Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Draft Notice of motion
In
L.C.Suit No. 901 of 2019
Premchand V. Madesiya ..Plaintiff
V/s
M.C.G.M & Anr.
..Defendants
Advocate S.S.Redekar for plaintiff
Advocate G.O.Giri for defendant/MCGM
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 9th April, 2019
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this draft notice of motion to
restrain the defendant Municipal Corporation from demolishing the suit
premises i.e. room no. 1, Block No3, Row H, Transit Camp, Dharavi,
Mumbai17 on the basis of notice dated 25/01/2019 U/s 351 of MMC
Act and order dated 25/03/2019 till the disposal of the suit on merit.
Facts in brief are as under:
2 Plaintiff is in use, occupation and possession of the
premises . Plaintiff has acquired the suit premises from the son of
earlier tenant Mr. Krishna Devendra by affidavit dated 28/02/2013.
Plaintiff pays the Municipal compensation charges to MCGM @ Rs.
100/ P.M.. Plaintiff has obtained ration card at the address of suit
premises. The suit premises is falling under Dharavi slum area and
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identified slum area therefore defendant/MCGM has no power to take
action under Slum Act.
3 According to plaintiff, he has not carried out any
unauthorized construction. The suit premises is old one and in
existence since long time. The suit premises consists ground plus two
floors since the plaintiff has acquired it. The adjoining structures are of
similar height. Some of the structures are ground plus three floors.
Defendant has not taken any action against those structures.
4 Plaintiff further stated that one person by name Ramesh
Jaiswal demanded money from the plaintiff, plaintiff refused to give
money to him therefore he filed false complaint to Municipal
Corporation. Accordingly, the defendant no. 2 issued notice to plaintiff
alleging unauthorized vertical extension to the existing structure by
using brick masonry wall, M.S.Channel, ladicoba slab covered with
A.C.sheef roof. Plaintiff gave reply to the notice however, defendant no.
2 did not consider the reply filed by plaintiff and passed order. Thus,
the notice and order are illegal and hence, prayed to grant interim
relief.
5 Mr. S.S.Redekar advocate for plaintiff has submitted that
plaintiff has acquired the suit premises from earlier tenant as it is.
Plaintiff has not made any construction. Plaintiff pays the compensation
to the Municipal Corporation. There are also other slum structures but
the defendant issued a notice only to the plaintiff on the basis of false
complaint of Ramesh Jaiswal. He further submitted that the defendant
no. 2 did not consider the documents on record and passed vague
order. Hence, he prayed to grant ad interim relief.
6 Mr. G.O.Giri advocate for defendant has submitted that the
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suit premises is situated in Rajiv Gandhi Nagar. Earlier defendant no. 1
allotted the said pitch to original tenant Aliwaswamy admeasuring
15'x10'. The structure is in Dharavi Transit Camp. However, plaintiff
made construction of ground plus two floors. He has invited my
attention towards the photographs and submitted that the construction
is new. Plaintiff did not produce the documents for the authorization
of structure. Thus, the corporation has rightly issued a notice and
passed speaking order. Hence, he prayed to refuse ad interim
injunction.
7 The suit premises is situated in Dharavi Transit Camp.
Admittedly pitch admeasuring 15'x10' was allotted to original tenant
Aliwaswamy. Thereafter, and lastly suit premises came in possession of
the plaintiff. From the perusal of documents it appears that plaintiff
pays compensation to MCGM. Plaintiff has ration card at the address
of premises. However, from the perusal of affidavit executed by
plaintiffs predecessor namely Sridhar Devendra, I find that only room
was transferred to the plaintiff. The notice alleges vertical extension by
B.M.Walls and Ladi coba slab. Thus, the structure is totally different
from which was allotted to the original tenant. Plaintiff has not
produced any documents to show that he has acquired the suit
premises consisting ground plus two floors. From the perusal of
speaking order, I find that the defendant no.2 has considered the reply
and documents produced by plaintiff and passed the speaking order.
Therefore, I find that defendants have followed the due process of law.
Hence, plaintiff failed to prove prima facie case and consequently
plaintiff is not entitled for ad interim relief. Therefore the following
order:
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ORDER
1 Ad interim relief is refused.
2 Draft Notice of motion be registered.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 9/04/2019
Typed on :10/04/2019
Signed by HHJ. :11/04/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
12/04/2019 S.D. Raje
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
9/04/2019
JUDGEMENT/ORDER signed by
P.O. on
11/04/2019
JUDGEMENT/ORDER uploaded
on
12/04/2019
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