IN THE BOMBAY CITY CIVIL COURT AT BOMBAY

L.C. SUIT NO. OF 2016

PMS Limited )

A company incorporated under the Companies Act, 1956 )

and having registered office at _____________ )

________________________________________, )

And occupier of the premises located at flat no.__, )

____________________________________, )

situated at _________________, Mumbai- 4000__ ) … Plaintiff

Versus

Designated officer, Asst. Engineer (Bldg. & Fact.), )

____ ward, Municipal Corporation of Greater Mumbai, )

now known as Brihanmumbai Mahanagarpalika, )

a statutory body incorporated under the B.M.C Act, )

having its office at Mahapalika Marg, Mumbai 400 001. ) … Defendant

THE PLAINTIFF ABOVE NAMED SUBMITS AS UNDER:

1. The Plaintiff is a company incorporated under the Companies

Act 1956 having its registered office at _______________.

 The Plaintiff is the owner of flat no.______________ (herein

referred to as the said premises) and is also a member since

1991 of the society registered as, _________ Co-operative

Housing Society Ltd being registered in the year 2001- 2002.

2. The Defendant is a corporation established under Bombay

Municipal Corporation Act and has its head office at

Mahanagarpalika Marg, Mumbai 400 001 and having its

________ Ward Office at ___________, Mumbai.

3. By the present suit, the Plaintiff is interalia seeking mandatory

injunction of perpetual nature against the Defendant

restraining the Defendant, its servants, agents and officers

from entering into the said premises of the Plaintiff and

demolishing the area earmarked in the plan annexed to the

Show Cause Notice dated 27th December 2014 and as per

Order dated 5th October 2016 passed by the Designated

Officer, Asst. Engineer (Bldg. and Fact.) ___ Ward (herein

referred to as the said order). In pursuance of the said Order

the Defendant has served upon the Plaintiff a notice u/s. 488

of the Mumbai Municipal Corporation Act, 1888 (hereinafter

referred to as the said Act) notifying the Plaintiff to vacate

the premises along with its belongings/valuables, if any, as

the Defendant intended to demolish the said area on 14th

October 2016 at 10.30 am or any working day thereafter

thereby causing threat to the Plaintiff of its free occupation of

the said premises due to the fear of unlawful displacement. It

 is alleged by the Defendant that the Plaintiff has carried out

unauthorized structural changes in the said premises by

converting a bedroom into the kitchen and changes to a wall

in the said premises (hereinafter referred to as the Notice

structure).

4. The facts which are germane to the present suit are as follow:

a) In and around 1991, the Plaintiff purchased the said

premises from one ______ on a re-sale basis and

has been in continuous and uninterrupted

possession since then. The Plaintiff is also a

member of _______ Co-operative Housing Society

wherein the said premises is located since the year

1991 and the owner of 1000 shares of Rs. 50 each

for the said premises. Annexed hereto and marked

as Exhibit A is a copy of the Share Certificate

bearing no.____ and member registration No.___.

b) Since 1991 one _________, a Director of the

Plaintiff has been in continuous and uninterrupted

occupation of the said premises and has been

residing in the premises with his family members.

c) In and around 30th December 2014 the Defendant

pasted a copy of a Show Cause Notice dated 27th

December 2014 issued under Section 351 of the

Said Act bearing no. __________ alleging that the

Plaintiff has erected or made unauthorized

additions / alterations, and or carried out shifting of

kitchen in the said premises. The Plaintiff was

further called upon to show sufficient cause to the

satisfaction of the authority as to why the alleged

illegal alterations should not be removed within 7

(seven) days of receipt of the said notice.

Furthermore, the Plaintiff was called upon to

produce any document, if within its possession as

proof to show that the said work was not un-

authorized as alleged. The Plaintiff was shocked to

receive a notice of such a nature as the Plaintiff had

not made any alternations in the said premises nor

had any authority enquired or sought inspection of

the same ever since the Plaintiff purchased the said

premises. As stated above, the Plaintiff’s director

along with his family had always been using the

said premises bonafidely and according to the

existing laws and regulations in force. It is pertinent

to note that the Defendant’s notice dated 27th

December 2014 does not mention carrying out any

inspection nor inquiry with the Plaintiff regarding

the alleged illegalities committed before arbitrarily

issuing the said notice dated 27th December 2014.

Here to annexed “Exhibit B” is copy of Order

dated 27th December 2014.

d) On 2nd January 2015, the Plaintiff replied to the said

notice refuting the allegations made out in the said

Show Cause Notice. Vide the said letter the Plaintiff

reiterated that the said premises were being used

lawfully and in its normal course without carrying

out any alleged changes. The Defendant was also

informed that should there be a need for further

clarification on the said notice, the Plaintiff would

require 15 days to reply to the said Show Cause

Notice for seeking documents and so as to seek

instructions from its Director. Thereafter the

Plaintiff was not apprised of any further inquiry

sought to be carried out by the Defendants with

regard to the allegations contained in the said Show

Cause Notice. In view of the said silence by the

Defendant on the said issue the Plaintiff bonafidely

believed that it had satisfactorily answered/

addressed the queries of the Defendant in

reference to the said premises. Here to annexed

“Exhibit C” is copy of the letter dated 2nd January

2015.

e) On 5th October 2016, more than 22 months after

the said Show Cause Notice, the said authority of

the Defendant arbitrarily and whimsically issued an

order of the said date. Vide the said order the

Defendant whilst referring to the Show Cause

Notice and Plaintiff’s reply dated 2nd January 2015

came to a conclusion that an area in the said

premises was an unauthorized structure (notice

structure). Vide the said order the Defendant comes

to the conclusion that the Notice structure is

unauthorized on the premise that since the Plaintiff

had failed to provide any authentic documents to

prove the authorization of the notice structure in

the sufficient time. Furthermore, the Defendant

comes to the conclusion that the Plaintiff ought to

have produced documents namely; occupation

certificate, approved plans etc. sanctioned by the

competent authority by M.C.G.M. or the existence

of the notice structure prior to 17th April 1964 which

is the datum line fixed by the M.C.G.M to tolerate

the unauthorized residential structures. Vide the

said order, the Plaintiff was directed to remove the

notice structure within seven days of receipt of the

said order failing which the Defendant would

demolish the said structure and prosecute the

Plaintiff under Section 475A of the Said Act. The

said order further threatened penal consequences

on the Plaintiff in case of violation. Here to annexed

“Exhibit D” is copy of Order dated 5th October

2016.
f) On 13th October 2016, the Defendant addressed a

notice under Section 488 of the Said Act bearing

number ___________ to the Plaintiff. The

Defendant yet again threatened entering upon the

premises on the next day being 14th October 2016

or any day thereafter to demolish the notice

structure and unlawfully called upon the Plaintiff to

vacate the premises forthwith. The Plaintiff was

also warned that any subsequent claim for loss or

damage caused by the Defendant would be at the

Plaintiffs risk and consequences. It is pertinent to

note that the Defendant had yet not carried out any

inspection nor inquired with the Plaintiff regarding

the said illegalities committed before arbitrarily

issuing the said notice dated 13th October 2016.

Here to annexed “Exhibit E” is copy of letter dated

13th October 2016.

g) On 14th October 2016, the Plaintiff addressed a

letter of the said date to the Defendant requesting

it not to take any coercive action and sought to

clarify that the said notices were issued with

malafide intentions, vague and based on surmise

and conjecture and bad in law and the order passed

therein is consequently bad in law since the

Defendant had not afforded the Plaintiff an

adequate opportunity to collect relevant

 documents/ clarifications. Further, the Plaintiff had

reiterated that no unlawful work had been carried

out nor had the Plaintiff caused any damage to the

society building nor tampered with any of the

original connections from water line, sewage line or

the MCGM approved structures. The Plaintiff had

further requested three months to collate

documents and fully and fairly respond to the

alleged violations. It is pertinent to note that even

on this occasion no inspection was carried out, of

the said premises to warrant the action threatened.

Here to annexed “Exhibit F” is copy of letter dated

14th October 2016.

h) On ____________, despite the Plaintiff’s letter

dated 14th October 2016 raising valid and justifiable

grounds to oppose the threatened action, the

Defendant through its officials sought to forcefully

enter upon the said premises to purportedly

conduct the demolition threatened vide the

aforementioned notices. Upon noticing that the said

premises was locked the officials of the Defendant

were constrained to depart therefrom without

causing any unlawful or illegal damage.

i) Being left with no alternative, the Plaintiff is

compelled to approach this Hon’ble Court to

 restrain the Defendant from carrying out any

demolition activity as alleged in the said order and

the notice dated 13th October 2016 on reasons and

grounds as more particularly stated hereinbelow.

j) The Plaintiff submits that they have been in

continuous peaceful possession of the said

premises since 1991. The said premises has been

used on an as-is-where-is basis without carrying

out any changes modifications or change in its user

since purchasing the said premises. The Plaintiff

has been using the said premises as it was

purchased and no change has been undertaken in

the existing state of affairs.

5. The Plaintiff submits that a bare inspection of the said

premises portrays that it has never made any changes to the

superstructure of the said premises and this fact is further

established by the fact that the ________ Co-operative

housing society in which the said premises in situated has

never raised any queries nor any issues pertaining to any

unauthorized or illegal alterations in the said premises. In view

thereof the Plaintiff submits that it has not undertaken any

work that falls within the ambit of the said Act nor has it done

any activity to invite the consequences threatened of in the

said order and notices raised in pursuance thereof.

6. The Plaintiff submits that it has been acting in a bonafide

manner without causing any disturbance or nuisance or

leakage to the other members of the society in its occupation

of the said premises. The Plaintiff has undertaken adequate

measures to ensure that there are no leakages and/or

seepages to the adjoining flat members and has, till date,

never received any complaints from members regarding the

same.

7. The Plaintiff submits that the Show Cause Notice does not

disclose any cause which would trigger the issuance of the

same, nor does it disclose that the same was issued on the

basis of material facts (if any) or any complaint(s) received

from the neighboring members with regard to the alleged

unauthorized addition/alteration in the said premises.

8. The said Show Cause Notice is silent on whether any

inspection of the said premises was taken before the Plaintiff

was called upon to show cause about the notice structure.

The same also does not mention the requisite documents to

be produced. Thus the Plaintiff was not aware whether or not

documents pertaining to the datum line were required to be

produced with its reply to the said Show Cause Notice.

9. The said order is passed without affording any personal

hearing to the Plaintiff. Thus the said order is in violation of

the principles of natural justice and fair play. Had an

 opportunity being afforded, the Plaintiff would have explained

in detail as to whether or not documents concerning the

datum line were required in the present case or if so, the

Plaintiff would have sought time to furnish the requisite

documents and/or would be in a position to regularize the

same if it was necessary to exercise the option of

regularization. It is pertinent to note that the said Show Cause

Notice does not particularize the nature of the documents nor

does it mention any breach or violation of any law. In view of

the above circumstances the said Show Cause Notice itself is

bad in law as the same is devoid of material particulars.

10. It is submitted that as the Plaintiff had at no point of time

carried out any alteration and there was no question of any

documents being available with the Plaintiff authorizing the

purported alteration as alleged. The Plaintiff therefore submits

that that itself leads to the presumption that the Show Cause

Notice was issued without application of mind and in absence

of any material facts towards the issuance of the same.

11. The Plaintiff thus submits that the Plaintiff has throughout

acted in good faith and at no time provided any opportunity

to the Defendant to justify any action taken on the basis of

the said Show Cause Notice by duly replying to the same vide

its letter dated 2nd January 2015 categorically informing the

Defendant that the Plaintiff had not carried out any

unauthorized alteration as alleged or at all.

12. The Plaintiff further submits that the Plaintiff was under a

bonafide belief that since it had satisfactorily answered the

query of the Defendant the matter concerning the alleged

unauthorized alteration/addition was considered closed as

subsequent to the Plaintiff’s letter dated 2nd January 2015, no

inspection or inquiry was carried out by the Defendant.

13. Plaintiff submits that inspite of its reply letter dated 2nd

January 2016, the Defendant malafidely and arbitrarily

proceeded with the said Show Cause Notice after a lapse of

more than 22 months and issued the said order directing the

Plaintiff to demolish the notice structure.

14. In any event the alleged notice structure does not amount to

any structural change affecting the stability of the building or

in any way altering the existing walls. The alleged notice

structure would merely be an architectural layout without in

any manner affecting the strength of the building or be

construed to be violating any provisions of the law. The

alleged notice structure is merely for the purpose of

convenience of residence and would not hamper / damage or

cause any hindrance to any neighboring occupation.

15. The Plaintiff submits that the Defendant has passed the said

order principally on the ground that the Plaintiff has “failed to

produce authentic documents such as occupation certificate,

 approved plans etc. sanctioned by a competent authority by

M.C.G.M…” It is submitted that a bare perusal of the Show

Cause Notice shows that the Plaintiff was called upon to

produce documents that provided authorization for the

alleged notice structure in the said premises only if such

documents were in possession of the Plaintiff. Therefore, it is

submitted that the said order has been passed on a false

premise and is therefore bad in law.

16. The Plaintiff submits that the said order has also been passed

on the ground that the Plaintiff was accorded sufficient time

to produce documents providing authorization for the said

alleged notice structure. It is submitted that the Defendant

has failed to consider the fact that the said order was passed

after a lapse of more than 22 months from the date of receipt

of the Plaintiffs reply to the Show Cause Notice and the

Plaintiff was well within his rights to assume that it had

satisfactorily answered all queries of the Defendant and

therefore was not required to tender any documents in the

time termed “within the said time period”. The order has

therefore been passed without application of mind.

17. It is submitted that the Defendant has also passed the said

order on a meritless ground of the Plaintiff failing to provide

documents in spite of sufficient time being given to the

Plaintiff is utterly baseless and meritless since the said

documents as mentioned were only brought up for the first

 time in the said Order, without requesting the same vide the

said Show Cause Notice.

18. The Plaintiff submits that the Defendant has passed the said

order malafidely and without following due procedure of law

that has to be mandatorily followed in matters entailing penal

charges or imprisonment and therefore the same deserves to

be set aside and declared null and void and unenforceable.

The Plaintiff submits that since no inquiry or physical

inspection of the premises was carried out in the said

premises and no instances or complaint were brought on

record or considered by the Defendant while passing the said

order, the same reeks of malafides and arbitrariness and

therefore the order and consequently the notice dated 13th

October 2016 issued thereunder is bad, illegal, improper and

unenforceable in law and the Defendant is not entitled to act

upon the same.

19. The Plaintiff submits that the said Show Cause Notice, the said

order and the consequent notice dated 13th October 2016

issued thereunder were malafidely passed by the Defendant.

The Plaintiff reiterates the fact that no complaint or query was

forwarded to the Defendant that would enable the Defendant

to initiate any inspection or inquiry. It is therefore apparent

that the Defendant has acted on its own accord with the

malafide intent of harassing the Plaintiff in pursuance of some

extraneous considerations prompted by vengeful and

vindictive third parties.

20. The Plaintiff submits that since the premises was old, and

documents not available, had sufficient time been given to the

Plaintiff it would be in a position to regularize the same if it

was necessary to exercise the option of regularization. The

Plaintiff submits that thus it shows that the Plaintiff has always

acted bonafide and forthcoming with the said Show Cause

Notice.

21. The Plaintiff submits that it is pertinent to note the malafide

conduct of the Defendant who on one hand without

instigation and accord proceeded to issue a Show Cause

Notice on the Plaintiff, and on the other hand after a lapse of

22 months proceeds with great haste to pass the said order

and subsequent notice dated 13th October 2016, when

admittedly there have been no change of circumstances in the

prevalent state of affairs to warrant urgent punitive action.

22. The Plaintiff submits that the officer of the Plaintiff along with

his family that resides in the said premises are gravely

apprehensive that further action may be taken threatening

the safety of the occupants of the said premises or

clandestinely without the knowledge of the Plaintiff. The

Plaintiff also apprehends that loss may be caused to the

property and person of the occupants who reside in the said

premises thereby exposing it to unforeseen liabilities at the

 hands of whimsical, arbitrary and malafide actions of the

Defendant.

23. The Plaintiff’s representative is in use and occupation of the

said premises since 1991. In the event if the Defendant

undertakes any demolition as threatened in the said order,

Show Cause Notice dated 27th December 2014, and notice

dated 13th October 2016 the same would not only cause

damage to the premises but also would disturb the peaceful

use and occupation of the premises, which cannot be

compensated in monetary terms.

24. The Plaintiff submits that in light of the aforementioned

circumstances it is submitted that the order dated 5th October

2016 and notice dated 13th October 2016, threatening to

demolish the notice structure and demanding vacation of the

said premises is bad in law and patently illegal as the

Defendant who was required in law to act reasonably, has

deemed to waive statutory notice under section 527 of the

said Act and the Plaintiff therefore is entitled to file the present

suit. The Plaintiff therefore submits that the action of the

Defendant on the whole are illegal malafide and dehors the

provisions of the Said Act for the reasons set out hereinabove

and notice under section 527 of the Said Act are not attracted

or necessary. The said order and consequently the notice

dated 13th October 2016 issued thereunder, do not provide

for any time to the Plaintiff for removal of the notice structure
 and since the action of the Defendant is illegal and bad in law,

the Plaintiff has to approach this Hon’ble Court on the basis

of the urgency as particularized hereinabove seeking reliefs

that are of a mandatory and perpetual nature. Hence, the

requisite notice under section 527 be waived and dispensed

with.

25. The Plaintiff submits that it has a strong prima facie case for

grant of the reliefs as more particularly prayed for herein. The

Plaintiff states that irreparable loss, harm, injury and prejudice

will be caused to the Plaintiff if interim and ad-interim reliefs

as prayed for are not granted in favour of the Plaintiff. And

whereas, no loss or any prejudice of any nature would be

caused to the Defendant if ad interim reliefs as sought for are

allowed in favor of the Plaintiff. The Plaintiff further submits

that the balance of convenience lies with the Plaintiff and is

therefore entitled to the reliefs as prayed for.

26. The Plaintiff submits that in the light of what is stated above,

it is just and proper that this Hon'ble Court be pleased to

declare that the said Show Cause Notice dated 27th December

2014, order dated 5th October 2016 and notice dated 13th

October 2016 are illegal improper and unenforceable in law

and liable to be set aside.

27. The Plaintiff submits that in the light of what is stated above,

it is just and proper that this Hon'ble Court be pleased to pass

 a mandatory and permanent order of injunction directing the

Defendant, its servant, office bearers, agents, or any person

claiming through, from taking any steps and / or enforcing

and/or acting in accordance with or pursuant to the Show

Cause Notice dated 27th December 2014, the order dated 5th

October 2016 and notice dated 13th October 2016 and or

demolishing the notice structure in the said premises.

28. The Plaintiff states that they have not filed any another suit

with respect to the subject matter herein before any other

Court as against the Defendant.

29. The Plaintiff states that the suit is not barred by the law of the

limitation.

30. The Plaintiff state that the suit property is situated in Mumbai.

The Defendant is situated in Mumbai. The illegal and arbitrary

action of the Defendant has taken place in Mumbai. The whole

cause of action has thus arisen in Mumbai. This Hon'ble Court

therefore has jurisdiction to try, entertain and dispose of the

present suit.

31. The reliefs claimed by the Plaintiff are in the nature of

declaratory and injunctive reliefs and are not susceptible to

monetary value and hence for the purpose of Court fees the

Plaintiff values the suit at Rs.______ and has paid Rs. _____

as Court fees accordingly.

32. The Plaintiff has filed the present suit seeking urgent relief in

the circumstances mentioned herein above and craves leave

to add, amend and alter the plaint as required.

33. The Plaintiff shall rely on documents a list whereof is annexed

hereto.

The Plaintiffs therefore pray:

a. That this Hon'ble Court be pleased to declare that the

Show Cause Notice dated 27th December 2014, order

dated 5th October 2016 and notice dated 13th October

2016 are illegal improper and bad in law and liable to

be set aside.

b. That this Hon'ble Court be pleased to pass a mandatory

and permanent order of injunction directing the

Defendant, its servant, office bearers, agents, or any

person claiming through, from taking any steps and/or

demolishing the notice structure in the said premises;

c. Pending the hearing and final disposal of the present

suit this Hon'ble Court be pleased to pass an order of

injunction directing the Defendant, its servant, office

bearers, agents, or any person claiming through, from

taking any steps in pursuance of the Show Cause

Notice dated 27th December 2014, order dated 5th

October 2016 and notice dated 13th October 2016;

d. That ad-interim relief in terms of prayer clause b) and

c) above be granted;
 e. That cost of this suit be provided for.

f. That such other and further reliefs as the nature and

circumstances of the case may require be granted.

Dated this Day of October, 2016

Advocate of the Plaintiff Plaintiff

VERIFICATION

I, ___________, the authorized signatory of Plaintiff above named,

solemnly declare that what is stated in paragraph nos. 1 to _____

are true to my own knowledge and what is stated in remaining

paragraph nos. ____ to ____ are stated on information and belief,

and I believe the same to be true.

Solemnly declared at Mumbai )

This day of October 2016 ) Before me,

Identified by me

______________
Advocate for Plaintiff