Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judg. in L.C.Suit No.3352 of 2019
MHCC010131002019
Presented on : 13-12-2019
Registered on : 17-12-2019
Decided on : 29-08-2023
Duration : 3 years, 8 months, 16 days
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
L.C.SUIT NO.3352 OF 2019
Mr. Abbas Ali Shaikh
Age:58 Years, of Mumbai,
Adult, Indian Inhabitant
carrying on business from
Bharat Bhuvan, 468, Kalbadevi
Road, Mumai:400 002. .. Plaintiff
V/s.
1 Designated Officer
Asst. Engineer (B & F), ‘C’
Ward, Municipal Office
Building, 76, Shrikant
Palrkar Marg, Nr. Chandanwadi
Electric Cemetery, Mumbai:400 002
2 Municipal Corporation of Greater
Mumbai, a body corporate constituted
under the Mumbai Municipal Corporation
Act, 1888 having its address at Mahapalika
Bhavan, Mahapalika Marg, Opp.C.S.T.,
Fort, Mumbai:400 001. .. Defendants
Appearance:-
Adv. Ms. Indira Labde for plaintiff.
Adv. Ms. Rawade for MCGM/defendants.
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2 Judg. in L.C.Suit No.3352 of 2019
CORAM : HIS HONOUR ADDL. SESSIONS
JUDGE
SHRI. R. M. MISHRA
CITY13 pt CIVIL COURT, GR.
BOMBAY
(C.R. NO.05).
DATE : 29/08/2023.
JUDGEMENT
This suit is filed for seeking relief of declaration and
permanent injunction.
2 Averments in the plaint are as under:-
It is contended that the plaintiff is in use, occupation and
possession of a shop admeasuring 3ft x 6ft in the building known as
Bharat Bhuvan, Kalbadevi Road, Mumbai(hereinafter referred to as the
suit premises). Since 1982, the plaintiff is/was occupying this shop as a
sub tenant of Badsha Coldrinks Depot till February 2006 and thereafter,
being tenant, he is regularly paying rent of the said shop. He is carrying
on business in the suit premises in the name and style Golden Time
Corner. Somewhere in the year 2002, Bharat Bhuvan Tenant’s
Association decided to repair the entire building. Accordingly, on
02/10/2002, a meeting was held which was duly attended by the
plaintiff. The plaintiff had also filed RAD Suit No.1224 of 2003 before
the Small Causes Court seeking declaration of tenancy of the suit
premises which was decreed in favour of the plaintiff on 10/02/2006.
The plaintiff had also filed police complaint 09/01/1993 regarding
destruction of the stall during riots.
3 The plaintiff suddenly received a notice U/s.351 of the
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3 Judg. in L.C.Suit No.3352 of 2019
MMC Act 1888 dt.15/10/2009. The plaintiff immediately replied to the
said notice through his advocate letter dt.07/11/2019 and also
forwarded the documents alongwith said letter. However, the plaintiff
received a letter dt.05/12/2019 in which the plaintiff was called upon
to comply with the said order within seven days. It is contended that
the suit premises is in existence as far back as 1950 i.e. prior to the
datum line. The impugned order is arbitrary and capricious. The
plaintiff, therefore, prayed for relief of declaration that the notice
U/s.351 of the MMC Act 1888 dt.15/10/2019 and the order dt.
05/12/2019 in respect of the suit premises are illegal, bad-in-law,
inoperative, nullity and liable to be cancelled. The plaintiff further
prayed for relief of permanent injunction restraining the defendants
from taking any action pursuant to the said notice and order in respect
of the suit premises.
4 The defendants vide reply-cum-written statement Ex.5
resisted the suit mainly on the ground that in view of Section 515A of
the MMC Act, this Court has no jurisdiction to entertain this suit. The
suit is also bad in law for non description of the suit premises in terms
of Rule 3 order 7 of the Code of Civil Procedure. On the basis of
complaint, usual round of inspection by the officer of defendants on
08/10/2019, it was found that the plaintiff unauthorizedly installed a
stall on the outer wall of Bharat Bhuvan building by using wooden ply
material admeasuring 2m x 0.5m x 2.2m without taking any permission
from the competent authority of these defendants. The plaintiff failed to
produce any such permission on being asked by the officer of the
defendants. Therefore, after taking measurement of the said structure,
inspection report was prepared and photographs of the said structure
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4 Judg. in L.C.Suit No.3352 of 2019
were also taken. After inspection report was put up before the
Designated Officer of the defendants, he came to the conclusion that the
plaintiff has erected unauthorized structure, therefore, show cause
notice was issued U/s.351 of the MMC Act 1888 on 15/10/2019 calling
upon the plaintiff to show cause as to why the said unauthorized work
should not be pulled down. However, the plaintiff failed to produce any
documentary proof to show that the said construction is made by
seeking permission from the competent authority. Therefore, the
Designated Officer passed the speaking order of demolition dt.
05/12/2019. The documents relied upon by the plaintiff do now show
the authorization of the notice structure. The plaintiff also failed to
show the existence of the notice structure prior to 01/04/1962 which is
datum line for the Commercial structure to be considered for tolerated
category. Rest of the averments which are adverse against these
defendants are denied in toto. It is, thus, contended that the suit is
liable to be dismissed with costs.
5 On the basis of rival pleadings, issues are framed by my
learned Predecessor at Ex.6. Those issues are reproduced here. My
findings are recorded thereon with reasons enumerated therein, are as
under.
Sr. No. ISSUES FINDINGS.
1 Whether plaintiff proved that alleged
action of defendant is unlawful?
Affirmative
2
Whether the plaintiff is entitled to
declaration, as prayed?
Affirmative
3
Whether the plaintiff is entitled to
perpetual injunction, as prayed?
Affirmative
4 Whether the plaint is maintainable?. Affirmative
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5 Judg. in L.C.Suit No.3352 of 2019
5 What order and decree? As per final
order
R E A S O N S
AS TO ISSUE NO.1 TO 4:
6 In order to substantiate the plaint averments, the plaintiff
Abbas Ali examined himself as PW-1 at Ex.7. Reliance is placed on the
deed of assignment, rent receipts, electricity bills, Shop and
Establishment Certificate, Stall Board Licence, assessment record,
inspection report and photograph(Ex.9 colly.), copy of minutes of
meeting dt.02/10/2002 and receipt issued by Bharat Bhuvan Tenants’
Association(Ex.10), certified copy of decree dt.10/02/2006 in RAD Suit
o.1224 of 2003(Ex.11), copy of police compliant dt.9/1/1993 (Ex.12),
copy of notice dt.15/10/2019 U/s.351 of MMC Act(Ex.13), copy of
reply dt.07/11/2019 (Ex.14) and the order dt.05/12/2019 (Ex.15).
7 On the other hand, on behalf of defendants, Nilesh Vinod
Tembhurne, Jr. Engineer(B & F), C Ward is examined as DW-1(Ex.17).
8 During the course of arguments, learned advocate for the
plaintiff submitted that the dispute is pertaining to the Stall. In the year
1963, DP plan was introduced for the first time in Mumbai. Said
building in which the suit premises is situated is 100 years old.
Therefore, there is no question of sanctioned plan of the said building.
Learned advocate for the plaintiff emphasized on the copies of rent
receipts and also orders passed in the proceedings which were filed by
the plaintiff in respect of the suit premises. Learned advocate for the
plaintiff, therefore, vehemently submitted that the plaintiff has duly
proved that the impugned notice and the order are illegal, unlawful
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6 Judg. in L.C.Suit No.3352 of 2019
and liable to be set aside. In support of her submissions, learned
advocate for the plaintiff placed reliance on;
1) Municipal Corporation of Greater Mumbai V/s. Rajendra
Phulchand Gupta & Ors., Appeal From Order(St)No.16017 of
2021 in L.C. Suit No.770 of 2021 order dt. 28/02/
2022(Bombay High Court),
2) Mr.Yogesh Megaji Gada V/s. The Municipal Corporation of
Greater Mumai & Anr., Writ Petition No.2243 of 2023, Order
dt.10/04/2014(Bombay High Court),
3) Western Refrigeration V/s. The State of Maharashtra, Writ
Petition No.2544 of 2021, order dt.17/03/2023,(Bombay High
Court),
4) Shri Vadilal Maganlal Trevadia V/s. Bombay Municipal
Corporation and Ors., Writ Petition No.1447 of 1995, order
dt.09/06/2020(Bombay High Court),
5) Commissioner of Central Excise V/s. M/s.Brindavan
Beverages(P) Ltd., Appeal(Civil) No.3417-3425 of 2002, order
dt.15/06/2007(Supreme Court),
6) Sopan Maruti Thopte & Anr. V/s. Pune Municipal
Corporation, AIR 1996 Bom 304,
7) Union of India V/s. Ibrahim Uddin & Anr., Civil Appeal
No.1374 of 2008, Order dt.17/07/2012(Supreme Court),
8) Mrs.Lilly P. Pandit V/s. Mumbai Municipal Corporation of
Greater Mumbai, Writ Petition(L)No.88 of 2014, Order
dt.16/01/2014(Bombay High Court),
9) B. Santoshamma & Anr. V/s. D. Sarala & Anr., Civil Appeal
No.3574 of 2009 with Civil Appeal Nos.3575-3577 of 2009,
order dt.18/09/2020(Supreme Court).
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7 Judg. in L.C.Suit No.3352 of 2019
On the other hand, learned advocate for the
defendant/MCGM vehemently submitted that in the suit challenging the
notice issued U/s.351 of the MMC Act, the owner/occupier of the notice
structure has to prove that the notice structure has been constructed as
per the approved plan or by seeking necessary permissions from the
competent authority. In the absence of approved plan or permission,
the owner/occupier has to prove that the notice structure is in existence
since prior to the 1/4/1962 in case of non residential and prior to
17/04/1964 in case the notice structure is for residential i.e. prior to
the datum line so as to consider the same as tolerable one. However, in
this case, neither approved plan or permission is filed nor anything is
produced to show that the notice structure is in existence since prior to
datum line. The learned advocate for defendant/MCGM, therefore,
vehemently submitted that the suit deserves to be dismissed.
9 In the light of respective submissions, I have carefully gone
through the oral and documentary evidence on record. As can be seen
from the evidence of DW-1 coupled with the respective pleadings and
copies of documents on record, this DW-1 has specifically deposed in his
examination-in-chief that a complaint was received from Ronak
Switchgear and Automation, therefore, the concerned officer of this
defendant inspected the suit site on 08/10/2019 and it was detected
that there is unauthorized installation of stall on the outer wall of
Bharat Bhuvan Building by using wooden ply material admeasuring 2m
x 0.5m x 2.2m without taking any permission from the competent
authority.
10 On the other hand, PW-1 deposed that he is in the use,
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8 Judg. in L.C.Suit No.3352 of 2019
occupation and possession of the suit premises admeasuring 3ft x 6 ft
in the Bharat Bhuvan Building since prior to 1982 and presently, he is
carrying the business in the suit premises in the name and style Golden
Time Corner.
11 After careful perusal of the copies of documents relied upon
by the plaintiff, it reveals that in terms of assignment deed
dt.20/1/1982 executed by Mr.Lalchand Kimatrai in favour of Sarafraz
Hussien and Abbas Ali(plaintiff), rights in the suit stall situated in the
said building has been assigned in favour of the plaintiff. The rent
receipts are issued in respect of Golden Time Corner from 1982
onwards. The plaintiff has also filed electricity bills, registration
certificate of establishment in the name of Golden Time Corner since
1982 onwards and copies of annexure A of assessment and collection
department regarding the said premises. Apart from the aforesaid
Municipal record of the suit premises, the plaintiff has also filed a copy
of minutes of meeting(Ex.10) of Bharat Bhuvan Tenants Association in
which presence of the deceased Sarafraz is recorded as being member
of the said Association towards the suit premises. As discussed earlier,
in the deed of assignment, the plaintiff and said Sarafraz(deceased) are
shown to be the assignee of the suit stall.
12 Another significant thing to be taken into consideration is
that the plaintiff has also filed a copy of decree(Ex.11) in RAD Suit
No.1224 of 2003 which was filed by the deceased Sarafraz Hussien
against Mr.Jamshed Khodadad Badshah and Ors. in respect of the suit
premises admeasuring 3 x 6 sq. ft. on the ground floor of Bharat
Bhuvan Building in which the plaintiff has been declared a tenant in
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9 Judg. in L.C.Suit No.3352 of 2019
respect of the suit premises and the defendants have been restrained by
an order of permanent injunction from disturbing possession of the
plaintiff in respect of the said premises without due process of law.
Moreover, the plaintiff has also filed copy of report(Ex.12) of dt.
9/1/1993 in which statement of Sarafraz Hussien is shown to have been
recorded on 10/01/1993 to show that the said stall was damaged in
the riot which took place on 9/1/1993.
13 Thus, having regard to the copies of the documents as
discussed above, even if the plaintiff failed to produce approved plan or
permission towards the construction of the notice structure, it is
apparent that the plaintiff is lawfully occupying the suit premises
situated in the ground floor of the said Bharat Bhuvan building as a
tenant thereof in which the plaintiff is lawfully running his business by
obtaining licence from the MCGM. The copies of documents(below
Ex.9) coupled with the copy of decree in RAD Suit No.1224 of 2003 and
police report and statement clearly indicate that the plaintiff is lawfully
occupying the said stall which he has obtained alongwith Sarafraz
Hussien under the right of assignment from the earlier tenant. It reveals
that the action has been initiated by the MCGM not only against this
plaintiff but against other three occupants whose stalls are situated on
the ground floor of the said building at the instance of Ronak
Switchgear and Automation. Therefore, in the light of documentary
evidence and the guidelines laid down in the case laws cited supra, I
come to the conclusion that the plaintiff has duly proved that the
impugned notice dt. 15/10/2019 U/s.351 of the MMC Act 1888 and the
order dt. 05/12/2019 in respect of the suit premises are bad in law and
liable to be set aside and the plaintiff is entitled to protect the suit
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10 Judg. in L.C.Suit No.3352 of 2019
premises in terms of the aforesaid impugned notice and order. In fact,
nothing is brought on record on the part of defendant to show that the
suit as framed and filed is not maintainable. Therefore, issue No.1, 2, 3
and 4 are answered in the affirmative.
AS TO ISSUE NO.5:
14 In view of aforesaid findings on the issue No.1 to 4, suit
deserves to be decreed with costs. In the result, following order is
passed.
ORDER
1 Suit is decreed with costs.
2 It is hereby declared that the notice dt.15/10/2019 issued
under Section 351 of the MMC Act 1888 and the speaking order
dt.5/12/2019 in respect of the suit premises are bad in law and
therefore, liable to be set aside.
3 The defendants are hereby permanently restrained from
taking any action of demolition pursuant to the notice dt.15/10/2019
issued under Section 351 of the MMC Act and the speaking order
dt.5/12/2019 in respect of the suit premises.
4 Decree be drawn up accordingly
Date:29/08/2023. (R. M. Mishra )
Judge, City Civil Court,
Dictated on :29/08/2023. Gr.Mumbai.
Typed on :30/08/2023.
Signed on :02/09/2023.
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11 Judg. in L.C.Suit No.3352 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
02/09/2023 11.05 a.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
29/08/2023.
JUDGMENT/ORDER signed by P.O.on 02/09/2023.
JUDGMENT/ORDER uploaded on 02/09/2023.
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