Order 1

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Pdf Text: AD-INTERIM ORDER IN DRAFT NM ..1.. L.C SUIT NO.93/2020
MHCC01-000263-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
AD-INTERIM ORDER
IN
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO. 93 OF 2020
(CNR NO.: MHCC01-000263-2020)
Seema Mushtaq Ali Ansari )
of Mumbai, Indian Inhabitant, )
residing at Flat No.201, 2nd Floor ‘A’ Wing, )
Abhinandan CHS, Nr. Premier Thatre, )
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.53 (1) of MRTP Act dated
29.11.2019 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 -
Flat No.201, 2nd Floor, 'A' Wing, Abhinandan CHS., Nr.
Premier Theatre, Dr. Babasaheb Ambedkar Road, Parel (East), Mumbai
– 400 012.
Notice structure as described in schedule of impugned notice dated
28.11.2019 -
Flower bed adm. 2.99 X 0.70 m merged into kitchen, in
Flat no.201 & Encloses of open sloping space by constructing
unauthorized shed adm. 5.25, X 7.30 m with tin shed roofing resting on
walls & using sliding glasses on east side of flat No.201, 2nd Floor in
open sloping space, of A wing, of Abhinandan CHS, near Premier
theatre. Dr Babasaheb Ambedkar Road, Parel (East) Mumbai – 400 012.
3. The circular dated 25.08.1967 of BMC relied upon by
learned advocate for plaintiff authorizes covering of terraces if there are
more floors above it and the roof is sloping roof having height of at
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AD-INTERIM ORDER IN DRAFT NM ..3.. L.C SUIT NO.93/2020
least not exceeding 7' feet. Further, this circular clearly speaks that no
side enclosure is permitted.
4. The photograph filed by plaintiff prima-facie reflect that
plaintiff has enclosed the sloping roof and the open space below it by
the sliding door windows. The aforesaid circular therefore does not
protect plaintiff. By this circular side enclosure was not permitted,
however, plaintiff has not only enclosed from sides but also from front
side by sliding door windows.
5. The approved plan is filed by learned advocate for
defendants BMC with respect to the suit premises. This plan prima-facie
reflects that there is open space below the sloping slab. As discussed
above, the photographs prima-facie reflect that the open space below
the sloping slab has been enclosed by plaintiff by putting the sliding
door windows. Therefore, this construction made by plaintiff is prima-
facie appearing to be in contravention of the approved plan.
6. Furthermore, in the approved plan there is balcony shown
in front of kitchen. It was argued by learned advocate for plaintiff that
there was no concept of flower bed in 2001. The concept of flower bed
has evolved first time in the year 2007. Therefore, how same can be in
contravention of the approved plan.
7. As stated above, prima-facie it appears that there is open
space or balcony in front of kitchen. If plaintiff has merged this portion
into kitchen, it will be clearly in contravention of the approved plan.
Plaintiff failed to produce any document on record to show
authorization of this notice structure.
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8. It was also argued by learned advocate for plaintiff that the
impugned notice is issued with recitals that plaintiff shall restore the
position of suit premises within one month from receipt of impugned
notice. He relied upon the observations in the case of
Kishor S/o
Ramalu @ Rambhau Telang, V/s. The Municipal Commissioner Nagpur
Municipal Corporation ors in second appeal No.491 of 2012 dated
20.01.2015.
9. In this case it is observed that if the notice period given is
shorter than the one prescribed by Sec.53 (1) of the MRTP Act, then the
notice cannot be called as notice u/sec.53 (1) of the MRTP Act.
10. Even in present case plaintiff has rightly pointed out that
the impugned notice issued by defendant BMC is for shorter period then
which is prescribed u/sec.53(1) of the MRTP Act. If the aforesaid
observations are taken into account, the impugned notice will be no
notice u/sec.53(1) of the MRTP Act. There is no rebuttal to this
argument from defendant BMC. However, as discussed above, plaintiff
failed to show that the notice structure is authorized one. In absence of
any prima-facie case made out plaintiff, plaintiff will not get benefit of
this argument. In the cited case the suit was dismissed under Order-7
Rule-11 of CPC by trial court holding that the trial court has no
jurisdiction to decide the suit in view of bar contained in Sec.149 of the
MRTP Act. This order was confirmed by appeal court. Before Hon’ble
High Court, when both orders were assailed, Hon’ble High Court, in this
background, observed that when the notice u/sec.53 (1) of MRTP Act
was for shorter period, it is no notice and in such a case the Civil Court
will have jurisdiction to decide the suit. Therefore, facts and
circumstances in present case and the cited case are clearly different.
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The observations in 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 relied upon by
learned advocate for defendant will squarely apply. For better under
standing 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 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.”
11. As discussed above, plaintiff prima-facie failed to make out
that the notice structure is authorized one. Therefore, plaintiff cannot
get shelter of observations in cited case of
Kishore S/o Ramalu @
Rambhau Telang relied upon by him. Plaintiff therefore, cannot get
protection as is prayed. 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 computer 02.02.2021.
Checked on :03.02.2021 & 04.02.2021
Signed on :05.02.2021.
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“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
05.02.2021
JUDGMENT/ORDER uploaded on 05.02.2021
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