Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO : MHCC010012052019. 1 Notice of Motion No. 483/2019.
in L.C. Suit No. 242/2019.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 483 OF 2019.
IN
L.C. SUIT NO. 242 OF 2019.
Sudha Arunkumar Singh. …...………...…............... …. PLAINTIFF.
V/s.
MCGM. …..…………….........................….............. …. DEFENDANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 22nd January, 2024.
APPEARANCES :
Mr. B.P. Shukla, Ld. Advocate for the Plaintiff.
Mr. S.C. Khandagale, Ld. Advocate for the Defendant.
*****
01. The plaintiff has taken out this Notice of Motion ((the NM),
for restraining the defendant from demolishing/removing the suit door,
without passing the Order afresh by considering her NM reply. Further,
this NM is filed for restraining the defendant from executing/enforcing
the notice dtd. 03.01.2019, issued U/sec. 351 of the MMC Act, and the
Order of dtd. 22.01.2019. Perused the NM, her supporting affidavit and
the defendant’s say. Heard both the sides.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in her favour? ….............................
Common Finding
Yes, till the
defendant passes
the Speaking Order
afresh.
(ii). Whether balance of convenience lies in
favour of the plaintiff? …....................... ...
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim reliefs, as
prayed for, are not granted?...................
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CNR NO : MHCC010012052019. 2 Notice of Motion No. 483/2019.
in L.C. Suit No. 242/2019.
(iv). What Order ? …..............…....................…As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are inter-connected, to maintain the brevity,
I am taking the same for a joint discussion. Since inception, the plaintiff
came with a specific case that she is the owner and occupier of flat Nos.
302 and 303, in Building No. 3, Randheer Vihar CHS Ltd., at Lalasheth
Compound, Bhandup (W), Mumbai-78. These flats were allotted to her,
as permanent alternate accommodation, in view of the possession letter
dtd. 05.07.2009. She is also having the Ration card, Electricity bill, etc.,
pertaining thereto. In front of these flats, she installed a MS safety door,
admeasuring 1.5 X.0.5 X 2.75 mtrs., which is hereinafter referred to as
the suit door. However, on some false complaints, the defendant issued
this notice and passed the Order on 22.01.2019. She replied the notice
on 24.01.2019, informing the defendant that while installing this door,
she did not consume FSI and it was only for safety purpose. Moreover,
for such internal changes, no such permission was required U/s. 43 of
the M.R.T.P. Act. Resisting this NM, the defendant submitted that having
received the complaint, the concerned Officer visited the site and found
that the plaintiff illegally erected this suit door, without any permission
of the competent authority. Hence, the notice was issued and thereafter,
the Speaking Order was passed.
04. Considering the rival submissions, at the outset, it is worth
to be noted that assailing the notice dtd. 03.01.2019 and the Order dtd.
22.01.2019, the plaintiff came with specific case that this suit door was
erected for the safety purpose. Further, she did not consume FSI and for
such internal changes, no permission from the defendant was needed as
per Section 43 of the MRTP Act. To support her contentions, she relied
upon the case of Radha Vithal Shetty, through POA Vishwanath Shetty V.
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CNR NO : MHCC010012052019. 3 Notice of Motion No. 483/2019.
in L.C. Suit No. 242/2019.
MCGM, in A.O. No. (St.) 18832 of 2017 in C.A. No. 18834 of 2017, dtd.
25.07.2017. The record goes to reveal that on 24.01.2019, she replied
the notice, raising the identical contentions. However, the fact remained
that before she could reply this notice i.e. just two days prior thereto, on
22.01.2019, the defendant passed the impugned Order. Consequently, at
that time, her say was not considered. That apart, apparently, this notice
is silent as to how exactly she violated the provisions of Section 342 and
347 of the MMC Act, as it is clear that she didn't consume additional FSI
while erecting the suit door. More so, in the light of the ratio laid in the
matter of Radha Vithal Shetty, Cited Supra, she could prima facie show
that 'internal changes' would not require a permission from the Office of
defendant. Simultaneously, she had no opportunity to rebut the alleged
approved plan, which is filed by the defendant at list Exhibit 3. On this
backdrop, without recording any findings on merits of this NM, I am of
the opinion that this NM can’t be decided in its proper prospect till the
defendant passes the Order afresh, after considering her notice reply. At
the same time, the plaintiff is placed at liberty to file her additional say
and the approved plan, if any, with the Office of defendant, within two
weeks from passing of this Order. Thereupon, the defendant is to pass
the Speaking Order afresh. In case she fails to place her additional reply,
the defendant would be at liberty to pass the Order as per the available
record. In the meantime, the defendant is restrained to initiate coercive
action against the notice structure i.e. the suit door. Needless to say that
if the suit door is demolished, the very purpose to file this suit would be
frustrated. Hence, to that limited extent, this NM needs to be allowed.
Therefore, I answered point Nos. 1 to 3 in accordingly and in answer to
point No. 4, I pass the following Order:
-: O R D E R :-
(i). Notice of Motion No. 483/2019 is made absolute in terms
of prayer clause (a) only. The plaintiff is placed at liberty to
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CNR NO : MHCC010012052019. 4 Notice of Motion No. 483/2019.
in L.C. Suit No. 242/2019.
file her additional notice reply and the documents with the
Office of defendant, within two weeks from passing of
this Order.
(ii). On receipt of the additional reply and documents, if any,
the defendant is called upon to consider the same and
to pass the Speaking Order afresh as per law.
(iii). In the meantime, the defendant, his agents, his servants
and anybody else claiming through him are hereby
restrained from proceeding against the notice structure i.e.
the suit door, in pursuance of the notice dtd. 03.01.2019,
except by following the due process of law.
(iv). Notice of Motion No. 483/2019 is, accordingly, disposed of.
Sd/-
{A.G. Santani}
Mumbai. Judge,
Dated : 22.01.2024. City Civil Court, Mumbai.
Dictated on : 22.01.2024.
Transcribed on : 25.01.2024.
Checked and Signed on : 25.01.2024.
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CNR NO : MHCC010012052019. 5 Notice of Motion No. 483/2019.
in L.C. Suit No. 242/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
25.01.2024. at 5.35 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 22.01.2024.
Judgment/Order signed by P.O. on 25.01.2024.
Judgment/Order uploaded on 25.01.2024.
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