Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.4567/2019 in L.C.SUIT No.3074/2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO.4567 OF 2019
(CNR No. MHCC01-012516-2019)
IN
LONG CAUSE SUIT NO.3074 OF 2019
(CNR no. MHCC01-012114-2019)
Sunil Vidyasagar Gupta ]....Plaintiff
V/s
The Municipal Corporation of Gr. Mumbai, ]....Defendant
Appearances:-
Advocate S.K. Bhosale for the Plaintiff.
Advocate Tondwalkar for defendant/MCGM
CORAM : HIS HONOUR JUDGE
SHRI S.D. KULKARNI
(Court Room no. 8)
DATED : 29th November, 2021
O R A L O R D E R
1. Perused Notice of Motion, affidavit in support thereof, plaint and
documents filed alongwith plaint and Notice of Motion.
2. I have gone through the affidavit in reply filed by the
defendant / corporation, documents filed alongwith reply and rejoinder
of the plaintiff.
3. The plaintiff contended that the landed property bearing
C.T.S. No.309, Survey No.89, Hissa No.4 of Deonar Village, Taluka
Kurla, K.D. Marg, Govandi, Station Road, Deonar. The structure therein
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admeasuring 3100 sq. ft. including three farm houses is the subject
matter of the suit. (Hereinafter for the sake of brevity called as the suit
structure).
4. The plaintiff come up with a case that the predecessor in
title of the plaintiff had constructed the suit structure in or around
1958. There is a separate electricity connection and water connection to
the suit structure. The suit structure used for the residence of labourers
of predecessor of the plaintiff in 1960-1961. There were 15 tenants
residing in the suit structure since 1958. After taking possession of the
suit structure the plaintiff repairs the room / structure with GI Sheets.
The same are tenable repairs permissible under the MMC Act, 1888. At
the relevant time the Officer of the ‘M’ East ward issued stop work
notice on 14.06.2018 to the plaintiff. Then the plaintiff visited the ‘M’
East ward and explain the entire facts. The Officer of the Municipal
Corporation accepted the same and assured to the plaintiff that, they
will not take action against him. Then after more than ½ years, the Sub
Engineer and Junior Engineer of the defendant office visited the suit
structure and threatened to demolish it.
5. The plaintiff surprised and shocked when he received the
speaking order dated 07.12.2020. The said speaking order based on the
notice issued on 14.06.2018 u/s 354-A of MMC Act.
6. The plaintiff further contended that the notice issued u/s
354-A of MMC Act and speaking order dated 07.12.2020 are illegal,
not maintainable and defendant be restrained from taking action in
pursuance of the notice and speaking order.
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7. The defendant resisted the Notice of Motion by filing
affidavit in reply and compilation of document vide Exhibit 3. The
defendant come up with a case that in routine round of inspection the
Beat officer is found the unauthorized construction of GI Shed in the
suit premises. The Beat officer has enquired at the suit site about
permission obtained from competent authority for on going
construction, however, the owner / occupant has failed to show any
permission of competent authority.
8. Therefore officer has prepared the inspection report. The
officer took the measurement of the construction of on going shed and
found to be GI Angle Framework admeasuring 17.2 mtr. (Length) X
16.7 mtr (Width) and 5 mtr. height. The Beat officer took geotagged
photographs of ongoing construction. The officer has prepared
inspection report on 14.06.2018. On the basis of the inspection report
the Designated Officer verified the record and then issued stop work
notice u/s. 354-A of MMC Act by dated 14.06.2018 for ongoing
unauthorized construction to the plaintiff. The plaintiff not complied the
stop work notice, he neither stopped the construction work nor
submitted any reply. Therefore the Designated Officer passed the
speaking order on 24.09.2018.
9. The officer of the defendant / corporation took second
inspection of the suit premises. At that time they found and observed
that the plaintiff has started re-erection structure at the site. The
construction over the suit premises is unauthorized, without permission
of the competent authority. Therefore, the plaintiff is not entitled for the
relief prayed in Notice of Motion.
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10. Having heard both the advocates at length and on perusal
of documents filed on record, following points arose for my
determination. Findings on those points for the reasons mentioned
thereunder are as follows:-
Sr.
No. POINTS FINDINGS
1. Whether the plaintiff proves the prima
facie case in favour of the plaintiff ?
Affirmative
2. Whether the compliance of payment
lies in his favour.?
Affirmative
3 Does the plaintiff proves that he will
suffer irreparable loss if injunction is
refused ?
Affirmative
4. What order ? Allowed
R E A S O N S
AS TO POINTS NOS. 1 to 3:-
11. The contention of the plaintiff that the suit structure is in
existence since 1958. The predecessor in title of the plaintiff has
constructed the suit structure and he inducted 15 tenants, somehow in
the year 1958. The electricity connection and water connection took by
the predecessor of the plaintiff to the suit structure. The plaintiff has
filed on record the copy of the property extract and order of Additional
District Collector B.S.D., Andheri, which clearly shows that the suit
structure is in existence prior to 01.04.1968.
12. The plaintiff has filed on record the order of the Additional
District Collector therein the predecessor of the plaintiff was directed to
deposit the assessment and fine under Maharashtra Land Revenue
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Code, 1966 because of contravention of use of land for non agriculture
purpose. The mutation entries in the property extract filed on record by
the plaintiff, to support the contention of the plaintiff that the suit
structure is exists since long. The plaintiff has filed on record the Deed
of Conveyance, therein it is specifically mentioned that in Survey No.89
there are three constructed structure. Therein also mentioned that in
the year 1964 he had constructed three houses for the use of cattle and
labours.
13. The advocate for the plaintiff submitted that the
defendant / corporation should give reasonable notice before taking
drastic state of demolition to ensure fairness towards its citizens. In the
above respect the advocate for the petitioner relied on the decision in
the case of M/s. Sub Vijay International Pvt. Ltd. V/s. The
Commissioner, Municipal Corporation of Gr. Mumbai and Another in
Writ Peition No.1323 of 2005.
14. The advocate of the plaintiff further submitted that the
relief of injunction though discretionally and equitable in nature,
procedural laps by the State or local bodies which do not seriously
affect substantive rights of the parties or not to resulting on the
decision. In this respect the advocate for the plaintiff relied on the
decision in the case of Sopan Maruti Thopte and Another V/s. Pune
Municipal Corporation and Another 1996(1) Mh.L.J. Page No.963. In
this respect the advocate for the plaintiff further relied on the decision
in the case of Shamrao Ganpat Chintamani V/s. Kakasaheb Laxman
Gorde 2008(2) ALL MR 118.
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15. The advocate for the plaintiff further submitted that section
351 obliges the Municipal Commissioner if the construction of any
building is contradictory to the provision to issue Show Cause Notice.
While issuing notice the word “shall” is used and further if the sufficient
cause is not shown by the parties. The Commissioner may pull down the
structure.
16. The advocate for the plaintiff taken my attention towards
the word “shall” and may mentioned in section 351 of MMC Act. In this
respect the advocate for the plaintiff relied on the decision in the case of
Muni Suvrat-Swami Jain S.M.P V/s. Arun Nathuram Gaikwad and
Others in Special Leave Petition (Civil) 9049 of 2006.
17. The advocate for the plaintiff further submitted that if the
construction is already complete and it was in occupation then issuance
of notice u/s. 354-A is of no use. In this respect the advocate for the
plaintiff relied on the decision in the case of Goverdhan Ramnaresh
Singh V/s. The Municipal Corporation of Greater Mumbai in Appeal
from Order No.257 of 1999. The advocate for the plaintiff further relied
on the circular of
Municipal Corporation of Greater Mumbai, dated
11.08.2000
18. On the other hand the contention of the advocate for the
defendant that in the year 2018 the officer of the defendant came to
know that the plaintiff is unauthorizedly constructed the suit structure
therefore the officer of the corporation carried out the inspection of the
suit site. The officer of the corporation noticed the unauthorized
structure in GI Angle and sheets therefore the Designated Officer issued
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stop work notice u/s 354-A of the MMC Act. The reply filed by the
plaintiff is not found satisfactory therefore the speaking order was
passed against the plaintiff on 24.09.2018. The advocate for the
defendant filed on record the photographs of October, 2018 suggesting
that the unauthorized construction of the plaintiff was demolish after
passing of speaking order. The plaintiff again started unauthorized re-
construction over the suit site therefore secondly the Officer of the
defendant / corporation visited the suit site and carried out the
inspection on 22.11.2019. The reply filed by the plaintiff not found
satisfactory. Hence again on 07.12.2020 speaking order was passed
therefore the plaintiff is not entitled for any relief as prayed. Hence
prayed for rejection of the Notice of Motion.
19. The advocate for the defendant submitted that the plaintiff
has to prove that his construction is as per the plan sanctioned and on
the basis of permission of competent authority. The plaintiff merely
could not say that the suit structure comes under the slum area and
MCGM has no authority to take any action against the plaintiff. In this
respect the advocate for the defendant relied on the decision in the case
of Mr. Mohd. Zuber Mohd. Yusuf Memon V/s. Municipal Corporation for
Gr. Mumbai in Appeal from Order (Stamp) No.27460 of 2016 with Civil
Application (Stamp) No.27463 of 2016.
20. The advocate for the defendant relied on the circular of
Municipal Corporation of Greater Mumbai dated 15.03.2012. The
advocate for the defendant further submitted that the discretion of the
court is exercise to grant temporary injection only when the three
requirements are made out by the plaintiff, though his prima facie case,
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balance of convince and irreparable loss. In this respect the advocate for
the defendant relied on the decision in the case of Seema Arshad Zaheer
and Others V/s. Municipal Corporation of Greater Mumbai and Others
in Special Leave Petition (civil) 9479 of 2005.
21. The advocate for the defendant further relied on the
decision in the case of N.H. Harsora Private Limited and Another V/s.
Designated Officer, Assistant Engineer (B. and F.) and Another in Appeal
from Order (St.) No.31219 of 2019 with Interim Application No.01 of
2019 -
“As far as the photographs produced on record by the learned
counsel for the respondents / corporation are concerned, at this stage,
there is no reason to disbelieve the authenticity of the same. Because,
the said photographs are taken by a public servant in due course of his
duty and it is not the case of the appellants that the concerned public
servant is having any malafide intention or animosity against them. The
unauthorized or illegal construction being carried out by the appellants
cannot be permitted to continue under the seal of the Court.”
22. Initially burden lies on the plaintiff to prove that the
structure is tolerated and authorized. The plaintiff has filed on record
the deed of Conveyance, Property Extract, Sale Deed, Photographs,
Electricity Bill, Water Bill and the Tax Assessment Receipt. All these
documents shows that the suit structure is old one.
23. The plaintiff filed on record one important document which
is action initiated against the plaintiff for using agriculture property for
none agricultural use. Therein it is specifically mentioned that the
predecessor in title of the plaintiff constructed shed for residential use
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since 01.04.1968 having its total area 170.40 yard i.e. 142 sq. mtrs. The
area under construction is 102 sq. mtrs. and open space is 40 sq. mtrs.
So since 01.04.1968 to 31.07.1971 fine was paid as Rs.4 per sq. mtrs.
and from 1971 Rs.15 per sq. mtrs. So the plaintiff was directed to
deposit the penalty charges accordingly and it was paid by the
predecessor of the plaintiff so this fact specifically shows that the suit
structure is exists prior to 01.04.1968.
24. The plaintiff filed on record the another important
document which is Deed of Conveyance dated 14.03.2001 therein it is
mentioned that the vendor has also growing floors, sugar cane and
vegetables on the suit land till the year 1968. In or about the year 1964.
He had constructed three houses for the use of cattle and labours. So
these documents sufficiently shows that it is not newly constructed
structure but structure exists since long.
25. The contention of the plaintiff that after purchase of the
suit property he has carried out the permissible repairs with GI Sheets.
The same are tenantable repairs permissible under MMC Act 1988. The
plaintiff and defendant both filed on record photographs but these
photographs is of interior structure of the suit property. No single
photograph on record to show that because of the newly structure the
F.S.I. of the structure was increased. Because of the changes in the
interior it will not change the F.S.I. or dimension of the suit structure.
26. The defendant / corporation filed on record the
photographs and inspection report and speaking order but these
documents are not sufficient to show that the suit structure is newly
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constructed and does not fall under tenantable repairs. On the contrary
the plaintiff has filed on record sufficient documents to show that the
suit structure exists since long.
27. On going through the entire documents on record it shows
that the suit structure exists prior to 01.04.1968. The said date has
much closer to the date of datum line. Therefore at this stage the
plaintiff has brought on record sufficient material to prove prima facie
case in his favour. The balance of evidence is also lies in favour of the
plaintiff. Therefore in my opinion if the injunction is refused the
plaintiff will suffered irreparable loss. Hence I answer point No.1 to 3 in
affirmative and pass the following order.
ORDER
1. Prayer clause (a) in terms of Notice of Motion No.4567/2019 is
made absolute.
2. Defendant / MCGM is restrained from taking any action in
pursuance of Notice dated 14.06.2018 and speaking order dated
07.12.2020 till decision of the suit.
3. Notice of Motion No.4567/2019 stands disposed off accordingly.
(S.D.Kulkarni)
Ad-hoc Judge,
City Civil Court,
Date : 29.11.2021 Gr. Mumbai.
Dictated on : 29.11.2021
Transcribed on : 29.11.2021
Signed by HHJ on: 29.11.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 03.12.2021 at 1.30 p.m.
NAME OF STENOGRAPHER : Mrs. J.S. Chavan
Name of the Judge (With Court
Room no.)
HHJ Shri. S.D. KULKARNI
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
29.11.2021
JUDGMENT/ORDER signed by
P.O. on
29.11.2021
JUDGMENT/ORDER uploaded
on
03.12.2021
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