Interim Order 4

Order Details: Notice of Motion
Pdf Text: N/m No. 4627/19 in Suit No. 2824/19. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4627 OF 2019
(CNR NO. MHCC010126872019)
IN
LONG CAUSE SUIT NO. 2824 OF 2019
(CNR NO. MHCC010111612019)
Kumari Farida Mohammed Bashir ...Plaintiff
Versus
Municipal Corporation Of Greater Mumbai
& another ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 10th JANUARY, 2020.
Mr. Bukhari, Advocate for Plaintiff.
Mrs. Tondwalkar, Advocate for Defendant / MCGM.
ORDER
This is a motion taken out by plaintiff to restrain
defendants 1 and 2 to act upon notice issued under Section 354A of
MMC Act dated 07/10/2019.
2. Perused reply submitted by MCGM.
3. There is a caveat on record. This Court has granted interim
protection by statusquo till speaking order.
4. As mentioned in plaint para 4, suit premises is 659, Puttu
Seth Compound, Survey No. 301, City Survey No. 203, Kurla (West),
Mumbai.
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N/m No. 4627/19 in Suit No. 2824/19. 2 Order.
5. Ld. advocate Bukhari for plaintiff submits that in view of
notice dated 07/10/2019 under Section 354 of MMC Act, as per
schedule there is unauthorized construction of ground floor
admeasuring 6 x 9 x 5 ft. in height using M.S. sheet as walls. As per
report of architect appointed by plaintiff, application was submitted to
the MCGM on 07/03/2018 and there is a notesheet of MCGM dated
07/06/2019 for tenantable repairs. Thereafter plaintiff has submitted
the letters on 04/02/2019 and 04/06/2019, prayed for permission for
tenantable repairs. However, it is alleged that no reply submitted by
plaintiff has been seen by the designated officer and proceeded for final
order dated 18/11/2019.
6. Ld. advocate Bukhari added that as per application dated
15/09/2003 applicant moved to MCGM for permission to repair.
Plaintiff is possessing the suit premises since his forefather, prior to
1948. It is added that plaintiff became owner of suit premises by way
of adverse possession. It is claimed for temporary injunction against
defendant MCGM.
7. Ld. advocate Tondwalkar for MCGM submits that the
letters/notesheet referred by plaintiff dated 04/02/2019 and
04/06/2019 are the proposal and not permission. There is specific
contention that there is no description of the suit premises given by the
plaintiff nor fourboundaries of suit premises are narrated by the
plaintiff. There is no application for permission nor there is any
sanction plan submitted by the plaintiff. It is requested to peruse the
final order issued by the MCGM whereby the reply submitted by
plaintiff dated 12/10/2019 came to be referred, however wall erected
by plaintiff and construction by using M.S. sheet and M.S. channels
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N/m No. 4627/19 in Suit No. 2824/19. 3 Order.
carried out by the plaintiff is illegal. It is prayed to reject the motion.
REASONS FOR ORDER
8. It is to note that Suit No. 88/2017 in respect of same
property is pending before the Hon'ble High Court. It is not disputed
that there was an appointment of Court Commissioner in the said
matter. As per the order of the Hon'ble High Court, advocate
S.K.Trivedi was appointed as Court Commissioner and he visited the
suit premises and submitted report before the Hon'ble High Court, vide
Page No. 385.
9. It is interesting to note that defendant MCGM as well as
applicant in Chamber Summons No. 2223/2019 has admitted
possession of plaintiff over suit premises but to the extent of tin shed
only. According to defendant, the protected structure is only tin shed
and whatever impugned structure erected by the plaintiff is illegal.
10. On perusal of notice and reply given by plaintiff dated
12/10/2019, in Para No.2 at Page No.3, the height, length and width of
suit structure is mentioned, which is not given in plaint.
11. At this juncture, it is necessary to note what was the
structure of suit premises when plaintiff has submitted application for
tenantable repairs on 15/09/2003 which runs as follows :
"(1) Residential Area 15' x 15' = 225 Sq. Ft. plus
loft.
(2) Commercial Area 18' x 12' = 216 Sq. Ft. plus
loft.
Both structures of tin shed and certain open space
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N/m No. 4627/19 in Suit No. 2824/19. 4 Order.
around the structure, since long i.e. much prior to
1951 or about."
12. It clearly indicate 225 sq.ft. and 216 sq.ft. as mentioned
above is appear to be original structure of plaintiff.
13. On Page No.317 there are two photographs submitted by
plaintiff which shows prior structure of the plaintiff, one photo on 319
and another on 320.
14. It is material to note that plaintiff has intentionally
concealed report of Court Commissioner and description of structure
recorded by him. On Page No.385, the structure of plaintiff came to be
recorded as follows :
(I) Tin shed
Name of
the
occupant
: Mr. Bashir Rajab Ansari
Residing
since when
: Since 1948.
Whether
ownership/
rental
: Ownership, no rent is paid.
Documenta
ry proofs
: He refused to give any information to
me and further informed me that his
Advocate Mr. Bukhari has directed him
not to furnish any information and
also not to give any documents.
Plaintiff's representative does not dispute
occupancy and existence of tin structure.
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N/m No. 4627/19 in Suit No. 2824/19. 5 Order.
"Plaintiff's representative do not dispute
existence of structure and occupancy but stated that
structure has been changed to permanent structure
from tin structure which is without their permission
and knowledge."
15. According to plaintiff, there is no additional construction
done by the plaintiff, he has proceeded for tenantable repairs. To
compare the present position, plaintiff was directed to submit recent
photographs which are filed by him vide Exh.4. On perusal of photos
vide Exh.4, it appears vertical extension of suit premises alongwith
erection of wall with siphorex blocks, having wall of 8 to 10 ft. in
height.
16. It is clearly observed in inspection report dated
05/10/2019 that plaintiff has carried out construction by using M.S.
sheet and there was vertical extension to the existing structure. Para
No.14 of the report is reproduced as below :
"14) Stage And Construction of Material Used :
Sr.
No.
Name Structure
Length
(mtr)
Structure
Width
(mtr)
Structure
Height
(mtr)
Structure
Material
Remark
1 Others 6.0 9.0 5.0 Using M.S.
sheet walls and
M.S. channels/
Angles supports
and plith height
with B.M. wall
15) Whether the Construction is an extension to
the existing structure or an independent
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N/m No. 4627/19 in Suit No. 2824/19. 6 Order.
structure : Vertical extension to the existing
structure."
17. The documents annexed with Exh.2 submitted by MCGM,
there are photographs which reflect construction of wall by covering
standing trees. MCGM has submitted copy of inspection report
alongwith numerous photographs.
18. Ld. advocate Gada for applicant has filed photographs vide
Exh.5 and the order of the Hon'ble High Court in Notice of Motion No.
265/2017 in Suit No. 88/2017 dated 06/03/2017, whereby Court
Receiver came to be appointed. There are various photos annexed by
the applicant which shows hip of bricks near the suit premises. On
comparison with previous photograph of suit site at Page No.5 and 6
and photographs vide Page No.22 onwards, it clearly indicate and one
may conclude from bare eyes that plaintiff has completed the
construction behind the tin by using cement poles and iron angle.
19. On comparison of aforesaid photographs, a layman can
conclude that there is vertical extension of suit premises by using
various tins.
20. In view of Section 342 of MMC Act, tenantable repairs
include replacement of roof, with the same material but shall not
include
a) Change in horizontal and vertical existing dimension of the
structure,
b) Replacement or removal of any structural number of load
bearing walls.
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N/m No. 4627/19 in Suit No. 2824/19. 7 Order.
21. In Mohd. Zuber V/s. Municipal Corporation for Gr.
Mumbai [MANU/MH/2130/2016], in Para 13 it is observed that,
"The burden was on the appellant to show
that this construction, which he has undertaken,
was with proper permissions and authority from
the Municipal Corporation. Though the
opportunity was given to the appellant to prove the
legality of the said construction, he has failed to
prove the same, either before the Assistant
Municipal Commissioner or even before the Trial
Court or this Court. Merely saying that he has not
carried out the construction and he has only
changed the A.C sheet roof is not sufficient.
Hence, in the absence of any evidence proving the
permission or the plan sanctioned for such
construction, the Trial Court has rightly held that
the said construction is illegal and unauthorized
and the Municipal Corporation was perfectly
justified in taking action against the said
construction. Therefore, no interference is
warranted in the final order passed by the
Assistant Commissioner and by the Trial Court."
22. In Seema Arshad Zaheer V/s. Municipal Corporation Of
Gr. Mumbai [2006(5) Mh.L.J. 218], it is observed in Para No.31 as
follows :
"It is true that in cases relating to orders for
demolition of building, irreparable loss may occur
if the structure is demolished even before trial, and
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N/m No. 4627/19 in Suit No. 2824/19. 8 Order.
an opportunity to establish by evidence that the
structure was authorised and not illegal. In such
cases, where prima facie case is made out, the
balance of convenience automatically tilts in
favour of the plaintiff and a temporary injunction
will be issued to preserve status quo. But where
the plaintiffs do not make out a prima facie case
for grant of an injunction and the documents
produced clearly show that the structures are
unauthorised, the Court may not grant a
temporary injunction merely on the ground of
sympathy or hardship. To grant a temporary
injunction, where the structure is clearly
unauthorised and the final order passed by the
Commissioner (of the Corporation) after
considering the entire material directing
demolition, is not shown to suffer from any
infirmity, would be to encourage and perpetuate
an illegality."
23. In view of aforesaid discussion, it is crystal clear that
various old photographs of suit premises from 2003 to 2018 shows
exact nature of existing structure. On comparison with present
photographs, it shows vertical extension as well as alleged illegal
construction as narrated in notice dated 07/10/2019. In view of
aforesaid discussion, following are the important points to note that
plaintiff do not have a prima facie case :
a) In speaking order dated 18/11/2019, reply submitted by
plaintiff came to be duly considered by the MCGM.
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N/m No. 4627/19 in Suit No. 2824/19. 9 Order.
b) Plaintiff has intentionally avoided to narrate the visit of
Court Commissioner and report of Mr. K.K.Trivedi in Suit
No. 88/2017.
c) Plaintiff is failed to mention height, length and width of
suit premises.
d) To the extent of tin shed, there is no dispute that plaintiff is
possessing tin shed.
e) On comparison of old and present photographs, it is crystal
clear that plaintiff has moved beyond definition of
tenantable repairs.
f) It is argued by ld. advocate for plaintiff, about ownership
under adverse possession. However, there is no such
pleading.
24. In view of aforesaid discussion, there is no prima facie case.
Obviously, balance of convenience do not lie in favour of plaintiff.
There are grounds to believe that plaintiff has illegally constructed and
expanded the suit premises, therefore no irreparable loss will cause to
plaintiff. Hence the order :
ORDER
1. Notice of Motion No. 4627/2019 stands dismissed.
2. N/m No. 4627/19 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 10/01/2020. Mumbai.
1. Dictated on : 10/01/2020.
2. Transcribed on : 13 & 14/01/2020.
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N/m No. 4627/19 in Suit No. 2824/19. 10 Order.
3. Signed on : 18/01/2020.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21/01/2020. 10.53 a.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 10/01/2020.
Judgment/Order signed by P.O. on 18/01/2020.
Judgment/Order uploaded on 21/01/2020.
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