Bombay High Court
Vitthal Maruti Parge vs Municipal Corporation Of Greater ... on 3 July, 2023
Bench: N. J. Jamadar
2023:BHC-AS:17904
ao-195-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
APPEAL FROM ORDER NO.195 OF 2023
IN
NOTICE OF MOTION NO.975 OF 2010
IN
L.C. SUIT NO.820 OF 2010
WITH
INTERIM APPLICATION NO.2493 OF 2023
Vitthal Maruti Parge ...Appellant/
Ori. Plaintiff
vs.
The Municipal Corporation of Greater Mumbai ...Respondent/
Ori. Defendant
Mr. Ashok Saraogi, for the Appellant.
Mrs. Smita Tondwalkar, for the Respondent-Corporation.
CORAM : N. J. JAMADAR, J.
RESERVED ON : APRIL 12, 2023
PRONOUNCED ON : JULY 03, 2023
JUDGMENT :
1. This appeal is directed against an order dated 9th March, 2023
passed by the learned Judge, City Civil Court, Mumbai in Notice of
Motion No. 975 of 2010 in L.C. Suit No. 820 of 2010 whereby the
said Notice of Motion came to be dismissed.
2. The plaintiff had taken out the said Notice of Motion to
restrain the defendant-Municipal Corporation and its officers from
acting upon a notice dated 19th January, 2010 purportedly issued
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under section 351 of the Mumbai Municipal Corporation Act, 1888
(the Act, 1888) and a speaking order dated 15 th March, 2010 passed
by the designated officer directing the petitioner to remove the
alleged unauthorizedly constructed first floor with BM walls and AC
sheets at Raghunath Bundhe Chawl, Passpoli village, Sakivihar
Road, Nitie, Powai, Mumbai 87 (the notice structure).
3. The plaintiffs had assailed the legality and validity of the
notice dated 19th January, 2010 and the speaking order dated 15th
March, 2010 in L.C. Suit No. 820 of 2010 on the ground that the
ground + mezzanine floor structure admeasuring 14' x 9.5' sq. feet
having height of 16' feet (the suit premises) was constructed by the
husband of plaintiff No. 1 prior to 50 years. Plaintiff No. 1 had
entered into an agreement to sale the suit premises in favour of
Plaintiff No. 2. The plaintiff No. 1 had documents of unimpeachable
character to establish that the suit premises had been in existence
in the same state since long. It was assessed to tax as well. A copy of
the assessment list was also annexed to the plaint.
4. Initially, the officers of the defendant-Corporation threatened
to demolish the suit premises without following the due process of
law. The plaintiff thus instituted L.C. Suit No. 1362 of 2009. The suit
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came to be decreed restraining the defendant-Corporation from
demolishing the suit premises without following the due process of
law. Defendant addressed a notice dated 19th January, 2010
purportedly under section 351 of the Act, 1888 alleging that the
plaintiff had unauthorizedly erected the notice structure. A reply
was given on 22nd January, 2010. The plaintiffs assert, without
considering the reply the designated officer passed an order dated
15th March, 2008 mechanically. The plaintiffs were thus
constrained to again approach the City Civil Court seeking
declaration that the impugned notice and speaking orders were
illegal and bad in law and for consequential injunctive relief. In the
said suit, the plaintiff took out Notice of Motion No. 975 of 2010.
5. Initially ad-interim protection came to be granted by the City
Civil Court.
6. Respondent-defendant resisted the Notice of Motion by filing
affidavit in reply and written statement. It was inter alia contended
that a complaint was received from National Institute of Industrial
Engineering that the occupier of the suit premises had carried
unauthorized vertical extension on the existing structure and
constructed additional floor with Brick Masonary Wall and A.C.
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Sheet roof adm.10'.4" x 7.0", 10'.4" x 9'.2". Therefore, a notice
under section 351 of the Act, 1888 was given on 19 th January, 2010.
The plaintiffs neither gave any satisfactory reply nor furnished any
document to show that the notice structure was either authorized
or tolerated. Thus a speaking order came to be passed on 15 th
March, 2010. The defendant has thus followed the due process of
law and the challenge to the action was wholly unsustainable.
7. By the impugned order, the learned Judge, City Civil Court
was persuaded to dismiss the Notice of Motion holding, inter alia
that the plaintiff failed to establish a prima facie that either the
notice structure was authorized or protected. A bald assertion that
the suit premises had been in existence since 50 years prior to the
institution of the suit was of no avail. Nor the documents placed on
record like ration card and voter ID were of any assistance in
advancing the cause of the plaintiff. It was further noted that
nothing could be placed on record to show that the notice structure
is protected under the provision of the Maharashtra Slum Areas
(Improvement, Clearance And Redevelopment) Act, 1971 (the Act,
1971). Thus, the Notice of Motion came to be dismissed.
8. However, since the interim protection had been in operation
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all these years, the learned Judge continued the interim protection
for a period of two weeks from the date of the impugned order;
which has since been continued by this Court.
9. Being aggrieved, the plaintiff No. 2 is in appeal.
10. I have heard Mr. Ashok Saraogi, the learned counsel for the
appellant, and Mrs. Smita Tondwalkar, the learned counsel for the
respondent-Corporation, at some length. With the assistance of the
learned counsel for the parties, I have perused the pleadings and
material on record.
11. At the outset, Mr. Saraogi, learned counsel for the appellant,
would urge that the impugned order came to be passed at a stage
where the suit itself ought to have been finality adjudicated. The ad-
interim order had been in operation for more than 12 years. At this
stage, the plaintiffs could not have been non-suited without
providing an opportunity to substantiate their case by adducing
evidence at the trial, submitted Mr. Saraogi.
12. It was further urged that the speaking order passed by the
designated officer suffers from a clear non-application of mind.
Though the reply to the notice under section 351 was filed under 6
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days of the notice, the designated officer proceeded to pass the
order directing the removal of the notice structure on the premise
that the plaintiff failed to produce any document within the
stipulated period. This approach vitiated the speaking order, urged
Mr. Saraogi.
13. An endeavour was made by Mr. Saraogi to draw home the
point that the respondent-Corporation has been following the policy
to allow the erection of mezzanine floor. The notice structure falls
within the frame work of the said policy. It was, thus, unwarranted
to issue notice in respect of the notice structure. Mr. Saraogi would
urge that the impugned action has been initiated at the instance of
National Institute of Industrial Engineering, without any
justification. Therefore, it is necessary to protect the suit premises
till the dispute is finally adjudicated at the trial.
14. In opposition to this, Mrs. Tondwalkar would support the
impugned order. It was urged that the designated officer had
correctly noted that documents were not submitted to substantiate
the claim of the plaintiff. A bald reply sans any document to show
that the structure is either authorized or protected is of no
significance. Even no assessment list was filed on behalf of the
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plaintiff. Mrs. Tondwalkar would submit that when a notice under
section 351 of the Act, 1888 is issued, it is incumbent upon the
occupant to either show that the structure is authorized or
tolerated. Mere pointing out infirmities in the notice or speaking
order is not sufficient. To bolster up this submission, reliance was
placed on an order passed by the Division Bench of this Court in the
case of Tushar Guru Salien vs. State of Maharashtra and Others1.
15. Mrs. Tondwalkar further submitted that the case that notice
structure deserves protection under the policy of the respondent in
respect of mezzanine floor is also unsustainable. The notice
structure cannot be said to be in compliance with the said policy
even if it is construed rather generously. Since the structure is
neither authorized nor protected and, thus, clearly unauthorized,
the plaintiffs do not deserve any protection, submitted Mrs.
Tondwalkar.
16. The fact that impugned action has its genesis in the complaint
of National Institute of Industrial Engineering (NITIE) becomes
evident from the judgment dated 7th November, 2014 passed by the
learned Judge, City Civil Court in LC Suit No. 1646 of 2010,
instituted by NITIE against the plaintiffs herein and the Municipal
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Corporation. In the said suit, NITIE had sought direction to the
Municipal Corporation to demolish the structure of first floor/
mezzanine floor over the room which was in the occupation of
defendant Nos. 1 and 2, the plaintiff in the suit. The learned Judge
noted that the defendant Nos. 1 and 2 therein had instituted the
instant suit No. 820 of 2010 and ad-interim orders were passed
therein. The learned Judge thus directed the Municipal Corporation
to demolish the illegal and unauthorized construction of first floor/
mezzanine floor of the suit premises therein, after following due
process of law.
17. Ms. Tondwalkar, the learned counsel for the respondent,
banking upon the aforesaid judgment, would urge that no fault can
be found with the impugned notice and the speaking order as the
fact that the notice structure is required to be proceeded against,
has been judicially recognized in LC Suit No. 1646 of 2010.
18. I have perused the aforesaid judgment. It does not appear
that in LC Suit No. 1646 of 2010 the Court had gone into the aspect
of the suit structure therein being either authorized or tolerated.
Instead, the Court proceeded on the premise that since the LC Suit
No.820 of 2010 instituted by the plaintiff herein/ defendant Nos. 1
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and 2 therein (wherein ad-interim relief was granted) came to be
dismissed in default on 19th July, 2012 and yet the defendant No. 3
Corporation had not taken any action in respect of the suit
structure, it was necessary to direct the defendant No. 3
Corporation to demolish the first floor mezzanine floor of the suit
premises by following due process of law.
19. In the case at hand, the learned Judge found that there was
no material to substantiate the claim of the plaintiff that the notice
structure was situated on the land duly notified as slum and thus
protected under the provisions of the Maharashtra Slums Act,
1971. The plaintiff did not place on record either the notification
issued under the Slums Act and/or photopass in respect of the suit
premises. This finding of fact recorded by the learned Judge, City
Civil Court appears rather impeccable.
20. The learned Judge was also of the view that though the
plaintiff had placed on record the assessment list, there was no
material to show that the said assessment list pertained to the
notice structure. The learned Judge thus was not prepared to
accede to the claim of the plaintiff that the notice structure has
been in existence since prior to 50 years. It was thus observed that
the notice structure is not protected under the prevailing policy of
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the Municipal Corporation. Mr. Saraogi, learned counsel for the
appellant, would submit that it had been a consistent stand of the
plaintiff that the notice structure is not the first floor, as alleged, but
a mezzanine floor which is duly protected under the policy of the
Municipal Corporation. Attention of the Court was invited to the
policy dated 8th August, 2005 for grant of permission for
regularization of loft/mezzanine floor constructed prior to 15 th
August, 1997, in existing authorized buildings. Mr. Saraogi would
urge that in terms of the said policy, the notice structure is entitled
to protection. Attention of the Court was also drawn to the reply to
the impugned notice dated 19th January, 2010, wherein it was
mentioned that the notice structure has been in existence in the
same condition comprising of ground + mezzanine floor.
21. In the plaint, the plaintiffs have asserted that the suit
premises consisted of ground + mezzanine floor. The reply to the
impugned notice also refers to the existence of the mezzanine floor.
While passing speaking order, the designated officer simply noted
that no document was produced within the stipulated period of
impugned notice under section 351 of the Act. The claim of the
plaintiffs that the notice structure was, in fact, a mezzanine floor
was not delved into by the designated officer.
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22. In the impugned order as well, the learned Judge, City Civil
Court has not adequately delved into the question as to whether the
notice structure deserves protection under the policy framed by the
Municipal Corporation for granting authorization to the mezzanine
floor which had been in existence prior to 15th August, 1997. This
aspect assumes significance as even in the judgment in the LC Suit
No. 1646 of 2010, the defendant No. 3 Municipal Corporation was
directed to take action against first floor/ mezzanine floor of the suit
premises therein.
23. This being the core question in controversy, the plaintiff could
not have been non-suited without providing an opportunity to
adduce the evidence to show that the notice structure being a
mezzanine floor, as claimed by the plaintiffs, deserves protection
under the policy of the Municipal Corporation.
24. In this context, the length of time for which the interim
protection has been in operation assumes significance. The interim
protection has been in operation since the year 2010. Municipal
Corporation filed the written statement in the month of September,
2010. The sheer time lag of more than 12 years since the passing of
ad-interim order warranted final adjudication of the suit.
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25. Since, the learned Judge, City Civil Court has not delved into
the aspect as to whether the notice structure is a mezzanine floor,
as claimed by the plaintiffs, the exercise of discretion in declining to
grant the interim relief, while ad-interim relief was in operation for
almost 12 years, warrants interference. Since the suit has been
instituted in the year 2010 and the defendant Corporation filed its
written statement in the month of September, 2010 itself, it would
be expedient in the interest of justice that the suit itself is finally
heard and decided expeditiously.
26. The element of balance of convenience tilts in favour of the
plaintiff. As the interim relief had been in operation for such a long
period, the plaintiffs would also suffer irreparable loss if, at this
stage, the injunction is refused and the notice structure is
demolished without providing an opportunity to the plaintiffs to
substantiate their case.
27. I am, therefore, persuaded to allow the appeal. Hence, the
following order.
ORDER
1] The appeal stands allowed.
2] The impugned order stands quashed and set aside.
3] Notice of Motion is made absolute in terms of prayer clause (a).
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4] Hearing of LC Suit No. 820 of 2010 stands expedited.
5] The learned Judge is requested to hear and decide the LC Suit
No. 820 of 2010 as expeditiously as possible and preferably within a
period of one year from the date of communication of this order.
6] In view of the disposal of the appeal, the interim application does
not survive and accordingly stands disposed.
(N. J. JAMADAR, J.)
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