Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 282-2020 in Suit No.176-2020
CNR NO.MHCC0100066320
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 282 OF 2020
IN
L.C. SUIT NO. 176 OF 2020
Amita Kishore Khakhar …...Plaintiff
Versus
Designated Officer, 'D' Ward MCGM & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 21st January, 2020.
Appearance:
Ld. Adv. Mr. P.D. Gandhy for the plaintiff.
Ld. Adv. Mr. Suryavanshi 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 351 of the Mumbai Municipal Corporation Act, 1888
(hereinafter referred to as 'the MMC Act') dated 31.07.2019 and the
Order dated 04.01.2020.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
-- 1 of 4 --
2 NM 282-2020 in Suit No.176-2020
3. The Schedule of the Notice dated 31.07.2019 reads as under:
''Unauthorised covering of open terrace with A.C. Sheets
shed over M.S. Angle frame work and sliding windows adm. 5.50 mt x
2.50 mt having height 2.40 mt. from floor level at Flat No. 14, 4th Floor,
National Garage Building, Plot bearing C.S. No. 6/738 of Malabar Hill
Division, 11, Bhulabhai Desai Road, Mumbai26 as shown in the sketch
in red colour.''
4. The notice was replied by the plaintiff vide reply dated
07.08.2019. After considering the reply, speaking order was passed on
04.01.2020. The following documents were tendered by the plaintiff:
(a) Rent receipts.
(b) Register of Inspection of Properties from Assessment & Collection
Department for the year 199596, 200001, 200203, 200809,
Description & Details of Capital Value Calculation
(c) True Extract of C.S. sheet No. 238 dtd. 12.12.2017
(d) The order of Hon'ble High Court in W.P. No. 88/2014 with W.P.
89/2014 with W.P. No. 90/2014 dated 16.01.2014.
5. The learned Advocate for the plaintiff submitted that suit building
is in existence since 1946. Mr. Babubhai M. Khakhar was in possession
of the premises since 195253. After his death the suit premises are in
possession of the plaintiff since 1971. The plaintiff had repaired the
manglore tiles roof few years back. It is the case of the plaintiff that the
owner had entered into development with builders and as a
pressurizing tactic, notice is issued to the plaintiff under Section 351 of
the MMC Act.
6. The learned Advocate for the defendant on the other hand
-- 2 of 4 --
3 NM 282-2020 in Suit No.176-2020
submitted that the plaintiff had failed to prove the authenticity of the
documents. The plaintiff is not entitled for injunction as prayed for.
The plaintiff has not produced any permission from the defendant
corporation to construct the notice structure.
7. The plaintiff relies upon the rent receipts and the assessment
record. Admittedly, the assessment record is from the year 199495.
The plaintiff also had not produced any permission to show that the
notice structure was put by the plaintiff on the basis of the permission
granted by defendant corporation.
It is now for the plaintiff to show the notice structure is in
existence since 1964. The plaintiff had pleaded that notice structure is
in existence since 195253. The plaintiff had produced evidence in
form of assessment extract showing the existence of the structure from
199596.
The plaintiff has not explained as to why the structure was not
assessed from 1964. It was for the plaintiff to explain why the structure
is assessed from 199495.
The documents tendered do not suggest the existence of the
notice structure since 1964. The structure primafacie appears to be
unauthorised.
The learned Advocate tried to submit that the plaintiff can opt for
regularization. The question of regularization is a issue between
plaintiff and defendant corporation which cannot be issued.
The plaintiff has failed to make out the primafacie case in his
favour. The balance of convenience 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.
-- 3 of 4 --
4 NM 282-2020 in Suit No.176-2020
ORDER
The Notice of Motion No. 282/2020 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 21.01.2020 City Civil Court, Mumbai.
Dictated on : 21.01.2020
Transcribed on : 22.01.2020
Signed by HHJ on : 29.01.2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 29.01.2020 at 1. 47 p.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
21.01.2020
JUDGMENT/ORDER signed by
P.O. on
29.01.2020
JUDGMENT/ORDER uploaded
on
29.01.2020
-- 4 of 4 --