Interim Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Draft Notice of Motion
In
Suit No 829 of 2018
Amrish Dinesh Savla, ...Plaintiff
V/s
Municipal Corporation of Greater Mumbai ...Defendants
Advocate R.D.Thorat for plaintiff
Advocate Mrs. Chavan for BMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 19thJuly 2018.
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this draft notice of motion to
restrain defendant Municipal Corporation, Gr. Mumbai from
demolishing the notice structure on the basis of notice dated
10/3/2018 and order dated 21/3/2018.
3 According to plaintiff, he is the tenant and in possession
of godown No. 2 admeasuring 44'x61'9 with height of 31 feet up to
ridge level and 26 feet at eves level consisting of ground with height of
11'x9" and loft with height of 4'x11" made of BM walls with AC Sheets
roof at land bearing C.S.No. 166 of Parel Sewree Division situate at
Tokershi Jivraj Road, Sewree (West), Mumbai 400 015 (hereinafter
same is referred as the suit premises)
4 M/s Maniklal Mansukhbhai Pvt Ltd, are the owners and
landlord of the suit premises. Plaintiff runs his business under the name
M/s National Transport in the suit premises. Plaintiff has paid rent to
the landlord. In the year 1992, plaintiff intended to construct a loft in
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the godown No. 2 as it has height of 31 feet up to ridge level and 26
feet up to eves level . Plaintiff made an application dated 25/4/1992 to
the defendant. Accordingly, Assistant Engineer Building and Factory
Department, F/South Ward of the defendants approved and sanctioned
the building plan dated 29/4/1992 and permitted the plaintiff to
construct a loft at the height of 11'9"from the ground level and that the
height of loft was allowed at 4'x11". Under said permission the space
between the upper portion of the loft beyond height of 4'X 11" up to
the roof was to be kept fully closed by making it nonusable by not
having any entry there at.
5 Plaintiff further stated that the loft area is 1387 sq ft as
approved under plan dated 29/4/1992. As pr sanctioned plan plaintiff
has constructed a Ladi coba slab at the height of 11'9" and that height
of loft is maintained as 4'11 inch. The remaining portion of above
height of 4'11" of loft is mae there by putting up full false ceiling.
Thus plaintiff has followed the plan dted 29/4/1992.. The sanction
plan permits the construction of cabin at the portion of ground floor
level and that accordingly the said cabin was constructed in the year
1992.
6 Thereafter, the falls ceiling above the level of 4'11" of
height of loft was damaged. Plaintiff renewed the said falls ceiling for
the purpose of putting up a new fall ceiling at the said level. The
plaintiff had made repair in the 1st week of March 2018. The said
repairs are tenantable repairs.
7 However, the designated officer issued a notice to the
plaintiff dated 10/3/2018 and thereafter passed the order without
considering the reply of the plaintiff. However, thereafter as per
directions of this court the designated officer passed the order.
However, the designated officer did not consider the documents on
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record. The order is null and void and therefore prayed to grant ad
interim relief.
8 Notice is served to defendant. Defendants filed short
affidavit of Amol Koli, Jr. Engineer, B & F South ward. Defendant also
produced the documents.
9 Shri R.D.Thorat Adv for plaintiff has submitted that
plaintiff has not made any addition or alteration. Plaintiff has only
changed the false ceiling which was damaged. The construction is not
against the approved plan dated 29/4/1992. The repairs are tenantable
However, defendant did not consider the said facts and documents on
record and passed mechanical order. He further submitted that if an ad
interim injunction as prayed is not granted then irreparable loss will be
caused to the plaintiff . Hence, he prayed to grant ad interim relief.
10 Smt. Chavan advocate for defendant has submitted that
the officer has given inspection and found that plaintiff made an
unauthorized construction. The action taken by designated officer is
legal. Hence, she prayed to refuse ad interim relief.
11 I have considered the rival submissions of both the parties.
Plaintiff is the tenant of M/s Maniklal Mansukhbhai Pvt Ltd. Plaintiff
pays the rent. From the documents produced by plaintiff it appears that
the defendant has approved the plan by letter dated 29/4/1992. In the
said approved plan there is proposed loft of fall ceiling. Accordingly
plaintiff constructed the loft with falls ceiling. It appears that in the
month of March 2018 plaintiff made repair of the said falls ceiling. The
notice describes that plaintiff made construction of mezzanine floor.
The speaking order speaks that the documents produced by plaintiff
does not prove the authenticity of the notice structure. However, from
the documents produced by the plaintiff it appears that the said loft
alongwith falls ceiling is constructed as per the approved plan. In
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Radha Vithal Shetty,through PoA Vishwanath V Shetty V/s
Municipal Corporation of Greater Mumbai & Ors, Appeal from
order St No 18832 of 2017 Hon'ble High Court held that it is correct
that this notice only refers to the internal partitions. These partitions do
not add to the built up area and have no impact whatever on the FSI
consumption.
12 Here in the present case, it is not allegation that plaintiff
has made horizontal extension. Therefore, considering the facts and
circumstances of the case, I find that plaintiff is entitled for ad interim
relief. Hence the following order:
ORDER
1 Ad interim relief is granted in terms of prayer clause (a)
of the notice of motion.
2 Draft Notice of motion be registered.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 19/07/2018
Typed on : 21/07/2018
Signed by HHJ. :21/07/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
24/7/2018 Mrs. 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
19/07/2018
JUDGEMENT/ORDER signed by
P.O. on
21/7/2018
JUDGEMENT/ORDER uploaded
on
24/7/2018
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