Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judg. in L.C.Suit No.3354 of 2019
MHCC010131032019
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.3354 OF 2019
Jayprakash Vallabhdas Ashar
Age:61 Years, of Mumbai,
Adult, Indian Inhabitant
carrying on business from
Bharat Bhuvan, 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.3354 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 2’ x 4’ in the building known as
Bharat Bhuvan, Kalbadevi Road, Mumbai(hereinafter referred to as the
suit premises). Since prior to 1950, the plaintiff was occupying the suit
premises in the capacity of sub tenant till February 2006. 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
Ashar Colour Queen. 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.1223 of 2003 before
the Small Causes Court seeking declaration of tenancy of the suit
premises. The suit was decreed in favour of the plaintiff on
10/02/2006. The plaintiff had also filed Suit No.2942 of 2003 in the
City Civil Court, Bombay for injunction restraining the defendants from
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3 Judg. in L.C.Suit No.3354 of 2019
dispossessing him from the suit premises without following due process
of law. The said suit was also decreed in favour of the plaintiff by an
order dt.10/06/2009. The plaintiff had also filed police complaint
against Ketan Dodhia(Ronak Switch Gear and Automation) on
11/05/2019 and 15/05/2019 towards illegally pulling down a part of
the suit premises. Thereafter, he has reconstructed the said portion as
per the instructions of police.
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. 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
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4 Judg. in L.C.Suit No.3354 of 2019
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 1.15m 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
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5 Judg. in L.C.Suit No.3354 of 2019
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
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
Jayprakash Vallabhdas Ashar has examined himself as PW-1 at Ex.7.
Reliance is placed on the rent receipts, bank statements, 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
No.1223 of 2003(Ex.11), certified copy of decree dt.10/06/2009 in
BCCC Suit No.2942 of 2003(Ex.12), copies of police complaints made
by the plaintiff dt.11/05/2019 and 15/05/2019(Ex.13), 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.3354 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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7 Judg. in L.C.Suit No.3354 of 2019
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.3354 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
1.15m 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,
occupation and possession of the suit premises admeasuring 2’ x 4’ in
the Bharat Bhuvan Building since prior to 1950 and presently, he is
carrying the business in the suit premises in the name and style Ashar
Colour Queen.
11 After careful perusal of the copies of documents relied upon
by the plaintiff, it reveals that the rent receipts are issued in respect of
ground floor shop premises sometimes in the name of plaintiff and in
the name of V. K. Ashar i.e. Vallabhdas Kalyanji who appears to be the
father of the plaintiff since 1978 onwards below Ex.9. The plaintiff has
also filed original receipt of Stall Board Fee of dt.10/08/1949 issued by
the Bombay Municipality in the name of Vallabhdas Kalyanji.
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9 Judg. in L.C.Suit No.3354 of 2019
Registration certificate of Bombay Shops and Establishment in the
name of Vallabhdas Kalyanji Ashar on the address of Bharat Bhuvan
premises is also filed on record pertaining to the year 1989 onwards to
show that the plaintiff is carrying on the said business in the said
premises since long. Moreover, licence in respect of Stall Board/Bottom
Box/Cup-Board issued by the MCGM in the name of Vallabhdas Kalyanji
of 1969 onwards is also filed on record to show the existence of the suit
premises in the ground floor of the said building. In the inspection
report(below Ex.9), dt.18/6/1999 issued by the MCGM, it is specifically
mentioned that there was inspection by the inspecting officer of the
MCGM in respect of the suit premises occupied by Mr.Vallabhdas
Kalyanji in which it came to be mentioned that attached to the said
premises, there is projection of Cub-Board, Stall Board and Bottom Box
as per the licence size. Similar is the situation found in a copy of
inspection report dt.23/07/2002 and 05/10/2005 respectively(below
Ex.9) while inspecting the suit premises by the inspecting officer of the
MCGM.
12 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
plaintiff is recorded as being members of the said Association towards
the suit premises.
13 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.1223 of 2003 which was filed by the plaintiff against Mr.Jamshed
Khodadad Badshah and Ors. in respect of the suit premises admeasuring
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10 Judg. in L.C.Suit No.3354 of 2019
2 x 4 sq. ft. on the ground floor of Bharat Bhuvan Building in which the
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.2942 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, the plaintiff has also filed copy of N.C. reports(below Ex.13)
to show that in the year 2019, Ketan Jamanlal Dodia, occupant of the
adjoining shop Ronak Switchgear and Automation caused damage to
the shop of the plaintiff and also threatened to remove the shop
premises of the plaintiff.
14 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 copy of Stall Board Fee(below
Ex.9) dt.10/08/1949 clearly ind1icates that the suit premises is in
existence since prior to 1/4/1962 i.e. prior to the datum line. As
discussed earlier, DW-1 himself has deposed in para 6 of his evidence
that on the complaint of Ronak Switchgear and Automation, suit
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11 Judg. in L.C.Suit No.3354 of 2019
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.
15 Taking this case from another point of view, again it is
significant to note that the suit premises has been proved to be in
existence since prior to the datum line to consider the same as tolerated
one and in this backdrop, if no action would have been initiated on the
aforesaid complaint of Ronak Switchgear and Automation, there was
no reason for the Corporation to take any action in respect of the suit
premises. 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:
16 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.
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12 Judg. in L.C.Suit No.3354 of 2019
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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13 Judg. in L.C.Suit No.3354 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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