Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 293-2020 in St. No.472-2020
CNR NO.MHCC0100067520
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 293 OF 2020
IN
L.C. SUIT (STAMP) NO. 472 OF 2020
Darshana Parimal Goradia .....Plaintiff
Versus
Designated Officer, Asst. Engr.
(B & F), 'C' Ward, MCGM & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 18th January, 2020
Appearance:
Ld. Adv. Mr. P.D. Gandhy for the plaintiff.
Ld. Adv. Mrs. Rawade for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from enforcing the notice issued
under Section 53 (1) of the Maharashtra Regional and Town Planning
Act, 1966 (hereinafter referred to as 'the M.R.T.P. Act') dated
14.10.2019 and the Order dated 23.12.2019.
It is the allegation of the defendant corporation that the plaintiff
had carried out unauthorizedly addition/alteration/amalgamation in
Flat No. 1501, 15th floor, Vardhaman Galaxy, Maheshwari CHS Ltd.
28/30 navi wadi, D.S.A. Lane, Marine lines (E), Mumbai02 by the
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2 NM 293-2020 in St. No.472-2020
removal of brick masonry wall and increasing area by amalgamation of
chajja of kitchen and flower bed of living room which is contravention
to approved plan u/no. EEBP/833/C/A dtd. 19.10.2015.''
2. The Schedule of the Notice dated 14.10.2019 reads as under:
''Unauthorized addition/alteration/amalgamation in Flat
No. 1501, 15th floor, Vardhaman Galaxy, Maheshwari CHS Ltd. 28/30
navi wadi, D.S.A. Lane, Marine lines (E), Mumbai 02 by the removal of
brick masonry wall and increasing area by amalgamation of chajja of
kitchen and flower bed of living room which is contravention to
approved plan u/no. EEBP/833/C/A dtd. 19.10.2015.''
3. The plaintiff had replied the notice. It is pointed out that it is
only done for better lives of family members without causing any
structural in stability to the over all structure. Thereafter, the speaking
order was passed after considering the documents filed by the plaintiff.
It was observed that the alleged addition/ alteration/
amalgamation in Flat No. 1501, 15th floor, Vardhaman Galaxy,
Maheshwari CHS Ltd. 28/30 navi wadi, D.S.A. Lane, Marine lines (E),
Mumbai 02 by the removal of brick masonry wall and increasing area
by amalgamation of chajja of kitchen and flower bed of living room.
The plaintiff were directed to remove demolish pull down the notice
structure within 7 days from receipt of the order. Failing the same
would be removed / demolished by this office at risk and cost and
consequences. The plaintiff was also informed liability of his
prosecution under Section 475A of the MMC Act.
4. Heard the Learned Advocate for the plaintiff and Learned
Advocate for the defendant corporation.
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3 NM 293-2020 in St. No.472-2020
At the cost of repetition, the schedule of the notice is again
considered. It reads as under:
''Unauthorized addition/alteration/amalgamation in Flat
No. 1501, 15th floor, Vardhaman Galaxy, Maheshwari CHS Ltd. 28/30
navi wadi, D.S.A. Lane, Marine lines (E), Mumbai 02 by the removal of
brick masonry wall and increasing area by amalgamation amalgamation
of chajja of kitchen and flower bed of living room which is
contravention to approved plan u/no. EEBP/833/C/A dtd. 19.10.2015.''
5. Going by the order of the notice it is the allegation of the
corporation that the plaintiff had unauthorizedly added/altered Flat No.
1501, 15th floor, Vardhaman Galaxy, Maheshwari CHS Ltd. 28/30 navi
wadi, D.S.A. Lane, Marine lines (E), Mumbai 02 by the removal of
brick masonry wall and increasing area by amalgamation of chajja of
kitchen and flower bed of living room which in contravention to
approved plan. It is not the allegation of the corporation that the
plaintiff had carried out any new construction by building a wall or
carrying out any construction what is alleged is the removal of wall and
amalgamation of chajja of kitchen and flower bed of living room.
The question of demolition does not arise. The corporation had
called upon the plaintiff to remove the structure within 7 days the
receipt of notice. The prayer in the notice of motion of the plaintiff is
restraining the defendant from acting upon the defendants from taking
action pursuant to the notice under Section 53 (1) of MRTP Act. The
only action proposed in order by the defendant corporation is to remove
demolish or pull down the notice structure.
The order cannot be executed. The question of demolition in the
instant suit does not arise. The corporation had not sought restoration
of the structure in its order.
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4 NM 293-2020 in St. No.472-2020
6. In the light of the order by the corporation that the action
proposed is not executable and cannot be executed. Therefore, the
question of injunction does not arise. The corporation had also
proposed action under Section 475A of the MMC Act, an independent
remedy for the defendant corporation to prosecute. The Notice of
Motion of the plaintiff therefore cannot be considered. The reliefs
claimed cannot be granted. In the result, following order is passed.
ORDER
The Notice of Motion No. 293/2020 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 18.01.2020 City Civil Court, Mumbai.
Dictated on : 18.01.2020
Transcribed on : 18.01.2020
Signed by HHJ on : 21.01.2020
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5 NM 293-2020 in St. No.472-2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 21.01.2020 at 5.15 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
18.01.2020
JUDGMENT/ORDER signed by
P.O. on
21.01.2020
JUDGMENT/ORDER uploaded
on
21.01.2020
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