Order 1

Order Details: Other
Pdf Text: 1
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1372 OF 2019
IN
L.C. SUIT NO. 825 OF 2019
Sangeeta Rajan Kewalramani .....Plaintiff
Versus
The Municipal Corporation of Greater Mumbai & Anr ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 29th March, 2019.
Appearance:
Ld. Adv. Mr. Narvekar for the plaintiff.
Ld. Adv. Shri Dhumale for defendant/MCGM.
ORDER ON ADINTERIM INJUNCTION
1. The plaintiff claims to the owner of the open terrace of the
3rd floor of the defendant no. 3 Society. The terrace was
purchased by the husband of the plaintiff in the year 1985 from
the Chief Promoter by an agreement. The plaintiff since then is in
possession of the said terrace. The defendant no. 3 society had not
raised any objection regarding the ownership and the possession of
the plaintiff on the terrace. It is stated that the after formation of
the society in the year 2001, share application is taken by the
society. The maintenance in respect of the terrace is also paid by
the plaintiff. It is stated that there is common terrace above 3rd
floor for the use of the defendant no 3. The suit premises is a
-- 1 of 8 --
2
private terrace owned and in exclusive possession of the plaintiff.
2. It is stated that the defendant no. 3 started making false
complaints against the plaintiff. The plaintiff was issued notice
under Section 351 of MMC Act by defendant corporation no. 2 on
11.12.2018. The plaintiff had replied the notice on 26.12.2018. It
is alleged that without considering the reply, the defendant had
issued order on 09.03.2019 calling upon the plaintiff to remove
the structure and was threatened on failure it would be removed..
The plaintiff therefore, had sought temporary injunction by this
notice of motion restraining the defendant from acting upon the
notice dated 11.12.2018 issued under Section 351 of the MMC Act
and the consequent order to it. The plaintiff also had prayed for
injunction restraining the members of defendant no. 3 society from
trespassing on the terrace.
3. The defendant no. 2 had not filed the reply for the
application for adinterim injunction. The defendant no. 3 society
had filed the say and had contended that the plaintiff is not the
owner of the suit terrace. It is contended that, it is open terrace,
common area of the society. It is contended that the terrace
cannot be sold. It is denied that the society terrace being common,
is beneficially used and is in enjoyment of the society member. It
is submitted that the maintenance bill is submitted by the plaintiff
for 1000 sq.ft of the terrace. It is contended that the suit is
simplicitor, injunction against the society without declaration as to
the title of the plaintiff. the title of the plaintiff is disputed by the
-- 2 of 8 --
3
defendant no 3. It is submitted that there is misjoinder of causes
of action and the plaintiff has no locus to file the suit. It is
contended that the structure is not described in the sanctioned
plan. It is stated that there are several water and sewage pipe
lines which runs to the society terrace and therefore the society
cannot be restrained from entering the terrace. It is contended
that the motion being devoid of merits and need not be
entertained and be rejected.
4. The notice issued by the defendant corporation on
11.12.2018 points out that the plaintiff had carried out the
unauthorized construction of B.M. wall opposite to lift ad
measuring 4.8 m (Length) x 3.55 (height) and unauthorized
covering of common terrace by erecting two numbers of M.S.
collapsible gates admeasuring 2 m x 1.15 m each on 3 rd floor of
Jaywant Industrial premises Cooperative Society Ltd., Tardeo
Road, Mumbai.
5. After hearing the plaintiff, the order was passed on
09.03.2009. It is observed that the plaintiff had not submitted any
approved copy of plans/permission, if any of the notice structure
from the competent authority of MCGM and had also not
submitted relevant documents proving the authorization of the
notice. It is also observed that the notice structure is not reflected
in the plan. Accordingly, the plaintiff was called upon to
remove/demolish the notice structure within seven days of the
order and was also informed about the liability for the offences
-- 3 of 8 --
4
punishable under Section 475A.
6. Heard Learned Advocate for the plaintiff and Learned
Advocate for the defendant.
7. The Learned Advocate submitted his contentions put in the
plaint and the documents annexed with the plaint. It is argued
the plaintiff is in continues possession of the suit premises on the
basis of the agreement with the promoter. It was argued the
maintenance charges also accepted by the society. The conduct of
the defendant show that the it had acknowledged the ownership of
the plaintiff over the terrace. It is stated that at behest of the
society the notice under challenge was issued to the plaintiff
alleging that the structure of the plaintiff is illegal. It was argued
the possession of the plaintiff since the year1985 creates right in
her. it was argued that the notice and order are issued at the
behest of the defendant no 3. It was submitted that inspite of the
plaintiff showing the relevant documents, the defendant
corporation did not consider them and had passed illegal order. it
was argued that the facts of the case show that there is a triable
issue involved in the suit and till the decision of the suit the suit
structure needs to be maintained in status quo. It is last contented
that the plaintiff is entitled for adinterim injunction .
8. It is stated by the defendant no. 3 the plaintiff has no right in
his favour for erecting the B.M. walls and collapsible gates at the
suit terrace. The terrace is the property of the defendant society. It
-- 4 of 8 --
5
is property of the society for use of the members. It is stated that
the suit premises not included in the sanctioned plan. It is
contended that the plaintiff is not entitled for injunction as prayed
for.
9. The Learned Advocate for the MCGM contended that the
documents produced in response to the notice under Section 351
did not show any authorization of the notice structure and is not
entitled for interim protection.
10. The plaintiff had based her right on the basis vide an
agreement dated 24.09.1985 alleged to be executed by the
promoter. The plaintiff claims to be in possession of the terrace
since 1985 by virtue of the agreement. The defendant society and
the corporation contend that the notice terrace is not shown in the
sanctioned plan.
11. The question before the Court is as to whether Chief
Promoter can create right in favour of the plaintiff ,when it is not
mentioned in the sanctioned plan. The Chief Promoter can not
transfer by an agreement the open space i.e the suit terrace, in
favour of the plaintiff. The agreement in favour of the plaintiff by
the Chief Promoter does not create right in favour of the plaintiff
on the terrace.
12. The plaintiff harps on the acceptance of the maintenance
charges by society. The society may have accepted the
-- 5 of 8 --
6
maintenance charges, it does not create right of ownership in
favour of the plaintiff.
13. The plaintiff cannot be said to have been conferred the legal
title by the agreement alleged to be executed by the Chief
Promoter in favour of the husband of the plaintiff.
14. The notice issued by the corporation under Section 351 of
the MMC Act shows unauthorized construction of B.M. wall
opposite to lift admeasuring 4.8 m (Length) x 3.55 (height) and
unauthorized covering of common terrace by erecting two
numbers of M.S. collapsible gates admeasuring 2.00 m x 1.15 m
each on 3rd floor of Jaywant Industrial premises Cooperative
Society Ltd., Tardeo Road, Mumbai. The plaintiff was called upon
to justify the construction carried out on the terrace. The plaintiff
appeared before the corporation. The corporation, after hearing,
the plaintiff passed the order and had directed the plaintiff to
remove the unauthorized construction.
15. The documents relied by the plaintiff in support of its case to
defend the notice under Section 354 are also relied in the present
notice of motion. The alleged terrace garden does not find place in
the sanctioned plan. The structures mentioned in the sanctioned
plan can only exist. The plaintiff has no right to construct the B.M.
walls and the gate on the terrace which the common terrace of the
society . The structure therefore is unauthorized and is erected
without valid permission or any right.
-- 6 of 8 --
7
16. The plaintiff also had prayed for injunction against the
society and its members. It needs to be mentioned that the suit is
simplicitor of injunction against the society. The defendant had
disputed the title of the plaintiff. It was for the plaintiff to have
claim for the declaration of ownership about the suit terrace.
under the camouflage of injunction the plaintiff cannot be
permitted to claim declaration of his ownership of the terrace.
17. The plaintiff has failed to made out the primafacie case in
support of her case. The balance of convenience does lies in
favour of the plaintiff. The plaintiff would not be put to
irreparable loss, if the injunction is refused. The defendant
contended that there are pipe lines passing from the terrace which
needs to be attended by the society from time to time. Moreover,
the terrace being common, the members of the society have right
to enter the terrace premises.
18. The application for adinterim injunction therefore cannot be
considered. In the result, following order is passed:
ORDER
The application for adinterim injunction is rejected.
(Sanjay N. Yadav)
Judge,
Date : 29.03.2019 City Civil Court, Mumbai.
Dictated on : 29.03.2019
Transcribed on : 29.03.2019 & 30.03.2019
Signed by HHJ on : 30.03.2019
-- 7 of 8 --
8
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 30.03.2019 at 12.20 pm.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With
Court Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
29.03.2019
JUDGMENT/ORDER signed by
P.O. on
30.03.2019
JUDGMENT/ORDER uploaded
on
30.03.2019
-- 8 of 8 --