Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Int - NM 344-2020 in Su.No.207-2020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF ON
NOTICE OF MOTION NO.344 OF 2020
IN
L.C. SUIT NO. 207 OF 2020
1. Mrs. Radha S. Shetty ]
2. Mrs. Prema S. Shetty ]
Both Adults, Indian Inhabitant, ]
Carrying on Business of ]
M/s. Hotel Pushpa, Situated at ]
Babu Jagjivanram Nagar, ]
Dindayal Upadhyaya Road, ]
Mulund (W), Mumbai 400 080 ]... Plaintiffs
Versus
MUNICIPAL CORPORATION OF GREATER ]
BOMBAY, a Statutory Corporation ]
established under the Bombay Municipal ]
Corporation Act, 1888 having their Head ]
Office at Mahapalika Marg, Nagar Chowk, ]
Fort, Mumbai 400 001 ]
Through the Assistant ]
Municipal Commissioner, ]
'T' Ward Office, ]
Mulund (West), Mumbai. ]....Defendants
Appearances:
Ld. Advocate Mr. Mohit Jadhav for the Plaintiff.
Ld. Adv. Mrs.Hajare for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI U.J.MORE
(Court Room no. 8)
DATED : 21th January, 2020
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O R A L O R D E R O N A D I N T E R I M R E L I E F
1. Perused plaint, Notice of Motion, documents annexed to
the plaint and heard Ld. Advocate for the plaintiff. The plaintiff has
prayed for temporarily Order of injunction of this Court from
implementing and /or executing in any manner whatsoever, the
impugned Notice No. T/ DO1T / 103 / 354A MMC ACT / T21NO1 /
14/01/2020 of the MMC Act and Speaking Order dated 16/01/2020 to
the plaint, issued in respect of Hotel Pushpa i.e. the Suit Structure
admeasuring about 960 sq.ft. having 14 feet height and is constructed
of brick masonry wall with A.C. Sheet roof above, situated at C.T.S.
No.852, of the Village Mulund, Taluka Kurla, at Babu Jagjivanram
Nagar, Dindayal Upadhyaya Road, Mulund (W), Mumbai400 80.
2. Plaintiff filed documents alongwith plaint ExhA Copy of
the Certificate issued by the Dy.Collectors (ENC) Kurla, ExhB Copy of
the Electricity Bill, ExhC Copy of the License issued under the
provisions of the Food Safety and Standards Act 2006, ExhD(Colly)
Copies of the Licenses issued under the provisions of the Section 394 of
the MMC Act, ExhE(Colly) Copies of the Police Licenses, ExhF(Colly)
Copies of the Shop and Establishment Certificates, ExhG(Colly) Copies
of the permissions issued by the Fire Brigade and Premises Licence,
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ExhH Copy of the said notice u/s 354A of the MMC Act bearing No.
T/DOIT/103/354AMMC ACT/T21NO1/14012020 , ExhI(Colly) Copy
of the reply dated 16/01/2020, ExhJ Copy of the said speaking Order
dated 16/01/2020, ExhK Circular issued by the Defendants.
3. Defendant strongly objected by filing affidavit alongwith
documents 1.Inspection report and 14.01.2020 & 1 to 3 phographs
shwoing ongoing construction, 2.Notice u/sec. 354 & of MMC Act 4 &
5, 3.Present photograph of notice structure, 4.Speaking order
16.01.2020.
4. Heard, both the sides at length.
5. The notice issued u/sec. 354A of MMC Act, dated
14.01.2020 transpires unauthorized vertical extension more than 10
feet (3.08 mtrs) by using masonry wall and sheet roof described in
schedule alongwith inspection report dated 14.01.2020. All these
points Adv. Mohit Jadhav for plaintiff submitted that, notice structure is
declared slum area under unprotected and protected under the MGCM
policy to construction is of 1970. Notice is illegal as per 1955 policy. It
is protected structure inspection report as per inspection the panchnama
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is not prepared.
6. Ld.Adv.Mrs. Hajare pithily submitted that stop work notice
was issued as per inspection report dated 14.01.2020. In spite of notice
the construction is going on at the time to inspection. Therefore, stop
work notice under section 354(A) was issued rather notice u/sec. 351 of
MMC Act. Defendant demolish the structure u/sec. 354(A) (II) if the
plaintiff has started illegal construction again. She placed reliance on
the law laid down in para No.67 of 17 by Hon'ble Bombay High Court.
7. I have gone through the Judgment on the plaintiff placed
reliance on I) Muni SuvratSwami Jain S.M.P. Sangh Vs. Arun
Nathuram Gaikwad. That due respect the ratio is not applicable to the
case in hand.
8. II) Plaintiff also place reliance on Sopan Maruti Thopte and
Anr. Vs. Pune Municipal Corporation, AIR 1996, Bombay 304. He placed
reliance on para 19(III) that due respect this para (III) is not identical to
the case in hand.
9. The photographs filed by the corporation alongwith with
the affidavit at page No.3 it transpires that the construction work is
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going on at notice premises. Photographs at page No.6 transpires that
the vertical construction is completed in notice premises with new
colour. Therefore, there is no substance in the argument of the plaintiff
that only colouring work at notice premises was going on.
10. Inspection report transpires that there is unauthorized
construction i.e. 3.08 meters length with the help of GIS sheet and brick
masonry wall carried out by the plaintiff i.e. unauthorized vertical
extension more than 10 feet. Which is not permissible by law Hon'ble
Chief Justice of Bombay High court held in PIL No.67 of 2017 that
"Court should not grant an injunction with reference the deficiency in the
notice issued" .
11. At this stage there is no substance in the argument
advanced by the plaintiff by granting adinterim relief. Hence, I proceed
to pass following order.
ORDER
Adinterim relief is rejected
(U.J.More)
Judge,
Date : 21.01.2020 City Civil Court, Gr. Mumbai.
Dictated on : 21.01.2020
Transcribed on : 21.01.2020
Signed by HHJ on : 21.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 27.01.2020 at 04.00 p.m.
NAME OF STENOGRAPHER : Mr.G.R.Suryawanshi
Name of the Judge (With Court
Room no.)
HHJ Shri. U.J.More
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
21/01/2020
JUDGMENT/ORDER signed by
P.O. on
21/01/2020
JUDGMENT/ORDER uploaded
on
27/01/2020
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