Full Judgment Text
2016:BHC-AS:27236
1 AOST 2927716 @ CAAST 2928116.doc 918
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (STAMP) NO.29277 OF 2016
ALONG WITH
CIVIL APPLICATION (STAMP) NO.29281 OF 2016
Mr. Haji Kasam Ghaneria. ]
Residing at Building No.35/37, Nishanpada, ]
X Lane, Mumbai 400 009. ] … Appellant
Versus
1. The Municipal Corporation of Greater ]
Bombay. ]
Office at Brihan Mumbai Mahanagar Palika ]
Municipal Head Office, Mahapalika Marg, ]
Fort, Mumbai 400 001. ]
2. Assistant Municipal Commissioner, ]
'B' Ward, Babulnath, Tank Cross Road, ]
Mumbai 400 009. ] … Respondents
Mr. Satish R. Mishra for Appellant.
Mr. S. Pakale a/w Mrs. Madhuri More for Respondents BMC.
CORAM : DR. SHALINI PHANSALKARJOSHI, J.
DATE : OCTOBER 26, 2016
JUDGMENT :
1. This appeal is preferred by the original plaintiff
challenging the order dated 01/10/2016 passed by the City Civil
Court, Mumbai, thereby rejecting the draft Notice of Motion filed in
Suit Stamp No.9382 of 2016.
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2. As per the case of the appellant, he is the owner of the
building no.35/37/39, Nishanpada, XLane, Mumbai 400 099. The
said building is occupied by 22 tenants, all are residing along with
their family members. As the building was in dilapidated condition,
the appellant made various applications before the MHADA for
obtaining permission for repair work of the building. In the year
2006, the appellant received such permission. However, the appellant
failed to repair the said building due to financial crisis. Hence, the
appellant made application on 10/10/2015 for carrying out the
repairs and accordingly started the repair work in respect of the said
building. However various notices came to be issued to the appellant
by the Municipal Corporation calling upon him to show cause as to
why the construction carried out by him should not be demolished on
the count of it being unauthorized and illegal. The last notice was
received by him on 09/04/2016 under Section 354(A) of MMC Act,
1888. The apprehension of the appellant is that the respondent
Municipal Corporation may demolish the said building pursuant to the
notice and hence he approached the Trial Court seeking relief of
permanent injunction.
3. Along with the suit, the appellant has filed a draft Notice
of Motion seeking the relief of interim injunction.
4. This notice of motion came to be resisted by the
respondent Municipal Corporation by filing affidavitinreply of its
Junior Engineer Mr. Vinod Ghare contending, inter alia , that the
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appellant had carried out totally illegal and unauthorized construction
in respect of which the complaints were received and hence the
inspection was taken by the staff on 08/04/2016. At that time, it was
noticed that the construction was carried out by the appellant without
obtaining any permission from the competent authority. Hence the
appellant was called upon to show cause within 24 hours. However,
the appellant failed to do so. It is submitted by the respondent
Municipal Corporation that prior to filing of the present suit, the
appellant has filed another suit bearing no.BCCC Suit No.783 of 2016
in respect of same suit property for challenging first stop work notice
dated 02/04/2016 issued under Section 354(A) of the BMC Act. At
the time of arguments on adinterim relief, the appellant sought time
to file reply to the notice and the documents. Accordingly, the Court
granted time. However, the appellant failed to submit the documents
and reply to notice. Again the appellant approached the Trial Court
by filing Suit No.905 of 2016 for seeking permission and extension to
file documents. The Trial Court rejected the said request of the
appellant and after hearing learned Counsel for both the sides,
rejected the prayer of adinterim relief vide its order dated
22/04/2016. It is submitted by the respondent Municipal
Corporation that these material facts were suppressed by the appellant
that the appellant had earlier challenged the notice dated 02/04/2016
and the order passed thereon by the Designated Officer on
16/04/2016. It is submitted that at that time, the unauthorized
reconstruction of the building was of ground + three floors and
further vertical extension by RSJ frameworks.
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5. It is urged that the respondent had also earlier issued
notice dated 30/10/2015 under Section 354 (A) of the BMC Act and
second notice dated 30/01/2016. Third stop work notice was issued
th
on 15/03/2016, the 4 stop work notice was issued on 30/03/2016,
th th
5 stop work notice was issued on 20/04/2016 and the 6 stop work
notice was issued on 09/04/2016.
6. Pursuant to these stop work notices, the respondent
demolished the suit structure four times i.e. first demolition took place
on 02/04/2016, second demolition took place on 21/04/2016, third
demolish took place on 26/04/2016 and 27/04/2016 and the fourth
demolition was carried out on 04/06/2016. It is submitted that all
these demolitions were suppressed by the appellant from the Trial
Court and this Court. According to the respondent, the appellant is a
habitual in indulging in the activity of reconstruction of unauthorized
work. Notice under Section 52(43) of the MRTP Act was also issued
to the appellant on 01/12/2015 and on 13/06/2016 for unauthorized
construction. It is urged that thereafter the officer of the respondent
Municipal Corporation visited the suit site on 16/04/2016 and
17/04/2016 and observed that the appellant had carried out
unauthorized construction up to ground + 7 floors by using RSJ
section work and ladi coba and ladi slab. Again the respondent
th
Municipal Corporation carried out demolition of 7 floor. However,
thereafter, the appellant continued the unauthorized construction up
th th
to 10 and 11 floors. Hence the demolition of the said construction
took place on 21/04/2016 and 26/04/2016.
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7. In support of these contentions, the respondent had
produced on record all the stop work notices and also the demolition
orders to show that the demolitions were carried out with the help of
necessary police assistance. The photographs are also produced which
are annexed at pages 62 to 82 of the paperbook.
8. Thus, all these documents produced on record by the
respondent Municipal Corporation are, in the considered opinion of
this Court, more than sufficient and speak for themselves to show that
despite repeated actions of issuance of stop work notices and carrying
out demolitions of the unauthorized construction, the appellant is
bent upon indulging in the same activity and proceeding with the
illegal and unauthorized construction. It is pertinent to note that
when the first stop work notice was issued to the appellant, the
construction was ground + 3 floors and as can be seen from the
subsequent work notices, the demolition of unauthorized structure
th th
took place up to 10 and 11 floors. This fact clearly shows that the
appellant has scant regard for law and order and is not deterred even
by the drastic action of demolition taken by the respondent
Municipal Corporation. Not a single document is produced to show
that the appellant had obtained the requisite permission for carrying
out such construction of ground + 11 floors.
9. It also seems to be the conduct of the appellant to
suppress from the Court the material facts of filing earlier suits,
receipts of stop work notices and the action of demolition taken by the
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Municipal Corporation and approach the Court for the relief of interim
injunction. In my considered opinion, therefore, there was absolutely
no reason for the Trial Court even to consider the prayer and to grant
the equitable relief of injunction as sought by the appellant, as the
conduct of appellant shows utter disregard to the law and order and
to the legal machinery and is indulging in the unauthorized and illegal
construction. There is absolutely no merits in the appeal. The appeal,
therefore, holds no merits and hence stands dismissed with costs.
10. In view of dismissal of the appeal, as the Civil Application
has become infructuous, the same also stands disposed of.
(DR.SHALINI PHANSALKARJOSHI, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (STAMP) NO.29277 OF 2016
ALONG WITH
CIVIL APPLICATION (STAMP) NO.29281 OF 2016
Mr. Haji Kasam Ghaneria. ]
Residing at Building No.35/37, Nishanpada, ]
X Lane, Mumbai 400 009. ] … Appellant
Versus
1. The Municipal Corporation of Greater ]
Bombay. ]
Office at Brihan Mumbai Mahanagar Palika ]
Municipal Head Office, Mahapalika Marg, ]
Fort, Mumbai 400 001. ]
2. Assistant Municipal Commissioner, ]
'B' Ward, Babulnath, Tank Cross Road, ]
Mumbai 400 009. ] … Respondents
Mr. Satish R. Mishra for Appellant.
Mr. S. Pakale a/w Mrs. Madhuri More for Respondents BMC.
CORAM : DR. SHALINI PHANSALKARJOSHI, J.
DATE : OCTOBER 26, 2016
JUDGMENT :
1. This appeal is preferred by the original plaintiff
challenging the order dated 01/10/2016 passed by the City Civil
Court, Mumbai, thereby rejecting the draft Notice of Motion filed in
Suit Stamp No.9382 of 2016.
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2. As per the case of the appellant, he is the owner of the
building no.35/37/39, Nishanpada, XLane, Mumbai 400 099. The
said building is occupied by 22 tenants, all are residing along with
their family members. As the building was in dilapidated condition,
the appellant made various applications before the MHADA for
obtaining permission for repair work of the building. In the year
2006, the appellant received such permission. However, the appellant
failed to repair the said building due to financial crisis. Hence, the
appellant made application on 10/10/2015 for carrying out the
repairs and accordingly started the repair work in respect of the said
building. However various notices came to be issued to the appellant
by the Municipal Corporation calling upon him to show cause as to
why the construction carried out by him should not be demolished on
the count of it being unauthorized and illegal. The last notice was
received by him on 09/04/2016 under Section 354(A) of MMC Act,
1888. The apprehension of the appellant is that the respondent
Municipal Corporation may demolish the said building pursuant to the
notice and hence he approached the Trial Court seeking relief of
permanent injunction.
3. Along with the suit, the appellant has filed a draft Notice
of Motion seeking the relief of interim injunction.
4. This notice of motion came to be resisted by the
respondent Municipal Corporation by filing affidavitinreply of its
Junior Engineer Mr. Vinod Ghare contending, inter alia , that the
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appellant had carried out totally illegal and unauthorized construction
in respect of which the complaints were received and hence the
inspection was taken by the staff on 08/04/2016. At that time, it was
noticed that the construction was carried out by the appellant without
obtaining any permission from the competent authority. Hence the
appellant was called upon to show cause within 24 hours. However,
the appellant failed to do so. It is submitted by the respondent
Municipal Corporation that prior to filing of the present suit, the
appellant has filed another suit bearing no.BCCC Suit No.783 of 2016
in respect of same suit property for challenging first stop work notice
dated 02/04/2016 issued under Section 354(A) of the BMC Act. At
the time of arguments on adinterim relief, the appellant sought time
to file reply to the notice and the documents. Accordingly, the Court
granted time. However, the appellant failed to submit the documents
and reply to notice. Again the appellant approached the Trial Court
by filing Suit No.905 of 2016 for seeking permission and extension to
file documents. The Trial Court rejected the said request of the
appellant and after hearing learned Counsel for both the sides,
rejected the prayer of adinterim relief vide its order dated
22/04/2016. It is submitted by the respondent Municipal
Corporation that these material facts were suppressed by the appellant
that the appellant had earlier challenged the notice dated 02/04/2016
and the order passed thereon by the Designated Officer on
16/04/2016. It is submitted that at that time, the unauthorized
reconstruction of the building was of ground + three floors and
further vertical extension by RSJ frameworks.
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5. It is urged that the respondent had also earlier issued
notice dated 30/10/2015 under Section 354 (A) of the BMC Act and
second notice dated 30/01/2016. Third stop work notice was issued
th
on 15/03/2016, the 4 stop work notice was issued on 30/03/2016,
th th
5 stop work notice was issued on 20/04/2016 and the 6 stop work
notice was issued on 09/04/2016.
6. Pursuant to these stop work notices, the respondent
demolished the suit structure four times i.e. first demolition took place
on 02/04/2016, second demolition took place on 21/04/2016, third
demolish took place on 26/04/2016 and 27/04/2016 and the fourth
demolition was carried out on 04/06/2016. It is submitted that all
these demolitions were suppressed by the appellant from the Trial
Court and this Court. According to the respondent, the appellant is a
habitual in indulging in the activity of reconstruction of unauthorized
work. Notice under Section 52(43) of the MRTP Act was also issued
to the appellant on 01/12/2015 and on 13/06/2016 for unauthorized
construction. It is urged that thereafter the officer of the respondent
Municipal Corporation visited the suit site on 16/04/2016 and
17/04/2016 and observed that the appellant had carried out
unauthorized construction up to ground + 7 floors by using RSJ
section work and ladi coba and ladi slab. Again the respondent
th
Municipal Corporation carried out demolition of 7 floor. However,
thereafter, the appellant continued the unauthorized construction up
th th
to 10 and 11 floors. Hence the demolition of the said construction
took place on 21/04/2016 and 26/04/2016.
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7. In support of these contentions, the respondent had
produced on record all the stop work notices and also the demolition
orders to show that the demolitions were carried out with the help of
necessary police assistance. The photographs are also produced which
are annexed at pages 62 to 82 of the paperbook.
8. Thus, all these documents produced on record by the
respondent Municipal Corporation are, in the considered opinion of
this Court, more than sufficient and speak for themselves to show that
despite repeated actions of issuance of stop work notices and carrying
out demolitions of the unauthorized construction, the appellant is
bent upon indulging in the same activity and proceeding with the
illegal and unauthorized construction. It is pertinent to note that
when the first stop work notice was issued to the appellant, the
construction was ground + 3 floors and as can be seen from the
subsequent work notices, the demolition of unauthorized structure
th th
took place up to 10 and 11 floors. This fact clearly shows that the
appellant has scant regard for law and order and is not deterred even
by the drastic action of demolition taken by the respondent
Municipal Corporation. Not a single document is produced to show
that the appellant had obtained the requisite permission for carrying
out such construction of ground + 11 floors.
9. It also seems to be the conduct of the appellant to
suppress from the Court the material facts of filing earlier suits,
receipts of stop work notices and the action of demolition taken by the
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Municipal Corporation and approach the Court for the relief of interim
injunction. In my considered opinion, therefore, there was absolutely
no reason for the Trial Court even to consider the prayer and to grant
the equitable relief of injunction as sought by the appellant, as the
conduct of appellant shows utter disregard to the law and order and
to the legal machinery and is indulging in the unauthorized and illegal
construction. There is absolutely no merits in the appeal. The appeal,
therefore, holds no merits and hence stands dismissed with costs.
10. In view of dismissal of the appeal, as the Civil Application
has become infructuous, the same also stands disposed of.
(DR.SHALINI PHANSALKARJOSHI, J.)
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