M/S. United Construction vs Municipal Corporation For ...
2016 Latest Caselaw 5473 Bom

    Dixit
                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                             
                                         CIVIL APPELLATE JURISDICTION
                          APPEAL FROM ORDER (STAMP) NO.25546 OF 2016




                                                                     
                                                 IN
                               NOTICE OF MOTION NO.3323 OF 2015
                                                 IN
                                B.C.C.C. L.C. SUIT NO.3354 OF 2014




                                                                    
            United Construction,                                          ]
            A Partnership Firm registered under                           ]
            Indian Partnership Act, 1932, having                          ]
            its Office at 3, Silver Shell, Ground Floor,                  ]
            Opp. Holy Cross, I.C. Colony, Borivali                        ]




                                                      
            (West), Mumbai - 400 103.                                     ]        .... Appellant
                           Versus       
            1. Municipal Corporation of Greater Mumbai                    ]
               having its Office at Mahapalika Bhavan,                    ]
               Mahapalika Road, Mumbai - 400 001.                         ]
                                       
                                                                          ]
            2. A.T. Corporation                                           ]
               having its office at A-2, 207, Plot No.1,                  ]
               Linking Road, Daulat Nagar, Relief Road,                   ]
               Santacruz (West), Mumbai - 400054.                         ]        .... Respondents
              
           



            Mr. Harish R. Pawar for the Appellant.
            Mr. P.G. Lad, Sr. Counsel, a/w. Ms. Madhuri More and Ms. Aparna
            Murlidharan, for Respondent No.1-BMC.





                                        CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                                        DATE       : 22ND SEPTEMBER 2016.





            ORAL JUDGMENT :

1. Admit. Heard learned counsel for the parties finally at the stage of

admission itself. Learned counsel for respondent No.1-Municipal

Corporation waives service of notice.

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2. This appeal takes an exception to the Judgment and Order dated

19th August 2016 passed by the City Civil Court, Mumbai in Notice of

Motion No.3323 of 2015 in L.C. Suit No.3354 of 2014. By the impugned

order, the Trial Court was pleased to dismiss the Notice of Motion and

thereby rejected the appellant's prayer for restraining respondent No.1-

Municipal Corporation from executing 'stop work orders' dated 21st

October 2014 and 13th July 2015 and the consequent orders passed by

respondent No.1-Municipal Corporation for demolition of the suit structure.

3. Brief facts of the appeal are to the effect that, by virtue of Sale Deed

dated 25th February 2014, the appellant has purchased the suit property

on 'as is where is' basis. The suit property, according to the appellant, is a

'ground + 4 floors building', formerly known as "Roop Niketan" and now

known as "Shanidev", bearing C.T.S. No.279 of Colaba Division, situated

at Street No.61-63, Rajwadkar Street, Colaba, Mumbai-400 005.

4. As per the appellant, even before he purchased the said property,

from the M.L.A. fund, initial amount of Rs.1,00,000/- and thereafter the

amount of Rs.10,00,000/- was sanctioned for repair work of the said

building. The work order to that effect was also issued on 1 st February

2014, the copy of which is produced at "Exhibit-D", page No.160, of the

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paper-book. Reliance is also placed on this work order to submit that,

along with the work order, there was also the plan sanctioned by the two

Executive Engineers of the MHADA, in which the suit structure is shown

as 'ground + 4 upper floors'. Reliance is further placed on the letter given

by the Architect, certifying that the said building was of 'ground + 4 upper

floors'. It is urged that in pursuance of the said work order, appellant has

started carrying out repair works and, admittedly, the said repair work was

of the property consisting of 'ground + 4 upper floors'. However, the notice

under Section 354A of the Mumbai Municipal Corporation Act, 1888 came

to be issued on 21st October 2014, calling upon the appellant to stop the

execution of work forthwith, or, to produce the permission within 24 hours.

In the said notice, it was alleged that there was unauthorized part

demolition and reconstruction of existing cessed building on its rear side.

5. On receipt of this notice, appellant approached the Trial Court and

filed the instant Suit seeking the relief of injunction, thereby restraining

respondent No.1-Municipal Corporation from taking any action in

pursuance of the said notice.

6. Along with the said Suit, the appellant also filed Notice of Motion

No.3354 of 2014. On this Notice of Motion, the ad-interim relief was

granted on 16th December 2014, directing both the parties to maintain

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status-quo till respondent No.1-Municipal Corporation files reply to the

said Notice of Motion.

7. The grievance of the appellant is that, in the meanwhile, the

respondent No.1-Municipal Corporation issued two more notices; first,

dated 13th July 2015, and, second, dated 1st August 2015, informing the

appellant that, he has carried out construction work, totally, of a new

building and without obtaining necessary permission or getting the plan

sanctioned for the same. It was further informed to him that, the reply he

has submitted to the notice already issued to him on 21 st October 2014,

being not satisfactory and hence not acceptable, whatever work he has

carried out is required to be stopped and needs to be demolished.

8. The appellant, therefore, again rushed to the Court and filed this

present Notice of Motion seeking the reliefs, as stated above, of

restraining respondent No.1-Municipal Corporation from taking any steps

of demolition of the suit structure in pursuance of the impugned two

notices.

9. This Notice of Motion came to be resisted by respondent No.1-

Municipal Corporation on several counts; firstly, by submitting that the

original structure was only of 'ground + 1 floor'. However, by misguiding

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the MHADA Authorities and producing forged documents in the name of

Architect, the appellant has misrepresented that it was the structure of

'ground + 4 upper floors', having 24 tenants. By placing reliance on

various documents, like, the Municipal Tax Assessment Bills, Electricity

Bills and the Voters' List, it was pointed out to the Trial Court that, since

beginning, the structure was only of 'ground + 1 floor' and there were only

12 to 13 tenants and not 24 tenants, as stated in the work order, or, as

claimed by the appellant. It was also pointed out before the Trial Court

that the appellant has not produced any sanctioned plan from the

respondent No.1-Municipal Corporation, which is the Planning Authority, to

show that earlier structure was of 'ground + 4 floors' and it was

authorized. It was further submitted that the plan on which the appellant is

relying upon to be certified by the two Executive Engineers of MHADA, on

the basis of the letter/certificate issued by the Architect, is totally

fraudulent. Respondent No.1-Municipal Corporation has taken action of

filing complaint with the Police against those two Executive Engineers of

MHADA. The offence is also registered against them and the Architect has

denied issuing of such letter/certificate. Thus, respondent No.1-Municipal

Corporation strongly opposed the grant of any such relief, as claimed by

the appellant, in the said Notice of Motion.

10. The respondent No.1-Municipal Corporation, at the same time, filed

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two other Notices of Motion calling upon the Trial Court to take necessary

action against the appellant for violating the order of status-quo and also

for demolition of whatever structure the appellant has so far completed,

during pendency of the Notice of Motion.

11. The Trial Court has, vide its impugned order, dismissed the Notice

of Motion filed by the appellant, on coming to the conclusion that, the sole

authority to approve the construction plan and to grant sanction is the

Municipal Corporation and appellant has not produced on record any

document, worth the name, to show that the structure earlier existing was

of 'ground + 4 upper floors'. It was held by the Trial Court that the entire

reliance of the appellant was on the plan of MHADA, certified by two

Executive Engineers of the MHADA. However, as the MHADA is not the

authority to approve the sanctioned plan, no reliance can be placed on the

said plan.

12. In view thereof, the Trial Court has dismissed the Notice of Motion

by holding that, the appellant has not placed any document to indicate

that construction of 'ground + 4 upper floors' has been sanctioned by the

respondent No.1-Municipal Corporation.

13. While challenging this order of the Trial Court in this appeal, the

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submission of learned counsel for the appellant is that, admittedly, at this

stage, the building having 'ground + 4 upper floors' is in existence. The

fact that the building was having 'ground + 4 upper floors' can also be

made out from the description of the suit structure, as given in the Sale

Deed, under which the appellant has purchased the same on 25 th

February 2014. Reliance is also placed by learned counsel for the

appellant on the list of the tenants, as annexed to the said Sale Deed, and

it is urged that, there are totally 24 tenants and they are situated or

located from ground to four floors; the details to that effect are also given

in the Schedule to the said Sale Deed.

14. Further, reliance is also placed by learned counsel for the appellant

on the work order issued by the Mumbai Building Repair and

Reconstruction Board, (for short, "the MBRR Board"), to submit that the

list of the tenants included therein, is also of 24 tenants.

15. Learned counsel for the appellant has then mainly relied on the

plan, alleged to be certified by the two Executive Engineers of the

MHADA, to show that, in the said plans also, the suit structure is

mentioned as 'ground + 4 upper floors'.

AO-St.-25546-16.doc

16. Then reliance is also placed on the Electricity Bills to show that the

first Electricity Bill is of the year 1961.

17. Thus, in sum and substance, an endeavour is made to submit that

the structure is in existence since before the datum date and it was, since

beginning, of 'ground + 4 upper floors'. Even the MHADA Engineers had

also sanctioned the plans for repair work of the structure consisting of

'ground + 4 upper floors' and the funds were also sanctioned for the same

from 'MLA Grant'.

18. Thus, according to learned counsel for the appellant, when,

admittedly, the said building is in existence at present, consisting of

'ground + 4 upper floors' and the Trial Court has also rejected the prayer

of respondent No.1-Municipal Corporation for issuing contempt against

the appellant for violating the status-quo order, in such situation, the

interest of justice requires that the existing suit structure be allowed to

continue as it is, thereby restraining respondent No.1-Municipal

Corporation from taking any action of demolition of the said structure till

the disposal of the Suit, so that, if sufficient opportunity is given to the

appellant, the appellant can produce and prove on record the documents

to show that earlier structure was also of 'ground + 4 upper floors' and not

only of 'ground + 1 floor'. Thus, according to learned counsel for the

AO-St.-25546-16.doc

appellant, this is a fit case where this Court should grant the discretionary

relief of interim injunction, restraining respondent No.1-Municipal

Corporation from taking any action in pursuance of the impugned notices

issued to the appellant for demolition of the existing suit structure.

19. However, as rightly submitted by learned counsel for respondent

No.1-Municipal Corporation, this is a fit case where not only such relief is

required to be rejected at the threshold itself, but, such practice and novel

way adopted by the appellant of carrying out construction, totally in

fiagrant violation of the rules and regulation of respondent No.1-Municipal

Corporation and violating the order of status-quo, continuing with the

construction and completing the same and, thereafter, coming to the Court

and contending that, as the construction is completed, it needs to be

protected, is required to be deprecated and needs to be stopped.

20. The facts of this case, as can be seen from the documents

produced on record by respondent No.1-Municipal Corporation, are self-

eloquent to the extent of being unequivocal. The documents produced on

record by respondent No.1-Municipal Corporation clearly indicate that,

since beginning, the suit structure was only of 'ground + 1 floor'. All the

Municipal Tax Assessment Bills and Electricity Bills, which are produced

on record, are more than sufficient to, prima facie, show that, the

AO-St.-25546-16.doc

description of the suit building given therein was of 'ground + 1 floor' and

there were only 11 to 13 tenants in the said property. The Electricity Bills

and Municipal Tax Assessment Bills of those tenants are alone produced

and could be produced on record. Appellant has not shown, except for the

alleged list of the tenants, which is annexed to the Sale Deed, which is a

private document, and to the work order, any other material, worth the

name, to show that, since beginning, it was a building consisting of

'ground + 4 upper floors', or, there were 24 tenants residing therein. There

is absolutely no iota of evidence on record to that effect.

21. There is also no evidence produced on record by the appellant to

show that respondent No.1-Municipal Corporation, which is the only

Planning and Sanctioning Authority, has, at any time, permitted the

appellant, or, sanctioned the plan for construction of 'ground + 4 upper

floors'.

22. As rightly held by the Trial Court, the entire reliance of the appellant

is on the plan, which is certified by the two Executive Engineers of

MHADA, on the basis of the alleged certificate issued by the Architect, in

which it is stated that the building was of 'ground + 4 upper floors'.

However, in respect thereof, respondent No.1-Municipal Corporation has

already lodged complaint against those two Executive Engineers of

AO-St.-25546-16.doc

MHADA at Colaba Police Station and C.R. No.173/2014 is registered

thereon against the two Executive Engineers of the MHADA and the

appellant. In the said C.R No.173/2014, the statement of the Architect of

MHADA, namely, Vilas G. Kore, is also recorded, in which he has

categorically stated that he has not signed on the plan or the letter and

someone has misused his name and forged his signature. On the basis of

the investigation carried out in the said C.R., Colaba Police has issued

letter dated 21st March 2016 stating that it was transpired that the said

building was only of 'ground + 1 floor'. In such situation, even at this prima

facie stage also, it is apparent and well spelt out that the plan allegedly

certified by the two Executive Engineers of MHADA, cannot be relied

upon, as it was obtained fraudulently. It is significant to note that, on the

basis thereof, the appellant has not only misguided the MHADA

Authorities, obtained work order, but, also misguided the Court and

obtained the status-quo order.

23. What is most distressing to note is that on the basis of the said

status-quo order, which was binding on the appellant also, the appellant

has gone ahead, demolished the existing structure and carried out and

completed further construction of four floors. The photographs produced

on record by respondent No.1-Municipal Corporation are self-speaking to

reveal what was the condition of the suit structure in the year 2014, when

AO-St.-25546-16.doc

the status-quo order was obtained. It was completely demolished,

whereas, now, in the year 2016, when the Officers of respondent No.1-

Municipal Corporation visited the suit premises, they found construction of

four floors to be complete. Admittedly, there is not a single document

under which the appellant has obtained the permission for construction of

four floors. The building already existing was also only of 'ground + 1

floor'. In such situation, it is apparent that whatever construction, which is

carried out by the appellant, upto four floors is in breach of the rules and

regulations of respondent No.1-Municipal Corporation. It is starkly

unauthorized, blatantly illegal and prima facie also in violation of the

status-quo order passed by the Trial Court.

24. Needless to state that such illegal and unauthorized construction

cannot be protected in any way. Moreover, as pointed out by learned

counsel for respondent No.1-Municipal Corporation, the construction

carried out is such that it is without plinth and also without usual slabs, but

it is only on iron columns. Such construction is hazardous, to say the

least, and dangerous to the lives of the occupants and also to the lives of

the persons passing nearby or residing adjacent. At-least under the order

of the Court, such construction can in no way be protected. Admittedly,

this structure is also not occupied and is not in a position to be occupied,

as is evident from the photographs dated 19th September 2016 produced

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on record by respondent No.1-Municipal Corporation. Therefore, it goes

without saying that, when the construction is apparently illegal, carried out

in violation of the status-quo order passed by the Court, it is not qualified

for protection from this Court.

25. As regards the submission of learned counsel for the appellant that

the Notice of Motion and Contempt Petition preferred by respondent No.1-

Municipal Corporation, for breach of the status-quo order, are rejected by

the Trial Court, the impugned orders passed by the Trial Court reveal that

they were rejected it being the prima facie stage and the evidence will be

necessary to prove that there was breach of such order, especially,

because the contempt proceedings in the nature of Order XXXIX Rule 2A

of CPC are having penal consequences, where it is required to be proved

strictly so as to take the necessary penal action or criminal action against

the contemnor. However, for the purpose of deciding this Appeal from

Order in Notice of Motion, prima facie view has to be taken and this prima

facie view is unequivocal that the appellant has carried out construction in

violation of the order of status-quo and also against the 'Rules and

Regulations of the Development', as prescribed in law. Such construction

cannot be protected and hence the impugned order passed by the Trial

Court of dismissing the Notice of Motion needs to be upheld and,

accordingly, this Appeal from Order stands dismissed with costs.

AO-St.-25546-16.doc

26. At this stage, learned counsel for the appellant requests this Court

to stay the execution and operation of the order passed by this Court for a

period of eight weeks from today. He submits that, since the year 2014,

when he has filed Suit, till the date, such protection, in the form of the

order of status-quo, was in existence and if the construction is

demolished, without ensuring that the appellant gets an opportunity to

challenge the order of this Court before the Hon'ble Supreme Court, the

appellant will suffer irreparable loss. It is also urged that, at present also,

the building is not occupied and hence there is no question of any danger

to the lives of the persons.

27. Learned counsel for respondent No.1-Municipal Corporation,

however, strongly resists this request by submitting that, such protection

cannot and should not be granted in the cases of this nature. According to

him, when the appellant has, as observed by this Court, violated the very

order of status-quo and the construction, which is standing at present, is

also dangerous not only to the occupants, who may not be occupying the

building, but to the persons residing nearby and the passers-by, such

protection should not be extended.

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28. In my considered opinion also, this is not a fit case where this Court

should extend the protection of status-quo granted by this Court, which is

apparently violated and undue benefit of the same is taken by the

appellant and when, prima facie also, it can be seen that the authorities,

like, MHADA were misrepresented by obtaining the plan certified by

forging the signature of the Architect. Hence, this prayer also stands

rejected.

29.

It is, however, clarified that all the observations made here-in-above

are only for the purpose of deciding this Appeal from Order and the Trial

Court, or, any other authority should not be swayed or influenced by the

observations made here-in-above.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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