Case Note & Summary
The appellant, Mohd. Ismail Gulam Shaikh, filed an appeal against an order of the trial court refusing ad-interim relief in a suit seeking injunction against the Municipal Corporation of Greater Mumbai from acting upon a notice dated 16th December 2014 issued under Section 55 of the Maharashtra Regional and Town Planning Act, 1966 (M.R.T.P. Act). The notice pertained to a structure at 43-45, Mathuradas Estate Chawl, Ground Floor, Behind Apollo Floweriest, Causeway, Colaba, Mumbai. The appellant claimed the structure was in existence since 1961-62 and that he had been carrying on business and residing there. He relied on a Deed of Declaration dated 11th May 1949, a power of attorney from June 2014, notices from the Municipal Corporation under Section 381 of the Mumbai Municipal Corporation Act from 2005, a ration card, telephone bills, and electricity bills to show the address. The appellant argued that the structure was not temporary, so the notice under Section 55 was without jurisdiction, and that he was denied an oral hearing. The Municipal Corporation opposed the injunction. The High Court, after hearing arguments, found that the appellant had not made out a prima facie case. The documents did not conclusively prove the structure was permanent or that the appellant had legal title. The balance of convenience was against granting injunction as the structure was allegedly unauthorized and the public interest in demolition outweighed the appellant's claim. The Court dismissed the appeal and vacated the interim status quo order, directing the trial court to dispose of the notice of motion expeditiously.
Headnote
A) Municipal Law - Demolition of Unauthorized Structure - Section 55 of the Maharashtra Regional and Town Planning Act, 1966 - The appellant sought injunction against demolition notice under Section 55, claiming the structure was permanent and existed since 1961-62. The Court held that the appellant failed to establish a prima facie case as the documents produced (Deed of Declaration, power of attorney, bills) did not conclusively prove the structure was permanent or that the appellant had legal title. The balance of convenience was against granting injunction as the structure was allegedly unauthorized and the public interest in demolition outweighed the appellant's claim. (Paras 1-6)
Issue of Consideration
Whether the appellant made out a prima facie case for grant of ad-interim injunction against the Municipal Corporation from acting upon the notice under Section 55 of the M.R.T.P. Act, 1966.
Final Decision
The appeal is dismissed. The ad-interim order of status quo granted earlier is vacated. The trial court is directed to dispose of the notice of motion expeditiously.
Law Points
- Section 55 of M.R.T.P. Act
- 1966 applies to temporary structures
- prima facie case for injunction requires strong evidence of permanent structure
- balance of convenience lies with public interest in demolition of unauthorized structures.
Case Details
2016 LawText (BOM) (02) 54
Appeal from Order No.75 of 2015 with Civil Application No.89 of 2015
Mr.D.H. Mehta with Ms.A. Castellino i/b Mr.Bruno Castellino and Mr.P.R. Yadav for the Appellant; Mr.R.A. Thorat, Senior Counsel with Mr.S.K. Sonawane and Mr.A.V. Diwate for the Respondent No.1 – B.M.C.; Mr.S.U. Kamdar, Senior Counsel i/b Mr.Alok Bagla for the Applicant in Civil Application No.1334 of 2015; Mr.Rajesh Bindra for the Applicant in Civil Application No.91 of 2016.
Mohd. Ismail Gulam Shaikh
Municipal Corporation of Gr.Mumbai & Anr.
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Nature of Litigation
Civil appeal from order refusing ad-interim injunction in a suit challenging a demolition notice under Section 55 of the M.R.T.P. Act.
Remedy Sought
The appellant sought an injunction restraining the Municipal Corporation from acting upon the notice dated 16th December 2014 under Section 55 of the M.R.T.P. Act.
Filing Reason
The appellant claimed the structure was permanent and existed since 1961-62, and the notice under Section 55 was without jurisdiction.
Previous Decisions
The trial court refused to grant ad-interim relief on 2nd January 2015.
Issues
Whether the appellant made out a prima facie case for grant of ad-interim injunction against the Municipal Corporation from acting upon the notice under Section 55 of the M.R.T.P. Act, 1966.
Submissions/Arguments
Appellant argued that the structure was not temporary, notice under Section 55 was without jurisdiction, and he had been in possession since 1961-62 as evidenced by various documents.
Respondent Municipal Corporation opposed the injunction, likely arguing the structure was unauthorized and temporary.
Ratio Decidendi
The appellant failed to establish a prima facie case for injunction as the documents did not conclusively prove the structure was permanent or that the appellant had legal title. The balance of convenience was against granting injunction as the structure was allegedly unauthorized and the public interest in demolition outweighed the appellant's claim.
Judgment Excerpts
By this appeal from order, the appellant has impugned the order passed by the learned trial Judge on 2nd January, 2015 refusing to grant ad-interim relief in favour of the appellant (original plaintiff) in the notice of motion inter-alia praying for an injunction against the Municipal Corp[oration (original defendants) from acting upon or from taking any steps pursuant to the notice dated 16th December, 2014 issued under section 55 of the M.R.T.P. Act, 1966 as against the plaintiff and the suit premises...
He submits that since the structure in question was not a temporary structure, notice itself issued under section 55 of the M.R.T.P. Act by the Municipal Corporation was without jurisdiction.
Procedural History
The appellant filed a suit in the trial court seeking injunction against the Municipal Corporation. The trial court refused ad-interim relief on 2nd January 2015. The appellant then filed the present appeal from order before the High Court. The High Court heard the appeal and dismissed it on 1st February 2016.
Acts & Sections
- Maharashtra Regional and Town Planning Act, 1966: 55
- Mumbai Municipal Corporation Act: 381
