Bombay High Court
Suresh Shankar Rokade vs Municipal Corporation Of Greater ... on 27 June, 2018
Equivalent citations: AIRONLINE 2018 BOM 963
Author: V. M. Deshpande
Bench: V. M. Deshpande
901, 903 - AO. 276-18 & connected matters.doc
VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER No. 276 OF 2018
WITH
CIVIL APPLICATION No. 358 OF 2018
Suresh Shankar Rokade ... Appellant
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ... Respondents
WITH
APPEAL FROM ORDER (St.) No. 9483 OF 2018
WITH
CIVIL APPLICATION (St.) No. 9484 OF 2018
Suryakant Bhiwa Chawan ... Appellant
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ... Respondents
WITH
APPEAL FROM ORDER (St.) No. 9490 OF 2018
WITH
CIVIL APPLICATION (St.) No. 9491 OF 2018
Nila Mahendra Sanghavi ... Appellant
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ... Respondents
WITH
APPEAL FROM ORDER (St.) No. 9493 OF 2018
WITH
CIVIL APPLICATION (St.) No. 9494 OF 2018
Ambadas Anant Kapote ... Appellant
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ... Respondents
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WITH
APPEAL FROM ORDER (St.) No. 9498 OF 2018
WITH
CIVIL APPLICATION (St.) No. 9499 OF 2018
Vaishali Pramod Rajpurkar ... Appellant
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ... Respondents
WITH
APPEAL FROM ORDER (St.) No. 9503 OF 2018
WITH
CIVIL APPLICATION (St.) No. 9504 OF 2018
Lalitkumar Harilal Vibhakar ... Appellant
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ... Respondents
WITH
APPEAL FROM ORDER (St.) No. 9505 OF 2018
WITH
CIVIL APPLICATION (St.) No. 9507 OF 2018
Nitin Vasantrai Merchant ... Appellant
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ... Respondents
WITH
APPEAL FROM ORDER (St.) No. 9510 OF 2018
WITH
CIVIL APPLICATION (St.) No. 9511 OF 2018
Kantiben Nenshi Dedhia ... Appellant
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ... Respondents
WITH
APPEAL FROM ORDER (St.) No. 9514 OF 2018
WITH
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CIVIL APPLICATION (St.) No. 9515 OF 2018
Narayan Hari Kumbhar ... Appellant
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ... Respondents
WITH
APPEAL FROM ORDER (St.) No. 9518 OF 2018
WITH
CIVIL APPLICATION (St.) No. 9520 OF 2018
Chandrika Suresh Jobanputra ... Appellant
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ... Respondents
WITH
APPEAL FROM ORDER (St.) No. 9522 OF 2018
WITH
CIVIL APPLICATION (St.) No. 9523 OF 2018
Dinesh Chotalal Timbadia ... Appellant
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ... Respondents
WITH
APPEAL FROM ORDER (St.) No. 9525 OF 2018
WITH
CIVIL APPLICATION (St.) No. 9526 OF 2018
Mukesh S. Goda ... Appellant
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ... Respondents
***
Mr. Dilip Bodake, for the Appellant in AO. 276/2018 and for
Applicant in CAA. 358/2018.
Mr. Piyush M. Shah, for Appellant in AOST. 9583/2018 and for
Applicant in CAAST. 9484/2018, AOST. 9590/2018 and for
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Applicant in CAAST. 9491/2018, AOST. 9593/2018 and for
Applicant in CAAST. 9494/2018, AOST. 9498/2018 and for
Applicant in CAAST. 9499/2018, AOST. 9503/2018 and for
Applicant in CAAST. 9504/2018, AOST. 9505/2018 and for
Applicant in CAAST. 9507/2018, AOST. 9510/2018 and for
Applicant in CAAST. 9511/2018, AOST. 9514/2018 and for
Applicant in CAAST. 9515/2018, AOST. 9515/2018 and for
Applicant in CAAST. 9520/2018, AOST. 9522/2018 and for
Applicant in CAAST. 9523/2018, AOST. 9525/2018 and for
Applicant in CAAST. 9526/2018.
Mrs. Meena Bhoir, for the Respondent - MCGM in all matters.
Mr. Yogesh C. Naidu a/w Gurdeep Singh, Ishan Srivastava, for
Respondent No. 2.
***
CORAM : V. M. DESHPANDE, J.
DATE : JUNE 27, 2018
ORAL JUDGEMENT ;
1. All these 12 appeals from order are heard
simultaneously. Looking to the controversy involved in these
appeals, I am of the view that those can be decided and disposed
of finally at the admission stage.
2. Admit. Learned advocate Mrs. Meena Bhoir waives
notice for Respondent Corporation, and learned counsel Mr.
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Yogesh Naidu waives notice for Respondent No. 2. After the
counsel for the respective Respondent waives service of notice
for final hearing, all the matters are taken up for final hearing
forthwith.
3. All these 12 appeals challenge the judgment and
order dated 5th March, 2018 passed by the learned Ad-hoc
Judge, City Civil Court, Borivali Division, Dindoshi, Mumbai. In
all these cases, though the impugned order is dated 5.3.2018,
that order is passed in separate notice of motion in separate L.C.
suit filed by each of the Appellant. By the impugned order,
learned Judge of the Court below has rejected the respective
notice of motion taken out for temporary injunction in the
respective L.C. suits.
4. Appellant in Appeal from order No. 276 of 2018
filed L.C. Suit No. 3732 of 2017, and has taken out Notice of
Motion No. 8 of 2018 in the said suit. Appellant in Appeal from
Order (St.) No. 9483 of 2018 filed L.C. Suit No. 3733 of 2017
has taken out Notice of Motion No. 9 of 2018 in the said suit.
Appellant in Appeal from Order (St.) No. 9522 of 2018 filed L.C.
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Suit No. 3736 of 2017 and has taken out Notice of Motion No.
12 of 2018 in the said suit. Appellant in Appeal from Order (St.)
No. 9414 of 2018 filed L.C. Suit No. 3727 of 2017 and has taken
out Notice of Motion No. 3 of 2018 in the said suit. Appellant in
Appeal from Order (St.) No. 9518 of 2018 filed L.C. Suit No.
3734 of 2017 and has taken out Notice of Motion No. 10 of
2018 in the said suit. Appellant in Appeal from Order (St.) No.
9525 of 2018 filed L.C. Suit No. 3726 of 2017 and has taken
out Notice of Motion No. 2 of 2018 in the said suit. Appellant in
Appeal from Order (St.) No. 9510 of 2018 filed L.C. Suit No.
3731 of 2017 and has taken out Notice of Motion No. 7 of 2018
in the said suit. Appellant in Appeal from Order (St.) No. 9490
of 2018 filed L.C. Suit No. 3729 of 2017 and has taken out
Notice of Motion No. 5 of 2018 in the said suit. Appellant in
Appeal from Order (St.) No. 9493 of 2018 filed L.C. Suit No.
3728 of 2017 and has taken out Notice of Motion No. 4 of 2018
in the said suit. Appellant in Appeal from Order (St.) No. 9503
of 2018 filed L.C. Suit No. 3735 of 2017 and has taken out
Notice of Motion No. 11 of 2018 in the said suit. Appellant in
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Appeal from Order (St.) No. 9505 of 2018 filed L.C. Suit No.
3730 of 2017 and has taken out Notice of Motion No. 6 of 2018
in the said suit. Appellant in Appeal from Order (St.) No. 9548
of 2018 filed L.C. Suit No. 3725 of 2017 has taken out Notice of
Motion No. 1 of 2018 in the said suit.
5. It is to be observed here that pleadings of above L.C.
suits and notices of motion are identical except number of their
tenements. Similarly, all the separate orders dated 5.3.2018
disposing of all aforesaid notices of motion in respect of L.C. suit
is also identical, word by word. Therefore, I thought convenient
to decide and dispose of all these appeals against the order by
passing this common judgment and order.
6. All civil suits challenge the notice dated 9.11.2017
bearing Reference No. RS/DO3RS-021/351 - MMC - RS 293
No. 01 under Section 351 of Mumbai Municipal Corporation Act,
1988 and speaking order dated 10.12.2017 passed by the
Designated Officer i.e. Assistant Engineer (B & F) R/South
Ward, issued against each of the Appellant in respect of
tenements which one is in their respective possession. The
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plaintiff has sought decreee for declaration that this notice is
illegal, null and void, so also a decree of permanent injunction
is claimed against the Respondent No. 1 / defendant No. 1, its
officers, servants and person claiming through it that they
should not take any action pursuant to impugned notice and the
order passed by the Designated Officer.. Alongwith the plaint,
different notices of motion whose numbers are indicated in the
preceding paragraph were also filed for grant of temporary
injunction during the pendency of the suit. These different
notices of motion filed by the Appellants were rejected by order
dated 5.3.2018. Hence, these appeals.
Facts :-
7. There is a Chawl, by name Chandrashali Nagar
Chawl, Dahanukarwadi, Datta Mandir Road, Kandivali (West),
Mumbai 67. The Appellants are having different tenements in
the said Chawl and in each of the suit those tenements are the
suit premises.
8. According to the plaintiffs, suit premises are in
existence since 1961-62 and it is in the same condition when it
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was let out to them and they have not made any alterations of
any nature whatsoever. According to the plaintiffs, they are
monthly tenants of the suit premises and they are paying rent
regularly and further outgoing charges in respect of their suit
premises.
9. Chandrashali Nagar Chawl is situated on single lay
out plot bearing CTS Nos. 913 and 914 admeasuring 11,001 sq.
mtrs. Kandivali village and it was originally owned by late
Chotalal Moreshwar Desai and late Ishwarlal Ranchhoddas
Parmar and they constructed 21 rooms prior to the year 1961-
62.
10. It is also stated in the plaint that Respondent No. 2 /
defendant No. 2 M/s. Vandana Builders, a partnership firm
acquired right, title and interest in respect of the property, at
which the suit premises are situated.
11. It is also stated in the plaint that the Respondent
Corporation has issued notice dated 9.11.2017 under Section
351(1) Mumbai Municipal Corporation Act, 1988 and gave
show-cause notice as to why the unauthorised horizontal
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extension to the existing ground floor structure with the help of
Partly Brick masonry walls, partly M. S. Grill and A. C. Sheet
roof should not be removed. The said show-cause notice was
replied by all the Appellants through their advocate vide notice
dated 9.11.2017, which was served upon the Corporation on
20th November, 2011 and pointed out that the structure in
question is existing prior to 1961-62, and therefore, it is a
protected structure. However, according to the plaintiff, without
considering the reply in its proper perspective, Designated
Officer on 10.12.2017 passed the order calling upon each of the
Appellant to remove unauthorised structure, as described in the
notice, within 7 days from the receipt of said order, failing
which, it was intimitated that it will be demolished by the
Corporation without giving further intimation. This, according to
the Plaintiff, was a cause of action for approaching the Court
below to file the suits.
12. Respondent Corporation has filed its reply to the
notice of motion, denying all adverse allegations. According to
the reply, tenements in question are not existing on or before
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1960-61. All the tenements are in existence since 1972, and
therefore, they are not protected structures. According to the
Corporation, the said construction is not having any permission
whatsoever in nature from the competent authority. Therefore,
it was prayed that the notice of motion be rejected.
Undisputed facts :-
13. During the course of hearing of these appeals,
Respondent No. 1 Corporation Respondent No. 2 M/s. Vandana
Builders has admitted following the facts:
(i) After they acquired leasehold rights by the lease-
deed for redevelopment and after it became a landlord in 2016,
separate suits were filed against the tenants, including the
Appellants for eviction, on 8.6.2016. These suits were
subsequently withdrawn by the landlord.
(ii) On 1st September, 2017 IOD was obtained by
Respondent No. 2 from the Respondent No. 1. On 2.7.2017 by
notice which is available at compilation (page 141 to 144),
Appellants through their advocate withdrew their consent as
their consent was obtained by Respondent No. 2 by
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misrepresentation and fraud. They also filed a police complaint
that their consent was obtained by fraud and misrepresentation.
They also by their communication dated 2.7.2017 intimated the
Respondent Corporation authorities that IOD obtained by the
Builder is on the basis of consent from the tenants which is
obtained by fraud and misrepresentation.
(iii) A suit is filed, which is pending before the competent
court, by the landlord against the appellants for eviction under
the Maharashtra Rent Control Act, 1999 on the grounds of bona
fide need. After the lapse of one month, another suit is field by
the landlord for eviction of the Appellants on the ground that
Appellants carried out unauthorised construction, additions,
alterations.
(iv) That these two suits are still pending before the
competent court.
(v) If the constructed structure is standing on or before
1960-61, those structures are protected structures.
Submissions :-
14. Learned counsel for the Appellants Mr. Piyush Shah
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and Mr. Bodake vehemently submitted that the notices issued to
the Appellants by the Respondent Corporation, are nothing but a
device to evict the Appellants from the lawful possession to
fulfill the lust of the Builders. They submitted that the notice
itself is without jurisdiction and illegal inasmuch as the
tenements are protected structure, in view of the fact that these
tenements in the Chandrashali Chawl are existing prior to 1961
i.e. the datum line. In order to buttress this submission, they
invited my attention to Exhibit "D", which was filed alongwith
the plaint. The same document is also filed before this Court.
This document is the internal report of the Corporation
authorities, which was obtained under the Right to Information
Act. So also, the another internal report of the Corporation.
These two reports, according to them, are in respect of
redevelopment of land CTS Nos. 913 and 914 of village
Kandivali, Dahanukar Wadi, Kandivali (West), on which
Chandrashali Chawl is standing. According to the learned
counsel, these particular internal reports belies the claim of the
Corporation that the disputed structures are not standing prior
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to the year 1960-61, and they are not protected structures.
According to the learned counsel for the Appellants, though this
particular document was available before the court below, the
court below failed to consider these documents, and therefore,
according to them, the impugned order is required to be set
aside.
15. Per contra, learned counsel Mrs. Bhoir for the
Respondent Corporation, and Mr. Naidu appearing for
Respondent No. 2, not only vehemently opposed the submissions
of the learned counsel for Appellants, but they supported the
impugned order. According to them, the structures are standing
since 1972. According to them, the assessment document shows
that it was assessed from 1972, and therefore, it cannot be
termed as the protected structures since those structures are
constructed after the datum line. They also submitted that none
of the Appellant was able to point out any document to show
that the structures in their respective possession, for which
notice was issued, were constructed in accordance with any
authorisation from the Corporation. They therefore, submitted
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that the appeals be dismissed.
Consideration :-
16. Grant or refusal to grant temporary injunction is a
discretionary relief from the Court. Plaintiff or the defendant, as
the case may be, is required to point out that there exist prima-
facie case in their favour for claiming injunction. It is also to be
seen that balance of convenience also lies in their favour. If the
prayer of injunction is not granted, as claimed by them, then in
that event they will suffer irreparable loss, which cannot be
compensated in terms of money. If these parameters are
satisfied by them, the courts would readily grant order of
temporary injunction, pending the main cause before it.
17. What is prima-facie case? Though this is explained
and interpreted by numerous judicial decisions across the
country and even by the Hon'ble Apex Court, I would like to
refer one of the initial authoritative to pronouncement from the
Hon'ble Apex Court in Martin Burn Ltd., Appellant Vs. R. N.
Banerjee, Respondent1. In the said authoritative
1 AIR 1958 Supreme Court 79.
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pronouncement, the Hon'ble Apex Court in paragraph 27 has
made observation, which is reproduced hereinbelow:
"27 .... A prima-facie case does not mean a case
proved to hilt but a case which can be said to be
established if the evidence which is led in support of
the same were believed. While determining whether
a prima facie case had been made out the relevant
consideration is whether on the evidence led it was
possible to arrive at the conclusion in question and
not whether that was the only conclusion which
could be arrived at on that evidence. It may be that
the Tribunal considering this question may itself
have arrived at a different conclusion. It has,
however, not to substantiate its own judgment for
the judgment in question."
18. Further in 1973, the Hon'ble Madras High Court in
K. Karunanidhi & Ors.,Petitioners Vs. R. Ranganathan
Chettiar, Respondent2ruled in paragraph 12 that:
"12. The rule that before the issue of a temporary
injunction, the Court must satisfy itself that the
plaintiff has a prima facie case, does not mean that
the Court should examine the merits of the case
closely and come to a conclusion that the plaintiff
has a case in which he is likely to succeed. This
would amount to prejudging the case on its merits.
All that the Court has to see is that on the face of it
the person applying for an injunction has a case
which needs consideration and which is not bound
2 AIR 1973 Madras 443 (V 60 C 137)
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to fail by virtue of some apparent defects. The
balance of convenience also has to be looked into."
The aforesaid two authorities, in my view, are enough to mean
and understand what is prima-facie case.
19. In my view, prima-facie case is not a case that
ultimately the plaintiff must succeed in the final verdict of the
suit. Thus, a prima-facie case must not be misunderstood that it
is an iron cask case. What is required for the party, which claims
temporary injunction that it has to make out a case for inquiry
and if the party is successful to point out the case for inquiry,
there should not be any difficulty for the court to record a
finding that the plaintiff has a prima-facie case in its favour.
20. The purpose for grant of temporary injunction is to
maintain the status-quo and protect interest of the parties,
pending disposal of the suit. No doubt true that for proving the
prima-facie case, the burden wholly lies on the shoulder of the
party which claims it. As the granting relief of temporary
injunction is a discretionary relief, the exercise of that discretion
should be in a judicial manner, depending upon the
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circumstances of each case. There cannot be a straight jacket
formula for the guidance of the court, as regards exercise of such
discretion. The Court has to apply its mind to the available
pleadings and documents filed on record by the parties to the
application for injunction, or may be the parties o the suit, and
then should determine the question as to whether injunction
should be granted or not.
21. In the present case, the appellants / plaintiffs
approached the Court to claim temporary injunction to the effect
that Corporation or its employees or its servants or anybody
claiming through them, should not demolish the suit structure,
as stated in the notice issued under Section 351 of the Mumbai
Municipal Corporation Act, 1888 on 9.11.2017 and the
impugned order passed by the Designated Officer dated
10.12.2017 on the ground that respective suit structures are
standing on the Chandrashali Nagar Chawl since 1961-62, and
therefore, they are protected structures. This particular claim of
the plaintiff is denied by the Corporation on the ground that, in
fact, those structures are existing from 1972 and therefore, they
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are not protected structures.
22. It is not in dispute that prior to Respondent No. 2
M/s. Vandana Builders arriving on the scene, the Appellants
were in occupation and possession of their respective tenements
as tenants. Respondent No. 2 acquired the rights and interest in
respect of Chandrashali Nagar Chawl, which is situated on CTS
Nos. 913 and 914 of village Kandivali (West) sometime in the
year 2012. Till 2012, at any point of time, there was no notice
issued by the Corporation under Section 354A or 351 of the
Mumbai Municipal Corporation Act, 1888.
23. As soon as Respondent No. 2 M/s. Vandana Builders
acquired rights, two suits are filed against the Appellants and
tenants who are before this Court. In one such suit, a decree for
eviction is claimed under the relevant provisions of Maharashtra
Rent Act, 1999 on the ground that whole premises are required
for bona fide purposes. In another suit, eviction is claimed of the
appellants and other tenants, who are not before this Court, on
the ground that they had made alterations to the suit premises.
Prior to lodging of these two suits, one suit was filed for
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possession and the same was withdrawn by the landlord / M/s.
Vandana Builders. As observed in the earlier part of the
judgment, filing of these three suits is not at all disputed for and
on behalf of Respondent No. 2 M/s. Vandana Builders.
24. In my view, filing of the third suit claiming eviction
on the ground that Appellants have made alterations to the suit
premises has its own bearing while deciding the case of the
plaintiff for grant of temporary injunction. Though the
Corporation is an independent authority to issue notice under
Section 351 of the MMC Act for the existing unauthorised
construction, claiming of a decree of eviction from the civil court
by the landlord on the ground that the tenants have made
alterations, cannot be brushed aside lightly, especially when
admittedly, the notice under Section 351 of the MMC Act from
the Corporation is issued after filing of the suit by the landlord.
25. In the affidavit, it is specifically averred that suit
structures are in existence prior to 1961-62. The learned judge
of the trial court has mainly rejected the applications on the
ground that (i) there is no document on record to show that suit
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premises are in existence on or before 1961-62; and (ii) the
Corporation was able to point out that it existed after 1961-62.
26. The learned counsel for the Appellants during the
course of submissions invited my attention to two documents.
These two documents are in the nature of internal report from i)
Dy. Ch. E. (B.P.) WS-II, dated 21.7.2017, and another (ii) of the
Executive Engineer, Building Proposal (W.S.) R/S. These two
documents are obtained under the Right to Information Act from
the Bombay Municipal Corporation, as it can be seen from the
endorsement made on these two documents. It is also not in
dispute that these two documents were before the learned Judge
of the trial court at the time of consideration of notices of
motion for temporary injunction.
27. The internal report dated 21.7.2017 shows the
subject as "Proposed Redevelopment on the land bearing CTS
No. 913 & 914 of Village Kandivali at Dahanukarwadi, Kandivali
(W)." The said document shows that Dy. Ch. E. (B) W.S. was
required to take action as per law and submit report on the
complaint submitted by one Sachine Mane to the Municipal
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Corporation before Public Grievance Meeting dated 15.6.2017.
In paragraph 4, the said Corporation Authority writes as under:
"4. The proposal under reference was submitted
by M/s. Vandana Builders on 13.03.2013. The
proposal is for redevelopment of the certain
tenanted structures existing prior to 1961-1962
covering balance FSI in layout, additional FSI &
TDR. The proposal involved certain concessions,
approval of CH.E. (DP) / Hon'ble MC was therefore
obtained in past on under No. MCP/1697 dated
13.09.2013, copy at page C-25 to C-37."
28. The other internal report is from the Executive
Engineer(B.P.) W.S. "R" dated 5.8.2013. The said report appears
to have been submitted by the said authority to the Municipal
Commissioner subsequently, and the subject was "Proposed
Residential Building on plot bearing C.T.S. No. 913 & 914 of
village Kandivali, Ravi Mahajan Road, Off. Dahanukar Wadi,
Kandivali (West), Mumbai". The said document shows that the
architect has submitted the proposal for residential building. It
would be useful to reproduce hereinbelow some of the contents
in the said report under the head "Fungible Compensatory
F.S.I. as per DCR 35(4)" as under:
"The Architect has shown his inability to
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submit the copy of approved plan as the existing
chawl is very old. Also, there is no area mentioned
on asst. abstract may please be seen at pg. C/103 to
C/ 105. However, as per the Asst. Abstract there are
21 nos. of existing rooms in chawal under reference.
Hence there is no authentic proof for consideration
of built up area."
29. It is to be submitted that these two reports are in
respect of the redevelopment of land bearing CTS Nos. 913 and
914 of village Kandivali, Dahanukarwadi, Kandivali (West). It is
stated in the plaint itself that the Chandrashali Nagar chawl
where the suit tenements are standing, are situated on single lay
out plot bearing CTS Nos. 913 and 914, on which the suit
premises are standing. Further, these reports show that certain
tenanted structures are existing prior to 1961-62. What is import
to note in the report is, it is mentioned that the architect has
shown his inability to submit copy of approved plan, as the
existing chawl is very old.
30. Thus, the aforesaid two documents filed on record,
copies of which are obtained under the Right to Information Act,
from the Corporation authority which show that these two
internal reports which are prepared by the concerned authorities
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show that chawl is very old and the tenanted premises are in
existence prior to 1961-62. Since these two documents are
coming from the custody of the Corporation, and since its
authenticity is not at all denied by the Corporation, in my view,
there cannot be any impediment and / or obstacle to record the
finding for deciding the applications for temporary injunction
that tenanted premises are in existence since 1961-62 and / or
plaintiffs are successful in canvassing their case that the
tenanted premises are in existence prior to 1961-62.
31. The Corporation has filed its reply before this Court,
and also filed the documents which are also considered by the
court below. The learned counsel for Respondent No. 2 builder
and the learned counsel for the Corporation has invited my
attention to page 21 of the reply, filed on behalf of the
Corporation before this Court. Perusal of the said page shows
that a demand for tax is given by the Corporation in the year
2016-2017. In one column of the said demand bill recites " izFke
dj fu/kkZj.k fnukad" and against that the date is 1.4.1972. This
document is primarily pressed into service by the learned
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counsel for the Respondents to point out that chawl is in
existence since 1972. At the first blush, one would tend to
accept their submission. However, on closure scrutiny of the said
document, I am afraid that their submission can be accepted
because the said demand is addressed to the Secretary Mohan
Nagar and not any of the Appellants, who are residing in
Chandrashali Nagar chawl.
32. Further, though the internal reports of the
Corporation authorities were available before the learned trial
court, a perusal of the impugned order shows that those two
documents are not at all considered by the learned Judge of the
trial court, while considering the notice of motion, as there is no
reference of these two documents in the impugned order.
33. It is the duty of the court to consider the documents
filed on record by the party and after considering the same, the
Court either accept or reject the document by supplementing the
reasons. However, when available documents are not at all
considered by the Court and when there is no reference of these
documents in the order which is challenged before the appellate
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court, then in that event, it is always open for the Appellant to
criticise the impugned order that it suffers from non-application
of mind and the approach of the court below is perverse one. In
the present case, the impugned order is one of such orders. The
Court below ought to have seen that these documents available
on record, which goes to the root of the matter. If the structures
are standing from 1961-62, then they are protected structures
and the Corporation cannot issue notices to demolish them on
the ground that there is no sanction for the construction. In the
present case, the plaintiffs pointed out by placing on record two
very important documents of the Corporation to show that the
structures are standing prior to 1961-62. Therefore, non
consideration of these vital documents requires me to record a
finding that approach of the court below is perverse and cannot
sustain in the eye of law because of non-consideration of vital
documents which goes to the root of the matter.
34. The aforesaid evaluation of the pleadings and
documents on records leads me to record a find that each of the
plaintiff has successfully demonstrated existence of prima-facie
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case in their favour.
35. Once the court records finding that the Appellants /
plaintiffs have prima-facie case in their favour, in my view, the
court is also required to record finding that the balance of
convenience is also in their favour and if the injunction is not
granted, there will be irreparable injury to them. All the
appellants / plaintiffs are residing in the premises for which the
notice of demolition is issued. If the said notice is allowed to
given effect, then their structures will be demolished to the
extent as it is mentioned in the notice, thereby causing serious
prejudice to each of the plaintiff. That would make them to
suffer, which cannot be compensated in terms of money.
36. Evaluation of the Appellants' case and the
Respondents' version, insofar as notice of motion for injunction,
therefore, leads me to pass the following order.
ORDER
(i) All appeals are allowed. However, there shall be no order as to costs.
(ii) The impugned order dated 5.3.2018 passed by the 27 / 29 ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 00:18:18 ::: 901, 903 - AO. 276-18 & connected matters.doc learned Judge, City Civil Court & Additional Sessions Judge, Dindoshi Mumbai in (i) Notice of Motion No. 1 of 2018 filed in L. C. Suit No. 3725 of 2017; (ii) Notice of Motion No. 2 of 2018 filed in L. C. Suit No. 3726 of 2017; (iii) Notice of Motion No. 3 of 2018 filed in L. C. Suit No. 3727 of 2017; (iv) Notice of Motion No. 4 of 2018 filed in L. C. Suit No. 3728 of 2017; (v) Notice of Motion No. 5 of 2018 filed in L. C. Suit No. 3729 of 2017; (vi) Notice of Motion No. 6 of 2018 filed in L. C. Suit No. 3720 of 2017; (vii) Notice of Motion No. 7 of 2018 filed in L. C. Suit No. 3731 of 2017; (viii) Notice of Motion No. 8 of 2018 filed in L. C. Suit No. 3732 of 2017; (ix) Notice of Motion No. 9 of 2018 filed in L. C. Suit No. 3733 of 2017; (x) Notice of Motion No. 10 of 2018 filed in L. C. Suit No. 3734 of 2017; (xi) Notice of Motion No. 11 of 2018 filed in L. C. Suit No. 3735 of 2017; (xii) Notice of Motion No. 12 of 2018 filed in L. C. Suit No. 3736 of 2017, are hereby set aside and the said 28 / 29 ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 00:18:18 ::: 901, 903 - AO. 276-18 & connected matters.doc notices of motion are hereby allowed. The Respondents and anybody claiming through them are injuncted and restrained from taking any steps, pursuant to the notices dated 9.11.2017, as also the Speaking orders dated 10.12.2017, issued by the Designated Officer of the Respondent Corporation, which are impugned in the respective suits. The injunction shall remain in operation till each suit is decided finally on its own merits.
(iii) It is expected that the learned trial court should decide the suits as expeditiously as possible.
Sd/-
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