Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 167319 in St. suit No.332719
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.1673 of 2019
(CNR No.MHCC010045832019)
IN
STAMP SUIT NO.3327 OF 2019.
Shakeel Mansoori Mohd. Abdul Latif Shaikh. }...PLAINTIFF.
Versus
1.Municipal Corporation of Gr.Mumbai, }
2.Designated officer & Dy. Planner, MMRDA }...DEFENDANTS.
Shri.Dubey, learned advocate for the plaintiff.
Smt.Subhedar learned advocate for defendant No.2.
CORAM: HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 02/05/2019)
1. By filing this Notice of Motion, plaintiff has prayed to
temporary restrain the defendants from demolishing or pulling down
the suit premises, pending final disposal of the suit. Relief is also
claimed to temporarily restrain defendant No.2 from enforcing notices
dt.18/04/2017, 12/05/2017 and 08/06/2017 for demolition of suit
premises, pending final disposal of the suit. Read the affidavit filed in
support of Notice of Motion. Defendant No.2 failed to file reply. Heard
learned Shri.Dubey advocate for the plaintiff & learned Smt.Subhedar
advocate for defendant No.2. Perused the entire record.
2. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i)Whether primafacie case lies in favour of the
plaintiff? ...No.
ii)Whether balance of convenience lies in favour
of the plaintiff? ...No.
iii)Whether irreparable loss will cause to the
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plaintiff if injunction as prayed is not granted? ...No.
iv)What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
3. All the points are taken together for consideration. Learned
advocate for plaintiff argued that plaintiff's father had acquired the suit
premises, patch holders card has been issued in respect of the suit
premises in the name of father of the plaintiff by concerned Competent
Authority in year 1993, plaintiff's father was in use and occupation of
the suit premises and plaintiff's father had obtained electric connection,
ration card, Shop Act License on the address of the suit premises. He
argued that survey was conducted in year 2000 for issuance of fresh
patch holders card about which, receipt has been issued in the name of
father of plaintiff in respect of suit premises. He further argued that suit
property belongs to the State Government & defendant MMRDA is not
concerned with it yet, defendant No.2 has unauthorizedly issued notices
under Section 54 & 55 of MRTP Act to the father of the plaintiff. He
argued that those provisions are not applicable for removal of Pakka
Constructions & as suit premises is a Pakka construction, notices issued
by defendant No.2 are illegal. He argued that plaintiff's father has
expired few days before filing of this suit and after the death of father of
the plaintiff, one officer by name Shinde from the office defendant No.2
visited the suit premises & gave a threat to demolish the suit premises.
He argued that patch holders card being issued in respect of suit
premises, suit premises is protected as per policy of State Government
due to which also, the notices issued by defendant No.2 are illegal. He
argued that if defendant No.2 is not restrained from demolishing the
suit premises, it will cause an irreparable loss to the plaintiff hence,
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plaintiff is entitled for interim injunction.
4. As against this, learned advocate for defendant No.2
vehemently opposed the prayer for grant of temporary injunction by
submitting that defendant No.2 is appointed as Special Planning
Authority by State Government for the Airport Land, plaintiff's father
has unauthorizedly carried out development of suit premises without
obtaining prior permission from defendant No.2 as is prescribed in
MRTP Act hence, defendant No.2 has issued notices to the father of the
plaintiff for removal of said unauthorized construction. She argued that
in a Judgment dtd.19/08/2015 in Writ Petition No.291 of 2015 in a
matter between Mumbai International Airport Private Limited Vs.
State Government of Maharashtra & ors, Hon'ble Bombay High Court
is pleased to hold that it is the obligatory for defendant/MMRDA to take
action for demolition of unauthorized development made on the Airport
land & hence, defendant No.2 has issued notices for demolition of the
unauthorized development made by plaintiff's father on the land of
Airport due to which, plaintiff is not entitled for interim injunction.
5. Perusal of the copies of notices produced by the plaintiff
shows that defendant No.2 has issued notices under Section 52, 53, 54
and 55 of MRTP Act for removal of unauthorized extension made in the
premises situated on CTS No.195A of Kirol, opposite Nach Super Sofa
Decorators, Guru Nanak Nagar, Guru Govind Singh Road, Ghatkopar
(W), Mumbai86. Perusal of the plaint shows that plaintiff has come
with a case that suit premises is situated on land CTS No.105.
Admittedly, defendant has not filed reply to the Notice of Motion
however, plaintiff has nowhere clarified in the plaint or in the affidavit
filed in support of the Notice of Motion about the discrepancy occurring
in the CTS number of the land on which the suit premises is situated.
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Plaintiff has claimed relief in respect of the suit premises standing on
CTS No.105A by contending that notices dtd.28/04/2017, 12/05/2017
and 08/06/2017 are issued in respect of the suit premises standing on
land CTS No.105A but the contents of those notices do not support his
contention that defendant has issued those notices in respect of
structure standing on land CTS No.105A.
6. Again, perusal of documents produced on record by the
plaintiff shows that there is reference of CTS No.105A only in one
document i.e. Patch holders card issued in the name Shaikh Abdul
Haque. The other documents viz. copies of ration card, electricity bill,
Shop Act License & medical report do not show that the suit premises is
situated on land CTS No.105. In absence of any supporting material, the
patch holders card in itself is not sufficient for accepting that it pertains
to the suit premises especially because the area of the suit premises is
mentioned therein as 13 x 11 sq.ft. only whereas, plaintiff has
mentioned the area of suit premises in the plaint as 11 x 18 sq.ft.. The
copy of survey receipt does not bear the address of the suit premises
hence, it is not primafacie helpful to the plaintiff at least at this stage of
the proceeding. Thus, documents produced by the plaintiff are prima
facie are not sufficient for accepting the contention of the plaintiff that
the structure of the suit premises is protected and tolerated as per the
policy of State Government. Even assuming that suit structure is
standing on CTS No.105A as is contended by the plaintiff, it will have
to be seen whether there is prima facie material to accept that notices
issued by defendant No.2 are illegal?
7. It would be apposite to mention here that perusal of the
photographs produced by the plaintiff support the argument of learned
advocate for the plaintiff that construction visible in those photographs
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of the suit premises is Pakka construction however, I could not find any
force in the argument of learned advocate for the plaintiff that
provisions of Sections 52 to 55 of MRTP Act cannot be made applicable
for removal of Pakka construction & those provisions are applicable to
temporary structures only.
8. Contents of the notices issued in the name of father of
plaintiff show that it is alleged therein that father of the plaintiff has
carried out unauthorized additions in the existing structure. In the
Judgment in a matter between Mumbai International Airport Private
Limited Vs. State Government of Maharashtra & ors cited above on
which reliance is placed by learned advocate for defendant No.2,
Hon'ble Bombay High Court is pleased to accept the contention of
defendant/MMRDA that State Government has appointed MMRDA as
Planning Authority for Airport Area & hence, even though defendant
No.2 has not filed reply to the Notice of Motion, it is not sufficient for
accepting the contentions raised by plaintiff that defendant No.2 has
unauthorizedly issued the impugned notices in the name of father of
plaintiff in respect of the additions made in the suit premises. As
mentioned earlier, plaintiff has not produced proper material on record
to show that suit premises is standing on CTS No.105A and the
structure of suit premises is thereby tolerated construction as per the
policy of State Government. Plaintiff has not produced any document to
show that the additions made in the suit premises are legal &
permission of concerned Competent Authority was obtained for
effecting the said additional construction. In absence of any material in
that regard, the contention of the plaintiff cannot be accepted that
notices issued for removal of said unauthorized construction are illegal.
9. For all these reasons, I hold that neither prima facie case
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nor balance of convenience do lie in favour of the plaintiff. In the result,
there is no question of causing any irreparable loss to the plaintiff if
interim injunction is not granted and hence, by recording my findings
on Point Nos.(i) to (iii) accordingly, I pass the following order.
O R D E R
Notice of Motion No.1673 of 2019 stands rejected.
Date: 02/05/2019. (P.P.RAJVAIDYA)
Direct dictated on : 02/05/2019. Judge, C.R.No.12,
Checked on : 06/05/2019. City Civil Court,
Signed on : 06/05/2019. Gr.Bombay.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
06/05/2019 at 11.30 a.m. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI.P.P.RAJVAIDYA (CR No.12)
Date of pronouncement of Order 02/05/2019
Order signed by P.O. on 06/05/2019
Order uploaded on 06/05/2019
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