Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion 476 of 2019
In
L.C.Suit No.394 of 2019
MHCC010011792019
Mohamed Afsar Sayed s/o Mohamed Ayub ..Plaintiff
V/s
The Municipal Corporation of Gr. Mumbai & Anr ..Defendant
Advocate Ms. Mona Vyas for plaintiff
Advocate G.O.Giri for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 16th February , 2019
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this notice of motion to restrain the
defendant Municipal Corporation from taking any action of demolition
of the suit premises.
2 According to plaintiff, plaintiff is owner and in possession
of flat no. 141, 14th floor, Vaibhav Cooperative Housing Society Ltd,
Dharavi Main Road, Mahim (East) Mumbai 400 017. Plaintiff has
acquired the suit premises by Agreement for sale. Plaintiff has not
made any additions and alterations. Plaintiff has purchased the suit
premises as it is where is basis. However, defendant issued notice to the
plaintiff alleging that plaintiff has unauthorizedly covered the suit
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premises which is beyond approved plan. However, the notice is illegal
and bad in law. Plaintiff had filed writ petition before the Hon'ble High
Court bearing No. 2582 of 2017. As per the direction of Hon'ble High
Court plaintiff had filed regularization proposal initially to the
Municipal Corporation, Gr. Mumbai. The Municipal Corporation,
directed the plaintiff to approach before Dharavi Re development
Planning Authority. Now plaintiff has filed the proposal for
regularization before D.R.P.A. The said proposal is pending. However,
defendant threatened to the plaintiff to demolish the notice structure.
Hence, prayed to grant ad interim relief.
3 Miss Mona Vyas advocate for plaintiff has invited my
attention towards the documents on record. According to her, the
regularization proposal of plaintiff is pending and if the ad interim
relief is not granted then plaintiff will suffer irreparable loss. She
further submitted that the plaintiff has obtained documents under RTI
Act. She has invited my attention towards the document on record.
Hence, she prayed to grant ad interim relief.
4 Shri G.O.Giri advocate for defendant corporation has
submitted that plaintiff had filed regularization proposal to the
defendant. However, the proposal is rejected. The regularization
proposal of Dharavi Re development Planning Authority is also
rejected. Thus, no the regularization proposal is pending. Plaintiff has
challenged the notice U.s 53(1) of MRTP Act. In view of section 149 of
the MRTP Act this court has no jurisdiction to try the present suit. The
plaintiff has unauthorizedly made construction on the terrace of the
building. The society is aggrieved party and there are complaints from
the society against the plaintiff. The officer has inspected the site
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prepared inspection report and thereafter the notice is issued. Thus, the
defendant has followed the due process of law. Hence, he prayed to
reject the ad interim relief.
5 At the outset I mention here that plaintiff has challenged
the notice issued U/s 531 of MRTP Act. I have perused the complaint.
In the entire complaint plaintiff has not stated that the impugned
notice is nullity. Thus, there is prima facie bar U/s 149 of MRTP Act to
try the present suit.
6 Apart from this from the perusal of documents on record it
appears that plaintiff had filed writ petition no. 2582 of 2017, before
Hon'ble High Court. Hon'ble High Court disposed of the writ petition
and held that it will be open to the petitioner to apply for
regularization within period of six weeks from today. Such an
application for regularization shall be filed by on line mode through
Register Architect. Thereafter, plaintiff had sought extension to file an
application from Hon'ble High Court. Hon'ble High Court further
granted two weeks time to the plaitniff to file the proposal for
regularization. From the record it reveals that thereafter plaitniff had
filed the proposal for regularization to the building proposal
department of the defendant. The building proposal department
informed to the plaintiff to approach to D.R.P.A and D.R.P.A has
rejected the proposal by letter dated 14/05/2018. Thus, now no
regularization proposal of the plaintiff is pending.
7 Therefore, in view of the above, I find that there is prima
facie bar of jurisdiction of this court, no proposal of regularization is
pending. It appears that the plaintiff has covered terrace beyond the
sanctioned plan. Hence, in such a circumstances, plaintiff is not entitled
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for ad interim relief. Accordingly ad interim relief is refused. Hence, the
following order:
ORDER
1 Ad interim relief is refused.
2) Notice of motion is disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 16/02/2019
Typed on : 18/02/2019
Signed by HHJ. :18/02/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
S.D. Raje
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
16/02/2019
JUDGEMENT/ORDER signed by
P.O. on
18/02/2019
JUDGEMENT/ORDER uploaded
on
20/2/2019
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