Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2196-11 in Suit No. 2048-11
CNR NO.MHCC01 3561219
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2196 OF 2011
IN
L.C. SUIT NO. 2048 OF 2011
Mrs. Jerbanoo Aspandiar Irani …...Plaintiff
Versus
The Municipal Corporation of Greater Mumbai & Anr. ..... Defendant
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 27th March, 2019.
Appearance:
Adv. Ms. Amiksha Joshi for the plaintiff.
Adv. Mr. Pradeep Patil for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon notice dated
23.08.2011 under Section 354A of the MMC Act, 1888 and the order
dated 30.08.2011.
2. It is stated that the suit premises is used for business purposes
and as the building was old, the repairings were undertaken. The
defendant had issued the notice under Section 354A pointing out that
the unauthorized construction was in progress of mezzanine floor with
ladi coba slab and M.S. angles without permission of competent
authority.
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2 NM 2196-11 in Suit No. 2048-11
3. It is the case of the plaintiff that the mezzanine floor was already
in existence and no new construction was carried out.
The defendant had filed the reply to the notice of motion. It is
contended that the plaintiff is not entitled for the temporary injection as
prayed for. The authenticity of unauthorised construction is not proved
by the plaintiff. The defendant had inspected the premises on
23.08.2011. The say points out that the inspection report would be
produced in the court as and when required. It is pointed out that the
plaintiff has failed to produce valid permission to be construction of suit
structure.
4. Admittedly, statusquo is in operation since 13.09.2011.
Admittedly, the plaintiff was issued notice on 23.08.2011.
5. In paragraph no. 'B' of the order by the MCGM it is contended
that the suit inspected on 23.08.2011 and the defendant found
unauthorized construction of mezzanine floor with ladi coba slab and
M.S. angles in progress. It was for the corporation to show that the
extent of the work carried out by the plaintiff. Merely for sake of saying
that the construction was carried out would not serve the purpose in
inferring that the construction of mezzanine floor was in progress. It
goes to suggest the corporation has not disclosed the actual position of
the notice structure. it is the pleading of the plaintiff in the plaint that
the the mezzanine floor was already in existence and no construction as
alleged is carried out.
6. The defendant does not seems to have made panchanama and
does not seems to have taken the photograph of the suit premises. The
stage of the construction is not pointed out in the notice. It is difficult to
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infer the exact position of the suit structure on the day of inspection.
7. Moreover, it is the case of the plaintiff that the mezzanine floor is
and has in existence since inception. The plaintiff contended that no
structural change or any new construction was carried on. The question
therefore, arises as to whether the plaintiff had carried out fresh
construction or the structure was already in existence. This a question
to be dealt in trial . Till the determination of the said fact, the suit
structure needs to be maintained in status quo.
The plaintiff had made out primafacie case. The balance of
convenience lies in favour of the plaintiff. The plaintiff would be put to
irreparable loss, if the temporary injunction is refused. In the result,
following order is passed:
ORDER
1. The Notice of Motion No. 2196/2011 is allowed.
2. The defendant corporation is hereby restrained from acting upon
notice dated 23.08.2011 under Section 354A of the MMC Act and the
order dated 30.08.2011.
3. The Notice of Motion is disposed of accordingly.
(Sanjay N. Yadav)
Judge,
Date : 27.03.2019 City Civil Court, Mumbai.
Dictated on : 27.03.2019
Transcribed on : 28.03.2019
Signed by HHJ on : 30.03.2019
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4 NM 2196-11 in Suit No. 2048-11
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 30.03.2019 at 4.20 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
27.03.2019
JUDGMENT/ORDER signed by
P.O. on
30.03.2019
JUDGMENT/ORDER uploaded
on
30.03.2019
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