M/S. Masjid Wa Madrasa Fatimatu ... vs Municipal Corporation Of Greater ...
2016 Latest Caselaw 5845 Bom

                                                        905 OJ AOST 27240 OF 2016.doc




                                                                                    
    vks
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION




                                                            
                         APPEAL FROM ORDER (ST) NO.27240 OF 2016
                                          WITH
                          CIVIL APPLICATION (ST) NO.27242 OF 2016
                                            IN




                                                           
                         APPEAL FROM ORDER (ST) NO.27240 OF 2016


          M/s Masjid Wa Madrasa Fatimatu Zohra (Ra)              ]




                                               
          Trust throgh its Trustee and                           ] Appellant
          General Secretary Mr. Ebrahim Kadar Khan
                                     ig                          ] Original
          Having address at Kantharia compound                   ] Plaintiffs
          behind Naz Hotel,. L. B.S. Marg, Navpada,              ]
          Kurla (W), MumbI 400 070                               ]
                                   
                    V/s.

          Municipal Corporation of Greater                       ]
          Mumbai,                                                ]
            


          having its office at Mahapalika Bhavan                 ] Respondent
          Mahapalika Marg, Mumbai 400 001                        ] Original
         



          "L" ward office at Municipal Market Bldg.              ] defendant.
          S. G. Barve Marg, Kurla (W)                            ]
          Mumbai 400 070                                         ]





          Mr. P. K. Dhakephalkar, Senior Advocate a/w Ms.
          Simeen Shaikh, a/w Ms. Rashmi Patil a/w Ms.
          Priyanka Gharge i/by M/s S.K. Shrivastav & Co,
          for the Appellant.





          Mrs.Madhuri      More,  for    the   Respondent
          Corporation.


                                  CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                                  DATE      : 04th OCTOBER, 2016.









                                                  905 OJ AOST 27240 OF 2016.doc




                                                                             
    ORAL JUDGMENT. :




                                                     
    1.             Heard learned counsel for the parties.

    2.             Admit.




                                                    

3. With the consent of learned counsel for both the parties, the

appeal is heard finally at the stage of admission.

4. This appeal takes an exception to the order dated 21st

September, 2016, passed by the City Civil Court Mumbai, in Draft Notice

of Motion in L.C. Suit No.2166, thereby refusing ad-interim relief of

injunction, restraining Municipal Corporation from taken any action in

pursuance of Notice dated 19.7.2016, issued under Section 351 of the

Mumbai Municipal Corporation Act, 1988 (for short called as, "MMC" Act"),

and the order dated 02.09.2016, passed by the Assistant Commissioner of

Municipal Corporation directing the appellant to remove unauthorized

structure within 7 days.

5. It is the case of the appellant that suit structure is used for

imparting education and offering Namaz for Muslim community since

1972. It is in existence since prior to 1962 and therefore is a protected

structure. In the suit bearing No.941 of 2007, in respect of the disputes

905 OJ AOST 27240 OF 2016.doc

amongst the landlords, Court Receiver was appointed and at present

entire Kantharia Mahal, of which suit property is a part, is in possession of

the Court Receiver.

6. In the backdrop of these facts, on 24.4.1990, Municipal

Corporation issued notice under Section 351 of the Mumbai Municipal

Corporation Act, calling upon the appellant to show cause as to why said

structure should not be demolished. After the appellant filed reply to the

said notice and on being satisfied with the said reply, the said notice and

the action thereunder were dropped. Thereafter again on 2.12.2013,

another notice under Section 354-A of the MMC Act, was issued calling

upon the appellant to stop construction. However, no action was taken in

pursuance of the said notice also which shows that said notice was also

dropped.

7. It is urged that, again on 19.7.2016, fresh notice came to be

issued under Section 351 of the MMC Act, calling upon the appellant to

show cause as to why the suit structure should not be pulled down. The

description of the structure was mentioned in the schedule and it is

submitted that it is more or less, same description, which was mentioned

in the earlier notice. The appellants have replied the said notice on

905 OJ AOST 27240 OF 2016.doc

27.7.2016 and thereafter the said order came to be passed respondent

corporation on 2.9.2016, calling upon appellant to demolish the said

structure on the count that it is illegal and unauthorized.

8. The appellant, therefore, approached the trial court for relief

of interim injunction restraining the respondent Municipal Corporation from

taking any action in pursuance of the said order. It is submitted by

learned counsel for appellant that trial court has, however, rejected interim

relief by simpliciter observing that the documents produced on record do

not show that the structure was in existence prior to 1972 or it is

protected structure. The documents also do not indicate that the alleged

structure is constructed with permission of the Municipal Corporation,

hence, the trial Court rejected ad-interim relief directing respondent

Municipal Corporation to file reply to the Notice of Motion till next date.

9. The submission of learned counsel for appellant is that the

very issuance of two earlier Notices in the year 1999 and 2013, more than

prima facie establish the existence of the said structure at least since year

1999, though according to appellant it is in existence prior to 1972.

Therefore, according to him, at this stage at least, interim relief needs to

be granted till respondent corporation files reply to the Notice of Motion

905 OJ AOST 27240 OF 2016.doc

and challenges the existence of the said structure. Learned counsel for

appellant has also placed on record the policy of the Government and the

resolution passed by the Government on 18th November, 2015 protecting

religious structures which were in existence since prior to 29.9.2009. In

view thereof, it is urged that on the basis of Government Resolution and

the policy, which is found reflected in the order passed by the Division

Bench of this Court (Coram: A. S. Oka & C.V. Bhadang, JJ.), in Society

for Fast Justice and ors -vs- State of Maharashtra and anr, in Public

Interest Litigation No.104 of 2010, dated 18th February, 2016, the

impugned structure, being of religious nature is required to be protected

till decision of the Notice of Motion.

10. Per contra, learned counsel for respondent corporation has

invited attention of this Court to the description of the suit structure, as

given in the earlier notices and also in the present notice and pointed out

that earlier, the suit structure was merely the brick masonry walls, M.S.

Pipe, A.C. sheet/GI sheet roof; whereas present structure is R.C.C.

ground + first floor and therefore, definitely there is unauthorized structure

carried out by the appellant and such construction being not proved in any

way to be carried with permission from the Municipal Corporation or

getting the plan sanctioned for the same, it is required to be demolished. It

905 OJ AOST 27240 OF 2016.doc

is urged that whatever documents, appellant had produced on record on

receipt of impugned notice, were considered by the Designated Officer,

Assistant Engineer of Municipal Corporation and thereafter, he has

passed said order, as those documents were not showing prima facie that

the suit structure in the present form was in existence prior to datum line

1st April, 1982. Hence according to learned counsel for respondent, trial

Court has rightly exercised its discretion in holding that the appellant has

failed to make out prima facie case for grant of interim relief and this

Court should restrain itself from interfering in the discretion exercised by

the trial Court, within the limited scope of appellate jurisdiction.

11. The impugned notice which is produced on the file of this

Court at page No.57 reveals that by the said notice, appellant was

directed to show cause as to how construction which he has carried is

legal and authorised. Schedule of the notice describes the structure found

at the site as follows :

"unauthorized of ground + first floor and R.C.C. structure

with R.C.C. column beam and slab and GI sheet roof admeasuring 40 ft x 30 ft square feet and height of structure if 25 feet approximately"

12. As against it, in the earlier notice which was issued to the

905 OJ AOST 27240 OF 2016.doc

appellant 24.4.1999, description of the unauthorized structure carried is,

as follows :-

"Construction of structure with brick missionary walls, M.S. pipe, A.C. sheet//G I sheet roof admeasuring 26'.3"x 34'.9"

ht. 12 at ridge level without B.M.C. permission on open land."

13. Thus, even a cursory perusal of the description of the suit

structure as given in the earlier Notice in year 1999 and the present notice

given in the year 2016, is more than sufficient to show that the nature of

suit structure is changed from A.C.C. sheet with brick masonry work to the

ground + first floor R.C.C. structure , R.C. C. column beam and slab.

14. It was, therefore, for the appellant to state under which

permission he has changed the nature of this structure, whether he has

obtained any permission from the Municipal Corporation to do so or got

the plan sanctioned for changing the total nature of the structure. The

appellant, as can be seen from the order passed by the Designated

Officer, or from the impugned order passed by the trial Court, has not

produced any document to show that suit structure standing at the site is

constructed after getting requisite permission or getting the plan

sanctioned from the Municipal Corporation.

905 OJ AOST 27240 OF 2016.doc

15. It is pertinent to note that on 02.12. 2013 also the stop work

notice was issued to the appellant informing him to stop the unauthorized

work of construction of the structure R.C.C beams and columns which

was in progress. Therefore, it is not that the appellant was not aware that

he has changed the nature of the suit structure and that too, he has

constructed unauthorized structure without getting requisite permission

from the Municipal Corporation. The appellant was also given opportunity

to show cause as to how structure was authorized. However, in the reply

given to the impugned notice, he has failed to do so. Whatever documents

which appellant has produced were duly considered by the Designated

Officer and while passing order, it was held that those documents do not

prove existence of the structure as it was standing on that day at the the

site since prior to either the year 1962 or 1972 or even to the year 1999.

16. Under such circumstances, when some illegal and

unauthorized structure of ground + first floor R.C.C. is carried out, as

described in the impugned notice and the appellant has prima facie failed

to prove legality of the said structure, it cannot be said that the trial Court

has committed any illegality in refusing the relief of ad-interim injunction

so as to warrant interference therein at the hands of this Court. Hence

appeal holds no merit and the same stands dismissed.

905 OJ AOST 27240 OF 2016.doc

17. It is made clear at this stage that the observations made

hereinabove are only for the purpose of deciding this appeal and trial

Court shall not get influenced by those observations and decide the

Notice of Motion independently, on its own merits.

18. Learned counsel for appellant then submits that if appellant

makes an application for regularization of the structure, the directions be

given to Municipal Corporation to consider the same. Learned counsel for

respondent corporation submitts that the Municipal Corporation will

consider such representation independently on its own merits.

19. As the appeal itself has been dismissed, Civil Application (ST)

No.27242 of 2016 does not survive and the same is disposed of

accordingly.

[DR. SHALINI PHANSALKAR JOSHI, J.]