Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Draft Notice of motion
In
L.C.Suit No.687 of 2019
Shri Ramkripal Ramkaran Jaiswar ...Plaintiff
V/s
MCGM & Anr. ..Defendants
Advocate Mr. P.D.Gandhy for plaintiff
Advocate Mr. V.P.Kumawat for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 16th March, 2019
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this draft notice of motion to
restrain the defendant Municipal Corporation, Gr. Mumbai from taking
any action of demolition in pursuance to the notice U/s. 351 of the
MMC Act dated 16/01/2019 and order passed thereon dated
11/03/2019 in respect of the suit premises i.e. shop no 3,4 and 5,
Opp: Jewish Cemetry, Dainik Shivneri Marg, Worli, Mumbai 400 018.
Facts in brief are as under:
2 A land admeasuring 617 sq mtr at D.F.L (North) Opposite
Jewish Cemetry, Dainik Shivneri Marg, Worli, Mumbai 400 018
belongs to defendant no.1 MCGM. The said land was allotted to
Mr.Rajasaheb Gosavi, prior to 1964 as VLT. There existed Doctor Chawl
no.1 and Doctor chawl no.2 on the said plot. There are in all total 27
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units and all the units have mezzanine floor. The suit premises i.e. shop
nos. 3,4, and 5 are acquired by the plaintiffs ancestor. Now plaintiff is
in possession of the suit premises. Plaintiff has not made any additions
and alterations in the suit premises. The suit premises consisting
mezzanine floor since inception.
3 Till 2000, Mr. Kamal Pasha used to represent the
occupants including plaintiff as a owner/land lord of the chawl and he
used to collect rent from the plaintiff. Thereafter the defendant
corporation initiated inquiry proceeding U/s 105 B of the MMC Act.
There said Kamal Pasha had made an application to implead him in the
proceeding however, his application was rejected and since then
occupants stopped to give rent to said Kamal pasha.
4 According to plaintiff, plaintiff is running business under
the name and style M/s R.K.Traders. Plaintiff is carrying on the
business of scrap papers in the suit premises. Plaintiff has electricity
bills, insurance policy at the address of suit premises. Plaintiff has also
license issued by defendant corporation U/s 394 of MMC Act. Plaintiff
has documentary evidence to show that mezzanine floor is in existence
prior to the datum line. However, defendant no.2, designated officer
issued notice to the plaintiff U/s 351 of MMC Act. Plaintiff gave reply to
the notice and also filed documents. However, defendant no. 2 did not
consider the reply and documents and passed order. Now defendants
are threatening to the plaintiff to demolish the suit premises on the
basis of notice and order. Hence prayed to grant ad interim relief.
5 Mr.P.D.Gandhi advocate for plaintiff has submitted that
plaintiff has not made any additions and alterations. The suit premises
consisting mezzanine floor and the said floor is in existence prior to
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datum line. The said Kamal Pasha had filed suit against the plaintiff
and other occupants in the Court of Small Causes Court, Mumbai
however, those suits are dismissed. He has invited my attention
towards the documents on record. According to him, all the documents
do show that the mezzanine floor is in existence. Defendant no.2
without application of mind and following principles of natural justice
passed the order. Thus, there are triable issues between the parties and
he prayed to protect the suit premises till the decision of suit.
6 Mr. V.P.Kumawat advocate for defendants has submitted
that as per the rule no construction above ground floor is permissible
on V.L.T land and plaintiff has not produced any documents to show
that the alleged first floor is authorized. According to him, the plaintiff
has converted the loft into first floor. The defendants have followed the
due process of law. Hence, he prayed to refuse the ad interim relief.
7 Here at this stage, the defendants have not filed any
affidavit and documentary evidence. From the perusal of documents, I
find that the said plot belongs to Municipal Corporation, Gr. Mumai.
The corporation had initiated inquiry proceeding in the year 2001. In
that proceeding Mr. Kamal Pasha who is stating himself as a landlord
had filed an application to implead him in the proceeding. However,
the application is rejected. It also appears that said Mr.Kamal Pasha
had filed suit against the plaintiff in Small Causes Court. In the suit the
description of property it has mentioned that the suit premises is
having mezzanine floor. However later on the said suit is dismissed.
8 The notice is U/s 351 of MMC Act. In the notice it is
alleged unauthorized construction of first floor by using side brick walls
and ladi coba slab having height 2.2m and A.C sheet roof at unit no. 3
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& 4. However, from the perusal of documents on record, it appears that
the mezzanine floor is in existence. The said mezzanine floor is
assessed by the corporation. The dispute is between the parties is
according to defendants said construction is first floor however,
according to plaintiff the disputed portion is mezzanine floor and is in
existence prior to datum line. Therefore, I find that there are triable
issues between the parties. Considering the rival contention of both the
parties and documents on record, I find that the present suit needs
trial. Therefore, it is necessary to preserve the suit premises.
Accordingly, plaintiff has prima facie case, balance of convenience lies
in favour of plaintiff and if the defendants demolished the premises
irreparable loss will be caused to the plaintiff. Therefore, following
order:
ORDER
1 Ad interim relief is granted in terms of prayer clause (a)
of the draft Notice of motion till next date.
2 Draft NM be registered.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 16/03/2019
Typed on : 18/03/2019
Signed by HHJ. : 19/03/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
20/03/2019
S.D. Raje
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
16/03/2019
JUDGEMENT/ORDER signed by
P.O. on
19/03/2019
JUDGEMENT/ORDER uploaded
on
20/03/2019
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