Final Order 1

Order Details: Notice of Motion
Pdf Text: NM in 4735/19 in ST no. 12528/19 1 Order
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4735 OF 2019
(CNR NO. MHCC01-012922-2019)
IN
STAMP NO.12528 OF 2019
Mohammed Saeed Ansari ..... Plaintif
V/s.
The Municipal Corporation of
Greater Bombay ..... Defendants
CORAM : HIS HONOUR JUDGE
SHRI.G.G.BHANSALI
(C.R. NO.11)
DATE : 10th FEBRUARY, 2020
Advocate Shri. Pratap Singh, for Plaintif.
Advocate Ms. Tondwalkar, for Defendant/Corporation.
ORDER
1 This is a motion taken out by plaintif to challenge
legality of notice issued under section 351 of MMC Act dated
03.10.2019 and speaking order dated 25.11.2019.
2. The suit property as mentioned by plaintif in plaint
para. 1, runs as follows:
“1. Plaintif states that he is having seized and
possessed, owned, occupied of or otherwise
well and sufciently entitle to a Room
premises being Room No. 7, Raju Estate,
Khairani Road, Saki Naka, Mumbai- 400 072,
made with brick masonry Walls and
intermediate Ladi Coba mezzanine foor with
first foor and ACC Sheet roof thereon situated
on C.T.S. No. 160 to 160 1/10 of Village Saki,
-- 1 of 11 --
NM in 4735/19 in ST no. 12528/19 2 Order
Naka within the Mumbai Suburban District,
Kurla. (Hereinafter for the sake of brevity
referred to as “the Suit Premises”.
3. The schedule alongwith unscaled sketch and diagram
is mentioned in inspection report-cum-notice dated
03.10.2019. The schedule of unauthorized structure runs as
follows:
“unauthorized vertical extension to ground
foor structure using ladi coba ladi slab, brick
masonry wall and A.C. Sheet roof ad-
measuring 9.75 m 3.69 m 10.97 m (height)
approximately”.
4. Learned Advocate for plaintif submits that in view of
rent receipts vide Exh. 30 and 32, plaintif is tenant of Mr. Raju
Roy. However, during 1993, plaintif has purchased the suit
premises for Rs. 2 Lakhs in 1993. It is slum area, however,
plaintif has not received the photo-pass. There is a ground
foor, mezzanine foor and first foor over suit premises.
However, Deft./MCGM has wrongly mentioned that there are
ground plus four foors. It being slum area, there is no
authority vest with MCGM to issue notice against suit property;
only Deputy Collector being competent authority can initiate
action against slum property. It is prayed for Injunction to
protect existing structure.
5. Learned advocate Ms. Tondwalkar for Deft/MCGM
submits that plaintif is failed to submit document of
authentication of suit structure. Defendant has annexed
-- 2 of 11 --
NM in 4735/19 in ST no. 12528/19 3 Order
afdavit of Mr. Kiran Sonawane, Ofcer of MCGM in support to
inspection report conducted by Bit Ofcer no. 158, containing
with photographs in respect of existing structure. Plaintif has
misinterpreted the word mezzanine foor, on the contrary, it
consists of three foors and one mezzanine foor as clarified in
report of court commissioner appointed by this court, namely
Adv. Ranjita Shivalkar. It is requested to peruse her report vide
Exh. 6 alongwith unscaled map, three maps drawn on site
alongwith various photographs.
6. Learned advocate Pratap Singh for plaintif admit the
situation as shown in court commissioner report, however, he
filed objection vide Exh.7, in respect of nomenclature given by
court commissioner to first and second foor.
7. It is to note that plaintif in person was present
alongwith court commissioner visit. However, learned
advocate for plaintif has avoided to remain present when
court commissioner has visited. The rules regarding
mezzanine foor are described in MCGM Circular dated
08/08/2005.
“The aggregate area of mezzanine foor in
any room shall not exceed 50% of the built
up area of that room. The size of mezzanine
foor shall not be less than 9.5 sq.mt.”
“Lofts having head room more than 1.5 mtrs.
above, it shall be treated as mezzanine
foor.”
-- 3 of 11 --
NM in 4735/19 in ST no. 12528/19 4 Order
REASONS
8. The unscaled map drawn by court commissioner Adv.
Ranjita Shivalkar is reproduced as follows:
(Height: Steps- 5 feet
Ground Floor- 12 feet
First foor -10 feet.
Second foor- 10 feet.
Total - 37 feet (excluding grill portion)
(Note:- Access not allowed to court Commissioner:- On mezzanine and
grill portion above second foor.)
9. In court commissioner report in para. 1 and para. 6,
it is mentioned that access to first foor was withdrawn and
informed that children's are using the same by climbing on
stools. Above second foor, court commissioner was not
permitted to enter as top foor was closed due to dispute. The
material part of said report is reproduced as follows:
“ Above this 2nd foor the iron bars afxed to
form a boundary where I could not go because
Shri. Ansari informed that due to dispute the
37 feet
Second floor
First floor
Mezzanine floor
Ground floor
Grill
-- 4 of 11 --
NM in 4735/19 in ST no. 12528/19 5 Order
way to this top portion is closed and hence I
could not have access to it.”
“The said ground foor room premises were
having furniture and kitchen on the rear side.
The kitchen is about 1 ½' to 2' below the
portion of the front room.”
“The roof of the front portion in the front
portion and kitchen portion is not even. But I
found that over the kitchen roof is wooden
with door for entry which is lower that the
roof slab of another room. I asked Shri. Imtiaz
how they go up the portion above the
kitchen, he said that the children are using
the same by climbing on stools. I could not
go up as there was no provision to go up.”
10. It is necessary to note that court commissioner was
appointed as plaintif has disputed sketch of entire building
shown by deft/MCGM in impugned notice dated 03.10.2019.
Plaintif has replied the notice on 14.11.2019 and thereafter
speaking order came to be issued on 25.11.2019. The court
commissioner was appointed at the request of plaintif. There
is no detail description, height, length and width of entire
structure was given by plaintif in his reply dated 14.11.2019,
nor in plaint.
11. In para 21 of plaint, it is mentioned that plaintif was
carrying out essential repair and plastering. There are steps of
-- 5 of 11 --
NM in 4735/19 in ST no. 12528/19 6 Order
iron ladder kept by plaintif and no foor was constructed. The
relevant part is reproduced has follows:
“The Plaintif further states since the
Plaintif had not carried out any illegal
and unauthorized construction of the first
foor except that the minor essential
repairing such as plastering and replacing
of ACC Roof and the suit premises is
already in existence in the said suit
premises since inception of the tenancy
i.e. from prior to 1962, but inspite of the
same, false and frivolously allegedly by
the Defendants that unauthorized
construction of first foor. Plaintif states
that there is not first foor at all and in
fact there is internal temporary steps of
iron ladder have been kept by the Plaintif
and hence, there is a no issue of any
construction of first foor as alleged.”
12. On perusal of numerous photocopies submitted by
the court commissioner, there was no iron ladder for
approaching mezzanine foor. There are stairs with good
fooring for approaching to first and second foor.
13. In Tushar Salian Vs State of Maharashtra - PIL
67/2017 in para. 5 it is observed that -
“Concerning a property, a suit to enforce or
protect an interest in the property which is
governed by a Municipal Statute, the interest
-- 6 of 11 --
NM in 4735/19 in ST no. 12528/19 7 Order
protected as to be with respect to a plea that
prima-facie, the structure which is being targeted
is an authorized structure. Meaning thereby, the
plaint must make an averment of the sanction
obtained from the Corporation and must make an
averment that the structure targeted is prima-
facie governed by the sanction. Merely pointing
out defciencies in the notice or the authority of
the person issuing the notice is neither here nor
there. Thus, the sine qua non of such kinds of
suits is a positive assertion made with reference
to the sanctioned building plans.”
14. In Mr. Mohd. Zuber Vs. MCGM – AFO
27460/2016 dated 15.10.2016, the Hon'ble High Court
observed as follows:
“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 sufcient. 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 justifed in
-- 7 of 11 --
NM in 4735/19 in ST no. 12528/19 8 Order
taking action against the said construction.
Therefore, no interference is warranted in the fnal
order passed by the Assistant Commissioner and
by the Trial Court.”
15. In view of aforesaid discussion, following points are
important to note.
a. Plaintif is failed to produce afdavit of landlord Mr. Raju
Roy in respect of condition of suit property when it was
given on rent.
b. There is no averrment in plaint in respect of purchase of
the property for Rs. 2 lakhs from Mr. Raju Roy.
c. No copy of rent agreement or sale deed annexed by
plaintif.
d. Latest rent receipt is not annexed by plaintif.
e. Plaintif is failed to draw unscaled map, Height, Length,
Width of suit premises in plaint.
f. Nothing is mentioned in plaint about dispute of the way
to the top portion which was closed when court
commissioner visited and specially mentioned in report.
g. The name of person with whom dispute is existing is not
given by plaintif.
h. It is difcult to believe that children go to mezzanine foor
by climbing with use of stool.
i. Why mezzanine foor and top foor was not opened to
show the court commissioner, in respect of material
contained therein.
16. On perusal of various photographs annexed by Mr.
Kiran Sonawane, Ofcer of MCGM along with supported
-- 8 of 11 --
NM in 4735/19 in ST no. 12528/19 9 Order
afdavit and photographs submitted by court commissioner
Adv. Shivalkar, clearly indicate it is a new structure erected by
plaintif. Even a lay-man will conclude that it is not a
tenantable repair.
17. In plaint it is mentioned that plaintif has replaced
ACC roof. The change of roof is not tenantable repair. Plaintif
has disputed nomenclature “first foor” as mentioned by court
commissioner and it must be mezzanine foor. On the contrary,
mezzanine foor is already existed in ground foor. Therefore,
unscaled map drawn by the court commissioner at the time of
visit over suit premises is reproduced as referred above.
18. There are no inimical terms between ofcer of MCGM
Mr. Kiran Sonawane and court commissioner Adv. Shivalkar
with plaintif to submit false information against plaintif. On
the other hand, plaintif has skillfully avoided to provide all
details of suit premises at the time of filing of the suit. In view
of aforesaid discussion, there is no prima facie with plaintif.
19. On following two points, plaintif is failed to clarify :-
a) The change of the roof is beyond the scope of
tenantable repair as mentioned in Section 342 of
MMC Act. Whether impugned change as brought on
record through Court Commissioner, comes within
scope of Section 342 of MMC Act ?
b) If first foor, as named by the Court Commissioner,
advocate Shivalkar, is mezzanine foor, then what
nomenclature would be given by plaintif to existing
mezzanine foor as shown in sketch of suit property ?
-- 9 of 11 --
NM in 4735/19 in ST no. 12528/19 10 Order
20. It is well saying that illegal constructions like
Mushrooms are erected in this city. There is no strong
foundation to said structure. The collapse of such building will
cause harm to neighbors and public at large. Hence, balance
of convenience lies in favour of MCGM. It will cause no
irreparable loss to plaintif, as entire structure is illegal. In
result, motion deserves to be dismissed. Hence the order-
ORDER
1. Notice of Motion No. 4735 of 2019 stands dismissed.
2. Notice of Motion No. 4735 of 2019 is disposed of
accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 10/02/2020. Mumbai.
1. Dictated on : 10/02/2020.
2. Transcribed on : 10/02/2020.
3. Signed on : 12/02/2020.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
-- 10 of 11 --
NM in 4735/19 in ST no. 12528/19 11 Order
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
12/02/2020. 1.48 p.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
10/02/2020.
Judgment/Order signed by P.O. on 12/02/2020.
Judgment/Order uploaded on 12/02/2020.
-- 11 of 11 --