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mumbai high court

Prime Facie case should be made out and irreparable loss should be caused for demolishing the suit structure: Bombay High Court

Though the T.A.C. recommended that, the structure “Champa Niwas” is required to be demolished immediately, it could not be done in view of the ad-interim injunction order and also for the reason, that demolition of the Champa Niwas would have damaged the suit structure, which is abutting and/or forming a part of Champa Niwas. This judgment was delivered by Hon’ble Justice Sandeep K. Shinde at Bombay High Court in the matter of Balchandra Vasudeo Rao (DEC.) THR. LRS. Smt. Himati Balchandra Rao v. The Municipal Corporation of Greater Mumbai [AOST 94879 of 2020].

The respondents issued a notice to plaintiff under Section 351 of the Mumbai Municipal Corporation Act. The notice was issued to calling upon him to show cause, why the suit structure described in the notice schedule, should not be removed or pulled down. Plaintiff responded the notice vide reply dated 30.04.2012; but did not submit ‘construction permission’. He, simply stated that the suit structure came into being since before 30 years. Tenor of the reply therefore suggests, suit structure was constructed without permission of the Planning Authority but since it exists prior to the datum line i.e., 1.04.1962, fixed for commercial structures, it cannot be demolished, which was being used for ‘commercial purposes. Aggrieved by the order given by the trial court, the plaintiff has preferred this appeal, under Order 43 Rule 1 of the Civil Procedure Code.

The Hon’ble High Court observed that “the plaintiff herein, is the co-owner and occupying one of the tenements in the Champa Niwas. There are pending disputes between the plaintiff and the co-owners, of Champa Niwas. Prima facie it appears, the other co-owners of Champa Niwas were supporting demolition and reconstruction of Champa Niwas; whereas, the appellant-plaintiff is opposing it. the tenants of Champa Niwas approached this Court in its writ jurisdiction seeking directions to the Corporation to pull down the structure of Champa Niwas. When the Division Bench of this Court, while entertaining writ petition, had noticed that the structure could not be pulled down because of ad-interim order passed in the subject suit instituted by the appellant-plaintiff and that too in the year 2012.”

While deciding upon the matter, the Hon’ble High Court held that “in the consideration of the facts of the case, and after perusing the relevant documents on record, in my view, the plaintiff has neither made out a prima facie case, nor the balance of convenience tilts in his favour, nor irreparable loss would be caused to him, if the suit structure is demolished. In fact, on account of the unauthorized construction made by the plaintiff, the tenants who have vacated their respective tenements in Champa Niwas are ‘sufferers’. That for the reasons stated herein above, no interference is called for in the impugned order. The Appeal is dismissed. Learned Counsel for the appellant, seeks stay of the order for the period of 8 weeks, however, in consideration of the peculiar facts of the case, the prayer is rejected.”

 

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