Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 1272-18 in L.C.SUIT no.866-18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 1272 OF 2018
(CNR no. MHCC010040512018)
IN
LONG CAUSE SUIT NO. 866 OF 2018
(CNR no. MHCC010036812018)
Mr. Ravikishor Ambalal Solanki ]
1, C.T.S. no. 619/21A, ]
Plot no. 20 of Village Borla situated at ]
Moti Baug, S. T. Road, ]
Chembur, Nr. Drum Company, ]
Opp. R. K. Studio, SionTrombay Road, ]
Chembur, Mumbai 400071. ]....Plaintiff
V/s
1. The Municipal Corporation of ]
Gr. Mumbai, having their Head office at ]
Mahapalika Bhavan, Mahapalika Marg ]
Fort, Mumbai400 001. ]
2. The Assistant Municipal Commissioner ]
"M/West" Ward, Municipal Corporation ]
Building, situated at Sharadbhai Acharya]
Marg, Near Natraj Cinema, Chembur, ]
Mumbai 400 071. ]....Defendants
Appearances:
Ld. Advocate Mr. Pratap Singh for the Plaintiff.
Ld. Advocate Mrs. Bhoir h/f Adv. Mrs. Vyavhare for defendant/BMC.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 5th July, 2019
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2 NM no. 1272-18 in L.C.SUIT no.866-18
O R A L O R D E R
1. This is an application by Notice of Motion under O.XXXIX R.1 of
The Code of Civil Procedure, 1908.
2. The plaintiff's contentions in brief are as under:
The plaintiff is in possession of a structure bearing no. 1, C.T.S.
no. 619/21A, Plot no. 20 of Village Borla situated at Moti Baug, S. T.
Road, Chembur, Near Drum Company, Opposite R. K. Studio, Sion
Trombay Road, Chembur, Mumbai 400071 (hereinafter referred to as
"suit premises" for brevity). It is made up of partly B. M. Wall and A.C.
sheet roof with M.S.T. having an area admeasuring about 700 sq. ft.
consist a work shop and residential room premises on the back side. The
plaintiff acquired the suit premises from earlier tenant Devanand
Baburao Chauhan by virtue of writing dated 23.05.1990 and began his
business in the name and style "M/s. Ravikishor Engineering Works".
The plaintiff is residing in the suit premises since 1990.
The landlord M/s. Sutarwala sold the suit premises to M/s. Shiv
Sabri Developers by virtue of Deed of Conveyance dated 31.03.2006 for
development. The area of the plaintiff shown in the Annexure A in
respect of the suit premises is 34.632 sq. mtrs. The Developer, with
intention to construct a multi storied building on the land, lodged false
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3 NM no. 1272-18 in L.C.SUIT no.866-18
and frivolous complaints to the defendant no. 2 to harass the plaintiff
and to throw him out from the suit premises denying any right of the
plaintiff. At the behest of the Developer, the defendants no. 1 and 2
have issued notice dated 10.01.2018 under Section 55 of the
Maharashtra Regional and Town Planning Act,1966 (hereinafter
referred to as "MRTP Act"). The Developer wants to deny right of
plaintiff to permanent alternate accommodation. The plaintiff replied
the notice by his letter dated 28.01.2018. The defendant MCGM,
without considering such reply, passed illegal order dated 13.03.2018
calling upon the plaintiff to remove or demolish or pull down the suit
premises. Therefore, the plaintiff has prayed for temporary injunction
restraining defendant MCGM from taking any drastic action of
demolition of suit premises pursuant to the order dated 17.03.2018 till
final disposal of the suit.
3. The defendant MCGM has filed reply contending inter alia as
under :
The defendant MCGM received several complaints from Shiv
Sabri Developers in respect of illegal and unauthorized construction of
the suit premises. Thereafter, the suit premises was inspected on
10.01.2018. The officer inspecting the same found unauthorized
construction of many structures including suit premises. The respective
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4 NM no. 1272-18 in L.C.SUIT no.866-18
occupiers failed to show any document of authenticity of their premises
such as plan or permission. The officer prepared inspection report and
placed it before his superior for approval. The Assistant Engineer
marked his approval of issuance of notice under Section 55 of MRTP Act
and therefore, the impugned notice dated 10.01.2018 came to be
issued. The reply of the plaintiff is considered, detail remarks are made
on all documents filed by the plaintiff and, thereafter, Speaking Order is
passed directing removal of the suit premises. Therefore, notice of
motion be dismissed with costs.
4. Considering rival contentions, following points arise for my
determination. Findings on those points for the reasons mentioned
thereunder are as follows:
Sr.
No. POINTS FINDINGS
1. Whether the suit premises is
authorized, tolerated, protected
structure?
In the negative.
2. Whether plaintiff has made out
ingredients required for grant of
temporary injunction in his favour?
In the negative.
3. What order ? Notice of motion is dismissed.
R E A S O N S
AS TO POINTS NOS. 1 & 2:
5. In the plaint it is averred that the plaintiff became tenant of the
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suit premises by the virtue of writing of earlier tenant Devanand
Baburao Chauhan dated 23.05.1990. The plaintiff is relying upon the
documents such as certified copy of City Survey extract, rent receipts,
application for electricity supply, election identity cards, registration
certificate of shop, driving license, ration card, receipt of M/s. Vishal
Industrial Gas Suppliers to show that he is in possession of the suit
premises since prior to the datum line. However, none of these
documents are sufficient to establish that the suit premises is an
authorized structure. None of these documents shows existence of the
suit premises prior to datum line 01.04.1962. None of these documents
are sufficient to prove that the area of the land is declared as slum.
From these documents no conclusion can be drawn that the suit
premises is either authorized or tolerated or protected structure. Mere
long standing occupation does not ipso facto regularize the otherwise
unauthorized structure. Therefore, points no. 1 and 2 have to be
answered in the negative and following order:
ORDER
1. Notice of Motion No. 1272 of 2018 is dismissed.
2. Costs in cause.
sd/
(C. V. Marathe)
Judge,
Date : 05.07.2019 City Civil Court, Gr. Mumbai.
Dictated on : 05.07.2019
Transcribed on : 05.07.2019
Signed by HHJ on : 08.07.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 10.07.2019 at 4.10 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
05/07/2019
JUDGMENT/ORDER signed by
P.O. on
08/07/2019
JUDGMENT/ORDER uploaded
on
10/07/2019
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