Interim Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM...2018. : 1 : Suit.No.733/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION No.....2018.
IN
SUIT NO. 733 OF 2018.
Shri. Salim Chand Miyan... } .. Plaintiff.
Versus.
Municipal Corporation of Gr. Mumbai ... } .. Defendants.
Ld. Advocate Mr. B.P.Shukla for Plaintiff.
Ld. Advocate Mr.Khandagale for Defendant /BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 14 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 any action on
the basis of order dated 07/03/2018.
2. According to plaintiff, he is owner and in occupation of structure
consisting Ground plus two upper floors, admeasuring 30' x 60' made
of B.M.Wall, Ladi Koba and A.C. Sheet roof, situate at Habiba Chand
Miyan Chawl, Qurshi Nagar, Behind Municipal School, Kurla (East),
Mumbai400 070 (hereinafter referred to as the "suit premises").
3. Plaintiff's mother namely Habiba bi has constructed the chawl
(suit premises) prior to 1960. The suit premises is duly assessed by the
defendant/Corporation and plaintiff pays the taxes of the premises. The
suit property was owned by Wadia Trust and plaintiff's mother had
acquired lease hold right in the suit property. Plaintiff's mother had a
necessary documents. Plaintiff along with family resides in the suit
premises. Plaintiff has taken electricity connection. Adhar Card,
-- 1 of 4 --
Draft NM...2018. : 2 : Suit.No.733/2018
Ration Card of the plaintiff are on the address of the suit premises.
4. Plaintiff further avers that the officers of the
defendant/Corporation had issued a notice dated 02/03/2013 alleging
that plaintiff has constructed unauthorizedly second floor of the suit
premises by RCC Column, Beam and angles. At the relevant time,
plaintiff due to the old age, could not gave reply. Plaintiff gave reply to
the notice through his advocate on 29/01/2014. However, defendant
threatened to demolish the suit premises.
5. Plaintiff had filed Writ Petition (O.S.)No.2515 of 2014 in Hon'ble
High Court, Bombay. The Hon'ble High Court had granted interim
relief of statusquo. On 09/06/2014 the said Writ Petition is
dismissed by the Hon'ble High Court holding that no speaking order
has been passed by the defendant.
6. According to plaintiff, on 07/03/2018 defendant/Corporation
issued order of demolition of the second floor. Hence, plaintiff prayed
to grant adinterimrelief.
7. I have heard both the sides.
8. I have perused the document filed by plaintiff. Plaintiff has filed
property card extract and the receipt of the Municipal Corporation of
Gr. Bombay. It appears that the house which was in the name of
plaintiff's mother was assessed in the year 1962. However, it has
mentioned that house is C.I. tiled and A.C. Chawl. There is no mention
of existence of first and second floor. The order dated 07/03/2018 is in
-- 2 of 4 --
Draft NM...2018. : 3 : Suit.No.733/2018
respect of the specific second floor admeasuring 60' x 30' constructed
by RCC Columns. Beams, angle, Ladi coba etc. Plaintiff could not
produce any documentary evidence to show that the said structure i.e.
second floor is in existence prior to datum line.
9. Hon'ble High Court in Writ Petition No. 2515 of 2014 filed by
plaintiff held that the contention made by the plaintiff that the subject
structure matter of impugned notice is protected structure being in
existence prior to datum line is false.
10. Hence, considering the documents filed by plaintiff on record, I
come to the conclusion that the structure is not prior to the datum line.
Therefore, it is not tolerable. Accordingly, plaintiff has no prima facie
case. Balance of convenience does not lie in favour of plaintiff and he
is not entitled for adinterimrelief. Therefore, following order :
O r d e r
1. Relief of adinteriminjunction is refused.
2. Draft Notice of Motion be registered.
Date : 16.03.2018 (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 16.03.2018
Typed on : 16.03.2018
Signed by HHJ. : 16.03.2018
-- 3 of 4 --
Draft NM...2018. : 4 : Suit.No.733/2018
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
16.03.2018 /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
16.03.2018
JUDGEMENT/ORDER signed
by P.O. on
16.03.2018
JUDGEMENT/ORDER
uploaded on
16.03.2018 .
-- 4 of 4 --