Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1135/2020 in St.No. 3374/2020. 1 Order.
MHCC010031702020
Presented on : 13-03-2020
Registered on : 13-03-2020
Decided on : 14-03-2020
Duration : 0 years, 0 months, 1 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1135 OF 2020
IN
STAMP NO. 3374 OF 2020
Mr. Riyazuddin Rafiuddin Maniyar ...Plaintiff
Versus
The Municipal Corporation of Greater
Mumbai and Another ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 14th MARCH, 2020.
Mr. Amir Kale, Advocate for Plaintiff.
Mrs. Mhatre, Advocate for Defendants / MCGM.
ORDER
This is a motion taken out by plaintiff to challenge notice
issued under Section 354-A of MMC Act dated 08/02/2020.
Accordingly in view of the schedule as per notice on Page No.80, the
description of unauthorized structure is given as follows :
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N/m No. 1135/2020 in St.No. 3374/2020. 2 Order.
“Schedule (Description of work)
Unauthorised Construction of Internal
Partition wall within existing ground floor
structure by using B.M. Wall and opening the
door by replacing existing external wall
admg.(12.19 x 6.09 x 4.87ht.)mtr.,
approximately.”
2. Perused short affidavit in support of documents submitted
by MCGM Officer Mr. Sunil Kolambkar vide Exh.3, supported with
inspection report and various documents from Page No.1 to 19.
3. Ld. Advocate Amir Kale for plaintiff submits that plaintiff
has purchased the property for residence and he was intending for
tenentable repairs in view of application submitted with MCGM dated
15/11/2019. In view of various photographs submitted by both side,
the condition of suit premises is clear before the Court as the property
was purchased by the plaintiff on 19/07/2019. Due to enimical terms
with original complainant Mr. Ramjan Choudhari, he preferred suit
bearing No. 870/2020. He moved numerous complaints, therefore
MCGM has initiated action against the plaintiff. In application for
repairs, it is clarified by plaintiff that he was intending to proceed for
tenentable repairs and to provide partition wall as the structure is weak.
No opportunity was given to plaintiff and MCGM has proceeded for
speaking order on 11/02/2020. It is requested to peruse documents
vide Exh.2, unscaled map alongwith details of structure at Page No.7. It
is claimed for temporary injunction.
4. Ld. Advocate Mhatre for MCGM submits that there was a
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N/m No. 1135/2020 in St.No. 3374/2020. 3 Order.
complaint from public at large on 26/09/2019, therefore concern
officer of the MCGM visited the notice structure in view of inspection
report dated 07/02/2020, wherein, it is clarified that plaintiff has
proceeded for structural change by installation of door towards South
side and various partition walls to create the chawl. It is clarified that
MCGM has not proceeded to suspect any one. However MCGM has also
issued notice to unauthorized structure of said locality including
original complainant Mr. Ramjan Choudhari. It is admitted that
defendant MCGM has received application for repair vide Exh.76,
however before proceeding for any order on said application, MCGM
has received the copy of complaint from police. It is submitted that
there has been structural change, in absence of any reply by plaintiff;
MCGM has proceeded for reasoned speaking order. It is claimed to
reject the motion.
REASONS FOR ORDER
5. It is material to note that plaintiff became owner of the suit
premises in view of Sale Deed dated 19/07/2019 purchased from Mr.
Shivji Bhanushali. It is correct that some localite, more specifically Mr.
Ramjan Choudhari submitted the complaint against the plaintiff, it
resulted into rotation of the wheels of MCGM to proceed for inspection
and notice as stated above.
6. It is matter of record that plaintiff has submitted
application for permission to repair on 15/11/2019, wherein it is
specifically mentioned about repair of broken walls, plaster, tiles and
sewage etc. It is added that plaintiff has to provide partition wall as the
structure is weak. Accordingly, plaintiff has submitted application to
the ‘L’ Ward of the MCGM on 15/11/2019. It is the case of plaintiff that
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N/m No. 1135/2020 in St.No. 3374/2020. 4 Order.
in absence of any specific order, he presumed to receive a deemed
permission, in absence of any communication of rejection. However,
according to MCGM, the complaint alongwith various photographs was
received from the local police, therefore impugned notice came to be
issued without any specific order on the application submitted by
plaintiff on 15/11/2019.
7. On one hand, intimation of repair was given by the
plaintiff. On the other hand, MCGM has proceeded for speaking order.
At this juncture, the material question is, whether it was a tenentable
repair. The scope of tenentable repair is given in Section 342 of MMC
Act.
8. On perusal of numerous photographs submitted by both
side, it appear that impugned structure require urgent repairs to make it
habitable. However, to the extent of plastering, colouring, flooring, it
comes under scope of tenentable repair. To save the building from
further dilapidation, with the object to provide support, plaintiff would
have provided iron pillar, however it do not require a wall for partition.
There is another allegation against the plaintiff that he intend to install
a door towards South side wherein it appear one ditch measuring 2 x 3
ft. approximately above the roof of car, admittedly towards South side
of notice structure/suit premises.
9. Plaintiff has described the same as a door measuring 3 x 7
ft. On perusal of photo on page no.3, there is no height of 7 ft. as seen
in said photograph. Prima facie it indicate to install a door towards
South side. If it is so, it clearly comes under structural change. In view
of aforesaid discussion, it is necessary to proceed for appropriate order
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N/m No. 1135/2020 in St.No. 3374/2020. 5 Order.
to be passed by the MCGM on application of repair submitted by
plaintiff dated 15/11/2019. Hence the order :
- ORDER -
1. Notice of Motion No. 1135/2020 is partly allowed.
2. MCGM shall not obtain any coercive action for two months
from the date of uploading the order, in response to the
notice dated 08/02/2020 and speaking order dated
11/02/2020.
3. Plaintiff to submit fresh application as annexure to the
previous application to the MCGM and clarify the position
that how he is going to erect partition wall or supportive
wall, inside the structure.
4. Plaintiff is temporarily restrained from installation of door
towards South side as another Suit (No. 870/2020) is
pending in that regard.
5. Plaintiff is at liberty to file fresh application for repair to
the MCGM or submit reply in detail in response to notice
dated 08/02/2020. Thereafter MCGM may proceed for
appropriate order on application for repair.
6. MCGM to proceed for appropriate order at the earliest.
7. Ad-interim protection is granted in favour of plaintiff for
two months. However, plaintiff to maintain status-quo.
8. N/m No. 1135/2020 is disposed off.
9. In view of aforesaid order, plaintiff is at liberty to file fresh
motion, within ten days, upon fresh speaking order, if it
would be against the interest of plaintiff.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 14/03/2020. Mumbai.
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N/m No. 1135/2020 in St.No. 3374/2020. 6 Order.
1. Dictated on : 14/03/2020.
2. Transcribed on : 20/06/2020.
(Due to Lockdown)
3. Placed for correction on : 27/06/2020.
4. Correction carried on : 01/07/2020.
5. Signed on : 05/07/2020.
6. Delivered to Certified : /07/2020.
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
11/07/2020. 1.37 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 14/03/2020.
Judgment/Order signed by P.O. on 05/07/2020.
Judgment/Order uploaded on 11/07/2020.
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