Case Note & Summary
The appellant, Bilkish Hamid Indrapurwalla, filed a suit (L.C. Suit No. 1378 of 2018) in the Bombay High Court challenging an order dated 25th April, 2018 issued by the Municipal Corporation of Greater Mumbai (MCGM) under Section 351 of the Mumbai Municipal Corporation Act, 1888, directing demolition of a garage on the ground floor of Lilly Villa. The appellant claimed to be a tenant of the ground floor and the garage, which was allegedly constructed in 1955 by the then landlord and was included in the census plan with the development control regulations. The appellant argued that the building existed prior to the datum line of 1961-62 and was a tolerated structure. The Trial Court on 8th May, 2018 refused to grant ad-interim relief. The appellant appealed. The High Court, after hearing both sides, found that the appellant had made out a strong prima facie case, balance of convenience, and irreparable loss. The Court noted that the garage was in existence since 1955 and the appellant was a tenant. The Court allowed the appeal, set aside the Trial Court's order, and granted ad-interim relief in terms of prayer clause (c) of the draft notice of motion, restraining the Corporation from acting on the impugned order dated 25th April, 2018 until the disposal of the notice of motion. The Court also directed the Trial Court to dispose of the notice of motion within six months.
Headnote
A) Civil Procedure - Ad-Interim Relief - Prima Facie Case - The Trial Court refused ad-interim relief in a suit challenging a demolition notice under Section 351 of the Mumbai Municipal Corporation Act, 1888. The High Court held that the plaintiff had made out a strong prima facie case, balance of convenience, and irreparable loss, as the garage was claimed to be constructed in 1955 and assessed prior to the datum line, and the plaintiff was a tenant. The Court granted ad-interim relief restraining the Corporation from demolishing the structure pending the notice of motion. (Paras 6-7)
Issue of Consideration
Whether the Trial Court erred in refusing to grant ad-interim relief to the plaintiff/tenant against the demolition notice issued under Section 351 of the Mumbai Municipal Corporation Act, 1888, in respect of a garage allegedly constructed prior to the datum line.
Final Decision
The appeal is allowed. The impugned order dated 8th May, 2018 passed by the learned Judge of the Trial Court is set aside. The appellant is entitled for ad-interim relief in terms of prayer clause (c) of the draft notice of motion. The Trial Court is directed to dispose of the notice of motion within six months from the date of the order.
Law Points
- Ad-interim relief
- prima facie case
- balance of convenience
- irreparable loss
- Section 351 of the Mumbai Municipal Corporation Act
- 1888
- tenant rights
- demolition notice
- tolerated structure
- datum line
