Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 73-19 in Suit No. 3343-18
CNR NO.MHCC0100019619
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 73 OF 2019
IN
L.C. SUIT NO. 3343 OF 2018
Jagdish Mahtani …....Plaintiff
V/s.
The Designated Officer, MCGM ..... Defendant
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 28th August, 2019
Appearance:
Ld. Adv. Mr. Nirmal Mehta for the plaintiff.
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon notice dated
03.12.2018 under Section 55 of the Maharashtra Regional Town
Planning Act, (hereinafter referred to as 'the M.R.T.P. Act').
2. Heard Learned Advocate for the plaintiff, Learned Advocate for
the defendant corporation.
3. The Schedule of the notice reads as under:
''Unauthorized fixing of wooden door in staircase lobby
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2 NM 73-19 in Suit No. 3343-18
thereby enclosing common passage on 2nd floor, Asha Mahal Building,
Nawroji Gamadia Road, Mumbai26.''
4. It is the case of the plaintiff that no civil / structural construction
work whatsoever has been undertaken to affix the grill door on the 2nd
floor of the building. There is no development work. It is stated that
the doors are mentioned in the sanction plan. It is contended that the
notice is illegal and therefore, the defendants be restrained from acting
upon the said notice.
The defendant corporation had contested the notice of motion
contending complaints were received from the Management Committee
of Asha Mahal Society in respect of unauthorised encroachment of
common passage. The suit premises was inspected and found that
wooden doors fixed on the common passage of the 2nd floor without
permission.
5. It is not in disputed that the door is fixed in the lobby. It is
contended by the plaintiff that metal grill door on the 2nd floor was
fixed for security purpose. It is stated that the society is not raised any
grievances. It is for the plaintiff to show that the notice structure was as
per sanction plan. Any deviation has to be within the frame work of
law.
Admittedly, the plaintiff has right on the premises to which he is
legally entitled. The plaintiff also had not filed the sanction plan. The
door fixed in the lobby is not owned by the plaintiff. It is the property
of the society. So also, any changes to the existing structure by the
plaintiff or the society has to be with valid permission of the Municipal
Corporation. The fixing of the alleged security door is in violation of
the municipal laws as is without permission.
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3 NM 73-19 in Suit No. 3343-18
The plaintiff has failed to make out the primafacie case in his
favour. The balance of convenience does not lies in favour of the
plaintiff. The plaintiff would not be put to irreparable loss, if the
temporary injunction is refused.
In the result, following order is passed.
ORDER
The Notice of Motion No. 73/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 28.08.2019 City Civil Court, Mumbai.
Dictated on : 28.08.2019 .
Transcribed on : 29.08.2019.
Signed by HHJ on : 30.08.2019.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 31.08.2019 at 3.15 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
28.08.2019
JUDGMENT/ORDER signed by
P.O. on
30.08.2019
JUDGMENT/ORDER uploaded
on
31.08.2019
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