Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 15-20 in Suit No. 347-2020
CNR NO.MHCC01-000018-2020
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 15 OF 2020
IN
L.C. SUIT NO. 347 OF 2020
Nasir Jamal Shaikh & Ors. …...Plaintiff
Versus
Designated Officer, ‘A’ Ward MCGM & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 07th March, 2020
Appearance:
Ld. Adv. Mr. P. D. Gandhy for the plaintiff.
Ld. Adv. Mr. Nandanwar for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks injunction restraining
the defendant corporation from acting upon the Notice issued by the
defendants under Section 351 of the Mumbai Municipal Corporation
Act, 1888 (hereinafter referred to as 'the MMC Act') dated 22.12.2018
and the Order dated 10.03.2019 and 11.12.2019.
2. Heard learned Advocate for the plaintiff and learned Advocate for
the defendant Corporation.
3. The Schedule of the Notice dated 22.12.2018 reads as under:-
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2 NM 15-20 in Suit No. 347-2020
“Unauthorized construction of mezzanine floor adm. 15.20
meters x 5.90 meters and 10.0 meters x 5.80 meters with ladi-coab-ladi
slab and M.S.I. Sections and amalgamation of two shops into one shop
by removing partition wall adm. 12.80 meters (length) x 4.35 meters
(height) at above mentioned address as shown in sketch.’’
4. The plaintiff ordered by the corporation after considering the
reply to remove the notice structure within 7 days and on failure, the
same will be demolished. The plaintiff relies upon the assessment
record for the year 1992. It shows the existence of the mezzanine floor.
The assessment was tendered by the plaintiff with the reply to the
notice.
5. The defendant in its reply to the notice, in paragraph no. ‘d’ had
contended as follows:
“These defendants say and submit that the inspection extracts of
year 1992-93 in respect of property bearing no. A Ward A/C No.
AX0602710000000 is verified with A.A. & C ‘A’ Ward and A.A. & C ‘A’
Ward informed to A.E.BF ‘A’ Ward that inspection extract of year 1992 is
issued to Shri. Adnan Nasir Jamal Shaikh u.no.
AAC/A/EXT/2231/2018-19 on 23.12.2019 on payment of schedule fee.
These defendants say and submit that the inspection extract bearing
property tax under no. AX0602710000000 is attached herewith. These
defendant say and submit that from inspection extracts it is clear that
notice structure was not in existence prior to the datum line, therefore
notice structure is prima facie unauthorized.’’
6. It is not the contention of the defendant that the notice structure
was not in existence in the year 1962. It is the policy of the corporation
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3 NM 15-20 in Suit No. 347-2020
to regularize the mezzanine floor which were in existence on
15.08.1997.
From the documents tendered, it is clear that the mezzanine floor
was in existence in the year 1992. The plaintiff had opt for its
regularization.
So far as the amalgamation of two shops by removing the
partitions wall is concerned, the corporation can only prosecute the
plaintiff under Section 475-A of the MMC Act. Section 41 (d) of the
Specific Reliefs Act bars granting of injunction in such case.
It needs to be mentioned that the plaintiff has to opt for
regularization of the mezzanine floor. It needs to be mentioned that the
temporary injunction cannot be granted in perpetuity.
In the result, following order is passed.
ORDER
1. The Notice of Motion No. 15/2020 is partly allowed.
2. The defendant corporation is hereby restrained form acting upon the
notice under Section 351 of MMC Act relating to mezzanine floor.
3. The prayer for temporary injunction restraining the defendant from
initiating proceeding under Section 475-A is rejected.
4. The plaintiff to approach the corporation for regularization within 3
weeks from the date of order.
5. The Notice of Motion stands disposed off.
(Sanjay N. Yadav)
Judge,
Date : 07.03.2020 City Civil Court, Mumbai.
Dictated on : 07.03.2020
Transcribed on : 11.03.2020
Signed by HHJ on : 14.03.2020
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4 NM 15-20 in Suit No. 347-2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 16.03.2020 at 5.50 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. No. 05
Date of Pronouncement of
JUDGMENT/ORDER
07.03.2020
JUDGMENT/ORDER signed by
P.O. on
14.03.2020
JUDGMENT/ORDER uploaded on 16.03.2020
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