 (2) ALL MR 303] in which it
is held in paragraph No.11 that,
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“11. The existence of unauthorized structure, even if any, subject to
evidence and/or material, need to be tested in the trial. The Assistant
Commissioner has no Authority and/or jurisdiction to decide the
complicated issue and specifically when the suit premises is in a slum
area and the Slum Act itself provides for taking effective steps against
unauthorized occupier on the slum area”.
14] On the other hand, learned counsel for the Corporation
submitted that the officer of the defendant/Corporation inspected suit
site and noticed on going unauthorised construction. Then the officer
asked for sanction plan or permission of the competent authority for
construction of suit structure. However, the plaintiff failed to show
sanction plan or permission to construct suit structure. Therefore, the
officer of the Corporation issued stop work notice under Section 354A
of the M.M.C. Act and prepared Inspection Report. Learned advocate for
the Corporation further submitted that as per Inspection Report it is
clear that the plaintiff carried out construction without any sanctioned
plan and photographs clearly show that structure is new and
construction was going on. Inspite of stop work notice the plaintiff
carried out construction. The plaintiff has not shown sanctioned plan or
permission of competent authority and also failed to show that suit
structure is protected structure or it is censused by competent authority.
It is further submitted that inspite of notice to produce sanction plan or
permission within 24 hours the plaintiff did not produce sanction plan
or permission of competent authority. Hence after following due process
the Corporation has demolished suit structure in August, 2017.
15] Learned advocate for the Corporation submitted that there
is no document to show that structure, which has been demolished, is
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legal or authorized and, as such, structure cannot be reconstructed
which is unauthorised. Learned advocate for the Corporation relied on
Municipal Corporation of Greater Mumbai & Ors. Versus M/s
Sunbeam High Tech Developers Private Ltd. (Civil Appeal No.7627
of 2019) wherein it is held that, “if the officer of the Corporation
demolished structure without following procedure prescribed by the
law, but the relief has to be given must be in accordance with law. If the
structure is an illegal structure even it has been demolished illegally
such structure should not be permitted to come up again even the
officer of Corporation has not followed procedure while demolishing
structure at the most some compensation can be awarded.
16] The plaintiff has taken out Notice of Motion for permission
to reconstruct suit structure. It is case of the plaintiff that suit structure
is in existence since long and he has purchased suit structure in 2003
from one Mr. Prakash Chonde for a consideration of Rs.4.50 lacs. It is
further case of the plaintiff that suit structure is situated in slum area
and it is a protected structure. In support of the claim that suit structure
is protected and it is censused by competent authority the plaintiff has
only produced photocopy of census receipt which is standing in the
name of Prakash Chonde. It is case of the plaintiff that he has purchased
suit structure from Prakash. The plaintiff has produced on record
photocopy of voters' list reflecting name of said Prakash. As per the
Government's policy person who is residing on 1/1/1995 in a hut is
entitled for photopass. However, the plaintiff has not produced photo
pass to show that suit structure has been censused by competent
authority. The Government scheme is applicable to the eligible hutment
existing prior to 1/1/1995. However, the plaintiff has not produced
photopass to establish that he was residing in suit structure prior to
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1/1/1995. The plaintiff has not produced any material on record to
show that either photopass in respect of suit structure was issued and it
was censused or it was situated in a slum declared area. The plaintiff
has neither established that suit structure is legal or authorized nor
established that suit structure is covered by the Government scheme or
resolution. Apart from that the plaintiff has not produced any material
on record to show that suit structure is situated in slum area and it is
censused and declared as slum or it is a protected structure.
17] Learned advocate for the Corporation submitted that the
plaintiff is not entitled for any relief as the plaintiff has not come to the
Court with clean hands. It is further argued that the plaintiff has not
produced any document to show authorization of structure. There is no
document on record to show that suit structure is situated on C.T.S.
No.86 and it is a protected structure. The plaintiff has not produced
photopass to show that suit structure is censused and it is protected
under the Slum Act. Learned advocate for the Corporation further
submitted that the documents submitted by the plaintiff does not show
that suit structure is legal, authorized or it is in existence prior to the
datum line or it is a protected structure. The officer of the Corporation
verified documents produced by the plaintiff. It is further submitted that
the plaintiff is in the habit of constructing unauthorized structures. The
Corporation has demolished three unauthorized structures constructed
by the plaintiff. It is further submitted that the Corporation being a
Planning Authority has authority to take action against illegal
constructions even structures are situated in slum declared area. In
support of submission learned advocate for the Corporation relied on
the judgment of the Hon'ble Bombay High Court in Jilani Building
Versus Bhiwandi Nizampur Municipal Corporation & Ors.(Suo Motu
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Public Interest Litigation No.1 of 2020) in which it is held that,
“We are thus of the clear opinion that the MCGM being the local
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 Slum Act”.
18] The plaintiff prayed that he may be permitted to
reconstruct suit structure with similar material as the same has been
demolished by the Corporation without following due process of law. It
is further contended that the defendant/Corporation has given notice at
different address and demolished suit structure to which notice has not
given. The Hon'ble Apex Court in Municipal Corporation of Greater
Mumbai & Ors. Versus M/s Sunbeam High Tech Developers Private
Ltd. held that, “If a structure is an illegal structure, even though it has
been demolished illegally such structure should not be permitted to
come up again. If the Municipal Corporation violates the procedure
while demolishing structure some compensation can be awarded but
illegal structure cannot be permitted to be reconstructed”.
19] I have carefully gone through the judgment relied by the
plaintiff in Vadilal Maganlal Trevadia vs. Bombay Municipal
Corporation and ors. (supra). In that case, the Hon'ble Bombay High
Court was pleased to permit the petitioner, therein, to reconstruct
structure as per the dimensions prior to the demolition and it was case
of the Corporation that the petitioner has not constructed structure as
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per the directions of the Hon'ble High Court. So also in Shri Ramawatar
Babulal Jajodia Vs. Municipal Corporation of Greater Mumbai (supra)
the Hon'ble Bombay High Court was pleased to observe that the
Assistant Commissioner rejected reply given by the plaintiff by giving
only one or two liner remarks. In that case, the petitioner was owner of
structure and there were documents on record to show that structure is
in existence since prior to 1/1/1995. In the case on hand, the plaintiff
has failed to establish that suit structure is situated in slum area and it
is in existence since 1/1/1995 and protected structure. Therefore, with
due respect the facts of the judgments relied by the plaintiff and facts of
the case on hand are not identical hence judgments relied by the
plaintiff are not applicable to the present case.
20] The plaintiff has not produced photopass to establish that
suit structure is protected under Government policy and he is residing
in suit structure prior to 1/1/1995. The plaintiff has not established that
suit structure is legal or it is covered by the Government scheme.
Therefore, in view of the judgment of the Hon'ble Apex Court in
Municipal Corporation of Greater Mumbai & Ors. Versus M/s
Sunbeam High Tech Developers Private Ltd., at this stage, even if for
the sake of arguments if it is assumed that the defendant has not
followed the procedure prescribed by law the plaintiff cannot be
permitted to reconstruct suit structure as the plaintiff has not
established that suit structure is legal or authorized. The plaintiff is not
entitled for relief of temporary injunction as prayed. Hence I answer
points No.1 to 3 in the negative and in answer to point No.4 following
order is passed :
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O R D E R
Notice of Motion No.3776/2019 is dismissed.
Date : 08/10/2022. ( S. H. SALUNKHE )
Judge City Civil Court,
Court Room No.4,
Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
18/10/2022 03:15 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 08/10/2022
ORDER Typed on 14/10/2022
ORDER checked & signed by PO on 18/10/2022
ORDER uploaded on 18/10/2022
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