Order 1

Order Details: Other
Pdf Text: .1. Notice of Motion No. 928 of 2021
in L.C. Suit No. 664 of 2021.
MHCC010029632021
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 928 OF 2021
IN
L.C. SUIT NO. 664 OF 2021.
Mohd. Salim Javed Akhtar Siddiqui. …........ … Plaintiff.
Versus.
Municipal Corporation of Greater, Mumbai. …
Defendant.
iss
CORAM : HIS HONOUR JUDGE
SHRI. A.G. SANTANI
DATED : 17.12.2021. (C.R.NO.11).
Appearances :
Shri. S.K. Dubey, Ld. Advocate for Plaintiff.
Shri. Khandagale, Ld. Advocate for Defendant/MCGM.
*****
01. The plaintiff has taken out this Notice of Motion, for grant
of ad-interim relief, restraining the defendant from acting on the basis
of notice dtd. 02.02.2021, issued U/s. 354-A of the Mumbai Municipal
Corporation Act (for brevity the MMC Act), and the consequential order
dtd. 17.02.2021. By the consent of the parties, this Notice of Motion is
heard for ad-interim relief.
02. The plaintiff is seized, possessed and sufficiently entitled to
the suit premises, duly referred to para 1 of the plaint. Initially, the part
portion of the suit premises was affected in road winding and therefore,
the M.M.R.D.A., in view of the notice dated 21.04.2006, issued U/s. 299
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.2. Notice of Motion No. 928 of 2021
in L.C. Suit No. 664 of 2021.
of the M.M.C.Act, the name of previous owner, and possession letter of
dated 15.06.2006, took possession of the part portion of larger property
with agreement to grant the benefits of FSI/TDR. However, till date, the
defendant has not given any benefits to that effect. The suit premises is
situated since long and the neighbouring structures are having similar
heights. It is very old one. As its roof was badly damaged by monsoon,
the plaintiff carried out 'tenantable repairs' like painting and plastering
leakage roofs etc.. However, with an object to damage the suit premises,
the defendant issued the suit notice dated 02.02.2021, U/s.354-A of the
MMC Act and passed the speaking order dated 17.02.2021 even without
considering the plaintiff's notice reply dated 04.02.2021. The plaintiff
contended that the impugned notice is bad in law, as the construction
was not 'in progress'. The defendant didn't follow the due process of law
and settled guidelines. Hence, the said notice is not required to be acted
upon. In support of his contentions, the plaintiff relied upon the rough
sketch, copies of conveyance, Bombay Shops and Establishment License
etc., from page nos. 11 to 82 of the plaint. The defendant objected this
application by filing the affidavit in support of list of documents.
03. Heard both the sides. Shri. Dubey, the learned advocate for
plaintiff, submitted that the issuance of notice U/s. 354-A of the MMC
Act is bad in law, as no such work was 'in progress'. He further invited
my attention to circular dated 06.10.1998 and submitted that as such,
the defendant failed to follow the due process of law before issuance of
alleged notice. In support of his submissions, he relied upon the cases of
Gover Shah Ramnaresh Singh V/s. MCGM (Appeal Order No. 257 of
1999), M/s. Shah & Company V/s. MCGM (Appeal Order No. 99/2013)
Khalil Ahmed Nawab Ali Subedar and Ors. V/s. MCGM (Appeal Order
No.14388 of 2017). In reply, Shri. Khandagale, the learned counsel for
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.3. Notice of Motion No. 928 of 2021
in L.C. Suit No. 664 of 2021.
the defendant, urged that at no point of time, the plaintiff could show
that he carried the said repairs /constructions only after securing the
due sanction. He also drew my attentions on copy of inspection report,
carried on 01.02.2021, and copies of photographs filed by defendant on
the record. He submitted that, even after filing of this suit, the plaintiff
continued to carry the said construction and therefore, he is not entitled
for equitable relief like injunction.
04. Having considered the rival submissions and the record, at
the outset, it is to be noted that by this Notice of Motion, as of now, the
plaintiff is praying for ad-interim relief, so as to restrain the defendant
from acting upon the suit notice. Consequently, the plaintiff has to show
a prima facie case for grant of ad-interim relief, even prior to hearing
the defendant in detail. For that purpose, he placed his reliance on the
documents, referred at page Nos. 11 to 82 of the record. However, even
if they are taken as they stand, authenticity of the suit construction is
nowhere established. Consequently, at no point of time, it is prima facie
proved that this the alleged construction was carried only after securing
sanction of the defendant. Here, it would not be out of place to mention
that while replying the notice dated 02.02.2021, the plaintiff in view of
reply dated 03.02.2021, mainly emphasized on the aspect that initially
larger portion of the suit premises was acquired by M.M.R.D.A. and he
is still to get its' benefits. Contrarily, perusal of the inspection report and
photographs, relied upon by the defendant, at this stage, leave no doubt
to gather that the said construction was in addition to existing structure
and it was in 'progress'. In the notice itself, the defendant could clarify
the Schedule of the alleged construction and called the plaintiff to stop
the further construction. Whereas, nowhere, the plaintiff came with the
positive assertions that after obtaining the requisite permission from the
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.4. Notice of Motion No. 928 of 2021
in L.C. Suit No. 664 of 2021.
defendant, the suit suit structure was carried. Further, even if his stand
is admitted that the alleged repairs were required to the suit structure,
due to monsoon season, he was expected to firstly secure the status of
'existing construction' and the proposed repairs. However, he didn't take
such efforts and therefore, at this stage of the matter, there is nothing
on record to conclude that it were only 'tenantanle repairs'. I have also
gone through the ratios laid in cases, relied upon by the plaintiff. I do
agree that in any case when the construction is complete, the defendant
has no propriety and locus to issue the notice U/s. 354-A of the MMC
Act. However, it is nowhere clarified that the alleged construction was
'complete'. Here, the reference of the notice dated 02.02.2021 would be
helpful, wherein after describing the nature of alleged construction, the
defendant directed the plaintiff to stop further erection of the structure.
Additionally, the photographs, filed by the defendant, show that the said
construction was continuing one. In the circumstances, I am of the view
that, at this initial stage of the matter, there appears no prima facie case
in favour of the plaintiff and the balance of conveyance doesn't tilt in
his side. At the same time, he couldn't justify causing of an irreparable
loss, in case ad-interim relief, as prayed for, is denied and therefore, I
feel that as of now, he is not entitled for an ad-interim relief. Hence, I
pass the following Order :
-: O R D E R :-
(i) The ad-interim relief is refused.
{A.G. Santani}
Mumbai. Ad- hoc Judge,
Dated : 17.12.2021. City Civil Court, Mumbai.
Dictated on : 17.12.2021.
Transcribed on : 17.12.2021.
Signed on : 18.12.2021.
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.5. Notice of Motion No. 928 of 2021
in L.C. Suit No. 664 of 2021.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18.12.2021 Mrs. S.R.Mejari
Name of the Judge (with Court Room no.) HHJ Shri A.G. Santani.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 17.12.2021
Judgment/Order signed by P.O. on 17.12.2021
Judgment/Order uploaded on 18.12.2021
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