Interim Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 4519/19 in Suit No. 802/18. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4519 OF 2019
(CNR NO. MHCC01-012320-2019)
IN
L. C. SUIT NO. 802 OF 2018
(CNR NO. MHCC01-003453-2018)
Guru Gobind Singh English High School
& Junior College ...Plaintiffs
Versus
The Municipal Corporation of Gr. Mumbai ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 11th MARCH, 2020.
Mr. Tiwari, Advocate for Plaintiffs.
Mrs. Chavan, Advocate for Defendants / MCGM.
ORDER
Being aggrieved with notice dated 19/06/2017 issued
under Section 354-A of MMC Act, plaintiff has approached this Court
with present notice of motion. As per schedule of said notice, the
unauthorized structure erected by the plaintiff is reproduced as follows :
“1. Schedule (Description of work)
Unauthorized const. of 1st floor on Existing Gr Floor with
Ladi Coba Slab & Using M.S.Angel. adm. 32.00 mt. x
7.62 mtr. x 3.04 ht.”
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N/m No. 4519/19 in Suit No. 802/18. 2 Order.
2. Perused documents submitted by MCGM vide Exh.3,
supported with affidavit of Junior Engineer Mr. Amit Patil.
3. Ld. Advocate Tiwari for plaintiff submits that the proposal
for ground plus seven floor of the school is pending before the MCGM.
It require huge funds for new construction. There is scarcity of funds
with plaintiff school. It may take minimum two years to begin with the
construction. Plaintiff is ready to submit undertaking that plaintiff will
withdraw the total building as plaintiff intending to construct new
building of seven storied.
4. Ld. Advocate Chavan for defendant MCGM submits that
there is no notice given by the MCGM for ground floor. However,
impugned notice is only to the extent of erection of first floor as
observed in spot inspection dated 19/06/2017. It is requested to peruse
various photographs with progress of the construction. Accordingly,
photos annexed with Exh.7 establish a case that first floor is erected
without any permission. It is added that any mishap may cause in
unauthorized structure, it may cause huge loss to various students
learning in said school.
5. It is replied by advocate Tiwari that in view of affidavit of
Secretary of school Mr. Amarjit Singh, it is to note that plaintiff has
accepted the responsibility and plaintiff be held responsible for any loss.
REASONS FOR ORDER
6. On perusal of final order dated 04/07/2017, it is to note
that no reply has been submitted by the plaintiff to the notice in
question. The proposal for new premises submitted by plaintiff came to
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N/m No. 4519/19 in Suit No. 802/18. 3 Order.
be rejected by the MCGM. In view of NOC claimed by plaintiff, it is
clarified by the MHADA vide letter dated 18/12/2008 that necessary
approvals to the plans from MMC should be obtained before initiating
the construction work. However, plaintiff is failed to obtain approval to
the plan from the MMC, however plaintiff has completed the first floor.
7. Plaintiff has submitted the proposal of new building on
18/12/2017. In view of report dated 30/06/2018, compliance sought
by MCGM is yet not complied by the plaintiff. It is specifically
mentioned that the architecture of plaintiff is failed to submit
compliance report.
8. The material part of aforesaid letter bearing No.3475/ES
dated 30/06/2018 is reproduced as follows :
“With reference to above, this is to inform you
that the party M/s. Guru Govind Singh English High
School has applied online on 08/01/2018 for
proposed building/Educational building on plot
no.292 of Village Hariyali situated in MHADA
layout at Tagore Nagar, Vikhroli (E) through his
Architect Shri Shekar Arolkar
u/no.ChE/ES/3096/S/337(New). The same was
rejected as it was not submitted as per EODB
manual. Thereafter, the Architect resubmitted
proposal online on 27.03.2018. As (1) Please
submit the proposal as per EODB, (2) Affidavit of
Owner for plot area is not submitted, (3) Copy of
Survey Remarks, (4) Title Clearance Certificate
from Solicitor is not submitted. (5) Assessment
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N/m No. 4519/19 in Suit No. 802/18. 4 Order.
clearance certificate from A.A.&C S Ward is not
submitted. (6) No action pending from Asstt.
Engineer (B&F) ‘S’ Ward is not submitted. (7)
Proposed plans with corrected proforma-A (8)
Nallah Remarks from E.E.(SWD) Remarks. (9)
Appointment and acceptance of consultants. (10)
CFO NOC. (11) Identification proforma with pan
card of applicant. (12) Permission of DMC (Zone-
VI) for existing structure has mentioned by
Architect letter dated 09.03.2018. (13) Tree NOC
are required for further scrutiny were not
submitted. Hence proposal was rejected online
again on 4.4.2018 for want of further particulars
(Copy of online rejection is attached at Pg. 3).”
9. On perusal of Stability Certificate of Consulting Engineer
Mr. Suresh Shanghvi vide Page No.23, it is not clarified which tests he
has carried out. It is dated 23/01/2002. It is not clarified by him
whether he has examined mere ground floor or ground plus first floor.
In short, there is no prima facie case in favour of plaintiff.
10. Ld. Advocate for plaintiff submits that plaintiff has
submitted a letter dated 08/03/2018 to reconsider the proposal.
However, plaintiff is failed to obtain any steps in respect of existing
construction of first floor on old ground floor. In view of aforesaid
discussion, following are the important points to note :
a) Impugned notice dated 19/06/2017 is not issued to ground
floor.
b) The notice of MHADA dated 18/12/2008 clearly indicate that
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N/m No. 4519/19 in Suit No. 802/18. 5 Order.
necessary approval to the plan should be obtained from MCGM
before starting the work.
c) Plaintiff is failed to reply the impugned notice dated 19/06/2017.
d) Mere submission of plan of new building does not authorize
plaintiff to construct additional floors on old premises without
sanction by MCGM.
11. Plaintiff is running a school. Hundreds of students are
taking education in said school. Any mishap happens in school will
cause great loss to the lives of the students and society at large. The
statement of plaintiff that he will demolish the entire building within
two years, itself indicate that there is no sanction plan of first floor i.e.
unauthorized structure as mentioned in notice. Resultantly, balance of
convenience do not lie in favour of plaintiff. In result, motion deserves
to be dismissed. Hence the order :
- ORDER -
1. Notice of Motion No. 4519/2019 stands dismissed.
2. N/m No. 4519/19 is disposed of accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 11/03/2020. Mumbai.
1. Dictated on : 29/02/2020.
2. Transcribed on : 09/03/2020.
3. Signed on : 11/03/2020.
4. Delivered to Certified :
Copy Section on
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N/m No. 4519/19 in Suit No. 802/18. 6 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
12/03/2020. 5.48 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 11/03/2020.
Judgment/Order signed by P.O. on 11/03/2020.
Judgment/Order uploaded on 12/03/2020.
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