Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 635-18 in Suit No. 427-09
CNR NO.MHCC0100244118
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 635 OF 2018
IN
L.C. SUIT NO. 427 OF 2018
Islam Gymkhana ...Applicant
In the matter between
Islam Gymkhana ….Plaintiff
Versus
The Municipal Corporation of Greater Mumbai & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 23rd April, 2019.
Appearance:
Ld. Adv. P.D.Gandhi for the plaintiff.
Ld. Adv. Dhruti Kapadiya a/w Adv. Mr. Dhumale for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant from acting upon the order dated 08.02.2018.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant. The impugned order refers to 3 notices issued under
Section 354A of the MMC Act and 3 notices were issued under Section
351 of the MMC Act.
3. It is contended by the plaintiff that the notices were issued years
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back. It is contended that the structures were in existence since last 45
years. It is contended by the plaintiff that the alleged unauthorized
constructions only relates the work of plastering and replacement of the
sheets of the roof as there was heavy leakage and damage due the age
of the structure. It is contended that those were repairs, which are
tenantable. The plaintiff had responded to the notice and had
communicated with the defendant corporation. The plaintiff was asked
to opt for regularization accordingly the plaintiff had made proposal for
regularization.
It is contended that the notices were issued on the say of one
Mehboob Khan. It is contended that the plaintiff ought to have been
given opportunity to reply the notices issued. It is contended that the
order under challenged in the suit is bad in law and the defendant
corporation needs to be restrained from acting upon the order.
4. It is contended by the defendant that the suit site visited was on
15.12.2005, the plaintiff was found to carry out the unauthorized
construction and therefore notice was issued under Section 354A of the
MMC Act. No reply was filed to the notice. Again on 11.06.2013, the
illegal construction was found to be carried out by the plaintiff, again
the notice was issued under Section 354A of the MMC Act. The said
notice was replied. It was pointed out that the work of plastering was
in progress. The speaking order was passed on 24.06.2013, directing
the plaintiff to demolish the structure. On 12.04.2014, the plaintiff was
again found carrying out the illegal construction of B.M. wall, M.S.
Poles, Fiber Sheets and B.M. wall admeasuring area 29' x 30'. in open
space. The plaintiff was accordingly issued notice under Section 354A
of the MMC Act. The notice was replied. The orders against plaintiff
were issued. The defendant corporation again issued notice to the
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plaintiff on 16.06.2014. The plaintiff was found to carrying out the
unauthorized construction with M.S. Poles, Fiber Sheets and B.M. wall
admeasuring area 29' x 30'. The notice is replied by the plaintiff and
order was passed by the defendant corporation.
The plaintiff was issued the notice on 16.06.2014 under Section
351 of the MMC Act. The notices was replied by Ayub Mansoor on
17.06.2014 and order of demolition was passed on 01.07.2014. Again
in the inspection dated 01.07.2014, the defendant was found to carry
out the construction with M.S. Girders, B.M wall and ladi coba ladi in
open space at gymkhana admeasuring area 60' x 11' and covering of
open space at the back side of main building with B.M. wall, G.I. Poles
and G.I. Sheets. Notices under Section 351 of the MMC Act was issued
to the defendant on 01.07.2014. Again an order of demolition was
passed on 16.07.2014, directing the plaintiff to demolish the suit
structure.
5. It is contended by the defendant that the notice structure dated
15.12.2012 and 12.04.2014 was demolished by the officer of the
defendant on 17.04.2014. It is further submitted that the notice
structure dated 01.07.2014 was demolished on 23.03.2016. It is
contended that the Collector Mumbai City had issued the notice to the
plaintiff on 02.11.2013 pointing out the unauthorized construction
carried by the plaintiff. Again the letter was issued to the plaintiff on
08.02.2018, informing the various unauthorized construction's. It is
contended that the plaintiff had not filed on record any document
showing the authorization of the structures.
6. From the pleadings of the plaint, it appears that the plaintiff had
not challenged the notices under Section 351 and 354 of the MMC Act
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issued to it. Those do not appear to have been challenged in any suit by
the plaintiff. It is the contention of the plaintiff that no order was
passed on the notices issued.
The say of the defendant corporation points out that the orders
were passed by the defendant after issuing the notice under Section 351
and 354 of the MMC Act.
7. The plaintiff had filed affidavit in rejointer to say of the plaintiff.
The plaintiff had not denied the issuance of the notices and orders
passed thereon. It is specifically point out by the defendant corporation
that the notices issued under Section 351 and 354 were replied by the
plaintiff.
8. It needs to be mentioned that the plaintiff was issued several
notices under Section 351, 354 A of the MMC Act. The notices were
replied and the orders were passed, no order was challenged by the
plaintiff in the Court of law. It seems that in spite of demolition, the
suit structures are till in existence. The plaintiff was required to
disclose all the fact of his plaint. The fact that orders were passed in the
notices issued under the MMC Act is not disclosed in the plaint. The
defendant on oath has contended that the suit structure were
demolished. These facts are not denied by the plaintiff in the affidavit
in rejoinder. So also, the plaintiff had moved for regularization of the
suit structure. Impliedly, the plaintiffs had admitted that the suit
structure are without valid permission. The plaintiff had approached
this Court for equitable relief. The plaintiff has to do equity, if he
approaches the Court for any equitable relief. Considering the fact, five
notices and order were issued against the plaintiff and unauthorized
structure were also demolished, the plaintiff had concealed these
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material fact in respect to the issuance of order and demolition the
structures. The plaintiff had not approached the Court disclosing of the
material facts in the plaint. The plaintiff was expected to disclose of
material facts, so as to seek equitable relief for temporary injunction.
In the facts and circumstances of the case, the plaintiff has failed
to make out the primafacie case. The balance of convenience does not
lie in favour of the plaintiff. The plaintiff is not entitled for the
temporary injunction as prayed for. The notice of motion can not be
entertained. In the result, following order is passed:
ORDER
The Notice of Motion No. 635/2018 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 23.04.2019 City Civil Court, Mumbai.
Dictated on : 23.04.2019
Transcribed on : 23.04.2019
Signed by HHJ on : 02.05.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 02.05.2019 at 5.45 pm.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
23.04.2019
JUDGMENT/ORDER signed by
P.O. on
02.05.2019
JUDGMENT/ORDER uploaded
on
02.05.2019
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