Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.3944 OF 2019
(CNR NO.MHCC01-10878-2009)
IN
L.C.SUIT NO. 1112 OF 2018
Pritam Hotels Pvt. Ltd. …. Plaintiff
V/s.
1.Designated Officer and Anr. ...Defendants
CORAM: HIS HONOUR JUDGE
SHRI. R. B. PARVEKAR
CITY CIVIL COURT
GR. MUMBAI
DATE : 16/11/2024
Adv.P.D.Gandhy for the plaintiff.
Adv. Jyoti Mhatre for the defendants/BMC.
ORAL ORDER
This notice of motion is taken out by the plaintiff
under order XXXIX Rule 1, 2 r/w section 151 of the Code of
Civil Procedure for restraining defendants/BMC from
implementing notice dated 26 t h February, 2018 under section
351 of the MMC Act and speaking order dated 16 t h March, 2018
and 29t h August, 2018 in respect of the suit premises till
disposal of the suit.
2. For the sake of convenience, I would like to
reproduce alleged unauthorized construction well mentioned in
schedule of notice under section 351 of the MMC Act dated
26.02.2018 as below:-
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“1] unauthorized extension by construction of
ground plus one structure to the existing
building with brick masonry wall, ladi
coba flooring and ladi coba roofing.
2] Unauthorized construction of manglore
tile roofing.
3] Unauthorized construction of structure
with Brick Masonry wall and Lodi Coba
Roofing”.
(hereinafter called as notice structure)
3. With the consent of both the parties, present notice
of motion heard finally. Heard both sides.
Case of Plaintiff
4. Plaintiff is a registered company under Companies
Act. Plaintiff is carrying on business since more than 60 to 70
years in building known as Dharmaputra on ground and first
floor. Plaintiff is holding necessary documents for running
business. Suit plot belonging to the Municipal Corporation.
After independence trustees of Improvement of Bombay merged
with MCGM. On the said plot of land, building was constructed
in the year 1930 having ground floor + 3 upper floor on one
partition and ground floor on the other side. Plaintiff is
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carrying out Hotel and Restaurant activities from the premises
more than 60 to 70 years without objection from MCGM. Upon
receipt of impugned notice plaintiff replied the same alongwith
documents. Thereafter, plaintiff received order dated
16.03.2018 calling upon plaintiff to comply requisition.
Plaintiff again sent letter dated 09.04.2018 through advocate
for personal hearing.
5. Speaking order is passed without application of
mind. Notice is vague and sketch does not co-relate with the
nature of allegation. Speaking order is passed mechanically. No
fair opportunity is given to plaintiff. Hence, this notice of
motion.
Case of defendant/BMC
6. It is the case of defendant that Suit is bad for want
of notice under section 527 of the MMC Act. Upon receipt of
complaint officers of defendant visited the site on 26.02.2018
and noticed alleged unauthorized construction well mentioned
in notice structure. Upon inquiry, plaintiff fails to produce plan,
permission to authenticate alleged unauthorized construction.
BMC officer prepared Inspection report on 26.02.2018. Plaintiff
fails to show sufficient cause in respect of notice structure.
After considering the reply reasoned speaking order is passed.
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Personal hearing was given to plaintiff to show sufficient cause
in respect of impugned notice and speaking order. As per order
of Hon’ble Court dated 19.04.2018 personal hearing was held
on 17.05.2018 before Designated Officer. In personal hearing
after providing opportunity plaintiff fails to prove legality and
authenticity of notice structure. Plaintiff suppressed material
facts. Rest of the averments in plaint are denied by the
defendant/BMC in toto.
7. From the rival pleadings following points arise for
my determination to which I have recorded my findings for the
reasons stated hereinbelow:-
Sr.
No.
Points Findings
1 Whether the plaintiff has prima-
facie case?
Negative.
2 Whether balance of convenience
lies in favour of plaintiff.?
Negative
3 Whether plaintiff will suffer
irreparable loss if injunction is not
granted?
Negative
4 What order ? As per final
order
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REASONS
8. Read Notice of motion, reply filed by the defendants/
BMC. Both the parties consented to decide Notice of motion
finally, accordingly advance arguments.
As to Point Nos.1 to 3
9. Point nos. 1 to 3 are interlinked with each other
hence, grouped together for discussions. First and foremost
requirement for grant of temporary injunction is that the party
seeking such relief must establish prima-facie case in his favour.
To make out prima-facie case a party is not required to establish
his title. It is enough if he can show that he has fair question to
raise as to the existence of alleged rights and the property in
the meantime should be preserved.
10. It is the contention of the plaintiff that suit premises
exists prior to datum line. It is a tolerable structure. On the
other hand, defendant/BMC objected the said contention.
11. Before discussing rival contentions and documents
placed on record by both the parties, it is necessary to mention
here that as per order passed by my learned predecessor
19.04.2018 personal hearing was granted to plaintiff till then
notice structure was protected. As per order, defendant/BMC
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provided opportunity of personal hearing to the plaintiff and
thereafter, passed speaking order in respect of notice structure.
12. It is further necessary to mention here that plaintiff
has not specifically described suit property alongwith
admeasuring area. In recitals of plaint in para No.3 plaintiff
merely mentioned that he is carrying on business in building
known as Dharmputra on ground floor. But, has not specifically
mentioned the detailed description of the ground floor. In para
No.6 of plaint, plaintiff specifically averred that existence of a
building constructed in the year 1930 having ground plus three
upper floors. But, as per averment in para no.3, the building
“Dharmputra Building” were plaintiff is carrying on business is
consists of ground + 1 s t floor. It is not specifically averred by
plaintiff that Dharmputra Building is constructed in 1930.
13. Now I would like to discuss documents placed on
record by both parties in support of their contentions. On
perusal of photocopy of Shop Act license, license issued by
Heath department, receipts are in respect of plot No.80, 1 s t
floor, Kohinoor Road, Pritam Estate, Dadar, Mumbai. The
necessary permission issued by defendant/.BMC for running
hotel business are the privileges granted by authority, which
does not prove the authenticity of notice structure. On perusal
of photocopy of property tax assessment bill, it appears that
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Property having description, “ Pritam Estate 166-166 H,2-2N is
firstly assessed for property tax purposes on 01.04.2017. P R
card is the document which speaks about the registration of
property with City Survey office which does not authenticate
the structure standing on the said land.
14. On perusal of photocopy of notice dated 05.11.1973,
letter dated 09t h July, 1975,letter dated 19.08.1975, notice
dated 21.02.1976 it appears that these letters/notices are
issued by Asst. Engineer of Building and factory department to
one Pralhadsingh D. Kohli in respect of unauthorized
construction for the premises situated at Pritem Estate top floor,
Dr. B. A. Road, Dadar and for payment of penalty. From these
documents, it is gathered that prior to issuance of present
notice alleged unauthorized construction was carried out in
Pritam Estate for which Pralhadsingh Kohli deposited penalty.
But, plaintiff has not filed any document to show that he has
carried out regularization of alleged unauthorized construction
well mentioned in the letter dated 05.11.1973, 09.07.1975,
19.08.1975, 21.02.1976. On perusal of letter dated 04.08.1976
issued by ward officer to Prahladsing Kohli, it appears that BMC
officer called Prahladsing Kohli to produce sketch of existing
shed and also reduce penalty amount. But, plaintiff has not
filed any document to show that he has complied the said letter
by filing sketch of existing shed with BMC. Letter dated 09 t h
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July, 1976 issued by ward officer of BMC is also on same
footing.
15. On minute perusal of letter dated 13 t h March,1976 it
appears that P.D. Kohli filed reply with designated officer in
response to letter dated 21.02.1976. As per letter dated 13 t h
March, 1976 one P. D. Kohli specifically mentioned about
existence of second floor. But, as per para No.3, Building
Dharmputra is consisting of ground + 1 s t floor. Letters dated
19.05.1975 and notice dated 21.02.1976 again speaks about
unauthorized construction at the hands of P. D. Kohli. It is
gathered from the letters placed on record by the plaintiff that
on several occasions BMC has issued notice and also imposed
penalty. All these documents are not prior to datum line.
16. On the other hand, it is gathered from 1 s t Inspection
dated 26.02.2018 that upon inspection BMC officer found
alleged unauthorized construction as per notice structure. The
photographs/image snap and uploaded with inspection report
clearly shows alleged unauthorized construction. After
considering the reply and providing personal hearing speaking
order is passed by designated officer. Accordingly, BMC has
followed due process of law.
17. At this juncture, learned advocate for plaintiff
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submitted before Court that BMC are having plan of suit
building. The landlord is a necessary party. The landlord is not
made party to the suit. Principle of natural justices are not
followed. Initial burden is on the BMC who alleges that
structures are unauthorized. Under such circumstances,
structure requires to be protected. Plaintiff placed his reliance
on following case laws:
a] Ramesh Hargovinddas Divecha Vs. MCGM and Ors.(Writ
Petition No. 715 of 1999 decided by Hon’ble High Court on
12.07.1999)
b] Mohammad Yusuf Abdul Sattar Vs. MCGM (Appeal From
Order No. 712 of 1996 decided by Hon’ble High Court on
19.06.1996)
c] Mr. D. K. Pandit Vs. M/s. Ritika Pvt Ltd.(Appeal From
Order No. 752 of 1989 decided by Hon’ble High Court on
08.11.1989)
d] Vakil Mohamed Khan Vs. Municipal Corporation for Gr.
Bombay (Appeal From Order No. 712 of 1996 decided by
Hon’ble High Court on 19.06.1996)
e] Umanath Panday & Ors vs. State of U.P. and Anr.
(Cri.Appeal No. 471 of 2009 decided by Hon’ble Supreme
Court on 16.03.2009)
f] Vadilal Maganlal Trevadia Vs. Bombay Municipal
Corporation and ors.(2021 (1) Mh.L.J.157)
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g] Dalpat Kumar and another Vs. Prahlad Singh and others
((1992)1 Supreme Court Cases 719).
h] Seema Arshad Zaheer and ors. Vs. Municipal Corpn. Of
Greater Mumbai ((2006)5 Supreme Court Cases 282)
18. On the other hand, it is submitted on behalf of
defendant/BMC that suit is instituted by plaintiff. No reason
has been mentioned by plaintiff as to why he has not
incorporate landlord as a necessary party to the suit. Apart
from this, there is no specific pleading about legality of notice
structure. The case laws relied by plaintiff are not helpful to
their case.
19. Considering the rival submissions and on perusal of
recitals of plaint, it appears that plaintiff has not specifically
averred in plaint about the legality, authenticity of notice
structure. It is further not specifically averred in plaint that
notice structure alleged to be constructed is as per sanction
plan or permission. In the present suit opportunity of being
heard is provided to the plaintiff. Plaintiff has not made the
landlord party to the proceeding. Facts and circumstances of the
cases relied by the plaintiff are different from the present facts
and circumstances of the case. Under such circumstances,
submissions raised on behalf of plaintiff does not found to be
acceptable one.
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20. Now, it is upto the plaintiff to show sufficient
reason cause to prima-facie establish alleged work mentioned in
the schedule of notice is carried out in accordance with
provisions of sections 337 or 342 and 347 of the Act. But, as
discussed above, plaintiff fails to prima-facie establish existence
of notice structure prior to datum line i.e. 01.04.1962. In the
present case, within a stipulated period of time, or even after
passing of speaking order, plaintiff has not shown sufficient
cause to prima-facie establish that the said notice structure is
constructed in accordance with provisions of sections 337 or
342 and 347 of the Act. It is not the case of plaintiff that he
applied for regularization of notice structure. As plaintiff fails
to show permission, sanction or approved map in respect of the
alleged illegal construction, hence, not having sufficient reason
or cause to raise fair question as to the existence of the alleged
rights. Plaintiff will not suffer relative inconvenience on
refusal of prohibitory relief. There are no equities in favour of
plaintiff. If discretionary relief of temporary injunction is
refused, plaintiff will not suffer irreparable loss. Accordingly, I
answer all point in the negative and proceed to pass following
order.
ORDER
1. Notice of motion No.3944 of 2019 is rejected.
2.Both the parties to take note of this order.
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3.Cost in cause.
4.Notice of motion No.3944 of 2019 is disposed off accordingly.
Date-16/11/2024 (R. B. Parvekar)
Judge, City Civil Court
Gr. Mumbai
Dictated on:16/11/2024
Typed on :16/11/2024
signed on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19/11/2024 11.45 a.m. ( Mayuresh
P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R. B. Parvekar (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
16/11/2024
JUDGMENT/ORDER signed by
P.O.on
19/11/2024
JUDGMENT/ORDER uploaded on 19/11/2024
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