Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 349-20 in Suit No. 805-2020
CNR NO.MHCC01-00869-2020
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 349 OF 2020
IN
L.C. SUIT NO. 805 OF 2020
Mr. Sanjay Bhagwan Wadekar …...Plaintiff
Versus
Municipal Corporation for Gr. Mumbai & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 05th March, 2020.
Appearance:
Ld. Adv. Ms. Mayura R. Jagtap for plaintiff.
Ld. Adv. Mrs. Rawade for defendant/MCGM.
Ld. Adv. Ms. Priyanka for defendant No.4.
ORDER
1. The plaintiff by this notice of motion seeks injunction restraining
the defendant corporation from acting upon the Notice issued under
Section 55 of the Maharashtra Regional and Town Planning Act, 1966
(hereinafter referred to as 'the M.R.T.P. Act') dated 30.01.2016 and the
Order dated 02.01.2020.
2. Heard learned Advocate for the plaintiff and learned Advocate for
the defendant Corporation.
3. The Schedule of the Notice dated 30.01.2016 reads as under:-
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‘’Unauthorizedly installation of rolling shutter (3’ x 6’) of the
external wall of the building by the way of breaking existing window at
the above mentioned address as shown in accompanying sketch.’’
4. The earlier suit filed by the plaintiff was disposed of on
16.03.2016 vide order on draft notice of motion in L.C. Suit No.
596/2016.
The suit was disposed of with directions to the plaintiff to make
an application for regularization to BMC.
5. The plaintiff had approached the corporation on 30.03.2016.
Only the 1st page of the application is filed in the suit at page no. 48 (in
other suit, the plaintiff had filed only the 1st page of the representation
made for regularization.)
The plaintiff had also replied on 02.02.2016. The plaintiff had
relied upon following documents:
a) Certificate of Establishment (Form No. D) dated 14.10.2008,
29.12.2012.
b) License dated 26.11.2008.
c) Health license Valid from 20.04.2009 to 19.04.2010.
d) BEST Electricity bill for the month of April 2009.
e) Rent receipt for the month of April to June 2013.
f) Receipt of payment of property tax to Assessment dept. dated
07.11.2015.
It is the case of the plaintiff that structure is in existence prior to
the datum line. This Court has directed the plaintiff to approach for
regularization. It appears that the plaintiff had approached the
defendant for regularization and had only filed the documents i.e.
application for regularization dated 30.03.2016. The plaintiff had
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submitted the documents on 02.02.2016 pursuant to the notice issued
by the corporation. The speaking order dated 02.01.2020 shows that
plaintiff was personally heard. It was concluded that plaintiff had failed
to show the authenticity of the notice structure i.e. existence of the
notice structure prior to 01.04.1962.
The plaintiff was required to show the permission to erect the
notice structure. It was concluded in the order that rolling shutter and
external wall of the building by breaking existing window at Shop No.
1, ground floor is without the permission of the competent authority.
In order to seek temporary injunction, the plaintiff is expected to
make out prima faice case, except the bare word of the plaintiff about
the existence of the notice structure prior to 1962 no evidence is
tendered by the plaintiff to show the existence of the notice structure
prior to1962.
6. The plaintiff also had not produced any permission to show
rolling shutter was put with the permission of the corporation. It needs
to be mentioned that personal hearing was given by to the plaintiff.
The plaintiff had submitted the documents to the corporation which
were considered. It was found that the plaintiff had failed to show the
authenticity of the notice structure. The structure therefore appears to
the unauthorized. The plaintiff had tried to bank on order of this Court
directing the corporation to consider the proposal of regularization.
The corporation after hearing the plaintiff had come to a conclusion
that the structure is unauthorized. The order points out that in place of
window rolling shutter is put. It appears that putting of rolling shutter
is in contravention to the sanctioned plan.
The plaintiff has failed to make out the prima-facie case in his
favour. The balance of convenience does not lies in favour of the
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plaintiff. The plaintiff would not be put to irreparable loss, if the
injunction is refused.
In the result, following order is passed.
ORDER
The Notice of Motion No. 349/2020 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 05.03.2020 City Civil Court, Mumbai.
Dictated on : 05.03.2020
Transcribed on : 09.03.2020
Signed by HHJ on : 14.03.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 16.03.2020 at 11.19 am.
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
05.03.2020
JUDGMENT/ORDER signed by
P.O. on
14.03.2020
JUDGMENT/ORDER uploaded on 16.03.2020
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