Order 1

Order Details: Other
Pdf Text: AD-INTERIM ORDER IN DRAFT NM ..1.. L.C SUIT NO.49/2020
MHCC01-000174-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
AD-INTERIM ORDER
IN
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO. 49 OF 2020
(CNR NO.: MHCC01-000174-2020)
Mushtaq Ali Ansari )
of Mumbai, Indian Inhabitant, )
having address at ‘B’ Wing, Abhinandan )
CHS, Nr. Premier Theater, Dr. Baba )
Saheb Ambedkar Road, Parel (East) )
Mumbai – 400 012 )…Plaintiff
Vs.
1. The Designated Officer )
Executive Engineer (B&F), ‘F/South Ward )
Municipal Office Building, Jn. Of Dr. )
B.A. Road and Jagannath Bhatankar )
Marg, Parel, Mumbai – 400 012 )
2. Municipal Corporation of Greater )
Mumbai, a Body Corporate constituted )
under the Mumbai Municipal Corporation )
Act, 1888 having its address at Mahapalika )
Bhavan, Mahapalika Marg, Opp. C.S.T., )
Fort, Mumbai – 400 001 )...Defendants
APPEARANCE:-
Ld. Adv. P. D. Gandhy for plaintiff.
Ld. Adv. Meena Dhuri for defendants/MCGM.
Shri. Sambhaji Nalawade, Jr. Engineer F South is present.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 2nd FEBRUARY, 2021.
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O R D E R
Read the plaint, Notice of Motion, affidavit filed by plaintiff
in support of notice of motion, documents filed along with plaint, reply
filed by defendants, documents annexed along with the reply. Heard
both the learned advocates at length.
2. The plaintiff vide this notice of motion in prayer clause (a)
seeks temporary injunction restraining defendants from taking any
action in pursuance of notice u/sec.55 of MRTP Act dated 30.11.2019 in
respect of suit premises and in prayer clause(b) for getting ad-interim
relief in terms of prayer clause (a).
Description of Suit Premises -
3. I have given anxious consideration to arguments of both
the learned advocates. Learned advocate for plaintiff relied upon the
documents which includes agreement of alternate accommodation vide
agreement dated 05.07.2001, the copy of consent terms dated
13.08.1993, the assessment bill and photographs to show that plaintiff
has prima-facie case.
Description of Notice Structure as described in impugned notice dated
30.11.2019 -
1) Unauthorised construction of tin shed adm. 5.80 X 5.80
X m. touching of A Wing & B wing in the compulsory open space on
north side A Wing & B Wing of Abhinandan Building, B.A. Road, Parel
(East) Mumbai –400 012.
2) Unauthorised construction of shed with A.C. sheet adm.
10.00 X 4.65 m touching compound wall in the compulsory open space
on north side of B wing of Abhinandan Building B.A. Road, Parel (East)
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AD-INTERIM ORDER IN DRAFT NM ..3.. L.C SUIT NO.49/2020
Mumbai– 400 012.
3) Unauthorised construction C Channel G.I. Gate
obstructing south side compulsory open space of B Wing of Abhinandan
Building, B.A. Road, Parel (East) Mumbai -400 012.
4. However, as is rightly pointed out by learned advocate for
defendant BMC this agreement of alternate accommodation, the
consent terms, the assessment bill is not showing the name of plaintiff
but it is in the name of one Mumtaz Ali Azmat Ali. Furthermore, the
premises mentioned in this agreement, consent terms and the
assessment bill is not of suit premises but is different premises as M/s
Rapid Motor works, Dharti Cine, Dr. Ambedkar Road, Parel Mumbai.
Though there is energy bill in the name of plaintiff, plaintiff himself has
produced on record leave and license agreement which prima-facie
shows that FedEx Express Transportation and Supply Chain Services
(India) Pvt. Ltd is licensee in Abhinandan building, next to Premier
Cinema, Dr. B Ambedkar Road, Parel, Mumbai – 400 012 for period
01.07.2017 to 30.06.2022. Learned advocate for plaintiff has not given
any explanation on these documents and discrepancies.
5. Even if aforesaid discussion is kept apart, let us see whether
plaintiff has prima-facie case. It is important to note that the alleged
notice structure as is described in the schedule of the impugned notice
is unauthorized construction of 1) Unauthorised construction of tin
shed adm. 5.80 X 5.80 X m. touching of A Wing & B wing in the
compulsory open space on north side A Wing & B Wing of Abhinandan
Building, B.A. Road, Parel (East) Mumbai –400 012. 2) Unauthorised
construction of shed with A.C. sheet adm. 10.00 X 4.65 m touching
compound wall in the compulsory open space on north side of B wing of
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AD-INTERIM ORDER IN DRAFT NM ..4.. L.C SUIT NO.49/2020
Abhinandan Building B.A. Road, Parel (East) Mumbai– 400 012 3)
Unauthorised construction C Channel G.I. Gate obstructing south side
compulsory open space of B Wing of Abhinandan Building, B.A. Road,
Parel (East) Mumbai -400 012. The approved plan filed by learned
advocate for defendants BMC is showing prima-facie that the aforesaid
two tin sheds and the gate i.e. all three items in notice structure is
constructed in the open space. There is no rebuttal from plaintiff on this
point. The photographs filed by learned advocate for defendants BMC
also prima-facie substantiate that there is construction of two tin sheds
and one gate. Plaintiff has to prima-facie substantiate the authorization
of the notice structure. The approved plan do not show that plaintiff
was given right to make construction of two tin sheds and one gate as is
constructed by plaintiff. The assessment bill do not and cannot prima-
facie show that the notice structure is assessed. Assessment of suit
premises is not disputed. Assessment of notice structure is in dispute.
When all the construction of notice structure is beyond approved plan
which is brought on record by learned advocate for defendant BMC, I
cannot accede with arguments of learned advocate for plaintiff.
6. The arguments of learned advocate for plaintiff on the
point of the Designated Officer being not authorized to issue impugned
notice will also not carry any force as learned advocate for defendant
has filed the authority letter issued by Municipal Commissioner in the
name of Designated officer issuing the impugned notice on record. As is
observed in the case of
Mohammed Imran Gulam Mohd. Gujarati & Anr.
V/s. The Municipal Corporation for Greater Mumbai in Appeal From
Order (St) No.25660 of 2019 dated 18.09.2019 pointing out deficiency
in the notice or the authority of the person issuing the notice will not be
sufficient unless plaintiff is clean. Plaintiff must prima-facie show that
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AD-INTERIM ORDER IN DRAFT NM ..5.. L.C SUIT NO.49/2020
he has some document to show the authorization of notice structure
without which the technical deficiencies cannot help plaintiff. The
observations in case of
Mohammed Imran Gulam Mohd. Gujarati & Anr.
cited supra relied upon by learned advocate for defendant will squarely
apply. For better understanding the observations in paragraph-4 of this
citation are quoted as follows-
“This court made it clear that whenever a suit to enforce or protect an
interest in the property which is governed by a municipal statute was
filed before the court, the interest protected has to be with respect to a
plea that prima facie the structure which was sought to be targeted by
the municipal administration was an authorised structure. The court
made it clear that the plaint must make an averment in respect of the
sanction obtained from the Corporation showing that the structure
targeted was not prima facie governed by the sanction; merely by
pointing out deficiencies in the notice or the authority of the person
issuing the notice was not sufficient. The court, in other words, made
it clear that sine qua non of suits of this nature was a positive assertion
made with reference to the sanctioned building plans.”
The observations in this citation of
Mohammed Imran
Gulam Mohd. Gujarati & Anr. cited supra are fatal to plaintiff.
7. Learned advocate for plaintiff also further argued that the
impugned notice is issued u/sec.55 which is for temporary
unauthorized construction. This arguments also do not have force as the
impugned notice structure are two tin sheds and one gate. Furthermore,
this will be fact to be decided at the time of final hearing and not prima-
facie at this stage. As discussed above, the approved plan is not
inspiring confidence in the arguments of learned advocate for plaintiff
that plaintiff has prima-facie case in his favour. Photographs of learned
advocate for defendant BMC prima-facie shows the construction of
notice structure for which plaintiff failed to produce any document of
authorization. The photographs relied upon by plaintiff will not be
helpful to plaintiff to show authorization of notice structure. For all
aforesaid discussion, and in light of observations in
Mohammed Imran
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AD-INTERIM ORDER IN DRAFT NM ..6.. L.C SUIT NO.49/2020
Gulam Mohd. Gujarati & Anr. cited supra I cannot conclude that
plaintiff has made out case for ad-interim relief. Consequently, I proceed
to pass following order -
ORDER
The ad-interim relief prayed in prayer clause (b) in terms of
prayer clause (a) is refused.
(SMT. C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 02.02.2021 City Civil Court, Gr. Bombay
Directly dictated on com :02.02.2021.
Checked on :03.02.2021
Signed on :04.02.2021.
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AD-INTERIM ORDER IN DRAFT NM ..7.. L.C SUIT NO.49/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.02.2021, 05.16 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
02.02.2021
JUDGMENT/ORDER signed by P.O.
on
04.02.2021
JUDGMENT/ORDER uploaded on 05.02.2021
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