Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. : MHCC01-004788-2019. Notice of Motion No. 1745/2019.
in L.C. Suit No. 1086/2019.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1745 OF 2019.
IN
L.C. SUIT NO. 1086 OF 2019.
Denzil Paul Coutinho…...……….......…… ….. PLAINTIFF.
V/s.
MCGM. …..…............................................ ….. DEFENDANT.
CORAM : Shri. A.G. Santani.
(Court Room No.11).
DATED : 26th September, 2022.
APPEARANCES :
Mr. Virendra T. Dubey, Ld. Advocate for the Plaintiff.
Mr. Sunil C. Khandagale, Ld. Advocate for Defendants.
*****
01. The plaintiff has taken out this Notice of Motion (for short
‘the NM’) to declare the notice dtd. 15.04.2019 and the Speaking Order
dtd. 20.04.2019 as bad in law. He further prayed for restraining Order
against the defendant from demolishing/puling down/removing the suit
premises, duly described in para 1 of the plaint, in pursuance of the said
notice and Speaking Order. Perused the NM, his accompanying affidavit
and reply-cum-written statement of the defendant. Heard both sides.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in his favour ? …..............................
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CNR NO. : MHCC01-004788-2019. Notice of Motion No. 1745/2019.
in L.C. Suit No. 1086/2019.
Common Finding :
Yes, till the
defendant follows
the due process of
law.
(ii). Whether balance of convenience lies in
favour of the plaintiff ? ..…...................... ...
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted ?......................
(iv). What Order ? …..............….................... …As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are inter-connected, to maintain the brevity,
I am taking the same for joint discussion. By filing this suit, the plaintiff
contended that he is in possession of the suit premises. It existed prior
to the year of 1962. Originally, it was in occupation of his father-in-law
and after his demise, it was transferred in favour of the plaintiff's wife.
It was badly damaged due to monsoon season and hence, he replaced
its broken Patra roof and carried out plastering and paining work. The
said premises is not affected in and not required for any public project.
However, on 15.04.2019, the defendant issued this notice U/s. 354-A of
the MMC Act. On 20.04.2019, he also replied the said notice. However,
without considering his reply and the documents, the defendant passed
the Order on the same day of 20.04.2019 and some of his Officers also
threatened to demolish the suit premises. In the circumstances, he had
to file the suit along-with this NM for the aforesaid relies. In support of
his contentions, he relied upon the documents viz. the rough sketch, the
copies of assessment bills, the notice, his reply and the Speaking Order.
The defendant resisted this NM and contended that on 12.04.2019, in
view of the spot inspection, he observed such unauthorized construction
in progress. As such, on 15.04.2019, he issued this notice. However, the
plaintiff did not reply the same and therefore, on 20.04.2019, he passed
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CNR NO. : MHCC01-004788-2019. Notice of Motion No. 1745/2019.
in L.C. Suit No. 1086/2019.
the Speaking Order. To support his stand, he relied upon the documents
like the inspection report and photographs.
04. Having considered the rival submissions, it is worth notable
that it is nowhere the plaintiffs case that the notice structure, that is to
say the unauthorized construction of first floor on the existing ground
floor structure admeasuring 20m X 4m X 3m height, by using-I section
channel, brick masonry wall and Ladi Coba Ladi Slab, is carried in view
of the permission granted or plan sanctioned by the defendant. True it is
that to support his claim, the plaintiff could file the copies of assessment
extracts. However, they are falling short to assume legality of this notice
structure and the fact that it existed since long. Nor, there is any iota of
material to gather that the plaintiff carried only the minor repairs to the
suit premises. On this background, it can safely be arrived at that at this
interim stage, he could not establish authenticity of the notice structure.
Nor, even otherwise, he could justify this structure. Be that as it may, the
record shows that he replied the notice on 20.04.2019. Copy of the said
reply is placed at page 24 of the plaint compilation and apparently, it is
bearing acknowledgment stamp of the same day, from the Office of the
defendant. However, 20.04.2019 itself, this Speaking Order was passed,
without considering this reply. Certainly, while filing his reply, he raised
various grounds justifying the notice structure. He contended that as the
said construction was not ‘in progress’, the notice was unwarranted. On
this background, there was no hurdle for the defendant to consider this
reply and to pass the Speaking Order effectively, wherein he failed. Had
the defendant considered this notice reply, even the plaintiff could have
provided with a fair chance hearing, before passing of the said Order.
05. Continuing my discussions, it is notable that the notice dtd.
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CNR NO. : MHCC01-004788-2019. Notice of Motion No. 1745/2019.
in L.C. Suit No. 1086/2019.
15.04.2019 is issued U/s. 354A of the MMC Act, which suggests that the
said construction was 'on-going’. In order to establish this position, the
defendant filed copy of the inspection report and some photographs. On
perusal thereof, it reveals that the inspection report is missing drawing
of panchnama whereas, the phonographs are lacking in digital details as
regards the date, time and place of the alleged construction. That apart,
even these photographs prima-facie show that no such construction was
in progress. In this scenario, I am of the opinion that the defendant also
failed to justify issuance of this notice U/s. 354-A of the MMC Act, as it
pre-requires the 'on-going' status of the alleged construction. However,
it does not mean that therefore, the notice structure stood legalized, as
the plaintiff also failed to establish his stand. Consequently, I am of the
view that till the defendant follows the due process of law, this notice
structure needs to be protected. If it is put differently, the defendant is
at liberty to proceed against this notice structure, by following the due
process of law. Hence, I answered point Nos. 1 to 3 accordingly and in
answer to point No. 4, I pass the following Order :
-: O R D E R :-
(i). Notice of Motion No. 1745/2019 is partly allowed.
(ii). The defendant, its agents, its servants and anybody
else claiming through him are hereby restrained from
proceeding against the notice structure, in pursuance of
the suit notice dtd. 15.04.2019 and Order dtd. 20.04.2019,
except by following the due process of law.
(iii). Notice of Motion No. 1745/2019, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 26.09.2022. City Civil Court, Mumbai.
Dictated on : 26.09.2022.
Transcribed on : 28.09.2022.
Signed on : 30.09.2022.
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CNR NO. : MHCC01-004788-2019. Notice of Motion No. 1745/2019.
in L.C. Suit No. 1086/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
04.10.2022. at 01.25 p.m.
Name of the Stenographer
Mrs. S.R.Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 28.09.2022.
Judgment/Order signed by P.O. on 01.10.2022.
Judgment/Order uploaded on 04.10.2022.
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