Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM. : 1 : SU.No.107/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO. 107 OF 2018
Hanuman C.H.S.Ltd. .. Plaintiff.
Versus
Asst. Engineer (B & F)
"G/S" Ward, MCGM, & Anr... .. Defendants.
Ld. Advocate Mr. Arvind Giriraj for the Plaintiff.
Ld. Advocate Mrs. Valvi for the Defendant.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 12th JANUARY, 2018.
(Court Room No.06)
O R D E R
1. Plaintiff has taken out this notice of motion for issuance of ad
interiminjunction against defendants in the form of "not to demolish"
property in question mentioned in the speaking order U/sec.351 of
Municipal Corporation Act bearing No.GS/DO2GS/195/351MMC
ACT/GS367NO1, dated 30/11/2017.
2. According to the plaintiff, plaintiff is Hanuman C.H.S.Ltd.
Defendant No.2 is Municipal Corporation of Greater Mumbai and
defendant No.1 is Asst. Engineer of defendant No.2. The entire
property is known as "Irani Chawl". The said property was comprised
(G+1) structure situated at 213, Sitaram Jadhav Marg, Lower Parel,
Mumbai400013. In the year 2000 the property was redeveloped.
However, the structure of (G+1) was retained as it was. Thus, the
members of the society are in peaceful use, occupation and possession
of the premises. However, the defendant/Corporation has passed
speaking order in question without giving any notice to the plaintiff
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and intended to demolish the property within seven days from the
receipt of the notice. The notice is received to the plaintiff. Now,
defendants if succeed then, irreparable loss will be caused to plaintiff.
Hence, prayed to grant interim relief.
3. As against this, the defendants have filed affidavit in reply and
contended that the notice was duly pasted on the premises. Thus,
there is compliance of the provisions of Maharashtra Municipal
Corporation Act.
4. Shri. Arvind Giriraj advocate for plaintiff has invited my
attention towards the documents. According to me, no notice is
received by the plaintiff. Without giving an opportunity to the plaintiff,
the Corporation is going to demolish the property. He further
submitted that the structure is old and prior to the coming in to force of
Maharashtra Regional Town Planning Act. Therefore, at this juncture,
there is no plan of the same with the plaintiff. He further submitted
that the speaking order in question is illegal and cannot be acted upon
because plaintiff has not received the same. Hence, he prayed to
protect his possession. In support of his submission, he relied on
Mrs.Lilly P.Pandit vs. Mumbai Municipal Corporation of Greater
Mumbai (Writ Petition (L) No.88 of 2014.
5. Advocate Mrs. Valvi for the Defendant has submitted that the
Corporation has followed due procedure. The notice was pasted on the
suit premises on 22/09/2017. The construction is illegal. Plaintiff has
not shown any documents in respect of the construction. She further
submitted that from the photograph, it is seen that the construction is
new one. Hence, prayed to reject the application.
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Draft NM. : 3 : SU.No.107/2018
6. Perused the documents filed by both the parties.
7. The main grievance of the plaintiff is that no notice is received
before passing speaking order U/sec.351 of MMC Act dated
30/11/2017. From the perusal of documents, it reveals that notice was
pasted on the premises. However, the notice is pasted in the absence of
plaintiff.
8. In Mrs.Lilly P.Pandit case supra Hon'ble High Court in para 3
held as under :
3. "At this stage without observing
anything further on merits of the matter, we
are satisfied that no sufficient reason, no
opportunity as required under the law
revolving around the principles of natural
justice has been given. Merely issuing show
cause notice itself is not sufficient. The
reasoned order as contemplated means
application of mind to the documents so
supplied as the impugned action/decision
ultimately decides and/or take away the rights
of the petitioners to retain the possession of
the alleged unauthorised premises as the case
is of the existence of the structures prior to
1962. The sections itself entitled the
person/party to appear in person or through
agent to submit reply and the documents to
the show cause notices. The need to give
them opportunity in accordance with law
therefore also requires to pass reasoned order.
This itself means the officer concerned must
apply his mind to the documents and the reply
by giving all reasonable opportunity to the
parties, specially when the order has effect of
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final decision. There is no further appeal 4 to
5 k 908910 wpl 88.14 group os.doc or
revision available. The Civil Court's
jurisdiction is also barred in view of section
515A of the MMC Act. The officer in question
therefore is also required to exercise its
authority and/or power judicially, before
deciding the rights of the parties/persons. The
inherent principles of natural justice, fair play
are required to follow by all including the
quasijudicial authority at all stages, including
the final decision."
9. Considering the rival submissions and the ratio laid down in the
above ruling I find that possession of the plaintiff is to be protected.
Hence, I proceed to pass the following order.
O r d e r
1. Defendants are directed to maintain statusquo in the form of not
to demolish the suit property on the basis of the speaking order dated
30/11/2017.
2. Leave is granted to register the draft Notice of Motion.
3. In the meantime, plaintiff has liberty to put his grievances
against the impugned order before defendants within 7 (seven) days.
Date : 12.01.2018. (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 12.01.2018
Typed on : 15.01.2018
Signed by HHJ. : 15.01.2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
15.01.2018 /12.01 p.m. Mr. S.D.Nalawade
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with
Court Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
12.01.2018
JUDGEMENT/ORDER signed
by P.O. on
15.01.2018
JUDGEMENT/ORDER
uploaded on
15.01.2018
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