Final Order 1

Order Details: Notice of Motion
Pdf Text: (CNR No.: MHCC010037862018) 1 Notice of Motion No. 1182/2018
in L.C. Suit No. 2601/2019.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1182 OF 2018.
IN
L.C. SUIT NO. 2601 OF 2019.
Pranay Pundlik Khadapkar ………………………… …. PLAINTIFF.
V/s.
MCGM....……………………………………………... …. DEFENDANT.
CORAM : SHRI. S.H. SALUNKHE
(Court Room No.11).
DATED : 24th March, 2025.
APPEARANCES :
Mr. B.P. Shukla, the Ld. Advocate for Plaintiff.
Mr. Suryakant Botlawar, the Ld. Advocate for Defendant/MCGM.
*****
01. The plaintiff has challenged notice u/s. 55 of the MRTP Act
dtd. 12.03.2018, in respect of structure admeasuring 12.20 x 4.60 mtr.
made up of BM Wall and AC sheet roof and the plaintiff has taken out
present NM for temporary injunction,restraining defendant/BMC from
implementing the notice.
02. The defendant/BMC refuted the NM by filing reply-cum-WS
at Exhibit 6.Ld. Advocate for the parties filed written submissions on
merit.
03. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has made out
prima-
facie case for granting temporary
injunction? …..........…......………………... …In the negative.
(ii). Whether balance of convenience lies in
favour of the plaintiff? ….…..…............…. …In the negative.
(iii). Whether the plaintiff would suffer an
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(CNR No.: MHCC010037862018) 2 Notice of Motion No. 1182/2018
in L.C. Suit No. 2601/2019.
irreparable loss, if the interim relief, as
prayed for, is not granted?.….................. …In the negative.
(iv). What Order? …..........….…....................... …As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
04. Ld. Advocate for the plaintiff submitted that the plaintiff is
in use, occupation of the suit structure since prior to 1995. He further
submitted that the plaintiff has acquired the suit structure from earlier
occupier Mr. Pandurang Yashwant Bhosale. Ld. Advocate for the plaintiff
further submitted that the Revenue Dept.of State of Maharashtra issued
notice dtd. 08.09.1994 to the earlier occupier alleging that he has made
unauthorized construction without permission. In his submission, the
said notice clearly shows the existence of structure prior to 01.01.1995.
Ld. Advocate for the plaintiff further submitted that the structure has
been censused under the Slum Act and the suit structure is situated in
slum area. The plaintiff has replied show cause notice along-with the
relevant documents but the designated Officer did not consider the
documents in prospective and passed the Order.
05. On the other hand, the advocate for BMC submitted that
the plaintiff has challenged the notice u/s. 55 of the MRTP Act. As per
Sec. 149 of the MRTP Act, the Order passed by the planning authority is
final and the same cannot be challenged in the Civil suit, therefore, suit
is not maintainable. The Ld. advocate further submitted that Officer of
the BMC noticed unauthorized temporary development of four
temporary shanties structure with G.I. partition wall and AC sheet roof.
The occupier failed to prove legality of the structure. Accordingly, the
impugned notice came to be issued directing the plaintiff to remove the
unauthorized construction.
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(CNR No.: MHCC010037862018) 3 Notice of Motion No. 1182/2018
in L.C. Suit No. 2601/2019.
06. I have given thoughtful consideration to the submissions
made by the Ld. Advocates for the parties. The plaintiff has challenged
notice u/s.55 of the MRTP Act, mainly on the ground that the structural
is in existence since 1995 and same is temporary structure. However, as
per section 55 (2) of the MRTP Act the decision of the planning
authority on the question of what is development of temporary nature is
final and the said decision cannot be challenged in any Civil Court.
Thus, the decision of planning authority as to the nature of structure is
final and cannot be challenged in the Civil Court.
07. The Ld. Advocate for the plaintiff submitted that the notice
structure is situated at slum area and cut of date of the said structure is
January, 2000. However, the designated Officer observed that the cut of
date is 01.04.1962. The defendant/BMC contended that the suit is to
challenge notice u/s. 55 is not maintainable in view of provisions of sec.
149 of the MRTP Act. The Hon’ble Bombay High Court in the matter of
Kishore Ramalu Telang Vs. Nagpur Municipal Corporation held that the
Civil Court has jurisdiction to entertain the suit challenging the notice
under MRTP Act,if the validity of the notice is challenged on the ground
that notice is nullity or issued without jurisdiction. In the case in hand,
there is no pleading that the notice is nullity or there is jurisdictional
error. Thus,
prima-facie it appears that the suit is not maintainable.
Moreover, the plaintiff has not produced permission of planning
authority for construction of notice structure. In the circumstances, I am
of the opinion that the plaintiff has not made out present
prima-facie
case. The balance of convenience doesn’t tilts in his favour. Accordingly,
I answer point Nos.1 to 3 in the negative and in answer to point No. 4, I
pass the following Order :
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(CNR No.: MHCC010037862018) 4 Notice of Motion No. 1182/2018
in L.C. Suit No. 2601/2019.
-: ORDER :-
(i). Notice of Motion No. 1182/2018 is dismissed.
(ii). Notice of Motion No. 1182/2018 is, accordingly,
disposed of.
(S.H. Salunkhe)
Mumbai. Ad-hoc Judge,
Dated : 24.03.2025. City Civil Court, Mumbai.
Directly typed on computer on : 24.03.2025.
Draft given to HHJ on : 25.03.2025.
Checked and Signed on : 26.03.2025.
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(CNR No.: MHCC010037862018) 5 Notice of Motion No. 1182/2018
in L.C. Suit No. 2601/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
26.03.2025 at 4.25 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri Salunkhe
(Court Room No.11).
Date of Pronouncement of Judgment/Order 24.03.2025.
Judgment/Order signed by P.O. on 26.03.2025.
Judgment/Order uploaded on 26.03.2025.
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