Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 207/2020 in Suit No. 162/2020. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 207 OF 2020
(CNR NO. MHCC01-000523-2020)
IN
L. C. SUIT NO. 162 OF 2020
(CNR NO. MHCC01-000520-2020)
Ashokkumar Prayagdutt Pandey ...Plaintif
Versus
Municipal Corporation of Greater Mumbai ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 1st FEBRUARY, 2020.
Mr. Kudalkar, Advocate for Plaintif.
Mrs. Tondwalkar, Advocate for Defendants / MCGM.
ORDER
This is a motion taken out by plaintif to challenge
legality of notice dated 09/01/2020 issued under Section 354A
of MMC Act. In said notice, in schedule following work is
described as unauthorized construction :
"Unauthorized erection of shed
admeasuring 18m x 8m x (8+6.5/2) m
height by using M.S Angle I section A.C
Sheet Roof without permission of
competent authority."
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N/m No. 207/2020 in Suit No. 162/2020. 2 Order.
2. Perused short reply with afdavit alongwith
photographs submitted by MCGM.
3. Ld. advocate Kudalkar for plaintif submits that
plaintif has received the impugned notice on 10/01/2020.
The speaking order came to be pronounced by the designated
ofcer on 11/01/2020. Plaintif has purchased the suit
premises from Pawar Family on 10/04/1981. In view of census
suit property is numbered as TX-8-1/2, TX-8-2/2, TX-9-1/1 and
TX-22-11/14 on C.T.S.No. 751, Survey No. 63, Goregaon Link
Road, Bhandup. In view of Assignment Deed dated
10/09/1979 and afdavit dated 14/06/1988, plaintif is
possessing the suit premises. Plaintif runs the business of
flour mill and plastic grinding mill at suit premises. Various
documents are annexed by the plaintif. Plaintif has
submitted census certifcate vide Exh.4. Suit premises is a
slum area, he has submitted application to competent
authority who has granted permission of repairing on
13/01/1995. It is claimed that no unauthorized extension is
carried out by the plaintif.
4. Ld. advocate Tondwalkar for MCGM submits that in
inspection report dated 09/01/2020 it clearly indicate vertical
extension of suit premises. It is requested to peruse various
photographs from 09 to 13 January, 2020 that how the
construction was running in speed. The construction is almost
to complete. Despite issuance of notice, construction work
was not stopped by the plaintif. It is requested to reject the
motion.
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N/m No. 207/2020 in Suit No. 162/2020. 3 Order.
REASONS FOR ORDER
5. It is to note that suit premises / suit structures as
mentioned in Para No.3 of Page No.2 i.e. TX-8-1/2, TX-8-2/2,
TX-9-1/1 and TX-22-11/14 on C.T.S.No. 751, Survey No. 63,
Goregaon Link Road, Bhandup is owned and possessed by
plaintif from their predecessor Late Prayagdutt Pandey. It is
not disputed that inspection came to be carried out by the
ofcer of MCGM on 09/01/2020. In various photographs, it
was shown by MCGM that some angles came to be installed by
the plaintif.
6. There is no horizontal extension alleged against
plaintif. There are numerous documents submitted by
plaintif including agreement dated 12/04/1981 about
consideration of Rs.1,35,600/- paid to the predecessor of
plaintif. In view of Assignment Deed dated 10/09/1979 and
afdavit dated 14/06/1988 executed by Subhadra Vanjari, it
appear legal title of plaintif over suit premises. Plaintif has
annexed three census certifcate vide Exh.4. On perusal of
permission granted by Controller of Slums dated 13/01/1995,
the structure is shown as 20 x 100 and height about 19.8 ft. as
mentioned in application of plaintif.
7. On perusal of various licence of tea stall and Ambe
Flour Mill, there are grounds to believe that earlier there was a
flour mill, plastic grinding works and metal cutting machine
was working in suit premises. In impugned notice MCGM has
mentioned height of 20 ft. However there is a permission
granted by Controller of Slums i.e. 19.8 ft. in height.
Accordingly there appear to be no unauthorized construction.
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N/m No. 207/2020 in Suit No. 162/2020. 4 Order.
Hence there is a prima facie case in favour of plaintif.
8. In view of aforesaid discussion, the balance of
convenience lies in favour of plaintif. Obviously, irreparable
loss will cause to plaintif, if injunction as claimed is refused.
Resultantly, motion deserves to be allowed. Hence the order :
- ORDER -
1. Notice of Motion no. 207/2020 is made absolute in
view of prayer clause (a) and (b).
2. MCGM is temporarily restrained from providing
efect to notice dated 09/01/2020 and speaking
order dated 11/01/2020, till further order of this
court.
3. Defendant to fle .S. to expedite hearing.
4. N/m No. 207/2020 disposed of accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 01/02/2020. Mumbai.
1. Dictated on : 01/02/2020.
2. Transcribed on : 03/02/2020.
3. Signed on : 04/02/2020.
4. Delivered to Certifed :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 207/2020 in Suit No. 162/2020. 5 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
05/02/2020. 12.23 p.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
01/02/2020.
Judgment/Order signed by P.O. on 04/02/2020.
Judgment/Order uploaded on 05/02/2020.
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