Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 195-2020 in Suit No.108-2020
CNR NO.MHCC010004732020
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 195 OF 2020
IN
L.C. SUIT NO. 108 OF 2020
Mr. Ibrahim A.K. Motiwala …...Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 22nd January, 2020.
Appearance:
Ld. Adv. Mr. Ashok R. Pande for the plaintiff.
Ld. Adv. Mrs. Rawade for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks injunction restraining
the defendant corporation from acting upon the Notice issued under
Section 354A of the Mumbai Municipal Corporation Act, 1888
(hereinafter referred to as 'the MMC Act') dated 01.04.2019 and the
Order dated 01.01.2020.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. The Schedule of the Notice dated 01.04.2019 reads as under:
''Unauthorised construction of structure from 3rd to 8th floor
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2 NM 195-2020 in Suit No.108-2020
with Ladi Coba slab and RSJ Structure without permission from
competent authority.''
4. The notice is replied by the plaintiff on 15.10.2019. It is
submitted that building is authorized. The plaintiff submitted the copy
of the building plan sanctioned by the Executive Engineer (Building
Proposal) dated 09.04.1984. It is submitted that ground plus
mezzanine floor plus 8 upper floors with Attic floor is in existence since
long. The proposal for repair was made in the year 1983 and was
approved by Executive Engineer on 28.12.1983. I.O.D. was issued on
09.04.1984. It is stated that building was repaired as per the approved
building plan.
It is submitted by the corporation that its endorsement of
the corporation that IOD was issued by its office. It is stated that now
the plaintiff had carried out any construction. It is submitted that
internal walls of 8th floor are already demolished. The internal walls of
7th and 8th floor were demolished. It is sated that work is completed.
5. The reply was considered and order was passed on 01.01.2020.
6. The learned Advocate for the plaintiff submitted that order is bad.
The IOD was not considered. The documents were also not considered.
The learned Advocate for plaintiff relied upon following judgments.
i) in case of Yamunabai Mahadev Shinde Vs. MCGM
ii) in case of Salim Anwar Mohamed Amin Siddique Vs. MCGM
iii) in case of Shree Bharat Nagar Swetambar Murtipujak Jain Sangh
& Ors. Vs. MCGM
iv) in case of M/s Shah & Company Vs. MCGM
v) in case of Goverdhan Ramnaresh Singh Vs. MCGM.
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3 NM 195-2020 in Suit No.108-2020
7. The corporation on the other hand submit that the plaintiff had
failed to submit the documents regarding the existence of the building
ground+8 upper floors. It is stated that suit premises were demolished
on 03.04.2019 and the demolition is continued till 04.04.2019. The
demolition of ladi coba of 3rd and 5th floor is started and 7th and 8th floor
is demolished. It is submitted that reply of the plaintiff was considered
alongwith documents and speaking order was passed.
8. It is not in dispute that the Notice of Motion preferred by Abdul
Sattar A.R. Shaikh, the plaintiff in Suit No. 2218/209 was dismissed by
this Court. Appeal from Order No. 599/2019 was preferred. It is
observed in paragraph Nos. 2 and 3 of the Order of Hon'ble High Court
as follows:
''2. Learned counsel for the appellant argued the matter on merits
for some time. Shri Walwalkar appears on behalf of the Corporation
invited my attention to the affidavit in reply filed on behalf of the
Corporation which is at page 28 of the paper book and submitted that
in so far as 7th and 8th floor are concerned, the floors have been
demolished.
3. The appellant is an occupant of 8th floor. Learned counsel for
the appellant on instructions of the appellant, who is present in the
Court, prays to withdraw this Appeal. He prays that the interim
protection granted by this Court may be continued for a period of one
week.''
9. The Appeal from Order was withdrawn as 7th and 8th floor as were
demolished.
10. The notice points out the fresh construction is in progress. The
plaintiff himself had submitted the copy of inspection report at Page No.
86 of the plaint dated 01.04.2019. It shows the work status of ongoing.
The stage and construction material used the work were beams,
columns and walls. It goes to suggest that altogether new construction
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was in progress. It is the case of the plaintiff that no construction is
carried out by him. The plaintiff may be armed with IOD for the year
1984 which was for repairs. It does not permit the plaintiff to carry
construction of independent structure as alleged in the notice. It was
for the plaintiff to justify that the construction carried out was legal.
11. The defendant corporation on the contrary had come up with
specific case that construction of 3rd to 8th floor was in progress. After
inspection, the notice was issued to the person who was carried out the
unauthorised construction. Initially, the notice under Section 354A of
the MMC Act was challenged by one of the tenant. The notice of
motion was dismissed by this Court. The Appeal from Order No.
599/2019 was preferred was withdrawn.
The plaintiff admittedly had not produced any document to show
that the construction carried out as alleged in the notice under Section
354A of the MMC Act was with permission. The construction of notice
structure is without permission is unauthorised. The I.O.D. for the year
1984 was for repairs. It does not give right to the plaintiff to carry out
construction any time he desires. The construction alleged in the notice
is altogether fresh. The plaintiff had failed to justify the construction
carried out.
Moreover, it needs to be noted that it is specifically contended in
the reply that demolition of Ladi Coba from 3rd to 5th floor is started and
7th floor and 8th floor has already demolished. Considering the facts and
circumstance in totality, it cannot be said that the notice structure was
complete on the date of notice. The construction was in progress and
was without permission.
Considering the evidence on record, the plaintiff has failed to
make out the primafacie case in his favour. The balance of convenience
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does not lies in favour of the plaintiff. The plaintiff would not be put to
irreparable loss, if the injunction is refused. In the result, following
order is passed.
ORDER
The Notice of Motion No. 195/2020 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 22.01.2020 City Civil Court, Mumbai.
Dictated on : 22.01.2020
Transcribed on : 22.01.2020
Signed by HHJ on : 27.01.2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 29.01.2020 at 10.45 a.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
22.01.2020
JUDGMENT/ORDER signed by
P.O. on
27.01.2020
JUDGMENT/ORDER uploaded
on
29.01.2020
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