Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM...2018. : 1 : Suit.No.684/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION No.....2018.
IN
SUIT NO. 684 OF 2018.
Shehnaz Bano Mohd. Mobin Khan... } .. Plaintiff.
Versus.
Municipal Corporation of Gr. Mumbai ... } .. Defendants.
Ld. Advocate Mr. V.T. Dubey for Plaintiff.
Ld. Advocate Mrs. Hazare for Defendant /BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 13 TH MARCH, 2018.
(I/C Court Room No.11)
O R D E R
1. Plaintiff has taken out this draft notice of motion to restrain the
defendant/Municipal Corporation, Mumbai from taking action on the
basis of notice dated 01/03/2018 and order dated 05/03/2018.
2. According to plaintiff, plaintiff is in occupation and possession of
the premises i.e. Ground plus 3 floors situate at 25B, Haroon
compound, Pipe Line, Kurla (West), Mumbai400070.
3. plaintiff's father was in occupation of the suit premises. On
14/02/1994, he assigned the suit premises in favour of plaintiff.
Plaintiff has all necessary and relevant documents such as ration card,
electric bill etc. on the address of suit premises. The suit premises is
declared under the Slum area and plaintiff is a pitch card holder. The
suit premises is in existence prior to the notice dated 01/03/2018.
4. According to the plaintiff, one Mr. Shahnawaz Shaikh and others
had assaulted to the family members of plaintiff and FIR No.39 of
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2018 dated 15/02/2018 has been filed against them. Therefore, for
taking revenge, the said Shahnawaz Shaikh filed the false complaint to
the defendant/Corporation and defendant/Corporation issued the said
notice.
5. Plaintiff has replied to the said notice but defendant did not
consider the reply and documents filed by plaintiff. Hence, passed the
order.
6. Plaintiff further contended that the notice is badinlaw and
illegal. Plaintiff has prima facie case. Balance of convenience lies in
favour of plaintiff and if injunction as prayed, is not granted then,
irreparable loss will be caused to the plaintiff.
7. Notice is served to defendant/Corporation.
8. Defendant filed affidavit of its officer Sumeet Jogdande and
documents.
9. I have heard Shri. Dubey, advocate for plaintiff and Mrs. Hazare,
advocate for defendant/Corporation.
10. Shri. Dubey, advocate for plaintiff has submitted that the notice
U/sec.354A of the MMC Act is not tenable because the structure is
prior to issuance of the said notice. According to him, Corporation has
malafidely given the notice. Corporation has not considered the
documents and reply of plaintiff. Plaintiff has the documents on the
address of suit premises. Therefore, he prayed to grant adinterim
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relief.
11. Mrs. Hazare, advocate for defendant/Corporation has
submitted that the Corporation issued a notice to the plaintiff on
01/03/2018. At that time, the construction was going on. However,
plaintiff did not stop the construction. She has invited my attention
towards the photographs and inspection report. According to her, the
Corporation did not dispute about the space of ground floor but
plaintiff had raised three upper floors on the suit premises. The entire
construction is unauthorized. The Corporation has considered the reply
of the plaintiff and passed speaking order. Therefore, she prayed to
refuse the interim injunction.
12. The suit premises is situate at Haroon Compound, Pipe Line,
Kurla (West), Mumbai400070. According to plaintiff, the suit
premises is in slum area. Therefore, the Corporation has no right to
demolish the suit structure. For that, plaintiff has produced the receipt.
It is true that the name of plaintiff is appearing on the receipt.
However, the said receipt is of the Census of the year 1990. Plaintiff's
contention is that she came in possession of the suit premises in the
year 1994. Thus, the document contradicts the statement of plaintiff
about the possession of the property in the receipt. Further more,
plaintiff has not produced any documentary evidence i.e. Government
Resolution/Notification and other documents to show that suit
premises comes in slum area.
13. It is pertinent to note that plaintiff's father Mohd. Mobin Khan
was the occupier of the suit premises. He has executed affidavit in
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favour of plaintiff. However, the description of property is mentioned
as a Room admeasuring 10' x 12'. There is no mention about the first,
second and third floor in the affidavit. Thus, from the document, it
reveals that the suit premises was having only ground floor.
14. On the receipt of the complaint, the officer of the
defendant/Corporation inspected the spot and prepared the report. It is
found that the construction was going on. Accordingly, notice
U/sec.354A of MMC Act was issued to the plaintiff. From the perusal
of photographs, it reveals that at the time of inspection, the
construction was going on. Plaintiff has replied to the said notice.
However, plaintiff could not submit any authentic documents and
therefore, the speaking order dated 05/03/2018 is passed. It is to be
noted that plaintiff has not produced any documents to show that the
construction is prior to the issuance of notice dated 01/03/2018 and
that the notice U/sec.354A of MMC Act is illegal. In absence of any
cogent and reliable evidence at this stage, I find that plaintiff has not
made out prima facie case to grant adinteriminjunction. Therefore, I
pass the following order :
O r d e r
1. Adinterimrelief is hereby refused.
2. Draft Notice of Motion be registered.
Date : 13.03.2018 (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 13.03.2018
Typed on : 13.03.2018
Signed by HHJ. : 13.03.2018
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“ 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
13.03.2018
JUDGEMENT/ORDER signed
by P.O. on
13.03.2018
JUDGEMENT/ORDER
uploaded on
13.03.2018 .
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