Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 125/2020 in Suit No. 69/2020. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 125 OF 2020
(CNR NO. MHCC010003072020)
IN
LONG CAUSE SUIT NO. 69 OF 2020
(CNR NO. MHCC010001152020)
Smt. Reena Dilip Khatavkar ...Plaintiff
Versus
The Municipal Corporation Of Greater Mumbai ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 8th JANUARY, 2020.
Mr. Mukesh Dubey, Advocate for Plaintiff.
Mrs. Tondwalkar, Advocate for Defendant / MCGM.
ORDER
This is a motion taken out by plaintiff to challenge notice
issued by MCGM dated 16/12/2019 under Section 351 of MMC Act.
2. Perused short reply alongwith affidavit of officer of MCGM
alongwith relevant documents vide Exh.3.
3. Ld. advocate Mukesh Dubey for plaintiff submits that in
view of details sought by this Court, plaintiff has submitted various
photographs, measurement of the suit property, which clearly indicate
-- 1 of 6 --
N/m No. 125/2020 in Suit No. 69/2020. 2 Order.
that there is a chawl and various buildings in that vicinity of the similar
structure and height. According to plaintiff, suit property is measuring
12 x 18 ft. with 20 ft. in height situated at C.T.S.No.7, 1/18, Dwarka
Niwas, Kajupada, Kurla (West). Plaintiff has received the possession of
the suit premises from the landlord in 1998. He pays the regular rent to
the landlord Mr. Sahdeo Katke. However since 2004 landlord has
stopped accepting the rent. There is no change in the structure as
plaintiff has received from the landlord. According to plaintiff, due to
various disputes in family, her dautherinlaw had moved various
complaints. Therefore the MCGM has issued notice to plaintiff. It is
assured that plaintiff will file tenancy agreement, as he can approach
the landlord. It is requested for temporary injunction to restrain MCGM
from taking further steps in view of impugned notice dated
16/12/2019.
4. Ld. advocate Tondwalkar for defendant submits that the
plaintiff has concealed various facts, specifically previous notice issued
by the MCGM dated 02/05/2018 and speaking order issued by the
designated officer on 18/05/2018. It is added that the illegal
construction was demolished by MCGM, thereafter it was reconstructed
by the plaintiff. It is requested to peruse photograph at Page No.47
alongwith Exh.3. It is added that there is no photopass of the
structure, there is no tenancy agreement. On the contrary, the notice
issued by the MCGM dated 02/05/2018 was refused to fix on front wall
of the suit premises. In absence of sanction plan or permission from
MCGM, it is requested to reject the motion.
REASONS
5. On perusal of roznama dated 07/01/2020, plaintiff was
-- 2 of 6 --
N/m No. 125/2020 in Suit No. 69/2020. 3 Order.
directed to submit unscaled map, photograph and affidavit of the
landlord. Plaintiff has submitted photographs and unscaled map. It is
submitted by advocate Dubey for plaintiff that because of paucity of
time and landlord is out of Bombay, plaintiff could not approach the
landlord to submit his affidavit. In respect of previous notice dated
02/05/2018 and speaking order dated 18/05/2018 it is contended by
ld. advocate Dubey for plaintiff that no notice was served on plaintiff
nor he has any knowledge in respect of previous speaking order.
6. It appear from compilation submitted by MCGM vide Exh.3
that there is substance to believe that there is chequered history
between family members of the plaintiff. Therefore Mrs. Rupali
Khatavkar has moved numerous complaints against the plaintiff in
respect of illegal and unauhorized construction over the suit premises.
There are complaints dated 11/01/2019, 15/07/2019, 26/08/2019,
04/11/2019, 22/11/2019 and 29/11/2019. What is dispute between
family members is not fact in issue in present case. It appears that
complainant Mrs. Rupali has initiated appropriate action in respect of
unauthorized construction.
7. On perusal of report of Building Mukadam dated
03/05/2018, it clearly indicate that when he visited the suit site, the
possessor of premises has refused to accept the notice, equally not
allowed to affix it on front door. On perusal of speaking order dated
18/05/2018, there is an endorsement of Mr. Abhishek Khatavkar
alongwith his mobile number in respect of service of speaking order
dated 18/05/2018. It clearly appear from the record that previous
notice and speaking order is not surprise attack on the plaintiff. The
impugned notice in the present case at Page No.22 bear the reference of
-- 3 of 6 --
N/m No. 125/2020 in Suit No. 69/2020. 4 Order.
notice dated 02/05/2018 attached by plaintiff in present suit. It also
have reference that previous work was itself unauthorized work.
8. If there is tenancy agreement between original landlord
and plaintiff, he could have produce the same or would have averred in
the plaint. On perusal of various photographs submitted by plaintiff it
do not reflect that similar construction was received by him in 1998 and
it is still in existence containing with plastering and tiles work thereon.
Therefore, it appear that either complete construction or renovation of
the premises came to be completed by the plaintiff.
9. On perusal of plaint, it is mentioned in Para No.4 that suit
premises is very old and it is ground with mezzanine/loft floor. As per
definition of mezzanine floor, it do not have separate access and the
purpose of mezzanine floor is very limited. According to detail
submitted by plaintiff vide Exh.2, the height of present structure is 20 ft.
This itself indicate that ground floor is about 10 ft. and first floor is of
equal height. It means, the structure is not ground floor with
mezzanine floor, but it is first floor. It indicate that plaintiff has
intentionally drafted the plaint with specific skill to mislead the Court.
Resultantly, the plaintiff has approached the Court with malafide
intention.
10. In view of aforesaid discussion, following points are
important to note :
a) Plaintiff is failed to submit affidavit of landlord, tenancy
agreement, affidavits of adjacent neighbour etc.
b) To believe documents submitted by MCGM vide Exh.3, it is
supported with affidavit of Mr. M.V.Thombare alongwith
-- 4 of 6 --
N/m No. 125/2020 in Suit No. 69/2020. 5 Order.
demolition work as per photographs at Page No.47 and
service of previous notice to Mr. Abhishek Khatavkar.
c) There is no photopass.
d) The inspection report clearly indicate plan of site and
elevation; plaintiff is failed to bring sanction plan or
authorization of structure.
11. In view of numerous documents submitted by plaintiff i.e.
election card, Aadhar Card, ration card, electricity bill, etc.; it is not
disputed that plaintiff is possessing the suit premises and he may have
obtained from Mr. Sahdev Katke. The limited question before this
Court is, 'whether structure is authorized or not'. As discussed in detail,
there is no substance in motion. No equitable relief can be given to the
person who failed to approach the Court with clean hand. Obviously,
no balance of convenience lies in favour of plaintiff nor it will cause any
irreparable loss to the plaintiff if injunction claimed is refused by the
Court. Hence the order :
ORDER
1. Notice of Motion No. 125/2020 stands dismissed.
2. N/m No. 125/2020 is disposed off accordingly.
3. MCGM to submit W.S. to expedite hearing.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 08/01/2020. Mumbai.
1. Dictated on : 08/01/2020.
2. Transcribed on : 10/01/2020.
-- 5 of 6 --
N/m No. 125/2020 in Suit No. 69/2020. 6 Order.
3. Signed on : 15/01/2020.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/01/2020. 11.45 a.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 08/01/2020.
Judgment/Order signed by P.O. on 15/01/2020.
Judgment/Order uploaded on 16/01/2020.
-- 6 of 6 --