Interim Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM. : 1 : Suit.No.530/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION
IN
SUIT NO. 530 OF 2018.
Mr. Bachu Bhai Kissanlal Nayak... } .. Plaintiff.
Versus.
Municipal Corporation of }
Greater Mumbai & Ors... } .. Defendants.
Advocate Mr. Rajeev Matkar for Plaintiff.
Advocate Mr. Sutar for Defendant Nos. 1 to 3 /BMC.
Advocate Mr. Javed Hussain for Defendant Nos.4 to 6.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 05 TH MARCH, 2018.
(Court Room No.06)
O R D E R
1. Plaintiff has taken out this draft notice of motion to restrain the
defendant/Corporation from implementing the notice dated
21/03/2016 U/sec.488 of the Mumbai Municipal Corporation Act for
demolition of the suit premises.
2. Facts in brief are as under :
The suit premises is a ground floor structure admeasuring 12" x
30" at Ramdas Dharmdas Wadi, Bhvani Shankar Road, off V.S. Agashe
Path, Dadar (W) Mumbai400 028. Plaintiff runs garage in the suit
premises. The said garage is made up of brick masonry walls and
A.C.Sheet roof and is in existence since 1945. Plaintiff has obtained
Shop and Establishment License from Municipal Authorities and also
taken electricity connection in the suit premises. The Assessment
Department of the Corporation assessed the suit premises as a number
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3293(1A) prior to 196162. On 28/09/2007, defendant No.4 filed a
complaint with respect to the garage of th plaintiff and upon
inspection, defendant No.3 i.e. the Designated Officer of defendant No.
1 issued notice to plaintiff on 27/12/2007 U/sec.351 of MMC Act,
1888. Plaintiff had given reply to the said notice through earlier
advocate dated 31/12/2007. Plaintiff had produced the documents.
However, defendant/Corporation on 17/01/2008 passed the order and
thereby directed plaintiff to remove the suit.
3. Thereafter plaintiff had filed Suit No.226 of 2008. Defendant
Nos. 4 to 6 were defendant Nos. 3 to 5 in that suit. Defendant had
produced the documents showing that the assessment is of the year
20052006. Upon considering oral and documentary evidence, the
Predecessor of this Court dismissed the suit. Defendant Nos. 3 to 5 in
that suit had played fraud and therefore, this Court held that the entire
structure is illegal. Defendant's officer are aware that the said structure
is prior to 1961 i.e. datum line.
4. Plaintiff further averred that plaintiff had filed first appeal in the
Hon'ble High Court, Bombay bearing No. 1659 of 2011. The suit
construction is tolerated and therefore, plaintiff has withdrawn the said
appeal with liberty to file regularization proposal with
defendant/Corporation. However, the regularization proposal is yet not
considered by the defendant/Corporation.
5. Defendant No.3 issued impugned notice to the plaintiff. Thus,
plaintiff apprehends that defendants will demolish the suit structure
and therefore, prayed to issue adinterim injunction.
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6. Notices served to defendants.
7. I have heard Mr. Rajeev Matkar, advocate for Plaintiff. Mr.
Sutar, advocate for defendant Nos. 1 to 3 and Mr. Javed Hussain,
advocate for Defendant Nos.4 to 6.
8. Mr. Rajeev Matkar, advocate for Plaintiff has submitted that the
suit structure is assessed prior to 196162. The suit premises is given
number 3293(1A). Defendant/Corporation issued notice to plaintiff
dated 27/12/2007 U/sec.351 of the MMC Act. Thereafter plaintiff had
filed reply to the defendant/Corporation, but defendant/Corporation
did not consider the documents of the plaintiff and passed order on
17/01/2008. He further submitted that in Suit No. 226 of 2008 filed by
plaintiff, the earlier advocate has not produced the documents i.e.
assessment extract. The defendant Nos. 4 to 6 in that suit played fraud.
The suit is dismissed by this Court. He further submitted that all the
documents do show that the suit structure is prior to the datum line.
Plaintiff runs his business in the suit premises. Therefore, he prayed to
grant adinterim protection.
9. Shri. Sutar, advocate for defendant/Corporation has submitted
that the notice U/sec.488 is issued on 21/03/2016. Thus, the suit is
time barred. He further submitted that the question of validity of the
impugned notice is already decided by this Court in Suit No. 226 of
2008. The suit structure is illegal. He supports the order of
Corporation.
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10. Mr. Javed Hussain, advocate for Defendant Nos.4 to 6 has
submitted that the suit of plaintiff is dismissed on merit. Both the
parties had produced the documents. Therefore, it cannot be said that
the decree is fraudulent one. He prayed to refuse to adinterimrelief.
11. The suit premises is situate at Bhavani Shankar Road, Dadar,
Mumbai. Officer of the defendant/Corporation had visited the suit
premises and thereafter issued a notice to the plaintiff to remove the
suit structure. Plaintiff had replied to the said notice. However,
defendant No.3 passed speaking order. It is to be noted that plaintiff
had challenged the said notice and order by filing the Suit No. 226 of
2008. The parties in that suit and present suit, are the same. Both the
parties have laid evidence and on the basis of evidence, My Ld.
Predecessor hold that the entire structure is unauthorizedly constructed
in the open space and thereby dismissed the suit.
12. It is pertinent to note that plaintiff had filed First Appeal No.
1659 of 2011 in the Hon'ble High Cort. Plaintiff has withdrawn the said
appeal and thereby filed proposal for regularization. Now, the notice
dated 27/12/2007 has attained finality.
13. Plaintiff has produced documents in respect of the property
bearing No. 3293(1A) do show that the construction is prior to 1961
62. However, the said documents are not produced by the plaintiff in
earlier suit. Thereafter the defendant/Corporation has issued notice to
the plaintiff U/sec.488 of the MMC Act and directed for execution of
notice dated 27/12/2007. The said notice is issued on 21/03/2016.
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14. As discussed in supra in earlier Suit No. 226 of 2008, my Ld.
Predecessor has held that the entire construction is unauthorized
construction and the notice dated 27/12/2007 is legal one. By this suit,
plaintiff has challenged the said notice. Therefore, in such a
circumstances I find that plaintiff is not entitled for adinterim relief.
15. Plaintiff had filed Writ Petition No. 2758 of 2016 in Hon'ble High
Court, Bombay. Hon'ble High Court held that "we may note here that
even otherwise, we were inclined to dismiss the petition on the ground
that the notice under Section 351 of the Mumbai Municipal
Corporation Act, 1888 dated 27th December, 2007 has attained finality
as the challenge to the said notice by the petitioner (plaintiff) by way of
suit has failed". Hon'ble High Court held that petition is accordingly
dismissed as unconditionally withdrawn adinterim order dated
28/03/2016 stand vacated. It will be open for the Municipal
Corporation to immediately take action of demolition. Hence, in view
of the factual circumstances of the case and the earlier litigation of the
parties, I find that the plaintiff has no prima facie case. Balance of
convenience does not lie favour in plaintiff and if adinteriminjunction
as prayed is granted, then irreparable loss will be caused to the
defendants. Hence, I pass the following order :
O r d e r
1. Adinterimrelief is hereby refused.
2. Draft Notice of Motion be registered.
Date : 05.03.2018. (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 05.03.2018
Typed on : 06.03.2018
Signed by HHJ. : 06.03.2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
06.03.2018 /4.30 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
05.03.2018
JUDGEMENT/ORDER signed
by P.O. on
06.03.2018
JUDGEMENT/ORDER
uploaded on
06.03.2018 .
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