Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. : MHCC010007302018 . 1 Notice of Motion No. 193/2018
in L.C. Suit No. 2627/2017.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 193 OF 2018.
IN
L.C. SUIT NO. 2627 OF 2017.
Premnath Ramlal Kanojiya. ….........………………... … PLAINTIFF.
V/s.
MCGM. …..........…..…......................................…… … DEFENDANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 11th November, 2024.
APPEARANCES :
Mr. V.T. Dubey, Ld. Advocate for the Plaintiff.
Mr. Arvind Rathod, Ld. Advocate for the Defendant/MCGM.
****
01. The plaintiff has taken out this Notice of Motion (the NM),
to restrain the defendant from demolishing, removing or pulling down
the suit premises, as described in the plaint, in pursuance of the notice
dtd. 13.10.2017, issued U/s. 351 of the MMC Act, and the Order passed
on 20.11.2017. Perused the NM, supporting affidavit of the plaintiff and
reply filed by the defendant. Heard.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(1). Whether the plaintiff has a prima facie
case in his favour? ….…...........................
Common Finding:
Yes, till disposal of
the suit.
(2). Whether balance of convenience lies in
favour of the plaintiff? …......................... ...
(3). Whether the plaintiffs would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted ?......................
(4). What Order? …................….................... …As per final Order.
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CNR NO. : MHCC010007302018 . 2 Notice of Motion No. 193/2018
in L.C. Suit No. 2627/2017.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are interconnected, to maintain the brevity,
I am taking the same for a joint discussion. Since inception, the plaintiff
came with a case that he is in use of the room premises, in size 38’ X 32’
sq. ft., made up of BM walls and A.C. sheet roof, at CTS No.121, Opp.
Building No. 5, Wadia Estate, M.N. Road, Kurla (W), Mumbai (the suit
premises). He acquired the suit premises vide letter dtd. 04.07.1979, at
Exhibit B of the plaint compilation, by Office of the then Addl. Collector.
The suit premises is old and it existed prior to 1962. Accordingly, it was
assessed to taxes. Further, he possessed the documents like Ration card,
Electricity bill, Adhar Card, etc. pertaining thereto. Moreover, as the suit
premises was damaged, in view of the permission dtd. 30.05.2003, he
carried the repairs. In fact, the suit premises was having breath up to 30
ft. and he never carried any illegal construction. However, on the say of
some interested persons, the defendant issued this notice. He replied it
on 18.10.2017 and without considering his stand and the documents of
his reliance, the defendant passed the Order on 20.11.2017. This way,
the notice and the Order are bad in law. With these facts, he had to file
this suit, along-with NM for the aforesaid reliefs. Supporting his claim,
the plaintiff filed copies of the said letter dtd. 04.07.1979 issued by the
Rehabilitation Tahasildar, Mumbai, Assessment Bill, Ration card, Repair
Permission dtd. 30.05.2003, the notice, his reply, the Order, etc.. On his
turn, the defendant contended that having received the complaint, on
12.10.2017, the concerned Officer inspected the suit site and found the
unauthorized structure of 3.28+2.8/2mtr.. Accordingly, he asked for the
documents of such structure, which weren't produced by the concerned
person and hence, the notice was issued. The plaintiff replied the same
on 18.10.2017 and only after considering his stand, on 20.11.2017, the
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CNR NO. : MHCC010007302018 . 3 Notice of Motion No. 193/2018
in L.C. Suit No. 2627/2017.
Speaking Order followed. Thus, the said construction was unauthorized
and hence, the NM needs to be dismissed. Supporting his case, he filed
the copies of Inspection Report, the notice and the Order. In his written
submissions on this NM, the plaintiff re-iterated his claim.
04. Considering this record, at the outset, it is notable that it is
nowhere the plaintiff’s claim that the notice structure was brought into
existence only after securing due permission from the defendant or say
in view of a sanctioned plan. He is trying to justify this notice structure
mainly on the ground that he acquired the same by virtue of the letter
dtd. 04.07.1979, Exhibit B. It is further his say that the notice structure
existed prior to 1962 and it was assessed to taxes. Perusal of the record,
more precisely, the letter dtd. 04.07.1979, shows that it was issued by
the then Managing Officer and Rehabilitation Tehsildar of Mumbai Sub-
urban District to one Punibai Ramlal, duly recognizing existence of the
said structures since 1962, though, as its unauthorized occupier. In this
way, the plaintiff could, prima-facie, show existence of the said structure
prior to the datum line of 1962. However, the fact remained that while
passing of the Order of dtd. 20.11.2017, the defendant did not prefer to
comment on this letter. Hence, this aspect of the matter is not 'rebutted'.
Even, on 27.11.2017, my ld. Predecessor granted ad-interim relief in the
plaintiff’s favour, with the observation that while passing the Speaking
Order, the defendant did not take into consideration that the first date
of assessment of the suit premises is 31.03.1962. This ad-interim relief
is continued till date and it has been about 07 years since passing of the
said Order. On this backdrop, if the defendant is permitted to demolish
the notice structure, it would, surely, non-suit the plaintiff. Whereas, in
view of his contentions, touching to tolerated status of this structure, I
am of the opinion that he may be given an opportunity to establish the
same on trial. Here, I must make it clear that this finding should not be
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CNR NO. : MHCC010007302018 . 4 Notice of Motion No. 193/2018
in L.C. Suit No. 2627/2017.
taken to regularize or to legalize the notice structure, as, presently, even
the plaintiff is due to prove his contentions on trial. It would also be just
to call the parties to expedite the trial and in the meantime, to continue
the ad-interim Order dtd. 27.11.2017. Hence, I answered point Nos.1 to
3 accordingly and in answer to point No.4, I pass the following Order:
-: O R D E R :-
(i). Notice of Motion No.193/2018 is partly allowed.
Accordingly, the Order dtd. 27.11.2017, granting
ad-interim relief, is continued till disposal of the suit.
(ii). The parties to expedite the matter.
(iii). Notice of Motion No. 193/2018 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 11.11.2024. City Civil Court, Mumbai.
Dictated on : 11.11.2024.
Transcribed on : 29.11.2024.
Checked and Signed on : 30.11.2024.
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CNR NO. : MHCC010007302018 . 5 Notice of Motion No. 193/2018
in L.C. Suit No. 2627/2017.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
30.11.2024 at 1.55 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 11.11.2024.
Judgment/Order signed by P.O. on 30.11.2024.
Judgment/Order uploaded on 30.11.2024.
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