Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 720-18 in Suit No. 377-18
CNR NO.MHCC01-002656-2018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 720 OF 2018
IN
L.C. SUIT NO. 377 OF 2018
M/s. Metro House Private Limited …...Plaintiff
Versus
Municipal Corporation of Gr. Mumbai & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 11th March, 2020
Appearance:
Ld. Adv. Mr. P. D. Gandhy for the plaintiff.
Ld. Adv. Mr. Shridhar Patil with Adv. Mr. Nandanwar for
defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon the Notice
issued by the defendants under Section 354-A of the Mumbai Municipal
Corporation Act, 1888 (hereinafter referred to as 'the MMC Act') dated
04.02.2017, 28.12.2017 and 02.02.2018 and the Order dated
16.03.2018.
2. Heard learned Advocate for the plaintiff and learned Advocate for
the defendant Corporation.
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2 NM 720-18 in Suit No. 377-18
3. The Schedule of the Notice dated 04.02.2017 u/s. 354-A of the
MMC Act reads as under:-
“Unauthorized construction of ladi coba slab admeasuring
18 m x 18m with M.S. Girders at 2nd floor top level at metro House C
wing.’’
The Schedule of the Notice dated 15.05.2017 u/s 354-A of the
MMC Act reads as under:-
“Unauthorized construction of sloping Roof adm. 17.8 m x
20.5 m x 6 m (avg ht) with M.S. pipe and M.S.I. girders at 3rd floor level
C wing Metro House located at shahid bhagat Singh Road Colaba
Mumbai-05 as shown in the sketch.’’
4. The Notice dated 28.12.2017 shows that the plaintiff is directed
to remove the notice structure. It was re-erected by the plaintiff
without permission. The plaintiff had replied the notice dated
28.12.2017 on 12.01.2018. The learned Advocate of the plaintiff
submitted that the suit was inspected by the officers of the corporation
on 22.05.2017. It is contended that the suit structure was not
demolished completely on 22.05.2017 by the corporation and thereafter
because of the monsoon season, the structure was repaired.
It is contended that Writ Petition No. 11630/2017 was filed by
the plaintiff before the Hon’ble High Court. The Hon’ble High Court
had permitted the plaintiff to carry out the tenantable repairs. It is
contended that the notice is erroneous and the structure constructed
pursuant to the Order passed in Writ Petition on 04.12.2017. It is
contended that action on the part of the defendant is illegal. It is
contended that the plaintiff needs to be protected by order by
temporary injunction.
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3 NM 720-18 in Suit No. 377-18
5. The learned Advocate for the defendant corporation on the other
hand submitted that the notices under Section 354-A of the MMC Act
were issued to the plaintiff on 04.02.2017, 28.12.2017, 02.02.2018,
unauthorized construction of ladi coba slab admeasuring 18 m x 18m
with M.S. Girders at 2nd floor top level at metro House C wing was
found. The plaintiff again was issued notice on 15.05.2017 under
Section 354-A of the MMC Act. The occupants replied the notice who
failed to show the authorization of the notice structure and speaking
order was passed on 20.05.2017. Vide order dated 20.05.2017, the
plaintiff was directed to remove the notice structure. The defendant
had demolished the unauthorized construction of ladi coba slab. The
learned Advocate relied upon the demolition report. The site was
inspected on 27.10.2017 and again it was found that plaintiff had
reconstructed the structure. Vide letter dated 28.10.2017, the plaintiff
was directed to remove the structure. The plaintiff had replied the
letter dated 07.12.2017 and had informed about the Writ Petition No.
3199/2017. It is contended that the tenantable repairs were permitted
to be carried out. In the inspection dated 26.12.2017, the portion
demolished was again constructed by the plaintiff. The defendant had
again issued letter dated 28.12.2017. It is submitted that further
construction was found on 02.02.2018. Thereafter, the notice was
again issued on 02.02.2018 under Section 354-A of the MMC Act.
6. The reply to the notice points out that the suit structure is not
demolished completely by the defendant. The plaintiff relies upon the
directions issued by the Hon’ble Bombay High Court.
It needs to be mentioned that the Writ Petition was filed against
the Board of Trustees of the Port of Mumbai and the Estate Officer of
the Mumbai Port Trust. The corporation is not party respondent in the
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4 NM 720-18 in Suit No. 377-18
Writ Petition. The prayers in the suit were against the Board of Trustees
of the Port of Mumbai.
7. The reply dated 05.01.2018 shows that the notice structure was
constructed pursuant to the Order dated 04.12.2017 by the Hon’ble
Bombay High Court. Admittedly, the defendant corporation is not party
respondent in the said Writ Petition. The plaintiff also had filed the
order passed by the Hon’ble High Court in Writ Petition No. 3199/2017.
The order shows that the Hon’ble High Court had permitted the plaintiff
to carry out only the tenantable repairs. It is the specific contention of
the defendant corporation the construction carried out by the plaintiff
as alleged in the notice is not amounting tenantable repairs.
The construction alleged in the various notices does not seem to
be the tenantable repairs. The structures are re-erected even after
demolition by the corporation by the plaintiff. The plaintiff was
expected to show the permission to carry out the construction alleged in
the notice. The structure constructed is without permission. The
corporation had rightly issued notices under Section 354A of the MMC
Act on various occasion. The plaintiff had tried to base his right on the
orders passed by the Hon’ble High Court in Writ Petition No.
3199/2017. The plaintiff had not disclosed in the reply to the notice
that the defendant corporation was not party respondent in the said
Writ Petition. The plaintiff also had not disclosed that only tenantable
repairs were permitted to be carried out, in the light of order passed in
W.P. No. 3199/2017. The plaintiff has not approached the Court with
clean hand and had not disclosed all the facts. It had concealed the fact
that the corporation was not a party respondent in the Writ Petition. It
did not disclose that directions were issued against Bombay Port Trust
and the plaintiff was permitted to carry out tenantable repairs.
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Considering the facts and circumstances of the case in totality
the plaintiff has failed to make out the prima-facie case in his favour.
The balance of convenience does not lies in favour of the plaintiff. The
plaintiff would not be put to irreparable loss, if the temporary
injunction is refused.
In the result, following order is passed.
ORDER
The Notice of Motion No. 720/2018 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 11.03.2020 City Civil Court, Mumbai.
Dictated on : 11.03.2020
Transcribed on : 13.03.2020
Signed by HHJ on : 14.03.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 17.03.2020 at 10.41 am.
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
11.03.2020
JUDGMENT/ORDER signed by
P.O. on
14.03.2020
JUDGMENT/ORDER uploaded on 17.03.2020
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