Final Order 1

Order Details: Notice of Motion
Pdf Text: 14.10.2020
Suit 1129/20
(St.
No.4780/20)
CORAM: H.H.J. SHRI. S.C. PATHARE, JUDGE (C.R.NO.05)
Adv Mr. Iqbal Siddiqui for plaintiff present
Adv Suryawanshi for MCGM/defendant present.
Plaintiff submitted photographs of said structure alongwith list.
t.o.r.
Heard both the Ld Advocates.
Admittedly in this matter BMC issued show cause notice u/s 314 of
MMC Act. BMC directed the plaintiffs to submit his eligibility
documents within 48 hours. Accordingly plaintiff submitted reply
and documents before BMC authority. On the instructions received
from Ward Officer Advocate of defendant admitted that after reply
and documents BMC authority has not passed speaking order
thereon. On behalf of defendant it is submitted that eligibility of
plaintiff regarding said structure is yet to be ascertained/decided.
Furthermore it is admitted position that Martin D'Costa i.e. father
of plaintiff expired long ago. However, till today his LRs are not
taken in the record of BMC regarding said structure.
In short BMC has to follow due process of law. Needless to mention
that without passing speaking order and without communicating
the same BMC cannot demolish the disputed structure in above
peculiar circumstances. From the submissions of both the parties it
has transpired that suit is premature. Plaintiff will have to file fresh
suit after passing speaking order and communication the same to
plaintiff. Hence in the interest I proceed to pass the following
order:-
ORDER
1) The defendant shall consider reply and documents given by the
plaintiff and pass reasoned order thereon as expected by Law,
within one month from the date of this order.
2) After passing speaking order defendant shall communicate the
same to plaintiff and give reasonable time of 15 days to the
plaintiff to approach the court.
3) By way of precaution plaintiff shall not carryout any further
unauthorized work in the said premises.
4) By misusing this order plaintiff shall not enhance or increase the
suit structure etc. in any manner.
5) After speaking order of the corporation plaintiff will have fresh
cause of action for instituting fresh suit. Therefore, there is no any
fruitful purpose to keep this suit and N/M pending unnecessarily.
6) Needless to mention that after communication of speaking order
by BMC plaintiff will have to institute fresh suit immediately, if
required by avoiding delay.
7) Till passing speaking order and 15 days after communication of
the same to plaintiff the suit structure shall stand protected.
8) Accordingly present suit and N/M No.1412/20 stands disposed
-- 1 of 2 --
off.
9) Authenticated copy of this order/roznama be given to the
parties, if prayed for.
Judge
-- 2 of 2 --