Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.3847/19 (LCS No.2630/19)
MHCC010107062019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.3847 OF 2019
IN
LONG CAUSE SUIT No.2630/2019
Suyog Telematics Limited … Plaintiff
- Versus -
1] The Asst. Municipal Commissioner
2] Designated Officer,
3] Mr. Javed Mohammed ... Defendants
Appearance :-
Mr. A. K. Ansari, Advocate for plaintiff.
Mr. Om Suryavashi, Advocate for defendants No.1 and 2.
None for defendant No.3.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 04/08/2023.
O R D E R
. This is suit to challenge notice issued by defendant/B.M.C.
under Section 3Z-2 (1) of The Maharashtra Slum Areas (Improvement,
Clearance And Redevelopment) Act, 1971 (in short Slum Act) and the
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2 N/M. No.3847/19 (LCS No.2630/19)
plaintiff has taken out Notice of Motion for temporary injunction under
Order-XXXIX Rule-1 of The Code of Civil Procedure (in short the C.P.C.)
2] The plaintiff's case is as under :-
The plaintiff is a Company having address mentioned in the
plaint. The plaintiff/Company is providing mobile tower services.
However, defendant/B.M.C. issued impugned notice thereby threatened
to demolish or remove notice structure. Threats were issued to
defendant No.3. The plaintiff challenged action giving threats to
demolish or dismantle mobile service tower without following due
process of law. On 30/9/2019 the officer of the defendant No.2 without
issuing notice visited suit site and thereafter threatened the defendant
No.3 to demolish notice structure and defendant No.3 was called upon
to submit documents proving authenticity/permission for installation of
mobile tower. Then the defendant No.3 informed the plaintiff/Company
about the said threats and thereafter immediately said Company
submitted application for regularization/approval of mobile tower
which was installed by plaintiff/Company. There is apprehension that
defendants No.1 and 2 will initiate action of demolition without
following due process of law. Therefore, the plaintiff filed suit and taken
out Notice of Motion.
The defendant/B.M.C.'s reply
3] Defendant/B.M.C. opposed Notice of Motion by filing reply.
At the outset, it is stated that suit is not maintainable for want of
statutory notice under Section 527 of The Mumbai Municipal
Corporation Act (in short the M.M.C. Act). The plaintiff has challenged
notice and order issued by competent authority under the Slum Act and
as such as per the provisions of Section 42 of the said Act Civil Court
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has no jurisdiction to try and entertain present suit. It is further stated
that after demolition order dated 7/10/2019 the plaintiff filed this suit
and sought ad-interim relief on the ground that defendant/B.M.C. has
not followed due process of law. It is further stated that the officer of
the Corporation noticed mobile tower has been erected at the suit site.
Therefore, the officer inspected the site as notice structure is falling
under slum area. The officer took photographs and asked for
permission/sanction of Competent Authority. However, the person
present there has not shown permission in respect of notice structure
and, therefore, inspecting officer prepared inspection report, took
photographs and placed same before higher authority. The Competent
Authority then issued impugned notice.
4] The plaintiff applied for regularization of notice structure
to Assistant Commissioner, Building & Factory Department, M/East
Ward. However, application for regularization of tower is to be
submitted to Executive Engineer, Building Proposal Department, Special
Cell and the plaintiff as well as mobile tower company is well aware
about that. The plaintiff has not filed regularization application to
competent authority. Then, Designated Officer passed speaking order
holding that notice structure is illegal and unauthorized. The plaintiff
has not produced any document to show that notice structure is legal
and authorized. The Corporation has removed notice structure on
16/9/2020 by following due process of law. Notice structure is not in
existence as such suit as well as Notice of Motion is liable to be
dismissed.
5] Points for determination alongwith findings thereon for the
reasons are as under :-
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4 N/M. No.3847/19 (LCS No.2630/19)
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.
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 :-
6] The plaintiff has produced on record photographs, letter by
defendant No.3, application made to Assistant Commissioner dated
3/10/2009, statutory notice under Section 527 of the M.M.C. Act. etc.
Defendant/B.M.C. filed on record Show Cause Notice, Speaking Order,
Demolition Order, demolition photographs etc.
7] Heard learned advocate for the parties.
8] The plaintiff has taken out this Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 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
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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 hand.
9] I have given consideration to the submission made by
learned advocates for the parties. On perusal of the plaint as well as
Notice of Motion, it appears that the notice structure is situated in slum
area and after the impugned notice on 3/10/2019 the plaintiff/
Company filed an application to Assistant Commissioner, Building &
Factory Department, M/East ward for regularization of notice structure.
This clearly shows that the notice structure is unauthorized. It is
contention of the plaintiff that threats were given by the officers of the
defendants No.1 and 2 to defendant No.3. However, the plaintiff has not
filed affidavit of defendant No.3. The contention of the plaintiff is that
threats of demolition of notice structure were given by defendants No.1
and 2 to defendant No.3 are not supported by affidavit of defendant
No.3.
10] It is contention of the Corporation that the plaintiff ought
to have moved an application to Executive Engineer, Building Proposal,
Special Cell, but the plaintiff submitted application to Assistant
Engineer, Building & Factory Department, M/West which is not
competent authority for regularization of structure. The Corporation has
filed its reply to Notice of Motion on 9/4/2021 pointing out that
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application for regularization is to be submitted to Executive Engineer,
Building Proposal, Special Cell. There is nothing on record to show that
after pointing out that application is to be filed before Executive
Engineer, Building Proposal, Special Cell the plaintiff has submitted
application to Executive Engineer, Special Cell. Hence it is necessary to
refer judgment of the Hon'ble Bombay High Court in the case of GTL
Infrastructure Limited Versus The Dhule Municipal Corporation &
Others [(2011)6 MhLJ 215] in which the Hon'ble Bombay High Court
held that one can take benefit of deeming provisions only if
regularization proposal was made in the prescribed form. In the case on
hand, the application is not made to competent authority. Therefore, the
plaintiff cannot take advantage of deeming provision, unless the
application for regularization has been made in prescribed form to
Competent Authority. In the abovereferred judgment of GTL
Infrastructure Limited Versus The Dhule Municipal Corporation &
Others (supra) the Hon'ble High Court held that when the statute
mandates that one has to apply for building development permission in
the prescribed form to Competent Authority, the mandate of the statute
has to be duly observed.
11] The plaintiff has taken out this Notice of Motion restraining
B.M.C. from demolishing notice structure without following due process
of law. As far as allegations of threats are concerned, the plaintiff has
not filed affidavit of defendant No.3 in support of its contentions that
defendants No.1 and 2 threatened to demolish structure without
following due process of law. The allegation with regard to threats and
apprehension are vague. Moreover, it appears that the Corporation has
issued notice under Section 3Z (1) of the Slum Act and passed order.
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12] It is well settled proposition of law that the plaintiff cannot,
in every case, obtain interim relief or ad-interim relief as a matter of
routine, simply by expressing apprehension that M.C.G.M. will take
action otherwise than by due process of law. In any case, minimum that
is expected of plaintiff is that the plaintiff states that the suit structure is
not only in existence but also, it has also some semblance of legality.
Otherwise, any plaintiff who puts up a illegal and unauthorized
structure will simply rush to the Court and deflect or at least delay the
action initiated by the Municipal Authorities on account of pendency of
the matter.
13] In the case on hand, the plaintiff has submitted application
for regularization of notice structure, this itself shows that notice
structure is unauthorized. The plaintiff has not produced documents
showing authorization of notice structure. In the absence of documents
showing the authenticity of the structure the plaintiff is not entitled for
equitable relief of injunction. Therefore, I hold that the plaintiff has not
made out
prima facie case for grant of interim injunction. Balance of
convenience does not tilt in favour of the plaintiff. In the result, Notice
of Motion deserves to be dismissed. Hence points No.1 to 3 are
answered in the negative and in answer to point No.4 following order is
passed :-
O R D E R
Notice of Motion No.3847/2019 is dismissed.
Date : 04/08/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
09/08/2023 03:00 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 04/08/2023
ORDER Typed on 07/08/2023
ORDER signed by P.O. on 08/08/2023
ORDER uploaded on 09/08/2023
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