Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1238/2020 ..1.. L.C. Suit (St.No.) No.544/2014
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1238 OF 2020
(CNR NO. : MHCC010034752020)
IN
L.C. SUIT (ST) NO. 544 OF 2014
Shri Shaikh Mohammed Shabbir )
Owner and Landlord of Plot No.337, )
Bashir Chawl, R. No.10, Dharavi Main Road, )
Opp. Dharavi Restaurant, Dharavi, Mumbai17 )....Plaintiff
Versus
1. Municipal Corporation Gr. Bombay )
Mahapalika Marg, Mumbai400001 )
2. Municipal Commissioner )
Municipal Corporation Gr. Bombay )
Mahapalika Marg, Mumbai – 400 001. )
3. The Project Officer, G North Ward )
Municipal Corporation Gr. Bombay )
Mahapalika Marg, Dadar, Mumbai – 28 )
4. The Asstt. Commissioner )
(Ward Officer) BMC G North Ward )
Mahapalika Marg, Dadar, Mumbai – 400028 )....Defendants
APPEARANCE:
Plaintiff in person
Ld. Adv. Meena Dhuri for defendant/MCGM.
CORAM : HIS HONOUR ADHOC JUDGE
DEEPAK D. ALMALE (C.R. NO.06)
DATED : 17th AUGUST, 2021
ORDER
Read the plaint, notice of motion, written statement,
rejoinder and relevant documents produced on record.
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NM No.1238/2020 ..2.. L.C. Suit (St.No.) No.544/2014
1] By this notice of motion, plaintiff has sought relief that the
court to pass appropriate order or direction for covering the roof of
structure of the suit premises which has demolished by the
defendant/BMC on 19/3/2020 and permit the plaintiff to cover the
roof by wooden and patra and little half front wall which has fall down
in lockdown period during Covid19.
2] Heard plaintiff in person and ld. Adv. of defendant
/corporation.
3] Plaintiff submits that the structure of suit premises came to
be demolished by the defendant/corporation on 19/3/2020 so he
wants to cover the roof by putting wooden and patra to avoid heavy
loss which may occur due to rain. He also submits that much time is
required for deciding the suit, therefore he would be just and proper to
allow the cover roof of the suit structure.
4] On the other hand the ld. Advocate of
defendant/corporation submits that by following due process of law,
unauthorized structure of the suit property came to be demolished.
She also submitted that Writ Petition No.2744 /2018 filed by the
plaintiff came to be dismissed. She also submits that in the main suit,
the plaintiff have not challenged the notice issued by the
defendant/corporation so plaintiff is not entitled for any relief. She
also submits that plaintiff have not applied for permission therefore
court cannot grant such type of relief in favour of plaintiff.
5] I have considered submissions of both parties. There is no
dispute that alleged unauthorized structure of suit property came to be
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NM No.1238/2020 ..3.. L.C. Suit (St.No.) No.544/2014
demolished by the defendant but plaintiff raised complaint that the
defendant has not followed due process of law. Plaintiff being
aggrieved by the said action of defendant/corporation regarding
demolition of structure, already has filed contempt petition before this
court and same is pending. The defendant/corporation has justified
action regarding demolition of suit structure with contention that the
unauthorized suit structure came to be demolished by following due
process of law. The substantial question whether suit structure came
to be demolished illegally and without following due process of law or
not is a mixed question of fact and that can be decided only after
recording evidence of both parties.
6] So far relief claimed by the plaintiff in this Notice of
Motion is concerned, admittedly plaintiff has not applied for permission
to cover roof of the suit structure by wooden and patra. Therefore in
the absence of any application to that effect is being made, the
defendant/corporation cannot grant permission in favour of plaintiff to
cover the suit structure by wooden and patra. It is not case of the
plaintiff that he has applied for such permission and
defendant/corporation have not decided the same or rejected. Prima
facie nothing on record to show that alleged structure of the suit
property, which has been demolished by the defendant/corporation on
19/3/2020 was raised / constructed by the plaintiff by obtaining valid
permission from the defendant/corporation. Therefore, in such
situation I find substance in the contentions raised on behalf of
defendant/corporation that plaintiff is not entitled for any relief as
claimed by him. Therefore I find that the plaintiff has not put forth
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NM No.1238/2020 ..4.. L.C. Suit (St.No.) No.544/2014
any positive case to permit him to cover the roof of structure of suit
property by putting wooden and patra.
7] Thus considering the aforesaid reasons and discussion, I
find that plaintiff is not entitled for relief sought for hence present
notice of motion deserves to be dismissed. Hence following order.
O R D E R
1. Notice of motion No.1238/2020 stands dismissed.
2. Notice of motion Nos.1238/2020 disposed off.
(Deepak D. Almale)
Adhoc Judge, (C.R.No.06)
Date : 17.08.2021 City Civil Court, Gr. Bombay
Directly Dictated on Com : 17.08.2021
Checked on : 17.08.2021
Signed on : 17.08.2021
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NM No.1238/2020 ..5.. L.C. Suit (St.No.) No.544/2014
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 17.08.2021
NAME OF STENOGRAPHER : Ms. B.P. Kamble
Name of the Judge (With Court
Room No.)
HHJ D.D. Almale
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
17.08.2021
JUDGMENT/ORDER signed by
P.O. on
17.08.2021
JUDGMENT/ORDER uploaded on 18.08.2021
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