Final Order 1

Order Details: Notice of Motion
Pdf Text: Draft N/m in Stamp No. 4432/2020. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. OF 2020
IN
STAMP NO. 4432 OF 2020
Qamruddin Mohd. Yasin Ansari ...Plaintiff
Versus
The Assistant Municipal Commissioner and Others ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 6th OCTOBER, 2020.
Mr. Wasim R. Khan, Advocate for Plaintiff.
Mrs. Mhatre, Advocate for Defendant No.1 / MCGM.
Mr. V.T.Dubey, Advocate for Defendant Nos.2 and 4.
ORDER
This is a motion taken out by plaintiff to restrain
defendants no.2 to 4 from construction of upper floors on a property
85/5, New National Building, Brahman Wadi, Pipe Road, Kurla (West),
Mumbai – 70.
2. The property situated in ‘L’ Ward, admeasuring 4800 sq.ft.
approximately, bearing C.T.S.No. 998/1. It is equally divided in three
shares measuring 1600 sq.ft. Defendant no.2 runs a bakery namely
‘Nasheman Bakery’ in one square of 1600 sq.ft., erection of first floor
and additional upper floors is the question in dispute. There are other
two bakeries in remaining two parts namely ‘Lucky Bakery’ and
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Draft N/m in Stamp No. 4432/2020. 2 Order.
‘National Bakery’. Plaintiff has noticed construction in remarkable
speed above the Nasheman Bakery. Defendants no.2 and 3 being owner
and possessor of the premises doesn’t have any permission of said
construction. Initially upon the complaint of plaintiff, first floor erected
by the defendants was demolished. Thereafter defendants no.2 and 3
have started the construction of upper two floors. Defendant no.4 is
contractor-cum-architecture of said building. It is submitted that
defendants be restrained from further construction. Plaintiff has issued
a complaint to defendant no.1 MCGM on 02/09/2020. However, no
action has been initiated in view of said complaint. It is claimed for
prohibitory and mandatory injunction.
3. Perused reply submitted by defendant no.2 vide Exh.4.
Perused documents submitted by defendant no.1 MCGM vide Exh.3 and
supportive affidavit vide Exh.5.
4. Ld. Adv. Wasim Khan for plaintiff submits that in view of
one complaint submitted by the plaintiff some construction of
defendant no.2 and 3 came to be demolished by the MCGM. There is
no permission of further erection sought by defendant no.2 to 4 from
the MCGM. The photographs submitted by both side speaks for itself
that even during pendency of present suit, defendant no.2 and 3 with
the help of defendant no.4 has constructed upto third floor. It is prayed
for prohibitory and mandatory injunction.
5. Ld. Adv. V.T.Dubey for defendant no.2 and 4 submits that
there is no pleading against MCGM. There is no notice issued under
Section 527 of MMC Act. Therefore, the suit is not tenable before this
Court. It is added that plaintiff is not immediate neighbour of
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Draft N/m in Stamp No. 4432/2020. 3 Order.
defendant no.2. There is one bakery in between plaintiff and defendant
no.4. It is admitted that there are equal three shares of C.T.S.No. 998.
In view of Conveyance Deed dated 13/04/1998, the name of defendant
no.2 and 3 entered into Index-II. There is no relief claimed against
defendant no.1 MCGM. The appropriate authority MCGM has not
initiated any action, therefore no relief can be claimed by the plaintiff.
It is added that during the inspection of MCGM, some encroachment of
plaintiff came to be noticed which was based on complaint of defendant
no.2. Therefore due to vengeance and enimical terms, present suit
came to be filed by the plaintiff. It is claimed to reject the motion.
6. Ld. Adv. Mhatre for defendant no.1 submits that one notice
under Section 354 of MMC Act was issued on 05/09/2020. Defendant
no.2 and 3 were failed to reply, therefore the detail speaking order was
issued on 08/09/2020. On 10/09/2020 partial demolition was
completed by the MCGM. Hence it is submitted that appropriate order
may be passed.
REASONS FOR ORDER
7. On perusal of ample photographs submitted by both side, it
is crystal clear that two upper floors are almost completed and
defendants no.2 and 3 have started structural foundation by installation
of iron pillar for third floor. Considering these photographs submitted
by plaintiff, this Court has asked the defendant no.2 to submit the
photograph of the present position. Accordingly, defendant no.2 has
submitted a photograph dated 27/09/2020, it has supported the case
submitted by plaintiff wherein upper three floors appears to be erected
by the defendant no.2 and 3.
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Draft N/m in Stamp No. 4432/2020. 4 Order.
8. On perusal of various photographs submitted by
MCGM/defendant no.1 vide Exh.3, it shows that some part of upper
floors came to be demolished being illegal construction.
9. In view of first inspection report dated 05/09/2020 and
notice under Section 354A of MMC Act dated 05/09/2020, the schedule
of illegal construction is narrated as follows :
“Schedule (Description of work)
Unauthorised vertical extension on existing ground
floor structure admg. (10.0 x 9.0 x 3.0 ht) mtr.
approx., using M.S. Channels/Angles, B.M. Work.”
10. The photograph submitted by MCGM clearly indicate that
initially unauthorized construction came to be demolished on
10/09/2020. Upon query raised by this Court in respect of demolition
dated 10/09/2020, ld. Adv. V.T.Dubey for defendant no.2 and 3 skillfully
replied that he will have to take instructions from client.
11. As discussed above, different photographs submitted by
both side clearly indicate that there are additional floors above the
ground floor came to be erected by defendants no.2 to 4. Therefore I
have raised following queries to ld. Adv. V.T.Dubey for defendants no.2
to 4 i.e.
a) What is the exact status of suit premises before 20 years ?
b) Is there any permission of repairing sought by defendants
no.2 to 4 from the MCGM ?
c) Whether present construction as shown in the photographs
can be captioned as ‘repairing’ ?
d) Is there any permission obtained from MCGM in respect of
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Draft N/m in Stamp No. 4432/2020. 5 Order.
additional floors ?
12. Ld. Adv. V.T.Dubey for defendants no.2 to 4 skillfully
avoided to these questions that he will have to take instructions from
client. The argument in present case was heard on 24/09/2020 and
thereafter on 28/09/2020. There is no appropriate reply given on
behalf of defendants no.2 to 4. It appears that defendants no.2 to 4
have never sought any type of permission. The initial demolition
processed by MCGM is not denied by defendants no.2 to 4. Even
thereafter the construction of additional floors is alarming situation i.e.
even though additional floors came to be erected by the defendants
no.2 to 4.
13. As discussed above, despite partial demolition dated
10/09/2020, defendants no.2 to 4 have erected upper three floors. It is
clear-cut violation of law. It appears that defendants no.2 to 4 does not
bother to the mechanism of procedure established by law and set up
prescribed in MMC Act to obtain permission etc. Therefore, there is a
strong prima facie case in favour of plaintiff.
14. As observed above, it is necessary to issue prohibitory order
against defendants no.2 to 4 from occupying or alienate additional
floors unless Ward Officer of MCGM visits and obtain action in view of a
complaint submitted by plaintiff dated 02/09/2020. Hence the order :
- ORDER -
1. Draft Notice of Motion in Stamp No. 4432/2020 is made
absolute.
2. Defendants no.2 to 4 are temporarily restrained from
additional construction of upper floors over the suit
property i.e. 85/5, New National Building, Brahman Wadi,
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Draft N/m in Stamp No. 4432/2020. 6 Order.
Pipe Road, Kurla (West), Mumbai – 400 070.
3. Defendants no.2 to 4 are further restrained by prohibitory
order and not to occupy, alienate or create third party
interest upon any floor above the ground floor.
4. Defendant no.1 MCGM (Officer of ‘L’ Ward) is directed to
visit the suit property and prepare detail panchanama with
appropriate photographs, in view of a complain submitted
by the plaintiff through Adv. Wasim R. Khan, dated
02/09/2020 and obtain proper action as per law.
5. Motion at draft level is disposed off accordingly. It be
register for statistical purpose.
(Defendants may submit written statement to expedite hearing.)
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 06/10/2020. Mumbai.
1. Dictated on : 05/10/2020.
2. Transcribed on : 09/10/2020.
3. Signed on : 13/10/2020.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Draft N/m in Stamp No. 4432/2020. 7 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
13/10/2020. 2.20 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 06/10/2020.
Judgment/Order signed by P.O. on 13/10/2020.
Judgment/Order uploaded on 13/10/2020.
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