Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3911-19 in Suit No.1540-16
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
GREATER BOMBAY
NOTICE OF MOTION NO. 3911 OF 2019
(CNR NO. MHCC01-010751-2019)
in
SUIT NO. 1540 OF 2016
Mr. Harvinder Singh Vijan
....Plaintiff
Versus
The Assistant Commissioner, E Ward .
... Defendant
CORAM: H.H.JUDGE & ADDL.
SESSIONS JUDGE,
SHRI. K. P. KSHIRSAGAR,
(C.R. No.05).
DATE : 22nd JULY, 2021.
Appearance:
-
Shri. S.R. Ketkar; Ld Advocate for plaintiff.
Smt. Vyavahare; Ld Advocate for defendants/MCGM.
ORAL ORDER
1) Plaintiff has taken out this NM for grant of temporary
injunction restraining defendant from implementing or executing show
cause notice issued u/s. 354A of MMC Act dtd. 3/12/2015 and order
dtd. 4/1/2016 in respect of 678 sq. Yard land which is part and parcel of
CTS No. 847 alongwith commercial shed thereon situated under Byculla
bridge Dr. Ambedkar Road, Byculla East, Mumbai-27. (for the sake of
brevity and convenience above structure is hereinafter referred as suit
structure and above notice and order are hereinafter referred as
impugned notice and order respectively.)
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2 NM 3911-19 in Suit No.1540-16
2) Perused the NM, affidavit in support of NM, plaint and
documents annexed with the plaint. Perused the reply of the defendant
and documents filed by the defendant. Heard Ld Advocate for plaintiff
and defendant.
3) Ld Advocate for plaintiff submitted that plaintiff is in
occupation of the suit structure since 2011. Two rooms and shed were
already in existence prior to 1962. Indenture at pg no.69 to the plaint
relied by plaintiff proves above fact. Inspite of same defendant illegally
issued the impugned notice and passed impugned order without
considering the reply and documents of the plaintiff. Therefore, prima
facie case and balance of convenience lies in favour of plaintiff. Hence,
NM be made absolute.
4) On the other hand Ld Advocate for defendant argued that
the officer of the defendant inspected the suit structure on 3/12/2015
and found unauthorized construction of notice structure was in progress
and thereafter concerned officer prepared panchnama. As the plaintiff
failed to produce any permission of the said ongoing construction or
sanction plan defendant issued impugned notice to the plaintiff. Then
after considering the reply the defendant passed impugned final order. In
the reply the impugned notice at Ex.D to the plaint plaintiff submitted
that the structure for which notice is served can be regularized. It means
the notice structure is unauthorized. In the reply at Ex.G to the plaint
plaintiff admitted that he break the side walls and fixed sliding window.
As the plaintiff failed to produce any permission or sanction of
competent authority for the notice structure, the said structure amounts
to an unauthorized structure. Hence, no case is made out for grant of
interim relief to the plaintiff. Hence, NM be dismissed with costs.
5) Following points arise for determination and court has
recorded its decision thereon for the reasons stated there under.
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Points Decision
(i) Whether primafacie case lies in favour of
plaintiff ?
No.
(ii) Whether balance of convenience lies in
favour of plaintiff ?
No.
(iii)Whether plaintiff will suffer irreparable
loss if Notice of Motion is not allowed ?
No.
(iv) What Order ? As per final order.
REASONS
As to Point Nos. 1 to 3-:-
6) As all these points are interconnected with eachother they
are decided simultaneously in order to avoid repetition of facts.
7) In the present matter plaintiff prayed for interim relief of
injunction and permanent injunction restraining the defendant from
implementing and enforcing the impugned notice and order. As per
defendant the notice structure which was in progress on the date of
inspection is unauthorized. On the other hand Ld Advocate for plaintiff
during argument contended that notice and suit structure is in existence
prior to 1962 and to support that contention plaintiff relied on copy of
indenture at pg. no. 69 filed with the plaint.
8) In case u/s.354A of MMC Act in order to get any interim
relief it is necessary for plaintiff to show that the suit structure as it exists
today at site has sanction of planning authority or it existed prior to
datum line. However in the present matter in the plaint or NM there is
no averment in respect of sanction obtained from BMC or competent
authority, showing that structure targetted was governed by sanction.
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There is no pleading of the plaintiff that notice structure existed prior to
datum line. The argument of the plaintiff in that regard is without
pleading. Moreover, copy of indenture at pg. no. 69 to the plaint relied
by the plaintiff also does not support the contention of the plaintiff that
notice structure existed prior to the datum line. On the other hand reply
of the plaintiff to impugned notice at Ex.D to the plaint wherein plaintiff
contended that notice structure can be regularized itself prima facie
reveals that the said structure is unauthorized and contention of the
plaintiff about its existence prior to the datum line is after thought.
Therefore, prima facie plaintiff failed to show that the suit structure as it
exists today has sanction of planning authority or it existed prior to
datum line.
9) On the other hand documents produced by the defendant
i.e. panchnama and photographs and Ex.D and G to the plaint prima
facie supports contention of the defendant that on the date of inspection
construction activity of notice structure was in progress and plaintiff
carried out construction activity on the suit structure recently. Moreover,
plaintiff has not produced on record any proposal for regularization of
said construction. Therefore, prima facie there appears substance in the
contention of defendant that notice structure is unauthorized.
10) Perusal of impugned notice and order reveals that after
show cause notice defendant considered the reply of plaintiff and
thereafter passed reasoned speaking order. Therefore, prima facie court
does not find any illegality in the impugned notice and order. Prima facie
it appears that impugned notice and order is not unreasonable and
decision of the defendant to issue impugned notice prima facie does not
appear utterly perverse or in excess of authority. Therefore, prima facie
there appear no substance in the argument of plaintiff that impugned
notice and order is illegal.
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11) Vide Sec. 56 & 57 of the Evidence Act regarding said
unauthorized construction, it is necessary to consider the law laid down
by the Hon'ble High Court Bombay in the case of
Tushar Salian V/s.
State of Maharashtra PIL No.67/2017 (DB) judgment dated 28/08/2019
and further judgment passed in the same case by the Hon'ble High Court
dated 23/09/2019. The Hon'ble High Court held that (i) when the
property is governed under Municipal Statute the interest protected has
to be with respect to plea that prima facie the structure being targeted is
unauthorized structure (ii) the plaint must make averment of sanction
obtained from corporation and must make the averment with the
structure targeted is prima facie governed by sanction (iii) merely
pointing out deficiencies in the notice or the authority of a person issuing
the notice is neither here nor there (iv) thus, sine quo non of such suits
is positive assertion made with reference to the sanction of building
plans. If any plan is produced then the same “must have endorsement of
approval” of the corporation. Plaintiff must produce such permission or
the approved plan in support of the suit.
12) Apart from that in the case of
Sopan Thopte V/s. PMC AIR
1996 (H.C.Bom) 34 and in the case of MCGM V/s. Sunbeam Hightech
Developers Pvt. Ltd. 2019 SCC Online 1389 (SC), General guidelines are
provided. It is held that the injunctions cannot be granted casually in
such suits. Intentional or unintentional lapses, which do not affect the
substantive rights ought not to result in protection of unauthorized
construction. More particularly, in the case of Sunbeam in para No.2
Hon’ble Apex Court held that, “rule of Law also envisages that illegal
constructions which are constructed in violation of law must be
demolished and there can be no sympathy towards those who violate
law. It is further observed that, “the courts must not be hidebound by old
decisions and law must develop in accordance with changing times”.
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13) Furthermore, in the case of
Mrs. Paramjit Kaur Bansal vs.
MCGM W.P. No.1828/19 dtd. 7/1/2020, the Hon’ble High Court Bombay
held that while granting stay to such structure trial court has to find out
the permission/sanction in that regard and to examine a prima facie
case. Thus, in the present matter these guidelines are also appearing
against plaintiff.
14) Court is further inclined to take guidance from the case of
Shantilal Chhogalalji Doshi Versus M.C.G.M. (Appeal From Order No.
8/2021 dated 3/2/2021) wherein Honourable High Court observed that,
“
No sympathy can be shown to an unauthorized structure as by showing
the same, would tantamount to perpetuating illegality, which may cause
danger to the lives of adjacent dwellers”. Therefore, Court is not inclined
to protect the said unauthorized structure.
15) From the matter on record prima facie there appear no
serious bonafide question which requires adjudication in the present
matter. Equity seeks equity. Conduct of plaintiff is also such that he is not
entitled to seek equitable relief. As such prima facie case does not lie in
favour of plaintiff. Therefore, balance of convenience also does not lie in
favour of plaintiff and no irreparable loss will be caused to the plaintiff if
the NM is not allowed. Therefore, points No. 1 to 3 are answered in
negative.
As to point No.4:-
16) In view of negative findings as to point Nos. 1 to 3 and
considering the facts & circumstances of the case the Notice of Motion is
liable to be dismissed with cost. Hence, court proceeds to pass the
following order:-
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ORDER
1) The Notice of Motion is dismissed with costs.
2) The Notice of Motion is disposed off accordingly.
Date:22/7/2021. (K.P. Kshirsagar)
Judge
C.R.No.5
City Civil Court
Gr. Bombay
Dictated & directly typed on : 22/7/2021.
Checked on : 22/7/2021.
Signed by HHJ on : 22/7/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22/7/2021 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
22/7/2021.
JUDGMENT/ORDER signed by P.O.
on
22/7/2021.
JUDGMENT/ORDER uploaded on 22/7/2021.
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