Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judg. in L.C.Suit No.3353 of 2019
MHCC010131012019
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.3353 OF 2019
Ramesh Vallabhdas Ashar
of Mumbai, Adult, Inhabitant
carrying on business from 169
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.3353 of 2019
CORAM : HIS HONOUR ADDL. SESSIONS
JUDGE
SHRI. R. M. MISHRA
CITY 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 7ft x 3ft in the building known as
Bharat Bhuvan, Kalbadevi Road, Mumbai(hereinafter referred to as the
suit premises). Prior to 1994, the plaintiff was occupying the suit
premises in the capacity of sub-tenant till February 2003. Thereafter,
the plaintiff is paying the rent of the suit premises as tenant thereof and
he is carrying on business in the suit premises in the name and style
M/s.Ambica Centre. The plaintiff devolved the rights in the notice
structure from M/s.Kalpana Dry Fruits owned by Sethia’s by way of
assignment of business. 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.52 of 2001 before the
Small Causes Court seeking declaration of tenancy of the suit premises.
The suit was decreed in favour of the plaintiff on 24/04/2003. The
plaintiff had also filed Suit No.2943 of 2003 in the City Civil Court,
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3 Judg. in L.C.Suit No.3353 of 2019
Bombay for injunction restraining the defendants from dispossessing
him from the suit premises without following due process of law. He is
in possession of letter dt.25/09/2008 issued by MCGM, inspection
extracts and various correspondences between Indian Posts and
Telegraphs Department and Kalpana Dry Fruit Stores, letter dt.
15/10/1976, Municipal Licence for Stall Board dt.14/10/1965.
3 The plaintiff suddenly received a notice U/s.351 of the
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. 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 was conducted by the officer of
defendants on 08/10/2019 and it was found that the plaintiff
unauthorizedly installed a stall on the outer wall of Bharat Bhuvan
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4 Judg. in L.C.Suit No.3353 of 2019
building by using wooden ply material admeasuring 2.5m 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 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 unauthorised
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.
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5 Judg. in L.C.Suit No.3353 of 2019
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
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
Ramesh Vallabhdas Ashar has examined himself as PW-1 at Ex.7.
Reliance is placed on the rent receipts, electricity bills, Telephone bills,
Shop and Establishment Certificate, Stall Board Licence, agreement
pertaining to the suit premises, assessment record, 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.24/04/2003 in RAD Suit No.52 of 2001(Ex.11), certified copy
of decree dt.10/06/2009 in BCCC Suit No.2943 of 2003(Ex.12), letter
dt.25/09/2008, inspection report, correspondence between Indian Posts
and Telegraphs Department and Kalpana Dry Fruits, letter
dt.15/10/1976 and Municipal Licence dt.14/10/1965 for Stall Board
(Ex.13 colly.), notice dt. 15/10/2019 U/s.351 of MMC Act(Ex.14), copy
of reply dt.07/11/2019 (Ex.15) and the order dt.05/12/2019 (Ex.16).
7 On the other hand, on behalf of defendants, Nilesh Vinod
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6 Judg. in L.C.Suit No.3353 of 2019
Tembhurne, Jr. Engineer(B & F), C Ward is examined as DW-1 at Ex.18.
Reliance is placed on copy of inspection report dt.08/10/2019(Ex.20),
copy of notice U/s.351 of MMC Act, dt.15/10/2019(Ex.21) and
speaking order dt.05/12/2019(Ex.22).
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
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
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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).
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
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8 Judg. in L.C.Suit No.3353 of 2019
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
2.5m x 0.5m x 2.2m without taking any permission from the competent
authority.
10 On the other hand, PW-1 Ramesh deposed that he is in the
use, occupation and possession of the suit premises admeasuring 7ft x
3ft in the Bharat Bhuvan Building since 1994 and presently, he is
carrying the business in the suit premises in the name and style
M/s.Ambica Centre. He also deposed that said Bharat Bhuvan Building
is around 100 years old and he has derived the rights in the notice
structures from M/s.Kalpana Dry Fruits owned by Sethia’s by way of
assignment of business.
11 After careful perusal of the copies of documents relied upon
by the plaintiff, it reveals that the receipts which are stated to be the
rent receipts(Ex.9) are issued on the letter head of Kalpana Dry Fruit
Stores which are not challenged by putting any kind of suggestions in
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9 Judg. in L.C.Suit No.3353 of 2019
the cross examination of PW-1. The plaintiff has also filed original
telephone bills of the year 1972 in the name of M/s.Kalpana Dry Fruits
Stores, electricity bill of 1979 in the name of M/s.Kalpana Dry Fruits
Stores, Stall Board Licence dt.14/10/1965 in the name of partners of
M/s.Kalpana Dry Fruits Stores, telephone bills dt.15/2/2000 in the
name of the plaintiff in respect of ground floor shop No.169(Ex.9
colly.), registration certificate of establishment of M/s.Kalpana Dry
Fruits Stores in respect of shop No.169 of 17/09/1964(Ex.9 colly.).
Moreover, in the inspection report(below Ex.9) dt.18th October 1976
issued by the MCGM, it is specifically mentioned that there was
inspection of the said shop by the inspecting officer of the MCGM
towards a temporary Diwali Stall Board licence from 1/10/1976 to
10/11/1976. The allotment of new telephone connection issued by the
Indian Post and Telegraphs Department dt.22/11/1968 has been issued
to M/s.Kalpana Dry Fruits Stores, Bharat Bhuvan, 169, Princess near
Badshah Cold Drink House. Another copy of report dt.6/10/1964 is
issued by the licence department of Mumbai Municipal Corporation in
respect of Shop No.169 of M/s.Kalpana Dry Fruits Stores, the rent
receipts have been issued by Badsha Coldrink Depo from the plaintiff in
the yer 1994 and 1996 respectively. Apart from the aforesaid Municipal
record of the suit premises(below Ex.9), the plaintiff has also filed a
copy of minutes of meeting(Ex.10) of Bharat Bhuvan Tenants
Association.
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.52 of 2001 which was filed by the plaintiff against Mr.Jamshed
Khodadad Badshah and Ors. in respect of the suit premises in which the
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10 Judg. in L.C.Suit No.3353 of 2019
plaintiff has been declared a tenant in 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. The plaintiff has also filed
copy of judgment and decree in S.C. Suit No.2943 of 2003(Ex.12)
which was filed by the against 18 defendants. Perusal of the copy of
judgment and decree in the said suit shows that by passing a decree, the
Civil Court has granted permanent injunction in favour of the plaintiff
restraining the defendants from interfering and/or obstructing with his
possession of the suit premises without following due process of law.
Moreover, in a copy of letter dt.25/09/2008 issued by the MCGM,
ground floor premises of the said building is consisting 4 plus 2 stalls
apart from shop No.6, 7, 8 and 9.
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.
14 DW-1 himself has deposed in para 6 of his evidence that on
the complaint of Ronak Switchgear and Automation, suit premises was
inspected by the officer of the defendant. In fact, during his cross
examination also, this DW-1 admitted that on the basis of that
complaint, show cause notice was issued in this case. Taking this case
from another point of view, again it is significant to note that the suit
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premises has been proved to be in existence since long. The earlier
proceedings filed in the City Civil Court and Small Causes Court
coupled with the Shop and Establishment licence, Stall Board Licence
etc. clearly indicate that the plaintiff is in lawful occupation of the suit
premises and the entire action is initiated at the instance of the
aforesaid complainant. Therefore, in the light of documentary evidence
which is placed on record by the plaintiff and considering the guidelines
and ratio 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 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:
15 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.
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12 Judg. in L.C.Suit No.3353 of 2019
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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13 Judg. in L.C.Suit No.3353 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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