Full Judgment Text
2016:BHC-AS:25003
905 OJ AOST 27240 OF 2016.doc
vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO.27240 OF 2016
WITH
CIVIL APPLICATION (ST) NO.27242 OF 2016
IN
APPEAL FROM ORDER (ST) NO.27240 OF 2016
M/s Masjid Wa Madrasa Fatimatu Zohra (Ra) ]
Trust throgh its Trustee and ] Appellant
General Secretary Mr. Ebrahim Kadar Khan ] Original
Having address at Kantharia compound ] Plaintiffs
behind Naz Hotel,. L. B.S. Marg, Navpada, ]
Kurla (W), MumbI 400 070 ]
V/s.
Municipal Corporation of Greater ]
Mumbai, ]
having its office at Mahapalika Bhavan ] Respondent
Mahapalika Marg, Mumbai 400 001 ] Original
“L” ward office at Municipal Market Bldg. ] defendant.
S. G. Barve Marg, Kurla (W) ]
Mumbai 400 070 ]
Mr. P. K. Dhakephalkar, Senior Advocate a/w Ms.
Simeen Shaikh, a/w Ms. Rashmi Patil a/w Ms.
Priyanka Gharge i/by M/s S.K. Shrivastav & Co,
for the Appellant.
Mrs.Madhuri More, for the Respondent
Corporation.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
th
DATE : 04 OCTOBER, 2016.
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ORAL JUDGMENT. :
1. Heard learned counsel for the parties.
2. Admit.
3. With the consent of learned counsel for both the parties, the
appeal is heard finally at the stage of admission.
st
4. This appeal takes an exception to the order dated 21
September, 2016, passed by the City Civil Court Mumbai, in Draft Notice
of Motion in L.C. Suit No.2166, thereby refusing ad-interim relief of
injunction, restraining Municipal Corporation from taken any action in
pursuance of Notice dated 19.7.2016, issued under Section 351 of the
Mumbai Municipal Corporation Act, 1988 (for short called as, “MMC” Act”),
and the order dated 02.09.2016, passed by the Assistant Commissioner of
Municipal Corporation directing the appellant to remove unauthorized
structure within 7 days.
5. It is the case of the appellant that suit structure is used for
imparting education and offering Namaz for Muslim community since
1972. It is in existence since prior to 1962 and therefore is a protected
structure. In the suit bearing No.941 of 2007, in respect of the disputes
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amongst the landlords, Court Receiver was appointed and at present
entire Kantharia Mahal, of which suit property is a part, is in possession of
the Court Receiver.
6. In the backdrop of these facts, on 24.4.1990, Municipal
Corporation issued notice under Section 351 of the Mumbai Municipal
Corporation Act, calling upon the appellant to show cause as to why said
structure should not be demolished. After the appellant filed reply to the
said notice and on being satisfied with the said reply, the said notice and
the action thereunder were dropped. Thereafter again on 2.12.2013,
another notice under Section 354-A of the MMC Act, was issued calling
upon the appellant to stop construction. However, no action was taken in
pursuance of the said notice also which shows that said notice was also
dropped.
7. It is urged that, again on 19.7.2016, fresh notice came to be
issued under Section 351 of the MMC Act, calling upon the appellant to
show cause as to why the suit structure should not be pulled down. The
description of the structure was mentioned in the schedule and it is
submitted that it is more or less, same description, which was mentioned
in the earlier notice. The appellants have replied the said notice on
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27.7.2016 and thereafter the said order came to be passed respondent
corporation on 2.9.2016, calling upon appellant to demolish the said
structure on the count that it is illegal and unauthorized.
8. The appellant, therefore, approached the trial court for relief
of interim injunction restraining the respondent Municipal Corporation from
taking any action in pursuance of the said order. It is submitted by
learned counsel for appellant that trial court has, however, rejected interim
relief by simpliciter observing that the documents produced on record do
not show that the structure was in existence prior to 1972 or it is
protected structure. The documents also do not indicate that the alleged
structure is constructed with permission of the Municipal Corporation,
hence, the trial Court rejected ad-interim relief directing respondent
Municipal Corporation to file reply to the Notice of Motion till next date.
9. The submission of learned counsel for appellant is that the
very issuance of two earlier Notices in the year 1999 and 2013, more than
prima facie establish the existence of the said structure at least since year
1999, though according to appellant it is in existence prior to 1972.
Therefore, according to him, at this stage at least, interim relief needs to
be granted till respondent corporation files reply to the Notice of Motion
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and challenges the existence of the said structure. Learned counsel for
appellant has also placed on record the policy of the Government and the
th
resolution passed by the Government on 18 November, 2015 protecting
religious structures which were in existence since prior to 29.9.2009. In
view thereof, it is urged that on the basis of Government Resolution and
the policy, which is found reflected in the order passed by the Division
Bench of this Court (Coram: A. S. Oka & C.V. Bhadang, JJ.), in Society
for Fast Justice and ors -vs- State of Maharashtra and anr, in Public
th
Interest Litigation No.104 of 2010, dated 18 February, 2016, the
impugned structure, being of religious nature is required to be protected
till decision of the Notice of Motion.
10. Per contra, learned counsel for respondent corporation has
invited attention of this Court to the description of the suit structure, as
given in the earlier notices and also in the present notice and pointed out
that earlier, the suit structure was merely the brick masonry walls, M.S.
Pipe, A.C. sheet/GI sheet roof; whereas present structure is R.C.C.
ground + first floor and therefore, definitely there is unauthorized structure
carried out by the appellant and such construction being not proved in any
way to be carried with permission from the Municipal Corporation or
getting the plan sanctioned for the same, it is required to be demolished. It
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is urged that whatever documents, appellant had produced on record on
receipt of impugned notice, were considered by the Designated Officer,
Assistant Engineer of Municipal Corporation and thereafter, he has
passed said order, as those documents were not showing prima facie that
the suit structure in the present form was in existence prior to datum line
st
1 April, 1982. Hence according to learned counsel for respondent, trial
Court has rightly exercised its discretion in holding that the appellant has
failed to make out prima facie case for grant of interim relief and this
Court should restrain itself from interfering in the discretion exercised by
the trial Court, within the limited scope of appellate jurisdiction.
11. The impugned notice which is produced on the file of this
Court at page No.57 reveals that by the said notice, appellant was
directed to show cause as to how construction which he has carried is
legal and authorised. Schedule of the notice describes the structure found
at the site as follows :
“unauthorized of ground + first floor and R.C.C. structure
with R.C.C. column beam and slab and GI sheet roof
admeasuring 40 ft x 30 ft square feet and height of
structure if 25 feet approximately”
12. As against it, in the earlier notice which was issued to the
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appellant 24.4.1999, description of the unauthorized structure carried is,
as follows :-
“ Construction of structure with brick missionary walls, M.S.
pipe, A.C. sheet//G I sheet roof admeasuring 26'.3”x 34'.9”
ht. 12 at ridge level without B.M.C. permission on open
land.”
13. Thus, even a cursory perusal of the description of the suit
structure as given in the earlier Notice in year 1999 and the present notice
given in the year 2016, is more than sufficient to show that the nature of
suit structure is changed from A.C.C. sheet with brick masonry work to the
ground + first floor R.C.C. structure , R.C. C. column beam and slab.
14. It was, therefore, for the appellant to state under which
permission he has changed the nature of this structure, whether he has
obtained any permission from the Municipal Corporation to do so or got
the plan sanctioned for changing the total nature of the structure. The
appellant, as can be seen from the order passed by the Designated
Officer, or from the impugned order passed by the trial Court, has not
produced any document to show that suit structure standing at the site is
constructed after getting requisite permission or getting the plan
sanctioned from the Municipal Corporation.
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15. It is pertinent to note that on 02.12. 2013 also the stop work
notice was issued to the appellant informing him to stop the unauthorized
work of construction of the structure R.C.C beams and columns which
was in progress. Therefore, it is not that the appellant was not aware that
he has changed the nature of the suit structure and that too, he has
constructed unauthorized structure without getting requisite permission
from the Municipal Corporation. The appellant was also given opportunity
to show cause as to how structure was authorized. However, in the reply
given to the impugned notice, he has failed to do so. Whatever documents
which appellant has produced were duly considered by the Designated
Officer and while passing order, it was held that those documents do not
prove existence of the structure as it was standing on that day at the the
site since prior to either the year 1962 or 1972 or even to the year 1999.
16. Under such circumstances, when some illegal and
unauthorized structure of ground + first floor R.C.C. is carried out, as
described in the impugned notice and the appellant has prima facie failed
to prove legality of the said structure, it cannot be said that the trial Court
has committed any illegality in refusing the relief of ad-interim injunction
so as to warrant interference therein at the hands of this Court. Hence
appeal holds no merit and the same stands dismissed.
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17. It is made clear at this stage that the observations made
hereinabove are only for the purpose of deciding this appeal and trial
Court shall not get influenced by those observations and decide the
Notice of Motion independently, on its own merits.
18. Learned counsel for appellant then submits that if appellant
makes an application for regularization of the structure, the directions be
given to Municipal Corporation to consider the same. Learned counsel for
respondent corporation submitts that the Municipal Corporation will
consider such representation independently on its own merits.
19. As the appeal itself has been dismissed, Civil Application (ST)
No.27242 of 2016 does not survive and the same is disposed of
accordingly.
[DR. SHALINI PHANSALKAR JOSHI, J.]
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vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO.27240 OF 2016
WITH
CIVIL APPLICATION (ST) NO.27242 OF 2016
IN
APPEAL FROM ORDER (ST) NO.27240 OF 2016
M/s Masjid Wa Madrasa Fatimatu Zohra (Ra) ]
Trust throgh its Trustee and ] Appellant
General Secretary Mr. Ebrahim Kadar Khan ] Original
Having address at Kantharia compound ] Plaintiffs
behind Naz Hotel,. L. B.S. Marg, Navpada, ]
Kurla (W), MumbI 400 070 ]
V/s.
Municipal Corporation of Greater ]
Mumbai, ]
having its office at Mahapalika Bhavan ] Respondent
Mahapalika Marg, Mumbai 400 001 ] Original
“L” ward office at Municipal Market Bldg. ] defendant.
S. G. Barve Marg, Kurla (W) ]
Mumbai 400 070 ]
Mr. P. K. Dhakephalkar, Senior Advocate a/w Ms.
Simeen Shaikh, a/w Ms. Rashmi Patil a/w Ms.
Priyanka Gharge i/by M/s S.K. Shrivastav & Co,
for the Appellant.
Mrs.Madhuri More, for the Respondent
Corporation.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
th
DATE : 04 OCTOBER, 2016.
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ORAL JUDGMENT. :
1. Heard learned counsel for the parties.
2. Admit.
3. With the consent of learned counsel for both the parties, the
appeal is heard finally at the stage of admission.
st
4. This appeal takes an exception to the order dated 21
September, 2016, passed by the City Civil Court Mumbai, in Draft Notice
of Motion in L.C. Suit No.2166, thereby refusing ad-interim relief of
injunction, restraining Municipal Corporation from taken any action in
pursuance of Notice dated 19.7.2016, issued under Section 351 of the
Mumbai Municipal Corporation Act, 1988 (for short called as, “MMC” Act”),
and the order dated 02.09.2016, passed by the Assistant Commissioner of
Municipal Corporation directing the appellant to remove unauthorized
structure within 7 days.
5. It is the case of the appellant that suit structure is used for
imparting education and offering Namaz for Muslim community since
1972. It is in existence since prior to 1962 and therefore is a protected
structure. In the suit bearing No.941 of 2007, in respect of the disputes
2/9
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905 OJ AOST 27240 OF 2016.doc
amongst the landlords, Court Receiver was appointed and at present
entire Kantharia Mahal, of which suit property is a part, is in possession of
the Court Receiver.
6. In the backdrop of these facts, on 24.4.1990, Municipal
Corporation issued notice under Section 351 of the Mumbai Municipal
Corporation Act, calling upon the appellant to show cause as to why said
structure should not be demolished. After the appellant filed reply to the
said notice and on being satisfied with the said reply, the said notice and
the action thereunder were dropped. Thereafter again on 2.12.2013,
another notice under Section 354-A of the MMC Act, was issued calling
upon the appellant to stop construction. However, no action was taken in
pursuance of the said notice also which shows that said notice was also
dropped.
7. It is urged that, again on 19.7.2016, fresh notice came to be
issued under Section 351 of the MMC Act, calling upon the appellant to
show cause as to why the suit structure should not be pulled down. The
description of the structure was mentioned in the schedule and it is
submitted that it is more or less, same description, which was mentioned
in the earlier notice. The appellants have replied the said notice on
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27.7.2016 and thereafter the said order came to be passed respondent
corporation on 2.9.2016, calling upon appellant to demolish the said
structure on the count that it is illegal and unauthorized.
8. The appellant, therefore, approached the trial court for relief
of interim injunction restraining the respondent Municipal Corporation from
taking any action in pursuance of the said order. It is submitted by
learned counsel for appellant that trial court has, however, rejected interim
relief by simpliciter observing that the documents produced on record do
not show that the structure was in existence prior to 1972 or it is
protected structure. The documents also do not indicate that the alleged
structure is constructed with permission of the Municipal Corporation,
hence, the trial Court rejected ad-interim relief directing respondent
Municipal Corporation to file reply to the Notice of Motion till next date.
9. The submission of learned counsel for appellant is that the
very issuance of two earlier Notices in the year 1999 and 2013, more than
prima facie establish the existence of the said structure at least since year
1999, though according to appellant it is in existence prior to 1972.
Therefore, according to him, at this stage at least, interim relief needs to
be granted till respondent corporation files reply to the Notice of Motion
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and challenges the existence of the said structure. Learned counsel for
appellant has also placed on record the policy of the Government and the
th
resolution passed by the Government on 18 November, 2015 protecting
religious structures which were in existence since prior to 29.9.2009. In
view thereof, it is urged that on the basis of Government Resolution and
the policy, which is found reflected in the order passed by the Division
Bench of this Court (Coram: A. S. Oka & C.V. Bhadang, JJ.), in Society
for Fast Justice and ors -vs- State of Maharashtra and anr, in Public
th
Interest Litigation No.104 of 2010, dated 18 February, 2016, the
impugned structure, being of religious nature is required to be protected
till decision of the Notice of Motion.
10. Per contra, learned counsel for respondent corporation has
invited attention of this Court to the description of the suit structure, as
given in the earlier notices and also in the present notice and pointed out
that earlier, the suit structure was merely the brick masonry walls, M.S.
Pipe, A.C. sheet/GI sheet roof; whereas present structure is R.C.C.
ground + first floor and therefore, definitely there is unauthorized structure
carried out by the appellant and such construction being not proved in any
way to be carried with permission from the Municipal Corporation or
getting the plan sanctioned for the same, it is required to be demolished. It
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is urged that whatever documents, appellant had produced on record on
receipt of impugned notice, were considered by the Designated Officer,
Assistant Engineer of Municipal Corporation and thereafter, he has
passed said order, as those documents were not showing prima facie that
the suit structure in the present form was in existence prior to datum line
st
1 April, 1982. Hence according to learned counsel for respondent, trial
Court has rightly exercised its discretion in holding that the appellant has
failed to make out prima facie case for grant of interim relief and this
Court should restrain itself from interfering in the discretion exercised by
the trial Court, within the limited scope of appellate jurisdiction.
11. The impugned notice which is produced on the file of this
Court at page No.57 reveals that by the said notice, appellant was
directed to show cause as to how construction which he has carried is
legal and authorised. Schedule of the notice describes the structure found
at the site as follows :
“unauthorized of ground + first floor and R.C.C. structure
with R.C.C. column beam and slab and GI sheet roof
admeasuring 40 ft x 30 ft square feet and height of
structure if 25 feet approximately”
12. As against it, in the earlier notice which was issued to the
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appellant 24.4.1999, description of the unauthorized structure carried is,
as follows :-
“ Construction of structure with brick missionary walls, M.S.
pipe, A.C. sheet//G I sheet roof admeasuring 26'.3”x 34'.9”
ht. 12 at ridge level without B.M.C. permission on open
land.”
13. Thus, even a cursory perusal of the description of the suit
structure as given in the earlier Notice in year 1999 and the present notice
given in the year 2016, is more than sufficient to show that the nature of
suit structure is changed from A.C.C. sheet with brick masonry work to the
ground + first floor R.C.C. structure , R.C. C. column beam and slab.
14. It was, therefore, for the appellant to state under which
permission he has changed the nature of this structure, whether he has
obtained any permission from the Municipal Corporation to do so or got
the plan sanctioned for changing the total nature of the structure. The
appellant, as can be seen from the order passed by the Designated
Officer, or from the impugned order passed by the trial Court, has not
produced any document to show that suit structure standing at the site is
constructed after getting requisite permission or getting the plan
sanctioned from the Municipal Corporation.
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15. It is pertinent to note that on 02.12. 2013 also the stop work
notice was issued to the appellant informing him to stop the unauthorized
work of construction of the structure R.C.C beams and columns which
was in progress. Therefore, it is not that the appellant was not aware that
he has changed the nature of the suit structure and that too, he has
constructed unauthorized structure without getting requisite permission
from the Municipal Corporation. The appellant was also given opportunity
to show cause as to how structure was authorized. However, in the reply
given to the impugned notice, he has failed to do so. Whatever documents
which appellant has produced were duly considered by the Designated
Officer and while passing order, it was held that those documents do not
prove existence of the structure as it was standing on that day at the the
site since prior to either the year 1962 or 1972 or even to the year 1999.
16. Under such circumstances, when some illegal and
unauthorized structure of ground + first floor R.C.C. is carried out, as
described in the impugned notice and the appellant has prima facie failed
to prove legality of the said structure, it cannot be said that the trial Court
has committed any illegality in refusing the relief of ad-interim injunction
so as to warrant interference therein at the hands of this Court. Hence
appeal holds no merit and the same stands dismissed.
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17. It is made clear at this stage that the observations made
hereinabove are only for the purpose of deciding this appeal and trial
Court shall not get influenced by those observations and decide the
Notice of Motion independently, on its own merits.
18. Learned counsel for appellant then submits that if appellant
makes an application for regularization of the structure, the directions be
given to Municipal Corporation to consider the same. Learned counsel for
respondent corporation submitts that the Municipal Corporation will
consider such representation independently on its own merits.
19. As the appeal itself has been dismissed, Civil Application (ST)
No.27242 of 2016 does not survive and the same is disposed of
accordingly.
[DR. SHALINI PHANSALKAR JOSHI, J.]
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