Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.1739 of 2019
CNR:MHCC01-004785-2019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.1739 OF 2019
IN
L.C. SUIT NO.2692 OF 2010
Haqikulla Khan Azimullah Khan .. Plaintiff
V/s.
Municipal Corporation of
Greater Bombay .. Defendant
Appearance:-
Adv. J. S. Yadav h/f Adv. B. P. Shukla for plaintiff.
Adv. Vidya Vyavahare for defendant/MCGM.
CORAM : HIS HONOUR ADDL. SESSIONS
JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 20/10/2023.
ORDER
This notice of Motion is taken out by the plaintiff for grant
of permission to repair the suit premises viz. shed situated on the land
admeasuring 114.29 sq. mtrs, at VLT, B-Block, Bapty Road, Municipal
Tenement, Kamathipura, Mumbai and/or directing the defendant to
consider the application/representation and grant permission to repair
the same.
2 Considering the rival submissions, following points arise for
my determination. My findings are recorded thereon with reasons
enumerated therein, as under.
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Sr. No. POINTS FINDINGS.
1 Whether the plaintiff has made out a
prima facie case?
Negative
2
Whether balance of convenience lies
in favour of the plaintiff?
Negative
3
Whether the plaintiff will suffer
irreparable loss, if interim relief is
not granted, as prayed for?
Negative
4 What Order ? As per final order
REASONS
AS TO POINTS NO.1 TO 3.
3 In the light of respective submissions, I have carefully gone
through the pleadings and copies of documents on record. Originally
the suit is filed by the plaintiff for declaration that the notice
dt.18/11/2010 issued by the Assistant Commissioner, E Ward office in
respect of the suit premises is illegal, bad in law, malafide, and
unexecutable in law alongwith permanent injunction restraining the
defendants from enforcing the notice dt.18/11/2010 and to consider
the application for transfer of VLT in the name of the plaintiff and to
demarcate the VLT premises.
4 The case of the plaintiff is that she has acquired the suit
premises from Mr. Natwarlal Nathubhai Patel by a registered deed of
assignment dt.03/12/1993. The erstwhile occupant of the suit premises
namely Mr. Natwarlal Nathubhai Patel was allotted the suit premises by
an allotment letter dt.26/06/1983. He was also granted permission/
NOC to construct a shed on the suit premises and the said structure is
assessed to the municipal taxes. The plaintiff is regularly paying the rent
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of the suit premises in the name of original allottee. The plaintiff had
applied on 15/12/1993 for transfer of the suit premises in her name.
The plaintiff also applied for repair permission of the suit premises by
letter dt.08/12/2008. Accordingly, Assistant Commissioner, E Ward
issued directions to the concerned officer to demarcate the suit premises
and also issued a letter dt.24/06/2010 to get appointment for
inspection and measurement of the suit premises. However, on the basis
of some false complaint, Assistant Commissioner, E Ward issued notice
dt.18/11/2010 to Mr. Natwarlal Nathubhai Patel by alleging that the
original allottee has sub-let the said structure and also directed to
remove the said structure and handover the vacant possession of VLT
land to the defendant in breach of condition. The plaintiff duly replied
to the said notice on 07/12/2010 and also produced the necessary
documents and requested to transfer the suit premises in her name. It is
contended that the plaintiff has acquired the suit premises from the
previous tenant and the structure in the suit premises is old one and it is
in dilapidated condition. The plaintiff, therefore, made application dt.
18/09/2015 requesting the defendant to grant permission to repair/
reconstruct the suit premises. However, the defendant intimated to the
plaintiff that there is no policy of repair/reconstruction of VLT premises.
The plaintiff is regularly paying the rent of the suit premises to the
defendant. The plaintiff, therefore prayed for interim relief.
5 The defendant resisted the Notice of Motion mainly on the
ground that Mr. Natwarlal Nathubhai Patel was the principal tenant of
the suit premises to whom the said VLT land was allotted on leave and
licence basis. Mr. Natwarlal Nathubhai Patel was duly informed by the
defendant that he has committed breach of conditions by constructing a
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shed without permission of the ward officer (Estate), therefore, he was
directed to remove the said structure and to hand over the vacant
possession of the suit premises. However, the said principal tenant
neither replied to the said notice nor handed over possession of the suit
premises even after the expiry of the notice period. The plaintiff has no
right to file this suit. The defendant has already informed to the plaintiff
regarding rejection of his application dt.22/02/2019 towards the repair
permission of the suit premises. The defendant being planning authority
has right to decide such type of application. It is thus, contended that
the Notice of Motion is required to be dismissed with costs.
6 After careful perusal of the entire facts and circumstances,
it can safely be gathered from the record that the suit premises is the
VLT land and it was originally allotted to Mr. Natwarlal Nathubhai Patel
in the year 1983. The plaintiff is claiming himself to be in occupation
and lawful possession of the suit premises on the basis of registered
deed of assignment dt.03/12/1993 executed by Mr. Natwarlal
Nathubhai Patel. However, the erstwhile occupant namely Mr. Natwarlal
Nathubhai Patel was not the absolute owner of the suit premises and he
was only allotted said VLT land by way of leave and licence basis. The
suit premises originally belonged to the defendant. The defendant has
also disputed the legality and authenticity of the structure in the suit
premises, therefore, erstwhile occupant Mr. Natwarlal Nathubhai Patel
was called upon by the defendant to remove the said structure and to
hand over the vacant possession of said VLT land in view of creating
sub-tenancy by committing breach of conditions of the tenancy
agreement.
7 Learned advocate for the plaintiff emphasized mainly on
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the tax receipts and submitted that the defendant is issuing receipts
towards the acceptance of tax of the suit premises. However, mere
acceptance of tax does not create any legal right in favour of the
plaintiff in the suit premises. Another significant thing to be taken into
consideration is that grant of repair permission of any structure is
exclusively within the domain of the defendant, therefore, no question
arises of issuing any direction to the defendant to allow the plaintiff in
carrying out any such repair in the suit premises. Further, it is pertinent
to note that after deciding the earlier Notice of Motion in this case,
issues were framed on 22/03/2019. However, instead of proceeding
with the trial, it reveals that the plaintiff has taken out this Notice of
Motion. Therefore, considering all these circumstances, I am of the view
that the relief as prayed for in the Notice of Motion is devoid of
substance. Therefore, points No.1 to 3 are answered in the negative.
AS TO POINT NO.4.
8 In view of aforesaid findings on the point Nos.1 to 3,
following order is passed.
ORDER
1 Notice of Motion No.1739 of 2019 is hereby dismissed.
2 Costs in cause.
3 Notice of Motion stands disposed off accordingly.
Date:20/10/2023. (R. M. Mishra )
Judge, City Civil Court,
Dictated on :20/10/2023. Gr.Mumbai.
Typed on :21/10/2023.
Signed on :21/10/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
21/10/2023 03.12 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
20/10/2023.
JUDGMENT/ORDER signed by P.O.on 21/10/2023.
JUDGMENT/ORDER uploaded on 21/10/2023.
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