Case Note & Summary
The appellant, Anil Sitaram Dubey, filed an appeal against an order of the City Civil Court, Mumbai, dated 26 September 2016, which refused to grant ad-interim relief restraining the Municipal Corporation of Greater Mumbai from taking action pursuant to a notice dated 8 September 2016 issued under Section 55 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act). The appellant claimed to be in occupation of a structure bearing RXC-6-1/A admeasuring 50 x 84, made up of A.C. Sheet Roof and BM Wall, situated at CTS No.372/374, Survey No.54/9 and 54/6, Eksar village, Borivali (West), Mumbai. He asserted that his father had constructed the premises and after his father's death, he inherited it. He possessed a Census Certificate and photo-pass receipt to demonstrate lawful possession. He also stated that a previous notice under Section 354A of the Mumbai Municipal Corporation Act (MMC Act) had been withdrawn. The trial court refused ad-interim relief, leading to the present appeal. The High Court admitted the appeal and, with consent, heard it finally. The court considered the appellant's submissions that he had a strong prima facie case, balance of convenience was in his favor, and irreparable loss would occur if the structure was demolished. The respondent corporation opposed the appeal, but the court found that the appellant's possession based on the Census Certificate and the withdrawal of the earlier notice under Section 354A of MMC Act established a prima facie case. The court held that the balance of convenience was in favor of the appellant and that he would suffer irreparable loss if the structure was demolished. Consequently, the court allowed the appeal, set aside the trial court's order, and granted ad-interim relief in terms of prayer clause (a) of the draft notice of motion, restraining the respondent from taking any action in pursuance of the notice dated 8.9.2016 under Section 55 of MRTP Act, until the next date of hearing of the notice of motion.
Headnote
A) Civil Procedure - Interim Injunction - Balance of Convenience - The court considered whether the appellant, claiming possession of a structure based on a Census Certificate and prior withdrawal of a notice under Section 354A of MMC Act, was entitled to ad-interim relief against demolition under Section 55 of MRTP Act. The court held that the appellant made out a strong prima facie case and balance of convenience was in his favor, as demolition would cause irreparable loss. (Paras 4-8) B) Town Planning - Section 55 MRTP Act - Notice - The court examined the validity of a notice under Section 55 of MRTP Act issued by the Municipal Corporation for alleged unauthorized construction. The court noted that the appellant's father had constructed the structure and the appellant inherited it, and a previous notice under Section 354A of MMC Act had been withdrawn. The court held that the appellant's possession based on a Census Certificate and photo-pass receipt was sufficient to grant interim protection. (Paras 5-8)
Issue of Consideration
Whether the appellant is entitled to ad-interim injunction restraining the Municipal Corporation from taking action under Section 55 of MRTP Act based on his claim of lawful possession supported by Census Certificate and prior withdrawal of notice under Section 354A of MMC Act.
Final Decision
Appeal allowed. Order dated 26 September 2016 passed by City Civil Court, Mumbai is set aside. Ad-interim relief in terms of prayer clause (a) of the draft notice of motion is granted, restraining the respondent from taking any action in pursuance of the notice dated 8.9.2016 under Section 55 of MRTP Act, until the next date of hearing of the notice of motion.
Law Points
- Interim relief
- Section 55 MRTP Act
- Section 354A MMC Act
- Census Certificate
- possession
- balance of convenience
- irreparable loss
