Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.3909 of 2019 in L.C.Suit No.2731 of 2019
CNR: MHCC010107522019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.3909 OF 2019
IN
L.C.SUIT NO.2731 OF 2019
Shahul Hameed Baudeen Kutty .. Plaintiff
V/s.
The Municipal Corporation of
Greater Mumbai .. Defendant
Appearance:
Adv. B.P. Shukla with Adv.Yadav for plaintiff.
Adv.Smt. Vidya Vyavahare for MCGM/Defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR.
BOMBAY
(C.R. NO.05).
DATE : 15/10/2022
ORDER
1 Plaintiff has taken out this Notice of Motion for grant
of temporary injunction thereby restraining the defendants from
taking any action pursuant to the notice U/s.351 of MMC Act,
u/no.E/DOIE/205/351MMC ACT/E156NO1/22062017 dt.22/
06/2017 and speaking order dt.9/7/2019 in respect of notice
structure as described in the suit, till final disposal of the suit.
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2 In the Notice of Motion, it is argued that plaintiff is in
use, occupation and possession of the structure being Shop No.13
admeasuring about 423 sq. ft. with loft admeasuring 99 sq. ft.
situated at C.S.No.1/1887, Byculla Division, Dr. Anandrao B. Nair
Road, Agripada, Mumbai. He referred the loft admeasuring 99 sq.
ft. as suit premises. It is said that the suit premises is old one and
existing since prior to the year 1955 and same is situated in slum
area. Said suit premises is the part and parcel of suit shop and the
same is assessed to Municipal Taxes under No.E4214 since prior
to the year 1961.
3 The plaintiff is carrying out the business of Hotel and
Restaurant in Shop No.13 in the name and style as 'M/s.Cafe Zam
Zam Restaurant'. Shop Establishment licence as well as different
certificates are received from different authorities to carry out said
activity in the shop premises. The shop is situated in slum area
and all hutment dwellers have formed a society known as 'Topaz
SRA Cooperative Housing Society(Prop.)' and plaintiff's father's
name is shown as eligible hutment dweller for commercial
premises. Earlier also similar notice was issued by the defendant.
Still the impugned notice came to be issued which was replied by
the plaintiff. However, the defendant passed impugned order on
dt. 9/7/2019 asking the plaintiff to remove the premises within
seven days from the receipt of this order.
4 It is stated that the impugned notice has been issued
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3 N.M.3909 of 2019 in L.C.Suit No.2731 of 2019
without following due process of law and without inspecting suit
premises. The suit premises is a tolerated one having existence
since prior to year 196162. So the notice U/s.351 of MMC Act is
not tenable. Hence, plaintiff prayed for grant of interim protection
as described above.
5 Defendant has filed reply to the Notice of Motion
stating that their concerned officer inspected the suit site on
22/6/2017 and found unauthorised vertical and horizontal
extension of existing ground floor shop of height 2.5 mtrs by
constructing ladi coba slab admeasuring 7.5 mtrs x 5.10 mtrs x 2.4
mtrs(ht) on rear side and 1.8 mtr (ht) on the front side of the shop
by means of ladi coba slab and GI sheet side walls and roof and
horizontal extension in the front side of the shop by constructing
brick masanry wall and GI sheet roof admeasuring 3.30 mtrs x 1.8
mtr x 3.2 mtrs height at Cafe Zam Zam. Plaintiff failed to produce
authenticate documents regarding notice structure. After receipt
of notice U/s.351 of MMC Act, plaintiff replied the same on
01/07/2017 and after scrutinizing all the documents as well as the
reply of plaintiff, Designated Officer passed speaking order on
dt.9/7/2019. Thereafter also plaintiff submitted replies on
dt.24/7/2019 and 03/08/2019. Due process of law is followed by
the defendant while initiating the notice action. Plaintiff failed to
make out any prima facie case against the defendant. Authenticate
documents for proving permission for erection of the work and
authorisation of notice structure have not been produced by the
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plaintiff. Plaintiff has not come with clean hands and suppressed
material facts from the Court. In such circumstances, Notice of
Motion is liable to be dismissed with compensatory costs.
6 From the facts and circumstances of the case, and
material placed on record, following points arose for my
determination and I have given my findings thereon with reasons
as below.
Sr.
No.
POINTS FINDINGS.
1 Whether prima facie case lies in
favour of plaintiff ?
No
2
Whether balance of convenience
lies in favour of plaintiff ? No
3
Whether plaintiff will suffer
irreparable loss, if Notice of
Motion is not allowed ?
No
4 What Order ? Notice of Motion is
dismissed.
REASONS
AS TO POINT NOS.1 TO 3.
7 All these points are interlinked with each other, hence,
for the sake of convenience and to avoid repetition of certain
points, all are discussed simultaneously.
8 Heard Adv. for plaintiff and Adv. for defendant at
length. Perused the Notice of Motion, affidavit in support of
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Notice of Motion, plaint and the documents annexed to the plaint,
compilation of documents of plaintiff, reply of defendant and the
documents filed by them.
9 Learned Adv. for plaintiff has vehemently argued that
impugned notice U/s.351 of MMC Act is false and frivolous as it
was issued without any inspection of the suit premises and without
verifying the documents laying in the office of defendant. It is
further argued that the entire notice structure i.e. suit premises is
assessed since from the year 196162 and therefore, it is a
tolerated structure. The notice has been issued in respect of the
alleged extensions i.e. loft which is the part and parcel of suit shop
No.13 since from the year 1955. Moreso, it is situated in the slum
area. Therefore, notice action U/s.351 of MMC Act is unwarranted.
10 The Adv. for plaintiff produced certain documents to
show that the notice structure is a tolerated one and said
documents includes payment receipts, assessment bill, NOC,
electricity bills, different applications to different authorities, letter
issued by defendant regarding first date of assessment in respect of
suit shop, assessment record, correspondence with the defendant,
impugned notice and impugned order etc.
11 As the defendant has contended, the notice structure is
illegal and the same is not assessed by the defendant. Impugned
notice has been issued in respect of limited horizontal and vertical
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extension and not in respect of the already assessed area. The
disputed loft is inside the original structure and the same is
different from the already existing loft. Furthermore, the Slum
Rehabilitation Authority has yet not taken any action regarding
unauthorised structure. Therefore, the Municipal Corporation
being the planning authority is well authorised to issue notice in
respect of suit premises. The Corporation and Court have every
right in respect of declared slum also. The notice action has been
taken by following due process of law.
12 In support of said contention, the defendants has
produced the copy of inspection report and photographs,
impugned notice dt.22/6/2017, order dt.9/7/2019 and plaintiff's
reply dt.24/7/2019 as well as 03/08/2019, the letter
dt.13/8/2019 as well as 20/08/2019 alongwith photographs of
notice structure and extract of demand register and report of
Estate Department of 'E' Ward.
13 In the present matter, plaintiff has denied unauthorised
construction with the submission that the notice structure exists
since from the time of inception of suit shop. However, record
shows that the defendant has inspected the notice structure prior
to issuance of impugned notice. Inspection report alongwith
photographs of notice structure are already placed on record by
the defendant. Said documentary proof nullify the pleading of
plaintiff that impugned notice came to be issued without
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inspecting the suit premises. It shows falsity of plaintiff's pleading
which definitely proves fatal to the plaintiff's case.
14 Secondly, I have gone through the assessment record
of the suit shop. It is undisputed that the suit shop alongwith
existing loft has been duly assessed by the defendant's concerned
department. The letter of defendant No.4/9/2017 shows that the
property representing as “C I SHED WITH SHOPS” with shops' is
assessed to Municipal taxes prior to 196162. However, in the
same letter, it has been clarified that the first date of assessment is
applicable to the original structure and not to the subsequent
changes. Here, the defence taken by the defendant has come into
picture. The defendant has also accepted that the original suit
shop has been duly assessed to municipal taxes prior to 196162.
According to them, the subsequent construction as described in the
notice is the unauthorised construction. the defendant has
specifically given the measurement of said unauthorised structure .
So it is for the plaintiff to prove that the area admeasuring in the
notice is the area which has been assessed to Muincipal taxes prior
to 196162. The assessment record so produced by the plaintiff is
not sufficient to clarify said position. Per contra, it reveals that the
carpet area of suit shop was 306 sq. ft. at the time of assessment.
Later on, the admitted area of suit shop as per Municipal record
became 423 sq.ft plus 99 sq.ft. loft. The plaintiff has not
established that at present juncture also the area of entire suit
shop is the same. The defendant has already clarified their stand
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that impugned notice is issued in respect of vertical and horizontal
extension to the ground floor structure. It is not in respect of
original structure or the structure with existing loft. In said
circumstances, I hold that the letter issued by defendant showing
first date of assessment of suit shop is not sufficient to hold that
the horizontal extension as described in the impugned notice is the
duly assessed tolerated structure. The plaintiff miserably failed to
bring sufficient material to establish that said impugned structure
is a duly assessed tolerated structure.
15 Above all, I have gone through the impugned speaking
order passed by the Designated Officer on dt.9/7/2019. It reveals
that the plaintiff filed reply to the impugned notice on
dt.1/7/2017 and the same has been duly considered by the
Designated Officer. Further, the record shows that subsequently
the plaintiff has tendered these relevant documents in the court
proceeding. Therefore, it cannot be said that the speaking order
was passed without following due process of law or without
considering the documents produced by the plaintiff. In said
circumstances, I hold that prima facie there is no material on
record to show that the notice action is false and frivolous.
16 In order to seek protection of equitable interim relief, it
is necessary for plaintiff to prima facie show that on the date of
issuance of impugned notice, the notice structure was already in
existence in legal manner. In the present matter, in order to show
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the existence of notice structure prior to datum line or with
permission from competent authority, the plaintiff has not filed
any sanction plan or any other document on record proving
authorisation. Inspection report and photographs relied upon by
the defendants prima facie shows construction of horizontal and
vertical extension in the suit shop. Documents relied upon by the
plaintiff does not show the existence of impugned notice structure
as it exists today at the site before the date of issuance of notice or
prior to datum line. Moreover, the plaintiff has not produced any
documentary evidence or photograph to show that the notice
structure as exists today was in existence prior to datum line.
17 The record further shows that the defendant had issued
impugned notice to the plaintiffs and afforded reasonable
opportunity to the plaintiff to justify the construction. Therefore, I
do not find any merit in the submission made by the plaintiffs that
defendants failed to follow due process of law.
18 Therefore, from the material on record, I have arrived
at the conclusion, the plaintiff prima facie failed to show that the
notice structure as it exists at the site today was in existence prior
to datum line. Prima facie the impugned notice appears lawful and
issued by following due process of law and the impugned speaking
order was passed considering the reply given by the plaintiff.
Hence, I hold that the plaintiff miserably failed to establish
existence of prima facie case and balance of convenience in his
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favour. So the question of irreparable loss do not arise. Hence, I
have answered point Nos.1 to 3 in negative as 'No'.
AS TO POINT NO.4:-
19 Hence, in view of negative findings as to point Nos.1 to
3, I hold that the Notice of Motion is liable to be dismissed.
Hence, following order is passed.
ORDER
1 Notice of Motion No.3909 of 2019 is dismissed.
2 Notice of Motion is disposed off.
Date: 15/10/2022.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Dictated on :15/10/2022. Gr.Mumbai.
Typed on :31/10/2022.
Signed on :31/10/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
01/11/2022 02.55 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
15/10/2022.
JUDGMENT/ORDER signed by
P.O.on
31/10/2022.
JUDGMENT/ORDER uploaded on 01/11/2022.
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