Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM....2018 : 1 : SU.No.168/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION....2018.
IN
L.C. SUIT NO. 168 OF 2018
Mr. Babu M.Naidu (N.Bhaskaran)... .. Plaintiff.
Versus.
Municipal Corporation of Greater
Mumbai. ... .. Defendants.
Ld. Advocate Mr. O.P.Singh for the Plaintiff.
Ld. Advocate Mrs. Chavan for the Defendant/BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 23rd JANUARY, 2018.
(Court Room No.06)
O R D E R
1. Plaintiff has taken out this draft notice of motion for issuance of
adinterim injunction against the defendant/Municipal Corporation,
restraining the defendant its servants, agents, representative or any
other persons on behalf defendant from demolishing the suit premises
admeasuring 10'x15' made of B.M.Wall and AC sheet roof comprising
of ground and mezzanine floor situated at CTS No.2B/23, Leprosy
Colony, Sanjay Gandhi Nagar, Sion Trombay Road, Sion (E), Mumbai
400 022.
2. Case of plaintiff in brief is as under :
Plaintiff is in use and occupation of the suit premises. Plaintiff
came into possession of the suit premises prior to 1990. Earlier in the
said area, patients of leprosy were residing. Therefore, the said area is
known as a Leprosy Colony. Plaintiff was not having any premises.
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Therefore, he came in the said area and occupied the suit premises.
However, till today, defendant/Corporation has not issued photo pass
to the plaintiff. Thus, the possession of plaintiff is protected.
3. According to plaintiff, plaintiff has obtained ration card and
electric supply in the premises. Plaintiff runs business by name Anand
Travels on the mezzanine floor of the suit premises. There is no any
livelihood of the plaintiff except this business. On 06/07/2017, the
Corporation gave notice to the plaintiff. Plaintiff replied to the said
notice. Thereafter the defendant/Corporation has passed order on
09/01/2018 and asked plaintiff to vacate the suit premises. According
to defendant, the plaintiff has made vertical extension. The
construction of the plaintiff is legal one and if defendant succeeds, the
irreparable loss will be caused to the plaintiff.
4. Notice is served on defendant. Defendant filed affidavit of one
Vikram Somwanshi and also documents.
5. I have heard Mr. O.P.Singh advocate for plaintiff and Mrs.
Chavan for defendant/Corporation.
6. Mr. O.P. Singh advocate for plaintiff has submitted that the said
area was early known as Leprosy Colony. Thereafter plaintiff came in
the said area prior to 1990. Plaintiff made construction. Till today,
photo pass is not issued in favour of plaintiff. The possession of the
plaintiff is protected under the Provisions of Slum Rehabilitation Act.
He further submitted that the order passed by defendant/Corporation is
illegal. Therefore, it is necessary to protect the possession of the
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plaintiff at this juncture.
7. Mrs. Chavan, advocate for defendant/Corporation has submitted
that plaintiff has made illegal construction. The said construction is
vertical. Plaintiff runs business of Travel there. The construction up to
10 ft. is protected. Therefore, she prayed to reject the petition.
8. Plaintiff has come with specific case that he is residing in the suit
property prior to 1990 and his possession is protected. It is true that
plaintiff has obtained electric supply and also obtained ration card. The
Corporation did not dispute the construction up to height of 10 ft.
Only question is whether the construction of above 10 ft. is legal. It is
to be noted that admittedly, no photo pass is issued by Corporation.
Thus, it is difficult to hold that the possession of the plaintiff is prior to
1990. It is to be noted that initially, the Corporation issued a notices to
all the residents of Sanjay Gandhi Nagar. It appears that all the
residents runs travel business in the vicinity by constructing upper
floor. The said floor faces on the Sion Trombay bridge. The notice is
issued to remove the said construction. It is true that plaintiff filed
reply through his advocate. However, plaintiff could not produce any
documents and accordingly, the impugned order is passed. The
defendant/Corporation has directed the plaintiff to remove
unauthorized vertical extension above 10 ft. from ground level. The
plaintiff could not produce any documentary evidence to show that the
possession is legal one and before the datum line. Therefore, I find that
plaintiff is not entitled for adinterim relief. Accordingly, I pass the
following order :
O r d e r
1. Adinteriminjunction is refused.
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2. Leave is granted to register the draft Notice of
Motion.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 23.01.2018
Typed on : 23.01.2018
Signed by HHJ. : 23.01.2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
24.01.2018 /4.30 p.m. Mr. S.D.Nalawade
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with
Court Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
23.01.2018
JUDGEMENT/ORDER signed
by P.O. on
23.01.2018
JUDGEMENT/ORDER
uploaded on
24.01.2018
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