Order 1

Order Details: Notice of Motion
Pdf Text: N/M 1165 of 2018 : 1 : L.C.Suit.No 1774 of 2016
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion1165 of 2018
IN
L.C.SUIT NO.1774 of 2016
Jitendra Maruti Giri ...Plaintiff
V/s
Designated Officer,
Asst Engineer (B & F)
G/S ward, MCGM & Anr ... Defendnts
Ld. Advocate Mr.P.D.Gandhi for plaintiff
Ld Advocate Mr. Gajanan Shinde for defendant
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 6th April 2018.
(Court Room No.06)
O R D E R
1. Plaintiff has taken out this notice of motion to restrain the
defendant from taking any action of demolition on the basis of notice
dated 8/7/2016 and order dated 26/7/2016.
2 The brief facts of the case are as under:
Plaintiff is in possession of premises admeasuring 5'
10"x12' 10"x15' 6" comprising of ground plus one upper floor situated
at 189, Ramaji Madhav Wani Chawl, S.B. Pawar Marg, G.I.P. Store
Lane, Lower Parel, Mumbai 400 013 ( hereinafter same is referred as a
"suit premises"). Plaintiff's father namely Maruti Tukaram Giri was
tenant of suit premises. The suit premises has constructed in the year
1950/1960 . Since then plaintiff's father was a tenant there of and he
was paying rent. Plaintiffs father Maruti Giri died in the year 1989.
Thereafter, plaintiff became tenant of the suit premises and he pays
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rent. Initially the electric meter was in the name of Maruti Giri.
Thereafter, the said meter is transferred in the name of plaintiff.
Plaintiff pays the electricity charges.
3 There are 11 to 12 other structures of varying dimensions
near the suit premises. In the year 2004, the corporation had given
notice to those premises U/s 351 of the MMC Act. Notice was also
given to Smt. Tulsibai M. Giri and she had filed the L.C. Suit No 2662
of 2004. The said suit was decreed on 18/07/2009. The structure of the
plaintiff is legal and prior to 1950/60. However, the defendant issued a
notice to plaintiff on 8/7/2016 U/s 351 of the MMC Act. Plaintiff gave
reply to the defendant and also produced the documents but defendant
did not consider the documents and passed the order on 26/7/2016.
4 Plaintiff contended that the notice and order are illegal.
The defendant has not considered the documents filed by plaintiff.
Defendant has not followed the principle of natural justice. Plaintiff
apprehends that defendant will take action on the basis of notice and
order hence prayed to grant temporary injunction till disposal of the
suit on merits.
5 Writ of summons served to defendant. Defendant filed
affidavit in reply of Shri Yuvraj Pandhare at Exh.5. Defendant denied
that the structure is legal. Defendant denied that the order is passed
without considering the documents on record. Defendant denied that
plaintiff is entitled for temporary injunction.
6 According to defendant, initially one Reshma Maruti Giri
filed the complaint against the unauthorized construction of the
plaintiff and accordingly the officer of the defendant visited the suit
premises. During inspection it was found that the construction was
going on. Plaintiff did not produce the documents therefore the notice
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U/s 354 A of MMC Act was issued. The said structure was demolished
with the help of police after following due process of law. Thereafter,
again the complaint was received that plaintiff has carried the
construction, therefore again officer of the defendant/corporation
visited the suit premises and found that plaintiff has completed
unauthorized construction therefore show cause notice was issued to
plaintiff U/s 351 of MMC Act dated 8/7/2016. Plaintiff is not produced
the documents and thus the order is passed and thereby directed the
plaintiff to remove the said unauthorized construction. Thus the
construction of premises is unauthorized therefore prayed to dismiss
the notice of motion.
7 From rival contention of both the parties, following points
arise for my consideration to which I record my findings against them
for the reasons given below.
SR
NO.
POINTS FINDINGS
1. Whether plaintiff has made
out prima facie case?
In the affirmative
2. Whether balance of
convenience lies in favor of
plaintiff ?
In the affirmative
3. To whom irreparable loss will
be caused if injunction is
refused ?
To the plaintiff
4. What order ? As per final order
RE A S O N S
8 I have heard Shri P.D.Gandhi adv for plaintiff and Shri
Gajanan Shinde adv for defendant. I have also perused the documents
on record produced by both the parties.
9 Shri Gandhi adv for plaintiff submitted that the false
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complaint is filed in respect of the suit structure to
defendant/corporation. The officer of the defendant did not verify the
fact and issued a notice. The officer of the defendant has also not
considered the documents produced by the plaintiff and passed order.
According to him, plaintiff is the tenant of the suit premises. The
documents are either with the landlord or the corporation. He has
invited my attention towards the documents on record. According to
him, the rent receipts are in the name of plaintiff. Plaintiff has taken
electric supply. There is a triable issue between the parties. If injunction
as prayed is not granted then irreparable loss will be caused to the
plaintiff. He prayed to allow the motion.
10 Shri Gajanan Shinde advocate for defendant has submitted
that the entire structure is unauthorized . Initially notice U/s 354 A of
MMC Act was given. The structure was demolished, thereafter,
plaintiff again made construction and thus the notice was given.
Plaintiff did not produce the documents to show that the notice
structure is either prior to datum line or authorized one. He supports to
the impugned order and notice and prayed to dismiss the motion.
11 Here in the present suit plaintiff has come with a specific
case that the construction is prior to 1950/60. His father Maruti Giri
was tenant. After his demise plaintiff became tenant of suit premises.
He has not made any construction. Thus the notice and order are
illegal.
13 The defendant issued a notice to plaintiff on 8/7/2016 U/s
351 of MMC Act. In the schedule it has mentioned that unauthorized
construction of ground + 1st storied structure with help of brick
masonary wall, Ladi coba slab and G.I.Sheet Roof. In the schedule the
measurement of the construction was given and rough sketch is also
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attached. Plaintiff replied to the notice through his advocate and
reiterated the facts that the notice structure is prior to 195060.
Plaintiff has also sought documents from the defendant i.e. sanctioned
plan, assessment record etc. It appears that defendant being a
corporation did not provide any documents to the plaintiff and
thereafter on 26/7/2016, passed the order. The officer of the defendant
corporation disbelieved the documents produced by the plaintiff.
14 Plaintiff has produced rent receipts. The rent receipts do
show that plaintiff is in possession of the suit premises. From the
perusal of rent receipts it appears that, the suit premises is owned by
Goswami Shri Ghanshymlalji Chimanlalji Maharaj Vallabhiya
Pushtimargiya Religious Trust . The rent receipts do show that there is
a structure of ground + 1st floor. Thus, from the perusal of rent
receipts, it appears that structure of ground + 1st floor is in existence.
Plaintiff also pays the electricity charges of the suit premises. Initially
the electric meter was in the name of plaintiff's father Maruti and
thereafter same is transferred in his name.
15 As discussed in Supra defendant did not provide any
documents to the plaintiff. Defendant issued a notice to the plaintiff
who is a tenant of the suit premises and thereby asked documents to
show the authorization of the structure. Naturally, the documents i.e.
sanctioned plan, assessment record must be with the landlord. But
from the documentary evidence at this stage, it appears that there is
existence of ground + 1st floor and plaintiff pays the rent to the
landlord. Hence, in such a circumstances, I find that plaintiff has prima
facie case. Balance of convenience lies in favour of plaintiff and if
injunction as prayed is not granted then irreparable loss will be caused
to the plaintiff. Therefore, I answer points accordingly and pass the
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following order:
ORDER
1 Notice of Motion No 1165 of 2018 is hereby made
absolute in terms of prayer clause (a)
2 Cost in cause.
3 Notice of motion is disposed of accordingly.
Date 6/04/2018 (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 06.04.2018
Typed on : 07.04.2018
Signed by HHJ. : 09/04/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
10/4/2018 Mr. 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
6042018
JUDGEMENT/ORDER signed
by P.O. on
9/4/2018
JUDGEMENT/ORDER
uploaded on
10/4/2018
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