Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Int - Un.Reg.NM in Su.No.08-20
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF ON
UN REGISTERED NOTICE OF MOTION
IN
L.C. SUIT NO. 08 OF 2020
(CNR no. MHCC010000152020)
(Matter pertains to C.R.No.06)
MAYUR KISHOR PAREKH, ]
Adult, Age 52 Yrs. Occ. Business ]
having business place at Standard ]
Paper Box Bldg., Shankarrao Naram ]
Path, Lower Parel (W), ]
Mumbai400 013 ]... Plaintiff
Versus
The Mumbai Municipal Corporation ]
of Greater Mumbai, a Corporate ]
Body under the provisions of ]
M.M.C Act 1888 and having their ]
office at Mahapalika Marg, Fort, ]
Mumbai400 001 through the Asst. ]
Municipal Commissioner, 'G' South ]
Ward Municipal Office, N.M. Joshi Marg ]
Elphinstone, Mumbai400 018 ]....Defendants
Appearances:
Ld. Advocate Mr. D.A.Barot for the Plaintiff.
Ld. APP Sutar for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI U.J.MORE
(Court Room no. 8)
(I/c of C.R.NO.6)
DATED : 04th January, 2020
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O R A L O R D E R O N A D I N T E R I M R E L I E F
1. Perused plaint, Notice of Motion, documents annexed to
the plaint and heard Ld. Advocate for the plaintiff. The plaintiff has
prayed for temporary injunction restrained Defendant/MCGM for
demolishing the part of the suit premises i.e. Terrace Structure area
93'.00" X 72'.00" having height (10'.00" to 08'.06" Sloping Roof) till final
disposal of the suit with M.S. Angels & G.I. Sheet Roof on the terrace of
Bhusa Industrial Estate, Shankarrao Naram Path, Lower Parel, Mumbai,
Maharashtra 400030.
2. Ld. Advocate for the Plaintiff has submitted that, he is
doing his business of Standard Paper Box factory in the entire building.
He never carried out any alterations and additions or constructed any
shade admeasuring 93'.00" X 72'.00" on the terrace of Standard Paper
Box building (hereinafter called as a Suit premises). The
Defendants/MCGM have issued notice u/s. 351 bearing
No.ACGS/351/J&N/1026/3F 0809 dated 03.06.2008 to the Plaintiff.
He replied to the notice again he received notice u/s 351 bearing
No.GS/DO2GS/191/351MMC ACT/GS131NO1/31082016 dated 31 st
August, 2016. He challenged this notice by filing L.C. Suit 1314 of 2017
in the same court. This Court was pleased to passed order by direction
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to the Plaintiff to submit "Copy of reply and documents and defendants
shall considered the said reply and documents and shall pass suitable
orders and protect the structure for period of 15 days from receipt of
the adverse order". Plaintiff complied the order of the Court.
3. It is further contended that on 12.01.2019 defendants
requested by the notice to the plaintiff for site inspection it was
completely in presence of Plaintiff. Hearing was done before defendants
'G' South office defendant issued notice under section 353B of MMC Act
to submit structural audit report dated 13.11.2019. On 9.12.2019
officer Mr. Ghatge 'G' South Visited suit property and inquire about
notice structure plaintiff received speaking order of 20.12.2019 on
21.12.2019 with directions to remove "Notice Structure". Plaintiff in
support has filed the copy of revision assessment according to plaintiff
the revision page No. 19 in list of document (Page No.3 revision
assessment) transpires that the corporation has assessed the terrace
structure and also change of user and accordingly calculated the value
of the suit premises the terrace structure is authorized and with
malafied intention the plaintiff issued notice.
4. On the other side defendant denied all the allegations
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submitted by the defendant that terrace should be open to sky. No
permission sought for the construction of the terrace in the suit primises
the structure constructed is contrary to the section 342 and 347 of the
MCGM Act, 1888. The notice u/s 351 for unauthorized structure is legal
just and proper. Plaintiff does not have any approved plan. The
assessment at revised assessment document can be made by the
corporation for illegal construction but unless it is sanction by the
proper authority. It cannot be term as 'Legal Structure'.
5. Heard both the sides, It is transpires from the order passed
in L.C. Suit. No. 1314 of 2017 on Adinterim application. The Ld.Judge
has specifically mentioned that the plaintiff challenged notice of
defendants regarding unauthorized erection of shade admeasuring
93'.00" X 72'.00" at the suit premises on the terrace. as the plaintiff did
not file reply to the notice of the defendant. Hence in view of the case
law of "Sopan Maroti Thopte, Para 19 the court was pleased to direct
plaintiff to submit copy of reply, documents before designated officer
within 7 days from the date of order dated 23.06.2017.
6. The record reveals that the reply filed by the plaintiff
before the documents at transpires specifically in the speaking order
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dated 20.12.2019 but order reflects that the inspection has issued by
Assistant assessor and Collector 'G' South which clearly mentioned that
there is revision of assessment due to addition and alteration and the
premises in the reference is ground plus two factory building where
plaintiff constructed it with terrace of portion with AC sheet roof and
iron grid. These documents does not prove that the notice structure i.e.
terrace shade erected is a false tolerated category i.e. in existence
proper before datum line i.e. 01.04.1962. I have gone through copy of
revision statement which transpires that the corporation has assessed
the value of the notice structure. But it no where supports the
contention of the plaintiff that this notice structure is authorized by the
defendants with a proper sanction within purview of MMC Act. There is
a not single document filed on record to show that the "notice structure"
is authorized. It is before datum line from 01.04.1962. Therefore, there
is no substance in the contention of the plaintiff that he is entitled for
adinterim relief against the defendant to protect suit premises i.e.
"notice structure".
7. As the plaintiff has not produced any document showing
authorization of the notice structure i.e. terrace structure (suit
premises) or that it is tolerated or protected structure. Therefore, Ad
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interim relief is refused. Hence, following order is passed:
ORDER
Adinterim relief is rejected.
(U.J.More)
Judge,
Date : 04.01.2020 City Civil Court, Gr. Mumbai.
Dictated on : 04.01.2020
Transcribed on : 04.01.2020
Signed by HHJ on : 06.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 07.01.2020 at 11.30.00 p.m.
NAME OF STENOGRAPHER : Mr.G.R.Suryawanshi
Name of the Judge (With Court
Room no.)
HHJ Shri. U.J.More
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
04/01/2020
JUDGMENT/ORDER signed by
P.O. on
06/01/2020
JUDGMENT/ORDER uploaded
on
07/01/2020
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