Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Int - Un.Reg.NM in Su.No.31-20
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. 31 OF 2020
(CNR no. MHCC010000962020)
MOHD. SALIM KODIA MANIYAR,
Adult, Age 54 Yrs. Occ. Business
having premises at
Akbarlala Compound, Azad Nagar,
DVS Road, Opp. Gulshan EBagdada,
Masjid, Ghatkopar (W),
Mumbai400 086. ]... Plaintiff
Versus
The Mumbai Municipal Corporation
of Greater Mumbai,
Having its Head Office at Annexe Building,
Mahapalika Marg, Fort,
Mumbai400 001. ]....Defendants
Appearances:
Ld. Advocate Mr. Mukesh Dubey for the Plaintiff.
Ld. Adv. Ms. Hajare for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI U.J. MORE
(Court Room no. 8)
DATED : 04th January, 2020
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
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prayed for temporary injunction restraining Defendant/MCGM for
demolition of suit premises i.e. the property admeasuring 3600 sq. ft.
divided into four equal parts made up of BM walls and cement patra
here in as suit premises. It is contended that the suit premise is
purchased by the plaintiff from one in four equal parts from the
Jitendra Thakur, Sushma Thakur, Dharmendra Thakur and Hemendra
Thakur through sell and agreement 100 rupee stamp paper on
16/7/2019 respectively. It is contention of plaintiff that after execution
of sell deed he is in possession of suit premises which is supported by
ration card, electricity bill in the name of predecessor title i.e. previous
owner of the suit premises. Suddenly the corporation officer visited in
the suit premises and threatened to demolish the suit premises.
2] Advocate for defendant submitted that the notice u/s.351
of MMC Act is duly served on Chhatrapal Singh i.e. previous owner on
6/2/2019. The corporation has issued four notices on four structures in
spite of notice no reply received by the MMC. Accordingly speaking
order was passed on 14/7/2019. Subsequently stop work notice issued
by the MMC. IT is accepted by Chhatrapal Singh on 17/7/2019. inspite
of notice construction was not stopped. Accordingly police protection
was sought and the unauthorized structure was demolished on
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30/8/2019 by the defendant. The notice was issued only for the first
floor i.e. vertical extension which is unauthorized. Heard both sides at
length. It is settled law, one who seeks equity shall come with clean
hands. The record filed by the corporation transpires that stop work
notice u/s.354A was received dt. 6/2/2019 in fourth property were
received by the previous owner. The police protection requisition
application regarding the suit premises was filed before the police
officer on 30/3/2019. The speaking order transpires that inspite of
notice u/s.354A, the original owner of suit premises failed to submit
authentic documents to show that notice structure is authorized one
with proper sanction from the concerned authority 14/7/2019,
28/8/2019. The action taken reports dt. 4/1/2020 submitted by the
photographs transpires the unauthorized constructions demolished by
the defendant on 30/8/2019. It is submitted by defendant that after
30/8/2019 again the unauthorised construction was carried out on first
floor illegally by the plaintiff and filed the suit for adinterim relief.
3] Ld. ad. for Plaintiff placed reliance on the A.O. NO.5598/17
dt. 8/3/2017 His Lordship observed that in para 8 that “ in any case
minimum i.e. expected of plaintiff is that the plaintiff state that the suit
structure is not only inexistence but it has also semblance of legality.
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Otherwise, any plaintiff who put suffer illegal and unauthorized
structure with simply rushed to the court and defeat or at least delay by
taking steps by municipal authorities, on account of pendency of matter.
The ratio is applicable to the case in hand. Ld. adv. for plaintiff placed
reliance on landmark case law “Sopan Maruti” that the proper due
process should be follow by the corporation taking action of demolition
with due respect at this stage, there is no any suspicion about the action
of corporation.
4] Ld. adv. for the defendant also placed reliance on PIL
No.67/17 “the plaint must make an avarment of the sanction obtained
from the corporation and must make the avarment that the structure
targeted the prima facie governed by the sanction” Merely pointing out
deficiencies in the notice or the authority or person issuing the notice is
nether here nor there. In this particular case, no sanction for the
construction regarding the vertical construction on the first floor is filed
by the plaintiff. The Learned Adv. for the plaintiff also placed on the
circular dt.11/8/2000 regarding the demolition of the structure
regarding (unauthorized construction). There is no any document to
show that the corporation has followed due process of law.
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5] The documents as discussed above prima facie transpires
that the corporation has followed due process of law in carrying out
demolition process supported by speaking order, police protection order
and obviously the photographs. The fact of demolition dt.30/8/2019
has been suppressed by the plaintiff which shows that plaintiff has not
come with the clean hands for seeking equitable relief. As far as
regarding the registration of the sale deed it is matter of merit which
will decided at proper stage. At present considering the arguments
advanced by both sides and documents filed by the both sides plaintiff
failed to get adinterim relief at this stage. Adinterim relief refused.
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 : 06.01.2020 at 4.00 p.m.
NAME OF TYPIST : Ms. Bhagyashri Kamble
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
06.01.2020
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