Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 DRAFT NM IN L.C SU (ST.) No.912-2021
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
DRAFT NOTICE OF MOTION
IN
L.C. SUIT (ST.) NO.912 OF 2021
Mr. Devang P. Kapadia ]...Plaintiff
Versus
MCGM ]..Defendant
Appearance:
Advocate Shri. D.A. Barot for Plaintiff.
Advocate Smt. Soraan for defendant (MCGM).
CORAM : S.C. Pathare, Judge
(Court Room No.5)
DATED : 01/02/2021.
ORAL ORDER
1) Plaintiff has taken out this notice of motion against the
defendant u/s.55 of MRTP Act.
2) Plaintiff prayed to issue temporary injunction restraining
defendant (corporation) from taking any action against the notice
structure, “unauthorized blocking of common “staircase” area by
constructing temporary door at 3rd floor level, Prabhuta Augustus Villa
CHS, 21, N.S. Patkar Marg, Hughes Road, Mumbai- 400 007.
3) I have heard arguments advanced by both the Ld
Counsels. I have perused Notice of Motion, suit, reply & other
documents placed on the record.
4) The Ld Counsel of plaintiff argued that under agreements
dtd. 9/10/1995 he purchased flat No.7 situated on 3rd floor & flat
-- 1 of 7 --
2 DRAFT NM IN L.C SU (ST.) No.912-2021
No.8 on 4th floor of suit building. He is enjoying possession &
occupation of the entire 3rd & 4th floor through the staircase available
from the 2nd floor. Advocate of plaintiff argued that said old building
is having wooden staircase with open steps. Further, the predecessor
in title of plaintiff at the time of said transaction already provided
collapsible grill gate at 3rd floor level which was constructed along
with main building prior to 60 years for the purpose of safety of 3rd
floor residents. Plaintiff after said agreements never constructed the
alleged structure. Further, in the year 2010 the MBR & R Board
carried repairs. Therefore, according to Advocate of plaintiff show
cause notice issued by MCGM & speaking order passed thereon both
are unlawful.
5) On behalf of MCGM reply is filed & all the adverse
allegations are strongly denied. According to arguments of Ld Counsel
appearing on behalf of MCGM plaintiff is having unauthorized notice
structure. Therefore, MCGM authority took action against it by
following due procedure of law.
6) Ld. Advocate of plaintiff submitted following documents:
Sr.
No.
Particulars
1 A Colly Copies of agreement dtd.9/10/1995.
2 B Copy of agreement dtd. 27/3/1991.
3 C Society’s letter dtd. 1/9/1998.
4 D Copy of defendant’s letter dtd.1/2/2020.
5 E Plaintiff’s Advocate letter dtd. 5/2/2020.
6 F Defendant’s notice dtd. 13/3/2020.
7 G Colly Copies of plaintiff’s letter dtd. 23/7/2020,
society letter dtd.23/7/2020 & FIR.
-- 2 of 7 --
3 DRAFT NM IN L.C SU (ST.) No.912-2021
8 H Impugned order dtd.12/1/2021.
7) Ld.Advocate of defendant submitted following
documents:
Sr. No. Particulars
1 First inspection report
2 Notice u/s.55 of MRTP Act
3 Colour photographs
4 Reply of plaintiff dtd. 23/7/2020
5 Reply of society member dtd. 23/7/2020
6 Speaking order of defendant (MCGM)
8) I have perused above documents. Now I have to decide
Ex-facie whether notice structure is constructed prior to the datum
line or whether it has been constructed by plaintiff or his predecessor
in title with sanction/permission of the competent authority.
9) During the course of arguments Ld Counsel was orally
requested to point out whether notice structure is mentioned in the
agreement dtd. 27/3/1991 & 9/10/1995 on which basis plaintiff is
claiming to be the owner & possessor of said flats including notice
structure. However, Ld Advocate of plaintiff fairly conceded that
specific notice structure is not mentioned in said important
documents, except flat numbers & shares/interest/area. In this regard
it is to be noted that when such immovable property is to be
sold/leased etc at that time the seller/lessor/vendor has to provide
minute details of such property in document & has to provide his own
documents of title to the subsequent purchaser/lessee/vendee.
Similarly, at the time of such transaction it is right & duty of
purchaser/lessee/vendee to get incorporated all the details of
-- 3 of 7 --
4 DRAFT NM IN L.C SU (ST.) No.912-2021
purchased property. If such precaution is not taken then the
purchaser/lessee/vendee has to face problems in future. However, for
the fault of parties to the documents court cannot show any sympathy
to anybody & has to see whether disputed property is properly
mentioned in the such documents. In above said two agreements
there is no mention of notice structure, this aspect goes against
plaintiff.
10) The Ld counsel on behalf of plaintiff invited attention of
this court on letters issued by the society. Perusal of the same it shows
that society is trying to say that plaintiff has not carried out said
notice structure & said structure is there prior to the datum line.
Society is denying alleged encroachment of plaintiff upon staircase
etc. However, letter of society cannot be treated as document of title.
Furthermore, law does not say that society can issue such certificate
against unauthorized construction. Such certificate carries no
weightage in the eyes of law regarding the authorized structure.
11) Both parties placed on the record photographs of the said
notice structure. Perusal of the same shows existence of the alleged
structure.
12) During the course of arguments it revealed that said
building is having four floors & terrace. However, documents of
plaintiff nowhere shows that whether plaintiff or his predecessor in
title were permitted to erect said structure in the staircase & block
user of staircase & terrace for other residents. Unless & until plaintiff
by reliable document shows that he is solely entitled to use said
staircase available upto terrace, said blockage cannot be justified.
13) Perusal of inspection report dtd. 13/3/2020 shows that
-- 4 of 7 --
5 DRAFT NM IN L.C SU (ST.) No.912-2021
said unauthorized temporary structure was found at the said place.
Thereafter, on 13/3/2020 show cause notice u/s. 55 of the MRTP Act
was issued by MCGM to plaintiff in that regard. It was replied on
behalf of plaintiff on 23/7/2020 along with letter of society dtd.
23/7/2020. Thereafter, perusal of speaking/final order dtd.
12/1/2021 shows that the designated officer considered reply &
documents. He found that plaintiff could not show authorization of
notice structure. He found that documents relied by plaintiff were not
showing existence of notice structure prior to the datum line.
Therefore, designated officer directed plaintiff to remove said
structure. Thus, it is clear that MCGM followed due procedure. Even
before this court plaintiff is not able to show authorization of the
notice structure.
14) Moreover, as per the provisions of Section 106 of the
Evidence Act burden of proving fact which is especially within the
knowledge of any person lies upon such person. For example if any
person is traveling in railway without a ticket, then burden of proving
that he had ticket is on him. Similarly, if a person is found having
unauthorized structure then such person is duty-bound to produce
permission of corporation or approved plan in that regard. If such
person fails to make said legal compliance then such unauthorized
structure cannot be protected.
15) In view of above thorough discussion in my humble view
plaintiff is neither having prima facie case nor balance of convenience
in his favour. If relief prayed for is rejected in that event he will not
suffer any irreparable loss which cannot be compensated in terms of
money by defendant.
-- 5 of 7 --
6 DRAFT NM IN L.C SU (ST.) No.912-2021
16) Considering peculiar facts and circumstances etc, I
proceed to pass the following order in the interest of justice:
ORDER
1) Draft Notice of Motion stands dismissed
with costs.
2) Draft NM be registered for statistical
purposes.
3) Authenticated copy of this roznama be
given to parties, if requested.
4) Keep suit for WS, if any.
Date:01/02/2021 (S.C. Pathare)
Ad-hoc Judge
City Civil Court
Dictated & directly typed on : 01/02/2021.
Checked by PO : 01/02/2021.
Signed by HHJ on : 01/02/2021.
-- 6 of 7 --
7 DRAFT NM IN L.C SU (ST.) No.912-2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
03/02/2021 Mrs. S.A. Shekade.
Name of the Judge (With Court
room no.)
SHRI S.C. Pathare (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
01/02/2021.
JUDGMENT/ORDER signed by
P.O. on
01/02/2021.
JUDGMENT/ORDER uploaded on 03/02/2021.
-- 7 of 7 --