Mr.Mohd. Zuber Mohd.Yusuf vs Municipal Corporation Of Greater ...
2016 Latest Caselaw 6025 Bom

                                                                  (903) AOST 27460-16

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION
    Amk
                       APPEAL FROM ORDER (STAMP) NO. 27460 OF 2016




                                                                                    
                                            WITH
                        CIVIL APPLICATION (STAMP) NO. 27463 OF 2016




                                                            
          Mr. Mohd. Zuber Mohd. Yusuf Memon
          Age-48 years, Indian Inhabitant of
          Mumbai residing at Rambachan Singh




                                                           
          Compound, Vinoba Bhave Nagar,
          Kurla (W), Mumbai-400 070.                           .. Appellant

                   Vs.




                                                 
          Municipal Corporation for Gr. Mumbai
          (A Body Corporate incorporated under
                                        
          the Provisions of BMC Act, 1889) having
          its head office at Annexe Building,
          Mahapalika Marg, Mumbai C.S.T.,
                                       
          Mumbai - 400 001.                                    .. Respondent


          Mr. Virendra T. Dubey for the Appellant.
          Mrs. M. R. Bhoir for the Respondent.
            
         



                                    CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

DATE : 15th OCTOBER, 2016.

ORAL JUDGMENT

1. Admit.

2. With the consent of the learned counsel for the parties heard

finally at the stage of admission itself.

3. This appeal is preferred against the order dated 31.08.2016

passed by the City Civil Court, Mumbai in Draft Notice of Motion in L.C.

Suit No. 2058 of 2016 thereby refusing the ad interim relief as sought by

(903) AOST 27460-16

the appellant for restraining the respondent-Municipal Corporation from

taking any action in pursuance of the notice issued under Section 354-A of

the MMC Act on 23.05.2016 and in pursuance thereof, the order passed

by the Assistant Municipal Commissioner on 19.08.2016.

4. The case of the appellant is that, he is in possession of the

suit premises consisting of Ground + two floors area admeasuring about

1800 sq. ft. bearing CTS Nos.925 and 937, Rambachan Singh Compound,

Vinoba Bhave Nagar at Kurla (W), Mumbai-400 070. It is further his case

that the said construction consists of B.M. wall with A.C. sheet roof.

According to him, he has acquired said premises pursuant to the consent

terms dated 11.02.2016, filed in Suit No. 1359 of 2012. It is his case that

the said premises is in very same condition since inception and in

existence since prior to 1976. The area, in which the premises are

situated, is also declared as slum area vide Government Notification dated

12.02.1976. The structure is also assessed to the Municipal Taxes. He

has simply replaced the A.C. sheet roof in place of old one as the old one

was badly damaged. However, as his relations with the neighbours are

not cordial, they made false complaints to the Municipal Corporation and

the respondent-Municipal Corporation, acting on their complaints, issued

the impugned notice dated 23.05.2016 under Section 354-A of the MMC

Act calling upon him to stop immediately the erection of the unauthorized

construction of the second floor. He has replied the said notice with the

(903) AOST 27460-16

explanation that he is not carrying out any new construction but was just

replacing the A.C. sheet roof. He has also produced on record the

documents, like, the assessment bill of the year 1980. However, without

considering his contention, the final order came to be passed by the

Assistant Municipal Commissioner on 19.08.2016, thereby calling upon

him to remove the said construction on the ground that it is illegal and

unauthorized.

5. The appellant was, therefore, constrained to approach Trial

Court and by the draft Notice of Motion filed along with Suit, he sought the

relief of interim injunction restraining the respondent-Municipal Corporation

from taking any action in pursuance of the said notice and the final order.

6. The respondent-Municipal Corporation, however, resisted the

said Notice of Motion and after hearing the learned counsel for both the

parties, the Trial Court was pleased to reject the ad-interim relief.

7. The submission of the learned counsel for the appellant is

that, neither the respondent-Municipal Corporation nor the Trial Court has

properly considered his case. It is submitted that since beginning the suit

structure consists of Ground + two floors and he is not carrying out any

new construction but only changing the A.C. sheet roof. Secondly, it is

urged that the Trial Court has not considered the fact that, as the suit

structure is falling under the slum area, notified by the Competent

(903) AOST 27460-16

Authority, the Municipal Corporation cannot take any action. The reliance

is also placed on the unreported Judgment of this Court in the case of

Govardhan Ramnaresh Singh Vs. The Municipal Corporation of Gr.

Mumbai in Appeal from Order No. 257 of 1999 dated 15.04.1999 to

submit that once the construction is complete, the Municipal Corporation

cannot take any action under Section 354-A of the MMC Act and the

remedy lies somewhere in any other provision.

8. The reliance is also placed on the Judgment of this Court in

the case Shri Ramawatar Babulal Jajodia Vs. Municipal Corporation

of Gr. Mumbai, 2014 (2) ALL MR 303 to urge that the Municipal

Corporation has no jurisdiction to decide the complicated issues

specifically if they pertain to the slum area governed by the Slum Act.

According to the learned counsel for the appellant, therefore the impugned

order passed by the Trial Court rejecting the ad interim relief needs to be

quashed and set aside, especially, having regard to the notification issued

long back declaring the said survey number in which the suit premises fall,

namely, Survey No.257 as slum area.

9. Per contra, learned counsel for the respondent-Municipal

Corporation has strongly resisted these contentions by submitting when

the subject notice was issued, the construction was already in progress.

The appellant has not produced any document to show that the said

construction was carried out with due permission and getting the plans

(903) AOST 27460-16

sanctioned from the Municipal Corporation. The suit premises are not

assessed to census so as to attract the bar under the provisions of the

Maharashtra Slum Area Act and hence according to learned counsel for

the respondent-Municipal Corporation, the impugned order passed by the

Trial Court does not call for any interference.

10. In my considered opinion, the impugned notice issued to the

appellant on 23.05.2016 under Section 354-A of the MMC clearly goes to

show that, at the relevant time the unauthorized construction of second

floor was in progress and hence, the appellant was called upon to stop the

said construction or to produce the permission, if any, obtained from the

Competent Authority for carrying out such construction. The description of

the unauthorized construction, given in the impugned notice, is relevant

and it reads as follows:

"Unauthorized construction of second floor (Total 9 rooms) admeasuring 28 mtr x 7 mtr x 1.3 mtr ht. approx. on existing G+1 structure by using brick masonry wall at RamCacchan Tabela, C- Block, Opp. Siddiquiya Masjid, V. B. Nagar, Kurla (W), Mumbai-

70."

11. Now the description of the suit premises, which the appellant

claims to have been purchased from its earlier owner, by virtue of the

Consent Terms filed in the suit bearing No.3437 of 2012, as given in para

1 of the said Consent Terms is, as follows:

"It is agreed, declared and confirmed that the Defendants are liable to pay to the Plaintiffs the sum of Rs.28,00,000/- (Rupees Twenty eight lakhs only) being balance consideration in view of by virtue of and under Memorandum of Understanding dated 3rd day of August, 2011 for assignment of right and interest in respect of

(903) AOST 27460-16

land admeasuring 1250 Sq. Ft. out of land admeasuring 5,000 Sq. Ft. bearing Plot No. 257, CTS No. 937 and 925 of Village Kurla, Block, Ram Bachan Singh Compound, Saree Dying and Printing Karkhana, Gala No.2 Front, V. B. Nagar, Kurla (West), Mumbai-

400 070."

12. Thus, it is apparent that the premises which the appellant has

purchased by virtue of this Consent Terms is an open plot of land with one

Gala standing thereon. This description does not state that the

construction standing on the said land was of Ground + 2 upper floors. If,

it was so, there was no any reason for not to mention or give such

description. Though in the plaint, the appellant has given the description

of the premises as Ground + 2 upper floors but there is not a single

document, as observed by the Assistant Municipal Commissioner in his

final order, showing that the earlier structure which was in existence and in

respect of which the assessment was made for municipal taxes, was

consisting of Ground + 2 upper floors. The photographs, which were

produced on record by the Municipal Corporation and which the Trial Court

has considered while passing the impugned order, clearly reveal that when

the notice was issued to the appellant, the construction of second floor

was in progress. Even the photographs, which the appellant has

produced along with copy of the Judgment, on which he is relying on in the

Appeal from Order No. 257 of 1999, reveal that the construction of Ground

+ upper two floor was in progress.

13. Apparently, the burden was on the appellant to show that this

construction, which he has undertaken, was with proper permissions and

(903) AOST 27460-16

authority from the Municipal Corporation. 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 sufficient. 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 justified in

taking action against the said construction. Therefore, no interference is

warranted in the final order passed by the Assistant Commissioner and by

the Trial Court.

14. As regards the contention raised by the appellant is that, once

the suit construction is completed, then the remedy for Municipal

Corporation lies in some other provision and not in the provision like the

notice issued under Section 354-A of the MMC Act. However, in the

instant case, the photographs produced on record and the observations

made by the Trial Court, especially, recitals in the notice under Section

354-A reveal that when the notice was issued, the construction was in

progress. Moreover, there is no completion certificate or occupation

certificate to show that the construction is already completed. In view

thereof, the notice issued under Section 354-A of the MMC Act and the

(903) AOST 27460-16

action taken in pursuance thereof cannot be called illegal.

15. Even in respect of the Judgment relied upon by the learned

counsel for the appellant, that of Shri Ramawatar Babulal Jajodia

(supra), the same cannot be made applicable to the facts of the instant

case. As rightly submitted by the learned counsel for the respondent,

unless the suit structure is censused by the competent authority, mere

declaration of the said area as slum area is not sufficient to hold that the

Municipal Corporation has no authority to take any action against the

unauthorized constructions falling in the slum area. The Municipal

Corporation, being the Town Planning Authority, is having every power and

authority to take such action, therefore, this contention also fails.

16. The net result is that, as the Trial Court has, after considering

all the aspects, rightly rejected the ad interim relief of injunction claimed by

the appellant, no case is made out to interfere in the impugned order of

the Trial Court. The appeal holds no merits and hence stands dismissed.

17. In view of the disposal of the appeal, the civil application does

not survive and hence stands disposed of.

[DR. SHALINI PHANSALKAR-JOSHI, J.]