Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1717-19 in Suit No. 1122-19
CNR NO.MHCC0100472119
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1717 OF 2019
IN
L.C. SUIT NO. 1122 OF 2019
Bobby Pravin Tanna ....Plaintiff
Versus
The Municipal Corporation of Greater Mumbai & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 07th May, 2019
Appearance:
Ld. Adv. Mr. P.M. Gaonkar for the plaintiff.
Ld. Adv. Smt. Patil for defendant/MCGM.
ORDER
1. The plaintiff by notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon the notice dated
08.05.2018 and the order dated 16.04.2019.
2. The plaintiff claims to the tenant of the commercial premises
being ShopGodown at Ground floor, 34, Krishna Building, S.V.P. Road,
Opp. Gokuldhan Hote, 6th Khetwadi Main, Mumbai04. The plaintiff
was issued the notice dated 08.05.2018 under Section 351 of the MMC
Act and was pull down the structure and restore to its original form.
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2 NM 1717-19 in Suit No. 1122-19
The notice was replied by the plaintiff alongwith the documents. The
documents were considered and the order dated 16.04.2019 was passed
for calling upon the plaintiff to remove the structure and was also
informed about his liability for prosecution under Section 475A of the
MMC Act.
3. It wold be worth to consider the documents submitted by the
plaintiff as under:
1. Notice under Section 351 of the MMC Act of the Bombay Municipal
Corporation Act, u/no. AE/997/D of 196061 dated 09.11.1960 issued
by then Municipal Commissioner for Grater Bombay and Assistant
Engineer, Building 'D' Division addressed to Mr. Karsandas Jivraj, 32
Khetwadi 6th Lane, Bombay 04.
2. Letter u/no. AE/743/D of 196061 dtd. 15041961 of the then
Asstt. Engineer (Bldg. Dept.)'D' Div addressed to Mr. Karsandas Jivrag,
Godown No. 32, Khetwadi 6th Lane, Bombay04.
3. Plan u/no. AE/5031/D of 6203 dated 27.09.1962.
4. It was observed that the notice issued under section 351 of the
MMC Act dated 09.11.1960 was doubtful. The letter dated 15.04.1961,
was found to be not acceptable to prove the authorization of the
structure. The plan dated 27.09.1962, was also not accepted.
5. It is not the contention of the defendant corporation that three
documents submitted were false. The notice under Section 351 of the
MMC Act is issued on 09.11.1960. The letter dated 15.04.1961,
contended by the plaintiff that the proceeding were under Section 351
of the MMC Act were dropped by the Assistant Engineer. It is pointed
out that the Assistant Engineer has no authorization to drop the
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3 NM 1717-19 in Suit No. 1122-19
proceeding. The plan dated 27.09.1962 is in respect of tenantable
repairs. These three documents show the existence of the suit structure
from 1960. The plaintiff had raised the triable issue in the suit. The
suit property therefore needs to be maintained in statusquo till the
decision of the suit. The documents primafacie shows the existence of
the suit structure since 1960.
The plaintiff has make out the primafacie case. The balance of
convenience lies in favour of the plaintiff. The plaintiff is entitled for
the temporary injunction as prayed for. The plaintiff would be put to
irreparable loss, if the suit structure is demolished. In the result,
following order is passed:
ORDER
1. The Notice of Motion no. 1717/2019 is allowed.
2. The defendants are hereby restrained from acting upon the notice
under Section 351 of the MMC Act dated 08.05.2018 and the order
dated 16.04.2019 till the disposal of the suit. .
3. The Notice of Motion is disposed of accordingly.
(Sanjay N. Yadav)
Judge,
Date : 07.05.2019 City Civil Court, Mumbai.
Dictated on : 07.05.2019
Transcribed on : 07.05.2019
Signed by HHJ on : 08.05.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 08.05.2019 at 1.10 pm.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
07.05.2019
JUDGMENT/ORDER signed by
P.O. on
08.05.2019
JUDGMENT/ORDER uploaded
on
08.05.2019
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