Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM...2018. : 1 : Suit.No.644/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION No.....2018.
IN
SUIT NO. 644 OF 2018.
Mr.Sadik Ali Asgar Ali... } .. Plaintiff.
Versus.
Municipal Corporation of Gr. Mumbai & Anr... } .. Defendants.
Ld. Advocate Mr. Muhammed Iftikhar Ali for Plaintiff.
Ld. Advocate Mr. Diwate for Defendant /BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 09 TH MARCH, 2018.
(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 from taking action of demolition on
the basis of notice dated 10/02/2018 and order dated 27/02/2018.
2. According to plaintiff, he is in use and occupation of Pan Shop
near GulshaneHind Hotel (earlier known as Bismillah Hotel), Ground
floor, Shop No. 6 41/D, Dockyard Road, Mumbai 400 010 (hereinafter
referred to "the suit premises")
3. One Sattar Hussein the plaintiff's fatherinlaw was running Pan
Shop in the suit premises prior to 1951. On 03/10/1974 the erstwhile
hotel owner Mr. Abdulla Nana Parkar issued letter and certified that
plaintiff's fatherinlaw Sattar Hussein is running Pan Shop in the suit
premises. Thereafter plaintiff married to the daughter of Sattar
Hussein namely Shahnaz. On 06/01/1981, the documents i.e.
affidavit is executed in favour of the plaintiff. Plaintiff's motherinlaw
relinquished rights in the suit premises. Thereafter plaintiff and his
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brothersinlaw Mukhtar Ahmed and Mumtaz Ahmed came in
possession of the suit premises. Thus, the plaintiff entered in the shoes
of his fatherinlaw and he is in possession of the suit premises.
Plaintiff has taken electricity connection in the suit premises. Plaintiff
has been paying taxes to the Municipal Corporation. The requisite
licenses are also obtained from the concerned department. Plaintiff has
taken telephone connection on the address of the suit premises.
Election identity card and Adhar Card are on the address of the suit
premises. Thus, plaintiff is in possession of the suit premises. However,
defendant at the instance of the owner of the GulshaneHind Hotel
issued a notice to plaintiff on 10/02/2018 U/sec.351 of the MMC Act.
Plaintiff has given reply to the defendant. However, defendant did not
consider the reply and passed order on 27/02/2018 and thereby
directed to demolish the unauthorized construction of wall
admeasuring 1.9 x 1.8 M and thereby closing the northwest opening of
GulshaneHind Hotel adjacent to Shop No.6. According to plaintiff,
the said notice is illegal and badinlaw. Therefore, prayed to grant ad
interimrelief.
4. Notice is served to defendant/Corporation.
5. Defendant/Corporation filed affidavit of one Sandip Yadav and
documents.
6. According to Defendant/Corporation, the complaint is received
on 21/11/2017. Accordingly, spot inspection was done. Photographs
are also taken. Notice issued to plaintiff and thereafter the speaking
order passed. Hence, prayed to refuse the adinterimrelief.
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7. I have heard Mr. Muhammed Iftikhar, advocate for plaintiff and
Mr. Diwate, advocate for defendant/Corporation.
8. Advocate Mr. Muhammed Iftikhar, advocate for plaintiff has
invited my attention towards documents along with plaint. According
to him, plaintiff's fatherinlaw was in possession of the suit premises
from 1951. Thereafter plaintiff came in possession of the suit
premises. He further submitted that defendant/Corporation has given
notice without verifying the said fact and at the instance of the
restaurant owner. Therefore, he prayed to grant adinterim protection.
9. Mr. Diwate, advocate for defendant/Corporation has submitted
that there is no dispute in respect of Shop No.6. However, the plaintiff
has made construction near the shop No.6 i.e. unauthorized. He
submitted that the officer of Corporation has considered the documents
produced by plaintiff and passed the speaking order. Therefore, he
prayed to refuse interim protection.
10. I have perused the documents filed by plaintiff. It is pertinent to
not that plaintiff's fatherinlaw namely Sattar Hussein was occupying
Shop No.6. in Hotel GulshaneHind, earlier known as Bismillah
Hotel. He was running Pan Shop there. After the demise of Sattar
Hussein, plaintiff and his brotherinlaws came in possession of the
Shop No.6. From the perusal of document, it reveals that plaintiff has
taken electricity connection in the Shop No.6. Plaintiff has also paid
taxes to the Corporation. Thus, plaintiff is in possession of Shop No.6.
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11. However, the owner of the GulshaneHind Hotel filed complaint
to the Municipal Corporation contending that one Pan Patti Stall is
running in full swing unauthorized and illegally very adjacent to Gala
No. 6 of their restaurant. Therefore, the officers of the Corporation
inspected the suit site and it revealed that the said Pan Shop was found
adjacent to Gala No.6. There is no dispute about Gala No.6 that
plaintiff is not running his business there. However, the dispute is in
respect of the construction adjacent to Gala No.6. Accordingly, the
Municipal Corporation gave notice to the plaintiff U/Sec. 351 of MMC
Act. In the notice, it has specifically mentioned to remove the
unauthorized construction of wall admeasuring 1.9 x 1.8 M. thereby
closing northwest opening of GulshaneHind Hotel by using brick
masonry wall and constructed Pan Stall above 0.41 M. x 1.9 ft. height
of 1.6 M. at the adjacent to shop No. 6 41/D, Dadan building,
Mazgaon. Plaintiff has given reply to the same. But, the
defendant/Corporation passed speaking order dated 27/02/2018.
Thus, opportunity is given to the plaintiff to produce the documentary
evidence.
12. As discussed in supra, there is no dispute in respect of shop No. 6
in GulshaneHind Hotel. The plaintiff is in possession of the same.
However, plaintiff has made construction of brick masonry wall
adjacent to Gala No. 6. Plaintiff has not produced any documentary
evidence to show that the said construction is authorized one.
Therefore, it prima facie appears that the structure is unauthorized and
cannot be protected. Therefore, plaintiff has no prima facie case.
Balance of convenience does not lie in favour of plaintiff and if
injunction as prayed is granted, irreparable loss will be caused to
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defendant as due to the said construction northwest entrance of the
hotel is closed. Therefore, plaintiff is not entitled for adinterim relief.
Hence, following order:
O r d e r
1. Adinterimrelief is hereby refused.
2. Draft Notice of Motion be registered.
Date : 09.03.2018 (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 09.03.2018
Typed on : 09.03.2018
Signed by HHJ. : 13.03.2018
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Draft NM...2018. : 6 : Suit.No.644/2018
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
13.03.2018 /4.30 p.m. Mr. S.D.Nalawade
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
09.03.2018
JUDGEMENT/ORDER signed
by P.O. on
13.03.2018
JUDGEMENT/ORDER
uploaded on
13.03.2018 .
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