Case Note & Summary
The appellant, Michael Mascarenhas, filed an appeal challenging an order dated 30.07.2016 passed by the City Civil Court, Dindoshi, Mumbai, which rejected his application for ad interim injunction. The appellant claimed to be the occupant of temporary structures (Gala Nos. 7 and 8) at Chandu Studio Compound, Kalina, Mumbai, under a tenancy agreement dated 15.05.1962. The Brihan Mumbai Municipal Corporation (BMC) issued a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888 (MMC Act) on 16.04.2016, followed by an order dated 12.07.2016, directing demolition of the structure as unauthorized. The appellant sought to restrain the BMC from taking action. The trial court refused interim relief, leading to the appeal. The High Court considered whether the appellant had a prima facie case and whether the balance of convenience favored granting injunction. The court noted that the structure was temporary and unauthorized, and the tenancy agreement did not confer any right against the corporation's statutory powers. The court held that the appellant failed to make out a case for interim relief, as the structure was likely to be a safety hazard. The appeal was dismissed, and the trial court was directed to dispose of the suit expeditiously.
Headnote
A) Municipal Law - Unauthorized Structure - Section 351 of the Mumbai Municipal Corporation Act, 1888 - Interim Injunction - The appellant sought interim relief against demolition of a temporary structure occupied under a tenancy agreement from 1962. The court held that the tenancy agreement does not confer any right to continue occupation after notice under Section 351, and the balance of convenience was against granting injunction as the structure was unauthorized and posed safety risks. (Paras 1-5)
Issue of Consideration
Whether the appellant is entitled to interim injunction restraining the Municipal Corporation from taking action pursuant to notice under Section 351 of the MMC Act, 1888, in respect of a temporary structure claimed to be occupied under a tenancy agreement from 1962.
Final Decision
Appeal dismissed. Order of City Civil Court dated 30.07.2016 rejecting ad interim injunction is confirmed. Trial court directed to dispose of L.C. Suit No. 2039 of 2016 expeditiously.
Law Points
- Section 351 of MMC Act
- 1888
- unauthorized structure
- interim injunction
- balance of convenience
- prima facie case
Case Details
2016 LawText (BOM) (09) 65
Appeal from Order (Stamp) No. 23255 of 2016
Dr. Shalini Phansalkar-Joshi, J.
Mr. D. S. Sapkale for the Appellant, Mrs. Madhuri More for the Respondents
Brihan Mumbai Municipal Corporation through its Commissioner, The Commissioner, The Deputy Commissioner, The Assistant Commissioner Building and Factories, Ward Officer, Designated Officer
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Nature of Litigation
Appeal against order rejecting ad interim injunction in a suit challenging demolition notice under Section 351 of MMC Act.
Remedy Sought
Appellant sought interim injunction restraining BMC from taking action pursuant to notice dated 16.04.2016 and order dated 12.07.2016.
Filing Reason
Appellant claimed to be occupant of temporary structures under tenancy agreement from 1962 and sought to prevent demolition.
Previous Decisions
City Civil Court, Dindoshi, Mumbai rejected ad interim injunction on 30.07.2016.
Issues
Whether the appellant has a prima facie case for interim injunction against demolition under Section 351 of MMC Act.
Whether the balance of convenience lies in favor of granting interim relief.
Submissions/Arguments
Appellant argued that he is a tenant under a tenancy agreement dated 15.05.1962 and has been in possession for decades.
Respondents argued that the structure is unauthorized and notice under Section 351 was validly issued.
Ratio Decidendi
A tenancy agreement does not confer any right to continue occupation of an unauthorized structure after notice under Section 351 of the MMC Act. The balance of convenience is against granting interim injunction as the structure is unauthorized and likely a safety hazard.
Judgment Excerpts
This appeal is preferred challenging the order dated 30.07.2016 passed by the City Civil Court, Dindoshi, Mumbai in Draft Notice of Motion filed in L.C. Suit No. 2039 of 2016 thereby rejecting the ad interim relief of injunction.
It is the contention of the appellant that he is the occupant of temporary structure consisting of Gala Nos.7 and 8 situated at Chandu Studio Compound, Kalina Kurla Road, Kalina, Santacruz East, Mumbai-400 029.
Procedural History
Appellant filed L.C. Suit No. 2039 of 2016 in City Civil Court, Dindoshi, Mumbai, seeking injunction against BMC. Trial court rejected ad interim injunction on 30.07.2016. Appellant filed Appeal from Order (Stamp) No. 23255 of 2016 in Bombay High Court, which was dismissed on 29.09.2016.
Acts & Sections
- Mumbai Municipal Corporation Act, 1888: 351
