Case Note & Summary
The appellants, tenants of a 60-year-old building called Kanhaiya Bhavan, filed a suit (L.C. Suit No. 1528 of 2018) seeking a declaration that the Technical Advisory Committee's order dated 31st February 2018 and the notice under Section 354 of the Bombay Municipal Corporation Act, 1888 dated 19th March 2018 were illegal. They also sought a permanent injunction restraining the Municipal Corporation of Greater Mumbai from acting on the notice. Along with the plaint, they filed an application for temporary injunction. The City Civil Judge, Borivali Division, Dindoshi, Mumbai, by order dated 6th June 2018, refused to grant ad-interim injunction. The appellants appealed to the Bombay High Court. The High Court noted that the building was 60 years old, load bearing, and supported by RCC columns, and that the notice under Section 354 was issued due to the dilapidated condition. The court held that the safety of residents and passersby is paramount and that the appellants failed to make out a prima facie case for injunction. The appeal was dismissed, and the trial court was directed to decide the Notice of Motion expeditiously.
Headnote
A) Civil Procedure - Temporary Injunction - Prima Facie Case - In a suit challenging a demolition notice under Section 354 of the Bombay Municipal Corporation Act, 1888, the court held that the safety of residents and passersby outweighs the tenant's right to continue occupation of a dilapidated building - The trial court's refusal of ad-interim injunction was upheld as the building was 60 years old, load bearing, and in dangerous condition (Paras 1-9).
Issue of Consideration
Whether the appellants made out a case for interference with the order of the trial court refusing ad-interim injunction against demolition notice under Section 354 of the BMC Act.
Final Decision
The appeal is dismissed. The order passed by the City Civil Judge, Borivali Division, Dindoshi, Mumbai dated 6th June 2018 is confirmed. The trial court is directed to decide the Notice of Motion expeditiously, preferably within four weeks from the date of receipt of the order.
Law Points
- Prima facie case
- balance of convenience
- irreparable loss
- public safety
- dilapidated building
- Section 354 BMC Act
Case Details
2018 LawText (BOM) (07) 70
Appeal from Order (Stamp) No. 16200 of 2018 along with Civil Application (Stamp) No. 16201 of 2018
Mr. Pradeep Thorat a/w Mr. Bipin J. Joshi, for the Appellants; Mrs. M. R. Bhoir, for the Respondent/MCGM
Municipal Corporation of Greater Mumbai & Ors.
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Nature of Litigation
Appeal against order refusing ad-interim injunction in a suit challenging demolition notice under Section 354 of BMC Act.
Remedy Sought
Appellants sought to restrain the Municipal Corporation from acting upon the notice under Section 354 of BMC Act dated 19th March 2018 and sought declaration that TAC order and notice were illegal.
Filing Reason
Appellants challenged the demolition notice issued by the Municipal Corporation on the ground that the building was not dilapidated and the notice was illegal.
Previous Decisions
The City Civil Judge, Borivali Division, Dindoshi, Mumbai, by order dated 6th June 2018, refused to grant ad-interim injunction.
Issues
Whether the appellants made out a prima facie case for grant of ad-interim injunction against the demolition notice under Section 354 of BMC Act.
Whether the balance of convenience lies in favor of the appellants or the respondent Corporation.
Submissions/Arguments
Appellants argued that the building was not dilapidated and the notice under Section 354 was illegal, and various provisions of BMC Act were pressed into service.
Respondent Corporation argued that the building was 60 years old, load bearing, and in dangerous condition, and that safety of residents and passersby was paramount.
Ratio Decidendi
In matters involving safety of life and property, the court must prioritize public safety over the rights of tenants to continue occupation of a dilapidated building. The refusal of ad-interim injunction was justified as the appellants failed to establish a prima facie case.
Judgment Excerpts
The fact prima facie, that the Court has to decide at this stage is to whether the building in question is dilapidated one and whether it is safe for residence for the residents and also whether it is safe for the passersby.
In my view, the learned Judge of the Court below has correctly exercised the discretion in refusing to grant ad-interim relief.
Procedural History
Appellants filed L.C. Suit No. 1528 of 2018 before City Civil Judge, Borivali Division, Dindoshi, Mumbai, along with an application for temporary injunction. The trial court refused ad-interim injunction on 6th June 2018. Appellants filed Appeal from Order (Stamp) No. 16200 of 2018 before the Bombay High Court, which was heard and dismissed on 5th July 2018.
Acts & Sections
- Bombay Municipal Corporation Act, 1888: 354
