Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 80-19 in Suit No. 3329-18
CNR NO.MHCC0100018919
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 80 OF 2019
IN
L.C. SUIT NO. 3329 OF 2018
M/s. Amit Engineering Company …...Plaintiff
Versus
The Municipal Corporation of Greater Mumbai & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 01st July, 2019.
Appearance:
Ld. Adv. Mr. K.D. Zha for the plaintiff.
Ld. Adv. Smt. Smita Tondwalkar for defendant/MCGM.
Ld. Adv. Mr. P.D. Gandhy for defendant no. 2.
ORDER
1. The plaintiff by this notice of motion seeks to challenge the
Notice bearing No. A/BF I/351/1163/ Bldg./2013 dated 20.07.2013
issued under Section 351 of the Mumbai Municipal Corporation Act,
1888 (herein after referred to as 'the MMC Act') and the Order bearing
No. Asstt. C/A/12466/Bldg. dated 16.08.2013 .
2. The corporation issued the notice alleging that the unauthorized
construction of mezzanine floor consisting of wooden ply & wooden
girders admeasuring 2.85 m x 6.20 m having height 1.70 m above &
1.85 m below mezzanine floor respectively as shown in the sketch in
red colour, including plywood partition cabins above mezzanine floor.
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2 NM 80-19 in Suit No. 3329-18
3. The notice was replied by the plaintiff and had denied the
allegations in the notice. It is contended that no addition or extension
of any nature is carried out in the suit premises.
Pursuant to the reply, the order was issued against the plaintiff
seeking and asking him to remove the notice structure.
4. Heard Learned Advocate for the plaintiff, Learned Advocate for
defendant corporation and Learned Advocate for defendant no. 2.
The Learned Advocate for the plaintiff and defendants argued in
line of the respective case put forth by them in the plaint and the say to
the notice of motion. The plaintiff had relied upon the assessment
extract dated 20.04.1990.
5. It is the contention of the plaintiff that documents relied by him
were not considered by the corporation on the ground it did not show
the authorization of the notice work. In the Order, paragraph no. 2, it
has observed as follows :
''You are hereby directed to comply the above order within seven
days from receipt of this order, failing which the above mentioned
unauthorized work will be demolished by this office entirely at your
risk, cost and consequences and without any further correspondence.
You shall further note that under Section 475A of the M.M.C. Act you
are liable to be punished with an imprisonment for a term which shall
not be less than one month and which may extend up to one year and
with a fine which shall not be less than five thousand rupees and which
may extend to twenty five thousand rupees and in the case of
continuing offence with a further daily fine which may extend to five
hundred rupees.''
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3 NM 80-19 in Suit No. 3329-18
6. In the order the existence of loft is treated as mezzanine floor. It
is observed as its height is shown 1.70 mtrs i.e. above 1.5 mtrs than
tolerated by D. C (Development Control) Regularization is
unauthorized. The corporation in a way admits that the existence of
suit structure from 1990 which earlier was the loft, now it is the
mezzanine floor. The suit structure is in existence prior to 15.08.1997.
It is the contention of the plaintiff that he had not carried out any
unauthorized construction. The defendant landlord had contended that
the plaintiff had carried out the construction in the year 1999. It is an
admitted fact that defendant no. 2 purchased the suit property in the
year 2011. The defendant no. 2 points out that the alleged structure is
in existence after 1999 and cannot be regularized as of height of the
cabin exceeds then the permitted by the D. C. Rules.
It primafacie appears that the structure was in existence prior to
15.08.1997. The contention of the defendants that the structure cannot
be regularized, cannot be gone into the stage as there is authority in
place which can consider as to whether the suit structure can be
regularized or not. The plaintiff has right to seek regularization of the
structure. The suit structure needs to be maintained in statusquo till
the decision in the suit.
The plaintiff has made out primafacie case. The balance of
convenience lies in favour of the plaintiff. The plaintiff would be put to
irreparable loss, if the temporary injunction is refused. In the result,
following order is passed.
ORDER
1. The Notice of Motion No. 80/2019 is hereby allowed.
2. The defendants corporation are hereby restrained from acting upon
Notice bearing No. A/BF I /351/1163/ Bldg./2013 dated 20.07.2013
under Section 351 of the MMC Act and the Order bearing No. Asstt.
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4 NM 80-19 in Suit No. 3329-18
C/A/12466/Bldg. dated 16.08.2013 till the disposal of the suit.
3. The Notice of Motion is disposed off accordingly.
(Sanjay N. Yadav)
Judge,
Date : 01.07.2019 City Civil Court, Mumbai.
Dictated on : 01.07.2019
Transcribed on : 03.07.2019
Signed by HHJ on : 04.07.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.07.2019 at 3.45 pm.
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
01.07.2019
JUDGMENT/ORDER signed by
P.O. on
04.07.2019
JUDGMENT/ORDER uploaded
on
04.07.2019
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