Date: 12-04-2022
Business: NOB-TOB) (By praceipe)
(Matter pertains to C.R.No.11)
Adv. V.T.Dubey for plaintiff present.
Adv. Mr. Khandagale for defendant/MCGM is present.
Alreday adj. To 13/04/2022 at 2.45 pm for ad-interim hearing.
Next Purpose: DIRECTIONS
Next Hearing Date: 13-04-2022
Date: 13-04-2022
Business: Matter pertains to C.R.No.11)
Adv. V.T. Dubey for plaintiff present and tendered draft Notice ;of Motion along-with affidavit in support thereof. TOR. Leave is granted to register the Notice of Motion, returnable on next date.
Adv. Mr. Khandagale for defendant/MCGM is present and tendered affidavit of documents. TOR and marked as Exh.2. Copy is supplied to other side.
Mr. Shilpesh Waghmode, J.E. B and F department, L/Ward, MCGM present.
Partly heard the argument of advocate for plaintiff and advocate for defendant on ad-interim reliefs. Due to paucity of time, matter is adjourned to 18/04/20222, till then both parties are directed to maintain status-quo as on todays factual position of suit structure. Authenticated copy of the Roznama be given to both the parties.
Adj. To 18/04/2022 for ad-interim hearing.
Next Purpose: DIRECTIONS
Next Hearing Date: 18-04-2022
Date: 18-04-2022
Business: CORAM : H.H.J. SHRI S.D. KULKARNI, (C.R.NO.04)
(Matter pertains to CR NO.11)
Adv V.T. Dubey for plaintiff present and tendered original registered Notice of Motion No.1443/22 along-with affidavit in support thereof. TOR .
Adv Mhatre h/f Adv Khandagale for defendant / MCGM present.
Heard argument on further ad-interim relief by both the advocates.
ORDER ON AD-INTERIM ON NOTICE OF MOTION 1443 OF 2022
Perused Notice of Motion, affidavit in support thereof, Perused documents filed by both the parties. Heard both the advocates at length.
The plaintiff by way of this Notice of Motion prayed for restraining the defendant from demolishing the suit property or taking any action in pursuance of alleged notice and speaking order. The advocate for the plaintiff submitted that the father of the plaintiff was a tenant, after demise of his father the plaintiff is residing in the suit property. In support of the above contention plaintiff has filed on record some rent receipt. The main contention of the plaintiff that the notice issued u/sec.354-A of MMC Act, dated 17.01.2022 not served to the plaintiff and speaking order was passed on 05.02.2022 without any reply of the plaintiff. The plaintiff has not given any chance to prove his structure is authorized. The advocate for the plaintiff in the above respect relied on the ratio laid down in the case of Mr. Abdul Hasan Shaikh Mansuri V/s. Municipal Corporation of Mumbai and Ors. In First Application No.2426 of 2005 with Civil Application No.5957 of 2005 and submitted that the plaintiff by filing rent receipt and photographs brought on record that the suit property is in existence at the date of the institution of the suit. Therefore defendant / MCGM should follow the due process of law and abruptly not entitled to demolish the suit property without considering the reply and chance to prove the authorization of the notice structure.
The advocate for the defendant / MCGM submitted that plaintiff has not filed on record any document to show the authorization of the notice structure. The advocate for the defendant taken my attention towards the photographs i.e. image mentioned in para 11 of the inspection report. So, on 17.01.2022 the suit property consist of only ground plus first floor. Accordingly notice was also issued by alleging that plaintiff has unauthorizedly constructed first floor i.e. it is a vertical extension to a suit property mentioned in the schedule.
The advocate for the defendant / MCGM relied on the ratio laid down in the case of Tushar Guru Salien Vs State of Maharashtra, Public Interest Litigation No.67 of 2017 and submitted that plaintiff must make an averment that the structure targeted is prima facie governed by the sanction. The plaintiff could not gain anything in showing deficiency in the notice . Therefore, plaintiff has not filed on record any documents to show authorization of the notice structure hence, not entitled for ad-interim relief prayed for.
On going through the entire documents on record it reveals that the allegation of defendant / MCGM that plaintiff has constructed first floor structure without sanction of competent authority. There is no dispute about the ground floor structure. The plaintiff has filed on record the photographs and the contention of the plaintiff that since beginning the suit property is, as, it is and he has carried out only permissible repairs.
It is a matter of record that plaintiff is residing in the suit property as a tenant therefore, before passing speaking order it is necessary to consider the reply and documents of the plaintiff. In a case of Mr. Abdul Hasan (supra) the Hon\''ble High Court held that if the plaintiff proved the existence of the notice structure on the date of institution of the suit, the authority can not be permitted to take unilateral action, even if the structure is unauthorized except by following due process of law.
Therefore in my opinion plaintiff is entitled for the chance to prove his authorization of the notice structure. Therefore, entitled for ad-interim relief. Considering this, I pass the following order:
ORDER
1. Ad-interim relief in terms of prayer clause (a) of Notice of Motion No.1443 of 2022 is granted as per following terms.
a. The plaintiff is directed to submit the reply to the notice dated 17.01.2022 within a week from the date of this order alongwith documents in support thereof.
b. The Designated Officer of L-Ward is directed to consider the reply and the documents submitted by the plaintiff and then within one week pass the fresh speaking order.
c. If the fresh speaking order is against the plaintiff two weeks protection is given to the plaintiff till then defendant / MCGM will not taken any action or demolition against the suit structure.
2. In view of above direction Notice of Motion No.1443 of 2022 and Suit No.939 of 2022 are disposed off accordingly.
Authenticated copy be given to both the parties.
Nature Of Disposal: OTHERWISE
Disposal Date: 18-04-2022
