Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 1217 of 2019
IN
L.C.SUIT NO. 628 OF 2019
( CNR No.MHCC010031422019 )
Kamlesh Shah )...Plaintiff.
Versus
1. Designated Officer )
Asst. Engineer ( B&F), 'F/N Ward )
& Anr. )...Defendants.
Appearance:
Adv. Mr.P.D.Gandhy for plaintiff.
Adv. Mr.Kumawat for defendant/MMC.
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
DATE : 3rd, DECEMBER 2019.
(C.R.No.06)
O R D E R
This Notice of Motion is taken out by the plaintiff for temporarily
restraining to the defendant Municipal Corporation from executing and
enforcing notice under section 351 of MMC Act dated 18/02/2019 and
Speaking order passed dated 27/02/2019. The defendant Municipal
Corporation resisted this notice of motion by filing its reply. Read the
notice of motion, affidavit of the plaintiff, reply of the defendant
Municipal Corporation and affidavit of employee of the defendants.
Heard both the learned counsels on behalf of both the sides at length.
Perused the record.
2. In this present suit and this notice of motion, the plaintiff has
challenged notice under section 351 of MMC Act dated 18/02/2019
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issued by the defendant Municipal Corporation to the plaintiff about
unauthorised door opening on 12th floor stair case in respect of the
suit premises and the order passed by the defendant Municipal
Corporation dated 27/02/2019. The plaintiff acquired premises
situated on the 12th floor of the building known as Annapurna Bhavan,
Mahilashram Road, Matunga, Mumbai 400019 (hereinafter referred to
as the ''suit premises''). The building Annapurna Bhavan comprises of
12 floors. The occupation certificate in respect of the said building has
been granted only upto the 11th floor and the occupation certificate for
the 12th floor has not yet been obtained by the builder i.e. Unispace
Heights Pvt.Ltd. As per policy, certain portion of the land on which the
said building is constructed, has to be given on set back. As per
circulars, necessary entries are required to be endorsed in the P.R.Card,
whereupon F.S.I. benefit is given to the owner/developer. However, in
the present case though set back land is given no entry has been yet
endorsed in the P.R. card and it is because of this the developer has not
been able to take benefit of the F.S.I. available and obtain occupation
certificate for the 12th floor.
3. The plaintiff has further submitted that through his architect had
approached the defendants for regularization of the disputed structure,
without prejudice to his rights and merits of the case. The said
regularization application of the plaintiff was rejected on technical
grounds by the defendants and not on merits, on the count that some of
the documents had not been submitted by the plaintiff. The plaintiff is
in the process of gathering the said documents and submit again before
the defendants for regularization.
4. In response to the notice of motion, the defendant Municipal
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Corporation have submitted that on receipt of complaint dated
28/01/2019 from Mrs.Vibhawari Naik, Smt.Dipti J.Patankar and Shri
Paresh Bhansali about unauthorised door opening by the plaintiff
without prior permission from competent authority in 12th floor
staircase, Annapurna Bhavan, Mhilashram Road, Matuna, therefore, as
per directions, concerned officer of Building and factory department
inspected the suit premises on 16/02/2019 and observed that the
plaintiff has constructed unauthorized door opening at 12th floor
staircase without prior permission of the competent authority in
Annapurna Bhavan, Mahilashram Road, Matunga, Mumbai. At the time
of inspection, officer of these defendants asked to the plaintiff to
produce the documents showing that the plaintiff has taken prior
permission from these defendants to carry out said unauthorised
construction, but the plaintiff failed to show any such documents and
therefore, officer of these defendants prepared Inspection Report and
taken photographs.
5. The learned advocate on behalf of the plaintiff has argued that
the defendant Municipal Corporation without non application of mind
and without perusal of the concerned documents issued notice under
section 351 of MMC Act 18/02/2019 to the plaintiff in respect of the
suit premises and in response to the said notice, passed Speaking order
dated 27/02/2019. The notice dated 18/02/19 and the Speaking order
dated 27/02/2019 are prima facie illegal and not executable. The
plaintiff has made out prima facie case, balance of convenience is also
lies in favour of the plaintiff. The plaintiff will suffer irreparable loss
which will not compensate in terms of money, if this notice of motion is
not granted in favour of the plaintiff. On these grounds, learned
advocate on behalf of the plaintiff has requested that the present notice
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of motion may kindly be allowed.
6. The learned advocate on behalf of the defendant Municipal
Corporation has submitted that after receipt of complaint dated
28/01/2019 from Mrs.Vibhawari Naik, Smt.Dipti J.Patankar and Shri
Paresh Bhansali about unauthorised construction in respect of the suit
premises, the officers of the defendants personally inspected the suit
premises on 16/02/2019 and found unauthorised construction made by
the plaintiff in respect of the suit premises and therefore, the officer of
the defendant asked to the plaintiff to produce the documents showing
that the plaintiff has taken prior permission from these defendants to
carry out the said unauthorised construction but the plaintiff failed to
show any such documents and therefore, the defendants have rightly
issued notice under section 351 of MMC Act dated 18/02/2019 in
respect of the suit premises and rightly passed Speaking order dated
27/02/2019. The plaintiff has not made out prima facie case, balance
of convenience is also not lies in favour of the plaintiff. The plaintiff will
not suffer irreparable loss, if this notice of motion is not granted in
favour of the plaintiff. On these grounds, learned advocate on behalf of
the defendants has requested that the present notice of motion may
kindly be dismissed with costs.
7. In support of contentions of the plaintiff, the plaintiff has filed
copy of notice under section 351 of MMC Act dated 18/02/2019 at
Exh.'A' at page no. 14 to 15 of the plaint i.e. notice under challenged.
The letter issued by the plaintiff to the defendant Municipal Corporation
dated 27/02/2019 is at page no. 16 at Exh.'B'. The letter issued by the
plaintiff dated 15/12/2018 at page no. 17, Xerox copy of the letter
issued by the plaintiff to the defendant dated 27/09/2018, copy of
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notice under section 351 of MMC Act issued by the defendant Municipal
Corporation to the plaintiff dated 29/08/2018 and 30/08/2018, Copy
of speaking order dated 13/11/2018 in response to the notice issued
under section 351 of MMC Act dated 29/08/2018, Copy of Speaking
order dated 27/02/2019 i.e. order under challenged.
8. In support to the reply, the defendant Municipal Corporation
have filed documents i.e. copy of complaint received from
Mrs.Vibhawari Naik in respect of suit premises dated 14/08/2019. The
photographs of the suit premises, copy of the notice under section 351
of MMC Act issued to the plaintiff dated 29/8/2018, Copy of speaking
order dated 13/11/2018 in response to the notice dated 29/08/2018,
copy of notice under section 351 dated 18/02/2019 and copy of
Speaking order dated 27/02/2019, which are under challenged in the
present notice of motion.
9. After hearing the arguments on behalf of both the sides at length,
on scrutiny of pleadings and documents produced on behalf of both the
sides, admittedly, the defendant Municipal Corporation has been issued
notice under section 351 of MMC Act dated 30/08/2018 and the copy
of the letter dated 27/02/2019 in response to the notice under section
351 of MMC Act dated 30/08/2018. The said notice dated 30/08/2018
was issued for unauthorised construction of rooms with B.M.wall and
G.I.Sheet roofing on the terrace adjoining the flat on 12th floor and for
encroachment over the chajja portion in the flat and unauthorised
covering the Ducks/voids outside the toilet cum bathroom and enclosed
with the flat. In the present suit and in the present notice of motion,
the plaintiff has not challenged the notice issued by the defendant
Municipal Corporation under section 351 of MMC Act dated
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30/08/2018. Admittedly, in the notice of motion the plaintiff has
challenged notice under section 351 of MMC Act dated 18/02/2019 and
Speaking order dated 27/02/2019. The said notice and Speaking order
under challenged is for unauthorised door opening at 12th floor
staircase as shown in the sketch without prior permission from
competent authority.
10. On scrutiny of the contentions of the plaintiff, it appears that the
plaintiff has admitted that building Annapurna of 12th floor, the
occupation certificate in respect of the said building has been granted
only up to the 11th floor and the occupation certificate for the 12th
floor has not obtained by the Builder i.e. Unispace Heights Pvt. Ltd.
The plaintiff has also admitted in his additional affidavit that the
regularization application of the plaintiff was rejected by the defendant
Municipal Corporation. Moreover, on perusal of the documents
produced on behalf of the plaintiff on record it appears that no any
documents produced on behalf of the plaintiff as to show the
authorization of the said structure which is shown in the notice dated
18/02/2019 under section 351 of MMC and Speaking order dated
27/02/2019. Therefore, prima facie, it appears that the notice under
section 351 of MMC Act dated 18/02/2019 issued by the defendant
Municipal Corporation to the plaintiff in respect of the suit premises is
legal and rightly issued and in response to the said notice, the
defendants have rightly passed speaking order dated 27/02/2019.
11. From above my discussions, I come to the conclusion that the
plaintiff has failed to prove prima facie case, balance of convenience
does not lie in favour of the plaintiff. The plaintiff is not entitled to
protect unauthorised notice structure. As such, the plaintiff also failed
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to prove irreparable loss. Hence, I proceed to pass following order.
ORDER
Plaintiff's notice of motion no. 1217/2019 is hereby dismissed.
Date :3/12/2019 (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on :03/12/2019
Transcribed on : 04/12/2019
Signed by HHJ : 09/12/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
09/12/2019 Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.06)
Date of Pronouncement of
Judgment/Order
03/12/2019
Judgment/order signed by P.O on 09/12/2019
Judgment/order uploaded on 09/12/2019
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