Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Int - NM 332-2020 in Su.No.237-2020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF ON
NOTICE OF MOTION NO.332 OF 2020
IN
L.C. SUIT NO. 237 OF 2020
IBRAHIM VALI PATEL, ]
Aged abou 75 years, an adult, ]
Indian Inhabitant of Mumbai, ]
Carrying on business at Shop No.2, ]
Situated at Rail View, Near Railway ]
Crossing, Opp. Sawan Bazaar, ]
Chembur, Mumbai 400 071 ]... Plaintiff
Versus
MUNICIPAL CORPORATION OF GREATER ]
MUMBAI, ]
a body duly constituted under the ]
provision of BMC Act, ]
having its office at Mahapalika ]
Bhawan, Mahapalika Marg, Fort, ]
Mumbai 400 001 ]....Defendants
Appearances:
Ld. Advocate Mr. B.P.Shukla for the Plaintiff.
Ld. Adv. Mr. Khandagale for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI U.J.MORE
(Court Room no. 8)
DATED : 21th January, 2020
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2 Ad-Int - NM 332-2020 in Su.No.237-2020
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 restrain the Defendants, their servants, agents,
employees and assignees by an order and injunction of this Court from
demolishing the suit premises viz. structure being Shop No.2,
admeasuring 6' X 12', with loft, made B.M. Wall and A.C.Sheet roof,
situated at Plot No.1A, CTS No.979(Part), Rail View, Near Railway
Crossing, Opp. Sawan Bazaar, Chembur, Mumbai400 071.
2. It is stated that, pending the hearing and final disposal of
the suit this Court be pleased to direct the Defendants to restore the
water and electricity connection in the suit premises, viz. structure
being Shop No.2, admeasuring 6' X 12', with loft, made of B.M. and
A.C.Sheet roof, situated at Plot No.1A, CTS No.979 (Part), Railway,
Near Railway Crossing, Opp. Sawan Bazaar, Chembur, Mumbai 400
071.
3. Plaintiff filed documents alongwith plaint ExhA Rough
Location Plan showing the exact location of the suit premises, ExhB
City Survey Plan, ExhC Letter issued by Defendant, ExhD Rent
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Receipt, ExhE Deed of Assignment dated 02.08.2006, ExhF Rent
Receipt, ExhG Electricity Bill, ExhH Letter dated 28.08.2015, ExhI
Letter dated 02.06.2008, ExhJ(Colly) Licenses issued u/s.394 of the
MMC Act, ExhK Shops and Establishment Certificate, ExhL(Colly)
Notice dated 12.06.2019 issued u/s.354 of the MMC Act alonwith list
of certified tenants dated 04.09.2019.
4. Defendant strongly objected by filing affidavit alongwith
documents 1.Copy of Notice u/sec. 353(B), 2.Copy of letter dated
27.03.2019 from owner submitted with structural audit report, 3.Copy
of Sanction of designated officer in r/o categorization of suit building,
as a 'C1' category, 4.Copy of letter dated 10.04.2019 issued to owner &
tenant alongwith PerformaB, 5.Copy of leter dated 04.07.2019 issued
to owner for submission of approved area of tenants, 6.Copy of letter
dated 23.07.2019 alongwith, approved plan list of tenants & their area,
7.Copy of area certificate dated 04.09.2019 with acknowledgment,
8.Copy of Notice U/sec. 354 dated 12.06.2019, 9.Copy of report for
discussion of water & electricity supply dated 14.01.2020.
5. Heard, both the sides at length.
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6. Plaintiff's advocate placed reliance on Abdul H.S. Mansuri
V. Municipal Corporation of Mumbai by Hon'ble Bombay High Court in
First Appeal 2426 of 2005 with Civil Application No.5957 of 2005,
decided on 02.03.2006. Ratio is application to the case in hand.
7. Ld. Adv.B.P.Shukla pithily submitted that notice u/sec.354
was issued to the owner Shri.Yatin Dosa of Plot No.1A, Railview
Building and not to the plaintiff who is tenant having at 15 feet distance
from the notice structure (i.e. Railview Building). Neither notice u/sec.
354 nor Notice u/sec. 351 of MMC Act is issued to the Plaintiff in
person on 14.01.2019. Water and Electricity Supply was disconnected
of the stalls which are situated in "Compulsory open space" and hence
not included in area of certification. It is modes oprendi of the builder
with the help of Defendant/corporation to remove the plaintiff's suit
premises i.e. stall.
8. On the other side the Advocate Khandagale pithily
submitted that, it is 'C1' category building. It is 30 years old building. I
have gone through notice u/sec. 353(B) which is in the name of
Chairman/Secretary/Society of Shri. B.C.Patel House, Railview, Plot
No.1A, Chembur, Mumbai71. the letter from Mr.Yatin Dosa i.e. reply
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dated 27.03.2019 Mr.Samir Mhate, Structure engineer has filed
structural report, which transpires condition of a building at para 16
under head critical observation to "Structure is surrounded by Stalls
inside Compund". It is supported by letter dated 14.09.2019 sign by
designated officer of corporation alongwith list of tenants at serial
no.16 Mr.Ibrahim Vali Patel, Room No. Ground floor/Stall No.2, Carpet
area Nil, "The said stalls are situated in compulsory open space and
hence not included in area certification". Both documents are prima facia
supports the contention of plaintiff that these stall are not part of notice
structure premises i.e. Railview building and suit premises is at certain
distance from Railview buiding in open premises.
9. Therefore, prima facia the action itself illegal for cutting
Electricity supply and water supply of stall which in the possession of
the plaintiff. There appears substance in the above contentions of the
plaintiff. Therefore, plaintiff is entitled for adinterim relief. Hence I
proceed to pass following order.
ORDER
1. Adinterim relief is granted till next date.
2. Defendant is directed to restore electricity & water supply in
suit premises only.
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(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 : 01.02.2020 at 11.00 a.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
01/02/2020
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