Mohammed Imran Mohammed Akhtar ... vs The Municipal Corporation Of ...
2021 Latest Caselaw 4017 Bom

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Shailaja


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION
             APPEAL FROM ORDER [STAMP] NO.26912 OF 2019
                                      A/W
                    INTERIM APPLICATION NO.1088 OF 2020
                                      A/W
             INTERIM APPLICATION [STAMP] NO.3451 OF 2021


Mohammed Imran Mohammed                       ]
Akhtar Qureshi                                ]
Proprietor of M/s. Abdullah Restaurant        ]
Indian Inhabitant of Mumbai                   ]
Aged about 36 yrs., Occ: Business,            ]
Having address at Abdullah Restaurant,        ]
Shop No.1 to 7, Ground Floor,                 ]
Abdullah Manzil, 74/76, Gujjar Street,        ]
Bhendi Bazar, Mumbai - 400 003.               ]       Appellant
                                              (Original Plaintiff)
           Vs.


1. The Municipal Corporation of               ]
    Greater Mumbai;                           ]
    Through The Commissioner                  ]
    Having address at Mahapalika              ]
    Building, Mahapalika Marg, CST,           ]
    Mumbai - 400 001.                         ]




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2. Designated Officer, C-Ward,                 ]
     C Ward Office Building, 76 Shreekant ]
     Palekar Marg, Near Chandanwadi            ]
     Electric Cemetery, Mumbai - 400 002. ]


3. The Asstt. Commissioner, C-Ward,            ]
     C Ward Office Building, 76 Shreekant ]
     Palekar Marg, Near Chandanwadi,           ]
     Electric Cemetery, Mumbai - 400 002. ]


4. The Asstt. Engineer (B & F) C-Ward,         ]
     C Ward Office Building, 76 Shreekant ]
     Palekar Marg, Near Chandanwadi,           ]
     Electric Cemetery, Mumbai - 400 002. ]           Respondents
                                      .....

Mr. Rakesh Kumar a/w Mr. D.M. Sheikh a/w C.S. Lamba a/w Aslam
Sheikh i/b Judicare Law Associates, for Appellant/Applicant.

Mr. Narendra V. Walawalkar, Senior Advocate a/w Ms. Madhuri More,
for Respondents-M.C.G.M.

                                      .....

                           CORAM            : PRITHVIRAJ K. CHAVAN, J.

                           RESERVED ON      : 24TH FEBRUARY, 2021.

                           PRONOUNCED ON : 4th MARCH, 2021.


JUDGMENT:

1. Dissatisfied with dismissal of Notice of Motion No.1817 of 2019 in L.C. Suit No.1913 of 2019 by the learned Judge, City Civil

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Court, Mumbai on 19th September, 2019, the appellant has preferred an appeal under Order-XLIII, Rule-1(r) of the Code of Civil Procedure, 1908 (for short 'C.P.C.').

2. Facts necessary for disposal of the appeal are summarized as under;

Subject matter of the suit is a structure purportedly constructed on a first floor with G.I. Sheet shed on Compulsory open terrace at M/s. Abdullah Hotel, 74/76 Gujjar Street, Mutton Street Junction, Chor Bazar, Mumbai 400 003 by way of using M.S girder for columns and Beams, M.S. joist for ladi slab admeasuring 7.40 mt X 14.70 Mt X 2.70 mtr (for short 'Notice structure"). Unauthorizedly constructed the shed on compulsory open terrace by way of using M.S. props frame work and roof covered with G.I Sheet admeasuring 7.40 mt X 14.70 mt X 2.70 mt.

3. The appellant claims to be the owner of the notice structure. The building wherein the notice structure is situate consists of Shops No. 1 to 7, 8, 9, 9A, 10 and 11 on the ground floor. The appellant is running a restaurant in the said building at ground floor in the name and style as "Abdullah Restaurant". There is a loft/mezzanine in between the first floor and the roof/terrace of the said premises. The appellant has filed a suit in respect of the said loft/mezzanine in the premises of the hotel.

4. It is contended that the Designated Officer of the respondents issued a notice dated 12th October, 2018 under section 351 of the Mumbai Municipal Corporation Act, 1888 (for short

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'M.M.C Act') stating that the appellant has unauthorizedly constructed the first floor at M/s. Abdullah Hotels admeasuring 7.40 mt X 14.70 mt. X 2.70 mt.

5. The appellant has come with the case that the said building was originally constructed in the year 1930. Appellant's grandfather was a tenant in respect of Shops No.1 to 7 in the said building. His grandfather died somewhere in the year 1989. After the death of his grandfather, appellant's father and thereafter, the appellant has been running a restaurant in Shop Nos.1 to 7 in the said building. It is contended that a plan has been approved by M.C.G.M on 28th November, 1995 for carrying out repairs to the said building. One more plan was sanctioned on 29 th June, 1996. There is one more plan dated 31st May, 1997 sanctioned by the M.C.G.M in respect of the said building. It is contended that record of the M.C.G.M reveals that 100% extensive repairs amounting to virtual construction of the said building in the year 1997 has been allowed including the lofts in the said building.

6. A notice under section 351 of the M.M.C Act was replied by the appellant on 22nd October, 2018 by stating the aforesaid facts. After considering the reply, a speaking order was passed by the Corporation on 10th December, 2018. It is observed by the Corporation that whatever material and documents supplied by the appellant are neither sufficient to hold that the notice structure is an authorized and sanctioned construction nor the material is sufficient to hold that the structure existed prior to the datum line. The Corporation has come up with a specific case that the

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appellant has carried out unauthorized structure on the first floor as described in the notice.

7. The learned Judge, City Civil Court by the impugned order dated 19th September, 2019, after going through the record found that the structure is without authorization and that the appellant had failed to make out a case for temporary injunction. Balance of convenience does not tilt in its favour and there is no question of irreparable loss. Thus, the learned Judge dismissed the Notice of Motion against which the appellant has approached this Court.

8. Heard Mr. Rakesh Kumar, learned Counsel for the appellant and Mr. Walawalkar, the learned Senior Counsel for the respondents-M.C.G.M.

9. Learned Counsel for the appellant took me through the various documents and correspondences on record in respect of the notice structure. He would argue that the notice structure is an authorized structure constructed after the authorization and sanction of plan by M.C.G.M. He would argue that it is the specific case of the appellant that there is no first floor premises admeasuring 7.40 mt X 14.70 mt. X 2.70 mt either above the open terrace of Abdullah Hotel or within the said restaurant as described in the impugned notice dated 12 th October, 2018 and the speaking order dated 10th December, 2018. M.C.G.M under the guise of the impugned notice and speaking order intends to demolish the legal, sanctioned, approved and protected loft of the appellant in the premises.

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10. The learned Counsel would argue that the learned Judge has failed to appreciate that in the reply of the M.C.G.M, it is not their case that the notice structure is different and the first floor described by the M.C.G.M in the impugned notice and speaking order is different. Since there are triable issues, the learned trial Court ought to have restrained the M.C.G.M from demolishing the notice structure. It is also argued that contention of the appellant seeking permission to get the structure regularized has been misconceived by the learned Judge by holding that the appellant has no prima facie case. Learned Counsel took me through the speaking order dated 10th December, 2018, sanctioned map of the M.C.G.M and un-scaled sketch of the said building.

11. On the other hand, Mr. Walawalkar, learned Senior Counsel for M.C.G.M opened his arguments by contending that the appellant is mixing shed with the first floor/loft. According to Mr. Walawalkar, there is an unauthorized erection of the notice structure on the first floor by the appellant which is quite clear from the contents of the notice and speaking order as well as photographs tendered on record. The learned Senior Counsel has supported the impugned order also by drawing my attention to the cadestral survey report which depicts a rectangular structure.

12. What is required to be considered in an appeal under Order- XLIII, Rule-1(r) is that whether the learned trial Judge has rightly and correctly exercised his discretion in refusing the equitable relief to the appellant without going into the merits of the case?

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13. At the outset, it must be mentioned that the pleadings in the plaint as well as Memo of Appeal are so prolix and verbose which are totally against the provisions of Order-VI, Rule-2 of the C.P.C.

14. The impugned notice dated 12th October, 2018 under section 351 of the M.M.C Act indicates that the M.C.G.M has noticed that the unauthorized structure has been erected in contravention of the provisions of section 342 and 347 of the M.M.C Act which is without permission from the competent authority. The appellant has been directed to show sufficient cause as to why the said building or work should not be pulled down. The appellant was, inter alia, intimated that he would be liable to prosecution under section 475-A of the M.M.C Act. The schedule of the unauthorized structure as given by the M.C.GM is as under;

"1. Unauthorizedly constructed 1st floor and G.I Sheet shed on compulsory open terrace at M/s. Abdullah Hotel, Chor Bazar, Mumbai 400 003 by way of using M.S. Girder for columns and Beams, M.S. Joist for ladi coba ladi slab admeasuring 7.40 mt. X 14.70 mt X 2.70 mt.

2. Unauthorizedly constructed the shed on compulsory open terrace by way of using M.S. props frame work and roof covered with G.I Sheet admeasuring 7.40 mt X 14.70 mt X 2.70 mt.

15. Admittedly, after preferring this appeal, the appellant has voluntarily removed the structure at Sr. No.1. It is the contention of the appellant that the notice structure is authorized one which

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is not on the first floor admeasuring 7.40 mt X 14.70 mt. X 2.70 mt either above the terrace of the said building or within the premises of the said building. In that regard, it would be expedient to see the speaking order dated 10 th December, 2018. After considering the reply and all the 16 documents tendered on record by the appellant, the Competent Authority-Assistant Designated Officer concluded that none of the documents are sufficient to construe that the notice structure has been authorized by the M.C.G.M, inter alia, directing him to remove/demolish or pull down the structure within 15 days from receipt of the said speaking order.

16. It would be important to go through the documents at Sr. No.3, 4, 5 and 16 which are relevant in so far as the present appeal is concerned. The respondentss-M.C.G.M has passed the following remarks;

"[3]Document:- Photocopy of property car (Cadastral Survey No.3677) Remarks:- This is the photocopy of property card, does not in any way reflects the status of notice structure (specifically length, width and height, schedule of work property under reference). Hence, it cannot be accepted as a document for proving the authenticity of the notice structure.

[4] Document:- Photocopy of Cadastral survey plan C.S.

no.3677 Remarks:- This is the cadastral survey plan C.S. No.3677, it show the 1 that means on plot c s

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no.3677 only a ground floor structure not having any upper floor structure. It does not in any way reflects the permission sanction from competent authority, i.e M.C.G.M, status of notice structure (specifically length, width and height, schedule of work property under reference) Hence, it cannot be accepted as a document for proving the authenticity of the notice structure.

[5] Document:- Photocopy assessment bill (CX1502360070000) (2015-2016) Remarks:- This is photocopy assessment tax bill, it does not in any way reflects the permission sanction from competent authority i.e M.C.G.M, status of notice structure ((specifically length, width and height, schedule of work property under reference). Hence, it cannot be accepted as a document for proving the authenticity of the notice structure. [16]Document:- Photocopy of plan dtd 06.05.1997.

Remarks:- This is the photocopy of plan dtd 06.05.1997, issued under no.EB/4597/CAR dtd 06.05.1997 property belongs to C S no. 3677, M/s. Abdullah Hotel, 74/76, Gujjar Street, Mumbai 400 003 in this regards this office has verified the same with Assistant Engineer (Building Proposal) City-III vide letter Ex Eng/3681 (BP) City III dt 22.11.2018. As the plan copy is self explanatory, in the approved plan the structure is only a ground floor structure. As per approval in the plan structure is different and

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notice structure is different. The MC.GM authority issued the approval u/no EB/4597/CAR dt 06.05.1997 is given only for carrying out the repairs i.e the existing authorized portion of the building without prejudice to the right of Municipal Corporation of Greater Bombay to take action/ to continue action against any unauthorized construction/unauthorized users of the building. In which, it does not in any way reflects the permission, sanctions from competent authority i.e M.C.G.M, status of notice structure (specifically length, width and height, schedule of work property under reference). Hence, it cannot be accepted as a document for proving the authenticity of the notice structure".

17. Thus, it can be seen that prima facie, the appellant has been trying to impress that the portion which is a notice structure is nothing but a loft and not an unauthorized first floor. So far as document at Sr. No.16 is concerned, upon which, the appellant has heavily placed his reliance indicates that in the plan approved the structure is only the ground floor structure. As per approval in the plan, structure is different and the notice structure is different. The Authority of M.C.G.M issued the approval under Letter No. EEBPR/4597/C/AR dated 6th May, 1997 only for carrying out the repairs i.e existing authorized portion of the building without prejudice to the rights of the Municipal Corporation to continue an action against unauthorized construction. M.C.G.M has specifically described the length, width, height and schedule of unauthorized

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construction made by the appellant. Thus, there is no prima facie case.

18. Learned Counsel for the appellant has drawn my attention to pages No.106 and 107 of the record which is nothing but a sketch without scale depicting the unauthorized structure above the open terrace by using M.S. prop frame work and roof covered with G.I. sheet admeasuring 7.40 mt X 14.70 mt. X 2.70. A question has rightly been asked by Mr. Walawalkar that if the said notice structure is authorized and constructed by virtue of approved sanctioned plan then why the appellant seeks it's regularization which itself shows that the said structure is not authorized one. Sketch at Pages 106 and 107 is not in scale. However, it indicates the notice structure erected which according to M.C.G.M is an unauthorized structure above the terrace of the ground floor.

19. The map annexed with the Memo of Appeal indicates that the approval was given only for carrying out repairs to the existing authorized portion of the building without prejudice to the right of the Municipal Corporation of Greater Mumbai to take action against the unauthorized construction/unauthorized user of the building. My attention has been drawn by the learned Counsel for the appellant to a document dated 26th March, 1997 at Page 36 in which the subject is repairs to building No.74-76 at Guzar Street, C.S. No.3677 of Bhuleshwar Division i.e the said building. Clause 2 and 3 read thus;

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"2)Lofts are proposed in eating house and 3 shops on ground floor and one room on 1 st floor. The areas of these lofts are approvable as per the D.C Regulation by keeping 2 M. clearance from the road side. The clear height of the above lofts is within the permissible limit of 5'. The architect has submitted the N.O.C from C.E.O which is at p. 181-

                183 for the said lofts,


             3) One W.C            is proposed as it is reflected in True
                  Extract        copy   of   which is at p. 35 which is

considered by the undersigned or otherwise shop owner do not have toilet facility.

The Ward staff has issued the stop-work notice as the work was found beyond approved plan and the N.O.C Holder has obtained stay on it. As work is carried out beyond approved plan, as per A.M.C's circular (copy at p.191), the penalty of 10% to 15% of land cost may be charged for regularisation of work done without approval but work is approvable.

In view of the above, Ch. E. (D.P) /Dir (ES & P)'s approval is requested on the following points and to approve the amended plan at p.

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Sr. Points for Consideration Ch. E. No. (D.P.) Dir.

(ES&P)' s orders A To allow 100% extensive repairs amounting to virtual reconstruction as per the revised repairs policy by condoning the deficiencies at 10% of the normal premium by considering 1.5 M. open spaces as adequate as this is non-

cessed building.

B To allow repairs in R.S.J in set back area with usual undertaking for not claiming any compensation for the structures with twin column arrangement at the R.L, so as to detach the part of the building falling within setback.

C. To allow the lofts as proposed in the plan which is approvable as per D.C Reg. Keeping clear of height of 4'-11" above the loft

20. It seems that what has been permitted is 100% repairs of the loft. It nowhere says that under the garb of the repairs, unauthorized structure can be erected which has already been referred to while giving remark on document No.16 in the speaking order dated 12th October, 2018. Photographs on record also, prima facie, indicate that the notice structure is erected above the roof of the ground floor.

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21. Even, in an order dated 21st January, 2020, this Court (Coram: A.S. Gadkari, J.) while admitting the appeal recorded that the photographs produced on record (Page 519 of the Appeal) clearly indicate that "loft" as contended by the appellant is in fact first floor constructed by him for which notice dated 12 th October, 2018 was issued by the Corporation. For the said reason, interim relief was refused and hearing of the appeal was expedited.

22. In that context, it would be apposite to refer to a well-known judgment of this Court in case of Sopan Maruti Thopte and another Vs. Pune Municipal Corporation and another, 1996 (1) Mh. L.J., 963. While disposing of a group of Writ Petitions, the Division Bench of this Court has elaborately discussed the powers of the Commissioner under section 351 (1) of the Bombay Municipal Corporation Act. The Division Bench has taken survey of various case laws on the subject including the aspect of audi alteram paretm i.e principle of natural justice and the doctrine of hearing which, according to the said ratio is not extended in every case. It would be apposite to reproduce paragraph 19 of the judgment which contemplates broad features to be considered before taking action under section 351 of the erstwhile B.M.C Act. They are as follows;

"19. Hence, on the basis of the law as discussed above, it is directed that after 1st May, 1996 the Bombay Municipal Corporation or the Municipal Corporations constituted under the B.P.M.C. Act would follow the following procedure before taking action under Section 351 of the B.M.C. Act or under S.260 of the B.P.M.C. Act.

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"(i) In every case where a notice under Section 351 of the B.M.C. Act/under Sec. 260 of B.P.M.C. Act is issued to a party 15 days time shall be given for submitting the reply. In case the party to whom notice is issued sends the reply with the documents, and shows cause, the Municipal Commissioner or Deputy Municipal Commissioner shall consider the reply and if no sufficient cause is shown, give short reasons for not accepting the contention of the affected party.

(ii) It would be open to the Commissioner to demolish the offending structure 15 days after the order of the Commissioner/Deputy Municipal Commissioner is communicated to the affected person.

(iii) In case the staff of the Corporation detects the building which is in the process of being constructed and/or reconstructed and/ or extended without valid permission from the Corporation, it would be open to the Commissioner to demolish the same by giving a short notice of 24 hours after drawing a panchanama at the site and also by taking photographs of such structure and/or extension. The photographs should indicate the date when the same were taken.

(iv) In case where the Municipal Corporation has followed due process of law and demolished the unauthorised structure and/or extension, if the same is reconstructed without valid permission within a period of one year, it would also be open to the Corporation to demolish the same by giving a short notice of 24 hours.

(v) If the offending structure and/or extension which is assessed by the Corporation for two years, notice shall provide for 15 days time to show cause. If the Deputy Municipal Commissioner comes to the conclusion that he requires assistance of the party, he may give an oral hearing if he deems fit and proper before passing the order. It is

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made clear that oral hearing is not at all compulsory but it is at the discretion of the authority.

(vi) In any other case the Corporation is directed to issue a show cause notice in case of any structure and/or extension other than those mentioned in clauses (i) to (iv) above. The Corporation shall provide for 7 days' time to show cause in such a case."

22. Now, we would deal with the contention that in most of cases, which are pending before the Courts, ad interim relief is granted without proper verification of plaintiffs right. In both the referring judgments, the learned Judges have emphasised this aspect and observed that unauthorised constructions are mushrooming in this city every day and unauthorised constructions are regularly put up and the interim reliefs continue without any hindrance. It is true that the stay order or interim relief in such cases affects the society as a whole and administration of Municipal Corporations. Further the result is number of suits are filed and pending against Municipal Corporations or Government bodies restricting the authorities from removing the unauthorised construction. Interim reliefs continue for years, may be in some cases the authorities do not file written statements or reply promptly or they do not move the Court for vacating the interim reliefs. The result is that implementation of law suffers. This also tends to lower the Court's prestige and clearly undermines the Rule of Law".

23. The Hon'ble Supreme Court in the latest judgment in the case of Municipal Corporation of Greater Mumbai and others Vs. Sunbeam High Tech Developers Private Limited, (2019) 20 Supreme Court Cases 781 reiterated the principles laid down by this Court in the case of Sopan Maruti Thopate (supra). The ratio laid down would be squarely applicable to the present set of facts.

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24. For the foregoing reasons, in my view, the impugned order needs no interference in the appeal. The respondents are at liberty to proceed further, in accordance with law.

25. The appeal is devoid of merits and as such, is dismissed. In the circumstances, there is no order as to costs.

26. In view of dismissal of the appeal, Interim Application No.1088 of 2020 and Interim Application [Stamp] No.3451 of 2021 stand disposed of.

[PRITHVIRAJ K. CHAVAN, J.]

After pronouncement of the judgment, Mr. Parth Zaveri, learned Counsel for the appellant seeks protection for two weeks in order to approach the Hon'ble Supreme Court.

In the interest of justice, there shall be interim protection for a period of two weeks. It is made clear that there shall be no further extension of time.

[PRITHVIRAJ K. CHAVAN, J.]

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