Case Note & Summary
The appellant, M/s Masjid Wa Madrasa Fatimatu Zohra (Ra) Trust, filed an appeal against an order of the City Civil Court, Mumbai, dated 21 September 2016, which refused to grant ad-interim injunction restraining the Municipal Corporation of Greater Mumbai from demolishing a structure used for education and Namaz since 1972. The appellant claimed the structure existed prior to 1962 and was thus protected. The suit property was part of Kantharia Mahal, which was under the possession of a Court Receiver appointed in Suit No.941 of 2007. In 1990, the Corporation issued a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888, but after the appellant's reply, the notice was dropped. However, on 19 July 2016, a fresh notice under Section 351 was issued, followed by an order dated 2 September 2016 directing removal of the structure within 7 days. The appellant filed a suit and sought interim injunction, which was refused by the trial court. The High Court admitted the appeal and heard it finally. The court found that the appellant had made out a prima facie case because the structure was claimed to be in existence since prior to 1962, and the earlier notice had been dropped after the appellant's reply. The balance of convenience was in favor of the appellant, as demolition would cause irreparable loss. The court set aside the trial court's order and granted ad-interim injunction in terms of prayer clause (a), restraining the Corporation from taking any action pursuant to the notice and order, until the next date of hearing of the notice of motion in the trial court. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Interim Injunction - Prima Facie Case - The court considered whether the appellant made out a prima facie case for grant of ad-interim injunction against demolition of a structure claimed to be in existence since prior to 1962 - Held that the appellant's claim of existence prior to 1962 and the fact that earlier notice under Section 351 of MMC Act was dropped after reply raised a serious triable issue, warranting interim protection (Paras 7-9). B) Municipal Law - Section 351 Mumbai Municipal Corporation Act, 1888 - Demolition of Unauthorized Structure - The court examined the validity of notice under Section 351 and subsequent demolition order - Held that when the appellant had earlier successfully contested a similar notice and the structure was allegedly in existence since before 1962, the Corporation's fresh action without considering the earlier dropping of proceedings was questionable (Paras 6-8). C) Property Law - Court Receiver - Possession - The suit property was part of Kantharia Mahal, which was in possession of Court Receiver appointed in Suit No.941 of 2007 - The court noted that the appellant's possession was through the Court Receiver, which did not affect the claim of protection (Para 5).
Issue of Consideration
Whether the appellant is entitled to ad-interim injunction restraining the Municipal Corporation from demolishing the suit structure pending disposal of the suit, considering the claim that the structure existed prior to 1962 and is protected.
Final Decision
Appeal allowed. The order dated 21.9.2016 passed by City Civil Court, Mumbai is set aside. Ad-interim injunction is granted in terms of prayer clause (a) restraining the Municipal Corporation from taking any action in pursuance of Notice dated 19.7.2016 and order dated 2.9.2016, until the next date of hearing of the notice of motion in the trial court. No order as to costs.
Law Points
- Interim injunction
- Prima facie case
- Balance of convenience
- Irreparable loss
- Section 351 Mumbai Municipal Corporation Act
- 1888
- Protected structure
- Pre-1962 construction
