Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 01/18 IN LC SU 01/18
CNR NO.MHCC011/2018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.01 OF 2018
IN
L.C.SUIT NO.01 OF 2018
Abdul Samad Merchant ... Plaintiff
Versus
1. The Municipal Corporation of Greater
Mumbai & Anr. ... Defendants
Coram : H.H.Shri Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 24th April, 2019.
Mr.Anand A. Pandey, advocate for plaintiff.
Mr.Pradeep Patil, advocate for defendant/BMC.
O R D E R
1. The Plaintiff by this Notice of Motion seeks temporary
injunction restraining defendant from acting upon the notice dated
22/12/2017 issued under section 354 A of MMC Act and the order
passed by the MMC on 28/12/2017.
2. The Plaintiff claims to be tenant of the suit premises. It
is contended by the Plaintiff that the suit structure is in existence
since 196061. It is stated that suit structure is assessed by the
Municipal Corporation. The Plaintiff was carrying out tenantable
repairs, the defendant issued notice u/s 354 A of MMC Act dated
-- 1 of 5 --
2 NM 01/18 IN LC SU 01/18
22/12/2017. It is contended that, the mezzanine floor at the suit
premise is existence since 196061. He was carrying out repairs of
the suit structure including mezzanine floor. It is contended that
notice was replied by the Plaintiff on 28/12/2017. Said reply was
not considered and the defendant arbitrarily issued order dated
28/12/2017.
3. Defendant/Corporation contended that in inspection of
suit premises, the Plaintiff was found carrying out unauthorized
construction of mezzanine floor, therefore notice was rightly issued
u/s 354 A of MMC Act. It is contended that Plaintiff had not replied
notice order dated 28/12/2017 which was accordingly issued calling
upon Plaintiff to demolish the mezzanine floor.
4. Heard learned advocate for Plaintiff and learned
advocate for defendant.
5. In paragraph no.10 (B) of affidavit in reply filed by
Defendant/Corporation, it is contended by the Corporation that the
site under reference was inspected by the Officer of the
Defendant/Corporation and was observed unauthorized construction
of mezzanine floor was in progress and, therefore, by the notice
dated 22/12/2017 called upon Plaintiff to stop execution of the work
forthwith and on failure to produce the permission within 24 hours,
would be removed or pulled down at the cost of Plaintiff.
6. Admittedly, from 22/12/2017 till 28/12/2017 no orders
were issued in pursuance to the notice issued u/s 354 A of MMC Act
to the Plaintiff. During this period, it is not clear as to what was the
-- 2 of 5 --
3 NM 01/18 IN LC SU 01/18
stage of construction at the suit site.
7. It needs to be mentioned that the Plaintiff had replied
the notice dated 22/12/2017 on 28/12/2017. The order pursuant to
the notice u/s 354 A of MMC Act was issued on 28/12/2017. The
order points out that the Plaintiff had not submitted any reply or any
document to prove that the notice structure is authorized or the
construction was with the permission of Executive Engineer of
MCGM. The Plaintiff had relied upon his reply to the notice, it bears
the stamp of the corporation indicating about its receipt by the
corporation. It is also not the contention in the say of the defendant
that the reply of the Plaintiff to the notice was filed after the issuance
of order on the same day. The position which emerges is that inspite
of their being reply of the Plaintiff, the same seems not considered by
the corporation.
8. The Plaintiff had raised a triable issue in the suit. The
suit structure therefore, also needs to be maintained in status quo.
9. It primafacie appears that the order of the corporation is
arbitrary and is passed without considering the reply of the Plaintiff.
The Plaintiff had made out primafacie case in his favour and the
balance of convenience lies in favour of Plaintiff. The Plaintiff would
put irreparable loss, if the temporary injunction is refused in result
the following order :
ORDER
1. The notice of motion No.01/2018 is made absolute.
2. The defendant/corporation is restrained by temporary
-- 3 of 5 --
4 NM 01/18 IN LC SU 01/18
injunction from acting upon the notice u/s 354 A of MMC Act dated
22/12/2017 and the order dated 28/12/2017 in respect to the suit
structure.
3. Notice of Motion stands disposed off.
(Sanjay N. Yadav)
Judge,
City Civil Court, Mumbai.
Dictated on : 24.04.2019
Transcribed on : 24.04.2019
Signed by HHJ on : 02.05.2019
-- 4 of 5 --
5 NM 01/18 IN LC SU 01/18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 02.05.2019 At 05.35 pm
NAME OF CLERKTYPIST : Mrs. P. L. Parab
Name of the Judge (With Court
Room no.)
HHJ Shri. S. N. Yadav
C.R. No.05
Date of Pronouncement of
JUDGMENT/ORDER
24.04.2019
JUDGMENT/ORDER signed by
P.O. on
02.05.2019
JUDGMENT/ORDER uploaded
on
02.05.2019
-- 5 of 5 --