Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 456-18 in L.C.SUIT no.317-18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 456 OF 2018
(CNR no. MHCC010018322018)
IN
LONG CAUSE SUIT NO. 317 OF 2018
(CNR no. MHCC010017502018)
Mr. Aklaque Ahmed Mohd. Hasan Khan ]
Narayan Bldg. situated at Opp. Post Office, ]
Harichand Desai Road, ]
Ghatkopar West, Mumbai86 ]....Plaintiff
V/s
The Municipal Corporation of ]
Gr. Mumbai, having their Head office at ]
Mahapalika Bhavan,Mahapalika ]
Marg,Fort,Mumbai400 001 ]....Defendant
Appearances:
Ld. Advocate Mr. Mohit Jadhav for the Plaintiff.
Ld. Advocate Ms. Yogita Lanjekar with Ld. Advocate Ms. Patil for
defendant/BMC.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 26th June, 2019
O R A L O R D E R
1. This is an application by Notice of Motion under O.XXXIX R.1 of
The Code of Civil Procedure, 1908.
-- 1 of 5 --
2 NM no. 456-18 in L.C.SUIT no.317-18
2. The plaintiff challenges notice dated 07.10.2017 and order dated
30.01.2018 purported to be under Section 351 of Mumbai Municipal
Corporation Act,1888 (hereinafter referred to as "MMC Act" for brevity)
in respect of the suit premises that is a structure having name
"Maharashtra Juice & snacks" adjacent to Narayan Building, Opposite
Post office, Harichand Desai Road, Ghatkopar (West), Mumbai400 086.
According to learned advocate for the plaintiff, the plaintiff is in
possession of the suit premises prior to September 1983. He has
referred to an application by the plaintiff dated 13.10.1983 for grant of
repair permission to carry out repairs in the suit premises and the same
was granted by Assistant Engineer, (Building & Factories), N ward by
his letter dated 19.12.1983. He has also pointed out that earlier the suit
premises was having an area 160 sq. ft., out of that area 80 sq. ft. was
acquired by the defendant Municipal Corporation of Greater Mumbai
(hereinafter referred to as "MCGM" for brevity) for road widening and
latter had given alternate premises for such acquisition. From both
these documents, learned advocate for the plaintiff has strenuously
argued that by granting repair permission the defendant MCGM has
virtually regularized the suit premises and they can not now take action
under Section 351 of MMC Act after granting repair permission. He
further states that granting of alternate premises for acquisition of half
-- 2 of 5 --
3 NM no. 456-18 in L.C.SUIT no.317-18
portion of original suit premises is also sufficient to show that the suit
premises is an authorized construction. Learned advocate for the
defendant MCGM has taken me through order of the designated officer
dated 30.01.2018 wherein the said documents are considered by him
and thereafter, speaking order is passed directing removal of the suit
premises within 7 days from the receipt of the order by the plaintiff.
3. Since the plaintiff is placing reliance upon letter of grant of repair
permission, it will have to be seen whether by issuing such repair
permission the structure of the plaintiff gets regularized or not. In this
regard, the procedure is prescribed in Building Proposal Department
Manual for making an application in case of new building. Such
application needs to be submitted to the building & proposal
department of the defendant MCGM through architect / L.S. Moreover,
there are prerequisites to be submitted along with such proposal. Such
proposal is scrutinized and the plans are approved if the same are found
approvable. Chapter XII of the MMC Act deals with building regulations
and Section 337 provides for the procedure to be followed for erection
of new building. Procedure under Section 342 of MMC Act is attracted
when a person intends to make addition etc. to or change of user of
building. Therefore, provisions of Section 342 and Section 337 of MMC
Act are in different fields. The impugned notice is for erection of
-- 3 of 5 --
4 NM no. 456-18 in L.C.SUIT no.317-18
building (suit premises) contrary to Section 347 of MMC Act wherein it
is alleged that the plaintiff had not commenced erection of the suit
premises with permission as required under Section 347 of MMC Act.
Therefore, mere grant of permission for repair under Section 342 of said
Act will not be sufficient to establish that permission for erection of such
building (suit premises) was obtained by the plaintiff. In this backdrop
long standing occupation of the plaintiff in the suit premises or that he
was allotted alternate land for acquisition of some portion of original
suit premises are not sufficient to make out the case of the plaintiff that
the suit premises is an authorized / tolerated structure. No plan for
regularisation was ever submitted by approaching E.E.B.P. department
of defendant MCGM. As such notice of motion fails and the following
order is passed:
ORDER
1. Notice of Motion no. 456 of 2018 is dismissed.
2. Costs in cause.
sd/
(C. V. Marathe)
Judge,
Date : 26.06.2019 City Civil Court, Gr. Mumbai.
Dictated on : 26.06.2019
Transcribed on : 26.06.2019
Signed by HHJ on : 27.06.2019
-- 4 of 5 --
5 NM no. 456-18 in L.C.SUIT no.317-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 27.06.2019 at 12.37 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
26/06/2019
JUDGMENT/ORDER signed by
P.O. on
27/06/2019
JUDGMENT/ORDER uploaded
on
27/06/2019
-- 5 of 5 --