Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 919-19 in Suit No.537-19
CNR NO.MHCC01-002447-2019
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.919 OF 2019
IN
L.C. SUIT NO. 537 OF 2019
M/s. Qaswa Enterprises, A Partnership Firm, ]..Plaintiffs
Versus
The Municipal Corporation of Greater Mumbai& Anr. ]... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 6th March, 2019.
Mr. Yadav, advocate for plaintiff.
Mr. Gajanan Shinde, advocate for defendants.
ORDER
1. The plaintiff by this Notice of Motion seeks temporary
injunction restraining the defendant MCGM from acting upon the
Notice dated 4.2.2019 issued under Section 354A of the MMC Act and
the order dated 20.2.2019 passed by the Assistant Commissioner.
It is the case of the plaintiff that it is the owner of the City
Survey No.5, Bhuleshwar Division, situated at 290 L.T. Road and First
Jambulwadi, C Ward, Mumbai 400 002. It is stated that the said
property was redeveloped in the light of the sanctioned plan issued by
the defendants in the year 2013. It is stated that the redeveloped
building LAVerna Tower consists of ground plus 18 floors and the
plaintiffs had constructed ground plus 16 floors with lift room and
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water tank on 17th floors and water tank as per the amended
Commencement Certificate No.EB/9721/C/A. It is contended a illegal
Notice dated 4.2.2019 was issued under Section 354A of the MMC Act
alleging that the plaintiffs had carried out unauthorised construction
beyond the approved plan. Unauthorized vertical extension work on
17th floor and 18th floor without taking permission. The plaintiffs had
answered the Notice to the defendant vide Order dated 20.2.2019 the
plaintiff was asked to demolish the notice structure from the receipt of
the order. It is stated that the Notice is without verification of correct
facts. The plaintiff had accordingly prayed for temporary injunction.
2. The defendant has filed say to the contentions raised in the
Notice of Motion by the plaintiff. It is pointed out that the Officer of the
defendant Assistant Engineer BP (City II) by letter dated 03.10.2018
had intimated to Shri Salim V. Bilakhia, that the redevelopment work
C.C. is issued on 3.7.2017 ground plus 16th floors as per the amended
plan dated 24.9.2013. It is further contended on 3.10.2018 the
defendant had informed the plaintiff that the work is carried out
beyond the C.C. i.e. construction of column, bim and part slab on 17th
and 18th floor. The plaintiff was asked to remove the said construction
and on failure he was informed that it would be removed. Engineer (B
& F) Department, C Ward on 4.2.2019 he found the unauthorised
addition and alteration work beyond the approval plan and
unauthorised vertical extension on 17th and 18th floor carried out
beyond C.C. i.e. construction of column, bim and part slab at LAVerna
Tower 290 L.T. Road, Bhuleshwar Division without permission of
competent authority. Accordingly, Notice dated 4.2.2019 was issued
under Section 354A of MMC Act. The plaintiff replied the notice dated
7.2.2019 and contended that the columns were extended for
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construction of water tank, lift and other amenities. The reply was
considered and the Assistant commissioner came to the conclusion that
the Notice structure is unauthorised and accordingly order dated
20.2.2019 was issued and the plaintiff was directed to remove the
construction. It is submitted that on failure, the defendant on 26.2.2019
and 27.2.2019 had demolished the some part of the notice structure.
Photographs of demolition were taken. It is contended that the plaintiff
had carried out construction beyond the sanctioned plan is not entitled
for the temporary injunction as prayed for.
3. In order to secure a temporary injunction the plaintiff is
required to make out prima facie case. Further he required to show that
the balance of convenience lies in his favour and has to show that
refusal of injunction would cause irreparable loss.
4. The Learned Advocate for the plaintiff argued that the Notice
was issued without verifying the true fact. It is contended that there is
no construction on 17th and 18th floor. It was argued that the plaintiff
had put a lift room on 17th floor and a water tank only.
The Learned Advocate for the defendant contends that it is
specifically pointed out in the Notice that unauthorised additions and
alterations was carried out beyond approved plan. It is submitted that
the plaintiff is not entitled for the reliefs claim.
5. On perusal of notice dated 4.2.2019 it is specifically
pointed out to the plaintiff that unauthorised additions and alterations
work beyond approval plan issued EB No.9721/C/A LAVerna Tower,
Bhuleshwar, Mumbai. Unauthorised vertical extension work on 17th
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and 18th floor work is carried out beyond C.C. Construction of columns,
bims and parts slab at LAVerna Tower. In reply dated 7.2.2019 by
the plaintiff in point No.5 it is submitted that the columns were
extended for construction of water tank, lift and other necessary
amenities. It is pointed out that no additional construction is being
carried out. It was for the plaintiff to show that the construction
alleged by the defendant is not carried out by him. It could have
produced the photographs to show that after 16th floor no construction
is alleged by the defendant is carried out in contravention sanctioned
plan i.e. the construction of 17th and 18th floor. The defendant has
specifically contended that the Notice dated 4.2.2019 is acted upon and
the Notice structure was partly demolished by the defendant on
26.2.2019 and 27.2.2019. The photographs of the demolition are also
filed at page No.18 to 22.
6. The plaintiff had not disclosed the fact of demolition in the
plaint. He had not stated about the action taken by the defendant
demolishing the alleged construction on 26.2.2019 and 27.2.2019. The
notice dated 4.2.2019 is already acted upon. These facts are not
disclosed by the plaintiff in the plaint. The Notice is already acted upon
the plaintiff. The plaintiff is seeking equitable relief. In order to secure
equitable relief he is required to disclose all material facts. Non
disclosure of all material facts leads to conclusion that the suit is filed
concealing facts. This disentitles the plaintiff for the relief claimed
The plaintiff has failed to make out the case in its favour.
The notice dated 4.2.2019 is already acted upon and the balance of
convenience does not lie in favour of plaintiff. The plaintiff would be
put to irreparable loss if the temporary injunction is refused. The
plaintiff is not entitled to the temporary injunction as prayed in the
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Notice of Motion. In the result, following order is passed:
ORDER
The Notice of Motion is rejected.
Sd/-
(Sanjay N. Yadav)
Judge,
Date : 06.03.2019 City Civil Court, Mumbai.
Dictated on : 06.03.2019
Transcribed on : 08.03.2019
Signed by HHJ on : 08.03.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 08.03.2019 at 05.15 p.m.
NAME OF STENOGRAPHER : Mrs. Varsha U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
06.03.2019
JUDGMENT/ORDER signed by
P.O. on
08.03.2019
JUDGMENT/ORDER uploaded
on
08.03.2019
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