Interim 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. 940 of 2019
Girnar Jain Charitable Trust ..Plaintiffs
V/s
Designated Officer, F/S ward,
MCGM & Anr ..Defendants
Advocate P.D.Gandhi for plaintiff
Advocate G.O.Giri for defendant/MCGM
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 8th April, 2019
(Court Room No.06)
O R D E R
1 Plaintiff trust has taken out this draft notice of motion to
restrain defendants from taking an action of demolition on the basis of
notice dated 3/11/2018 and order dated 26/03/2019 in respect of
premises being a temple situate at Girnar Tower CHS,G.D.Ambekar
Marg,Ambewadi, Kalachowkie, Mumbai 400 033 pending the hearing
and final disposal of the suit.
Facts in brief are as under:
2 Plaintiff is a Charitable Trust registered under the
provisions of the Maharashtra Public Trust Act, 1950. The purpose of
the plaintiff trust is to manage affairs of the Jain temple (Suit
property). Defendant no. 1 is the designated officer of defendant no.2
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Municipal Corporation, Gr. Mumbai. The suit premises is temple in the
stilt/garages comprising of three garages on the ground floor of
building 'A' known as Girnar Tower as above.
3 Land plot no.CS 125 and land plot no. C.S.No. 2/124 are
adjoining to each other. There was a slum on the said plot.
Accordingly,M/s Pramukh Technobuild had undertaken to develop
these plots. Rehab building was constructed for "Shradha CHSL and
the sale component building is constructed by name 'Girnar Tower'.
There is a wall between Shradha CHSL and Girnar Tower. The
construction of Girnar Tower was completed in the year 2002 and the
sale component building handed over to Girnar Tower residents who
are members of Girnar Residency Cooperative Housing Society Limited
(Proposed). In the sale component building Girnar Tower, the builder
had allotted three garages in stilt on the front side of A wing for the
purposes of temple. Thereafter, the residents installed idols therein
and said temple is in management of the plaintiff. The owners of flat
Nos. 101,102 ,103,104 in B wing are lawfully possessed used for the
said temple. The Jain followers are also used to worship in the temple.
4 There are various disputes between flat purchasers in
Girnar Towers and builders. There is also dispute between Shradha
CHS Ltd and builder. The builder want to reenter on the plot and make
construction there on. The Hon'ble High Court has granted relief in
favour of plaintiff .
5 However, the builder seems to have made false and
frivolous complaints to the defendants and defendant no.1 issued a
impugned notice to the plaintiff and alleged that unauthorized
conversion of parking space and meter room at stilt floor into temple in
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contravention to the approved plan dated 25/05/2000. Plaintiff gave
reply to the notice. However, defendant no.1 has passed order. Thus,
the notice and order are vague and false and without application of
mind and same are null and void. Defendant no.1 has not considered
the contention made by plaintiff in the reply. The premises can be
regularized. The said temple is not causing any inconvenience to any
of the public. Hence, prayed to grant ad interim relief.
6 Mr. P.D.Gandhi advocate for plaintiff has submitted that
the land was slum. The plan was sanctioned by the slum rehabilitation
authority therefore, defendant corporation has no authority to
demolish the temple. According to him, plaintiff is charitable trust. Jain
followers used to worship in the said temple. If the defendant
demolished the temple then the question of law and order will arise.
The defendant no. 1 has not considered the reply and passed vague
order. Hence, he prayed to grant ad interim relief.
7 In support of his case he relied on Ramawatar Babulal
Jajodia V/s Municipal Corporation of Greater Mumbai Appeal from
Order No 1162 of 2013 & Smt. Madhuri Madhusudan Mhaprolkar
V/s The Municipal Corporation of Gr. Mumbai Appeal from Order
(St) No 34213 of 2018.
8 Mr. G.O.Giri advocate for defendant has submitted that the
plan is sanctioned by slum rehabilitation authority. SRA has issued
occupation certificate up to 7th floor. Further the construction is
unauthorized. Plaintiffs have not shown any documents to show that
the said temple is constructed as per the sanctioned plan. According to
him, MCGM is the planning authority for Mumbai City. The
construction of the building is completed and occupation certificate is
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issued. Therefore, in such a circumstances the SRA cannot demolish the
unauthorized structure. He has invited my attention towards the
sanctioned plan. According to him, in the sanctioned plan there are
garages. The same are used by the plaintiff for the temple. Thus, the
construction of the temple is prima facie unauthorized. Hence, he
prayed to refuse ad interim relief.
9 Plaintiff has filed deed of trust dated 5/04/2006. Plaintiff
trust was formed to construct Jain Temple and for other religious
purposes. Admittedly, Girnar Tower is a sale component in
development scheme. There are three garages on the ground floor and
plaintiff trust has converted the said garages into temple. It also
appears from the photographs that the garages amalgamated and there
is construction of temple. From the perusal of sanctioned plan, I find
that in the sanctioned plan there is no mention of the temple and place
of the temple is shown as garages. The notice alleges unauthorized
conversion of parking place and meter room at stilt floor into temple in
contravention to the approved plan dated 25/05/2000. It is to be noted
that plaintiff has given reply. The defendant no.1, designated officer
has considered the documents produced by the plaintiff and passed
speaking order. Hence, I find that the notice and order are not vague
and cryptic.
10 It is true that the said land of plot went under
development by SRA. SRA sanctioned the plan however, the building is
completed in the year 2002 and the possession was handed to proposed
Girnar Society. Admittedly, plaintiff pays taxes to Municipal
Corporation therefore, now it cannot be said that said building is still
slum area. Therefore, the Municipal Corporation being a planning
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authority has power to take action in case the unauthorized
construction in such a case. In Ramawatar Babulal Jajodia V/s
Municipal Corporation of Greater Mumbai Hon'ble High Court held
in para no.5 that:
5 Admittedly, the suit premises fall within the declared
Slum area by a Government Gazette dated 24 February
1977. The provisions of Maharashtra Slum Areas
(Improvement, clearance and Redevelopment)Act 1971
therefore are applicable for all the necessary action
including demolition and/or taking possession of the
unauthorised premises from the unauthorised occupier.
The protection contemplated under the Act also cannot be
overlooked. The Power of Authorities under MMC Act even
based upon the State Policy declared whereby
unauthorised occupiers of the premises are required to be
protected to the extent of providing them an alternative
accommodation in case the Government/concerned
Authority, wants to develop the slum area. The suit
structure, if according to the Corporation is unauthorised
and so also the occupation, the explanation sought and
ordered to demolish, in view of the provisions of the Slum
Act, is required consideration.
In Smt. Madhuri Madhusudan Mhaprolkar V/s The Municipal
Corporation of Gr. Mumbai Hon'ble High Court held in para no 4
that :
It is submitted by the learned counsel for the appellant that
the notice dated 19th July 2018 issued under Section 351
of the Mumbai Municipal Corporation, 1882 is the subject
matter of challenge in the suit. The communication of the
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said date issued to the appellant indicates unauthorized
horizontal extension to the existing structure. It is
submitted in the speaking order dated 1/11/2018, there is
reference about unauthorized construction/vertical
extension of upper first floor. Similarly, a reference is also
made to the plan that has been prepared by the Municipal
Authority indicating that the Planning Authority is the
Slum Rehabilitation Authority.
11 However, the facts of the present case are different than
the facts in ruling. Hence, I must respectfully submit that the ratio laid
down in the above rulings is not applicable in case in hand. Plaintiff
failed to prove that the structure is authorized and plaintiff made
construction of the temple as per the sanctioned plan. The structure is
not in sanctioned plan. On the contrary plaintiff has converted the
parking space into temple. Hence plaintiff failed to prove prima facie
case and accordingly plaintiff is not entitled for ad interim relief.
Therefore following order is passed:
ORDER
1 Ad interim relief is refused.
2 Draft NM be registered.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 8/04/2019
Typed on :9/04/2019
Signed by HHJ. :10/04/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
10/04/2019 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
8/04/2019
JUDGEMENT/ORDER signed by
P.O. on
10/04/2019
JUDGEMENT/ORDER uploaded
on
10/04/2019
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