Interim Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM. : 1 : SUIT NO.346/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION
IN
SUIT NO. 346 OF 2018.
Mr. Ajay Kumar S/o. Pyarelal Tiwari... } .. Plaintiff.
Versus.
Municipal Corporation of }
Greater Mumbai... } .. Defendants.
Advocate Mr.Saraogi for Plaintiff.
Advocate Mrs. Valvi for Defendant /BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 15 TH FEBRUARY, 2018.
(Court Room No.06)
O R D E R
1. Plaintiff has taken out this draft notice of motion to restrain the
defendants/Corporation from taking any action on the basis of order
dated 25/01/2018.
2. According to the plaintiff, he is in occupation and possession of
the suit premises i.e. Plot No. 51B, Next to Mahalaxmi Bridge, Next to
Hyundai Service Station, Dr. E. Moses Road, Mahalaxmi (W),
Mumbai400 034.
3. Plaintiff is in possession of 1300 sq. fts. of the ground floor area
plus 1300 sq. fts. area of mezzanine floor. The suit premises was
initially occupied by M/s. Advani & Co. The said M/s. Advani & Co.
had obtained necessary licenses and factory permit way back in the
year 195657. Thereafter plaintiff came in possession of the suit
premises. Thus, the construction of the suit premises is prior to datum
line. Plaintiff has obtained necessary licenses from the concerned
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departments. Plaintiff has taken electric supply and other necessities in
the suit property. Prior to this, Corporation had issued notice to the
plaintiff. Thereafter plaintiff had filed the suit in this Court. Plaintiff
has withdrawn the same suit. Plaintiff has not made any construction
or the breached of the rules of the Corporation. However, on
25/01/2018, the Corporation passed an order and directed the
plaintiff to remove the structure. The order is illegal and badinlaw.
Therefore, prayed to grant adinteriminjunction.
3. Notice served to defendant/Corporation. Defendant/Corporation
has filed an affidavit of one Sandesh Wankhede and the documents.
4. I have heard Both the sides.
5. Shri. Saraogi Ld. Counsel for the plaintiff has submitted that the
construction of the suit property is prior to datum line. Plaintiff has not
made any construction. The structure of the plaintiff is ratified by
Corporation. However, the Corporation issued the notice which is
illegal. He further submitted that plaintiff has obtained necessary
permission from the Competent Authority. Plaintiff is running the
business in the suit premises. Therefore, he prayed to protect the
structure of the suit premises.
6. As against this, Smt. Valvi advocate for defendant has submitted
that the suit property is affected due to the project of Brimstoward.
Due to this, Corporation has given a permission to raise the
construction up to 14 fts. only. However, during inspection, it is found
that plaintiff has made construction above 14 fts. Therefore, the
Corporation has directed plaintiff to remove the said construction. She
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supports the impugned order.
7. I have perused the documents filed by both the parties. Plaintiff
is owner and in occupation of the Plot No.51B, situate at Mahalaxmi
(W), Mumbai400 034. It appears that earlier M/s. Advani and Co. was
doing the business there. Thereafter the plot is transferred to the
plaintiff. It is to be noted that the said plot is transferred to the
plaintiff to run the business/work shop. Admittedly, the suit property
is Brimstoward project affected property. As per the policy of the
Corporation (defendant), the Corporation has given permission to raise
construction only up to 14 fts. It is to be noted that during inspection,
it is found that plaintiff has raised construction above 14 fts. It is
pertinent to note that plaintiff has written a letter to the Asst.
Commissioner, Mumbai Municipal Corporation that he is promising to
remove the unauthorized mala/loft which was previously constructed.
The notice and order issued by Corporation contends that the plaintiff
has made unauthorized construction of mezzanine floor. The plaintiff
produced the lay out plan but the same is not sanctioned by the
Corporation. Thus, it prima facie appears that the construction of upper
floor is against the policy of Corporation and plaintiff was never
authorized to raise construction above 14 fts. from the ground level.
Hence, in these circumstances, plaintiff is not entitled for adinterim
injunction. therefore, I pass the following order :
O r d e r
1. The relief of adinterim injunction is refused.
...4/
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2. Draft Notice of Motion be registered.
Date : 15.02.2018. (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 15.02.2018
Typed on : 15.02.2018
Signed by HHJ. : 15.02.2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
15.02.2018 /5.30 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
15.02.2018
JUDGEMENT/ORDER signed
by P.O. on
15.02.2018
JUDGEMENT/ORDER
uploaded on
15.02.2018 .
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