Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1338/2020 in Stamp No. 4294/2020. 1 Order.
MHCC010041042020
Presented on : 16-09-2020
Registered on : 16-09-2020
Decided on : 13-10-2020
Duration : 0 years, 0 months, 27 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1338 OF 2020
IN
STAMP NO. 4294 OF 2020
Mewalal Verma ...Plaintiff
Versus
Municipal Corporation For Greater Mumbai ...Defendant
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 13th OCTOBER, 2020.
Mr. V.T.Dubey, Advocate for Plaintiff.
Mrs. Tondwalkar, Advocate for Defendant / MCGM.
ORDER
This is a motion to challenge legality of notice dated
03/08/2020 issued by MCGM. It is alleged that plaintiff has erected
roof top without any permission. The authenticity of structure is not
challenged. As per schedule of impugned notice, the description of
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N/m No. 1338/2020 in Stamp No. 4294/2020. 2 Order.
unauthorized structure runs as follows :
“Unauthorized erection of roof top shed admg.
(30.0 x 70.0 x 2.0ht)mtr., approx., using M.S.
Channels/Angles, G.I. Sheet roof situated at Bindal
Industrial Premises CHS. LTD., MTNL Road,
Sakinaka, Mumbai-400 072.”
2. Ld. Adv. V.T.Dubey for plaintiff submits that in absence of
photograph and panchanama, there is a doubt to believe visit over the
spot by concern officer. In response to initial notice of MCGM,
structural audit came to be completed by the plaintiff through
ConcreTech Consultancy Services on 14/12/2018 who has categorized
the impugned structure as reparable. It is added that the impugned
notice under Section 55 of MRTP Act is not tenable. Plaintiff is
possessing the suit structure alongwith roof top since 30 years and no
addition or alteration to the existing structure carried out by the
plaintiff. In the year 1974 plaintiff society had put permanent shed to
the suit building to avoid leakage. It is added that the local leader was
willing to repair it through his contractor, therefore with vengeance
impugned notice came to be issued at the behest of political pressure. It
is requested for temporary injunction.
3. Perused reply submitted vide Exh.2 and documents in
support with affidavit vide Exh.3. Ld. Adv. Tondwalkar for MCGM
submits that upper floor on impugned building in itself is illegal,
therefore roof and repairs will also be illegal. There is no single
document with plaintiff in respect of construction of tin shed. It is
added that even in assessment list there is no assessment of tin shed. It
is not shown in Conveyance Deed dated 02/01/2012. Therefore, notice
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N/m No. 1338/2020 in Stamp No. 4294/2020. 3 Order.
is rightly issued. It is requested to reject the motion.
REASONS FOR ORDER
4. It is material to note, initial notice came to be issued by the
MCGM under Section 353-B of MMC Act dated 30/11/2017. In
response to said notice plaintiff has carried out structural audit on
14/12/2018. In view of conclusion of the said report at page no.62
with plaint, the building came to be marked as ‘C-2B’ which means not
to be evacuated, however structural repairs are necessary.
5. It is not in dispute that there are two buildings situated at
C.T.S.No. 780 and 781, Survey No. 7/1 measuring 6920.90 sq.mtrs.
situated at Village Mohili, Sakinaka, Mumbai-72. The premises is
known as ‘Bindal Industrial Premises Co-operative Society Limited’.
After development of the premises, it was transferred by Conveyance
Deed dated 02/01/2012. It consists of two buildings having 75 units in
total. One building is ground plus one and another is ground plus two.
There is no record in respect of unauthorized construction by any
member or unit holder amongst total 75 units. Perused notice issued
under Section 55 of MRTP Act dated 03/08/2020 and reply of plaintiff
dated 24/08/2020.
6. During arguments both side were directed to produce
photographs of the premises. There is a bridge from first floor for
approaching to first floor of another building. There is a contention of
plaintiff that during 1974 permanent shed came to be erected over the
suit property to avoid any type of leakage in the building. On perusal of
various unscaled maps after present visit submitted by the plaintiff
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N/m No. 1338/2020 in Stamp No. 4294/2020. 4 Order.
carried out by ConcreTech Consultancy Services dated 16/09/2020,
sanction map submitted by the plaintiff through Deole Brothers to the
MCGM on 05/03/1982 etc., it is clear that impugned building came to
be completed prior to 1980. The premises is closely adjacent to the
main road. There is no allegation that construction came to be
completed recently. On perusal of various photographs, it establishes
that roof top tin shed appears to be erected before 30 years. Therefore,
there is prima facie substance in the submission of plaintiff.
7. In paragraph 8(g) of the reply submitted by the officer of
the MCGM, it is mentioned that the impugned structure is temporary
one. There is no unscaled diagram drawn by the inspecting officer nor
any panchanama was carried out. Therefore, there is a prima facie case
in favour of plaintiff.
8. On perusal of various architect plan and map submitted by
the plaintiff, it cannot be commented that entire structure is
unauthorized. Plaintiff could not satisfy express permission in respect
of roof top. However, there is no diagram drawn by the inspecting
officer in respect of impugned shed whether on one building or both
building. As 75 units are enjoying by different unit holders, it is not
clarified how the notice was issued to the plaintiff and why not to the
society. On perusal of Deed of Conveyance on page no.19 and page
no.31 of the plaint, it is mentioned that plan is marked in red boundary
and pink colour as mentioned in letter dated 03/05/1982 whereby
sanction was given to the Surveyor Mr. R.K.Deole by the officer of
MCGM (B & F Dept.). Therefore, it is to note that alleged roof top was
in existence prior to 30 years.
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N/m No. 1338/2020 in Stamp No. 4294/2020. 5 Order.
9. During pendency of the suit, MCGM has proceeded for
speaking order on 08/09/2020. Plaintiff has moved chamber summons
which came to be allowed. Plaintiff has carried out the amendment
accordingly. Considering aforesaid discussion, there is prima facie case
in favour of plaintiff. There is a good case raised by the plaintiff for
consideration which require evidence of both side and hearing on merit.
Therefore, the balance of convenience lies in favour of plaintiff. It
would cause no irreparable loss to the defendant, if injunction as sought
is granted. Hence the order :
- ORDER -
1. Notice of Motion No. 1338/2020 is allowed.
2. Defendants through its officer or its agents are temporarily
restrained from taking any action in view of notice dated
03/08/2020.
3. Defendants to submit written statement at the earliest to
expedite hearing.
4. N/m No. 1338/2020 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 13/10/2020. Mumbai.
1. Dictated on : 13/10/2020.
2. Transcribed on : 17/10/2020.
3. Signed on : 19/10/2020.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 1338/2020 in Stamp No. 4294/2020. 6 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
19/10/2020. 12.02 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 13/10/2020.
Judgment/Order signed by P.O. on 19/10/2020.
Judgment/Order uploaded on 19/10/2020.
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