Interim Order 2

Order Details: Notice of Motion
Pdf Text: :1: NM 171819 IN SU 101419
CNR NO.MHCC01-004732-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1718 OF 2019
IN
L.C. SUIT NO.1014 OF 2019
1. Nurul Haque Abdul Haque Shaikh ]
2. Abdul Wahid Abdul Haque ]....Plaintiffs.
Versus
The Municipal Corporation of ]
Gr. Mumbai. ]... Defendant.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 15th June, 2019.
Mr. Sanket Mungale, Advocate for plaintiffs.
Mr. Giri, Advocate for MCGM/Defendant.
O R D E R
1. By this Notice of Motion the plaintiff has sought injunction
against the defendant from implementing Notice under Section 354A
and the order passed in pursuance thereto on the ground that the
structure is already existing. The order passed in pursuance to the
Notice under Section 354A is not legal. The plaintiffs have carried out
only tenantable repairs and it was completed even prior to the issuance
of impugned Notice dated 31.1.2019.
2. The grant of adinterim relief is opposed on the ground that the
inspection report placed on record revealed ongoing construction. The
Notice issued and the Order passed in pursuance thereto are absolutely
legal.
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3. Perused. Heard.
4. The defendant has issued a Notice under Section 354 A which is
Exh."G" to the plaint. It alleges ongoing unauthorized construction of
ground plus two structure measuring 6.70 mtr. x 54.86 mtr. having
height of 8.53 mtrs. approximately using M.S. Channels, Siporex brick
and Ladi coba slab. The first inspection report dated 30.1.2019 reveals
image of the site. It reveals a completed construction wherein some
interior work is going on. Column 15 of said inspection report reveals
that the construction allegedly ongoing was an extension to the existing
structure. Column 33 of said inspection report reveals that no
panchanama was prepared. The same inspection report further
describes the ongoing construction of ground plus two structures as
mentioned in the impugned Notice.
5. The second inspection report dated 10.4.2019 reveals another
image. A perusal of it reveals that besides the alleged ongoing
construction there are shops and the height of alleged ongoing
construction is just above it.
6. The defendant has also produced on record the photographs with
list at Exh.2 which further reveal a site hidden behind the tin sheets and
tarpaulin. Another photograph reveals that the construction is complete
and some work of interior is going on.
7. The speaking order passed earlier was passed without considering
the reply and therefore, another speaking Order dated 10.6.2019 is
passed wherein the conclusion is that the Notice structure is not existing
prior to the datum line and therefore is not tolerable. The speaking
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Order does not say that the construction was ongoing and despite
Notice the plaintiff did not stop the construction and hence the
Provisions of Section 354A of the MMC Act are attracted.
8. Whenever a notice under Section 354A is issued, it is expected
from the defendant Corporation to inspect the site, to prepare a
panchanama of alleged ongoing construction and to take the
photographs bearing the date and time so that the date of such alleged
ongoing construction cannot be disputed.
9. In this case the photographs do not bear the date and time. No
panchanama is prepared as is evident from the first inspection report.
Though in the first inspection report it is alleged that the constriction is
extension to the existing structure, apparently notice is given to the
entire structure. These factors coupled with the contents of second
speaking Order, create prima facie impression that the defendant has
not acted in conformity with the settled procedure and law.
10. Advocate for plaintiff also submitted that the structure exists in
slum area and therefore, the datum line would be of 2000. He also
submitted that the authority of defendant Corporation to act against the
alleged unauthorized structure in slum is also questionable. As against
this the advocate for defendant submitted that the Corporation being
planning authority has every right to act against such structure.
11. Considering that a Notice under Section 354A of MMC Act is
issued and prima facie the notice and Order appear not in accordance
with the procedure and law, other issues need not be gone on into at
this stage. In the result, I hold that plaintiff had made out a prima facie
case for grant of adinterim relief. Hence, the order:
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ORDER
1. Adinterim relief in terms of prayer clause (a) is granted till next
date.
2. Defendant to file reply to the Notice of Motion.
3. Plaintiff shall file the photographs of structure existing as on
today within a week before this Court and shall maintain the
status quo in respect of the suit structure.
4. This order will not preclude the defendant Corporation from
issuing any other notice to the defendant and acting as per law
thereupon.
5. Authenticated copy of roznama be provided to the parties to the
suit.
Sd/
(A.N. MARE)
Judge,
15/06/2019 City Civil Court, Mumbai.
Dictated On : 15.06.2019
Transcribed on : 17.06.2019
HHJ Signed on : 18.06.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
18.06.2019 02.50 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
15.06.2019
JUDGEMENT /ORDER signed by
P.O. on
17.06.2019
JUDGEMENT /ORDER uploaded
on
18.06.2019
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