Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1632/2020 in Stamp No. 5480/2020. 1 Order.
MHCC010048682020
Presented on : 06-11-2020
Registered on : 06-11-2020
Decided on : 23-11-2020
Duration : 0 years, 0 months, 17 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1632 OF 2020
IN
STAMP NO. 5480 OF 2020
Mr. Moti Singh Darbahadur Singh ...Plaintiff
Versus
The Municipal Corporation Of Greater Mumbai
and Others ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 23rd NOVEMBER, 2020.
Mr. Ashish Dubey & Mr. Girish Pawar, Advocate for Plaintiff.
Mrs. Mhatre / Mrs. Tondwalkar, Advocate for Defendants / MCGM.
ORDER
Plaintiff has challenged a notice under Section 354A of
MMC Act dated 29/10/2020. In view of schedule of impugned notice,
the description of unauthorized construction runs as follows :
“Unauthorised construction of ground floor structure
on open plot admg. [18.0 x (4.8 + 2.3) x 2.4 ht] mtr.,
approx., using G.I. Sheet, Bamboo and Tarpaulin.”
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N/m No. 1632/2020 in Stamp No. 5480/2020. 2 Order.
2. Perused short reply of defendant MCGM vide Exh.2
alongwith various photographs, copy of speaking order etc.
3. Ld. Adv. Ashish Dubey for plaintiff submits that plaintiff has
purchased the suit property on 24/11/1992 for consideration of Rs.1.5
Lakhs from Sonabai Sonawane. Since 25 years plaintiff is running a
shop under name and style of “Hari Vada Pav Centre”. Plaintiff has
submitted application to police and the MCGM in respect of threat given
by local leader to demolish the structure. On 03/10/2015 plaintiff has
received a repair permission. Plaintiff holds the documents like
Gumasta Certificate, Shop Act Licence, Agreement to Sale, different Tax
Receipts etc. to establish long-standing possession of plaintiff over suit
premises.
4. Ld. advocate for plaintiff continued that Civil Suit No.
2548/2015 was preferred by plaintiff against Bharat Singh for
temporary injunction. There was obstruction to the peaceful possession
of the plaintiff at the hands of Bharat Singh. However, it was
compromised on 08/07/2016. It is prayed for temporary injunction.
5. Ld. Adv. Mhatre for defendant MCGM has requested to
peruse inspection report dated 29/10/2020 alongwith photograph with
date and time i.e. 15.44.34 with exact latitude and longitude of the
location. It is requested to peruse colour photographs on page no.3
which clearly indicate, there is a hill adjacent to unauthorized
construction. Plaintiff has intended to use the gap in between cement
road, building and the hill. Plaintiff has initiated unauthorized
construction, therefore it is prayed to reject the motion.
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N/m No. 1632/2020 in Stamp No. 5480/2020. 3 Order.
REASONS
6. It is to note at the inception that speaking order with
reasons came to be issued by the designated officer on 06/11/2020 i.e.
during pendency of the case. It clearly indicate suit is preferred by the
plaintiff without waiting for speaking order. The description of suit
premises in the agreement to sale with Sonabai Sonawane dated
24/11/1992 is of 16 x 46 sq.ft. It is different from Census Certificate
dated 10/11/1980 bearing area of 14 x 40 sq.ft. There is no unscaled
map drawn by the plaintiff when he purchased the suit premises from
Sonabai Sonawane on 24/11/1992 to clearly establish the exact
location of suit property.
7. Suit No. 2548/2015 appears to be preferred for creation of
documents. The copy of plaint disclosing detail description of the
property is not annexed. The first page of the plaint and copy of
Consent Terms is annexed by the plaintiff. It was incumbent on the part
of plaintiff to affix full copy of the plaint in Suit No. 2548/2015. The
address on page no.26 alongwith plaint on Shop Act Licence of the suit
premises is ‘C.T.S.No. 186’, Tungva Minal Society, Sakivihar Road,
Powai. However another address of the plaintiff in Consent Terms in
Suit No. 2548/2015, it bear the address ‘C.T.S.No. 186’, Tunga, New
Killik, Nikson Company. It shows difference between address of the suit
premises.
8. On perusal of reply dated 31/10/2020 submitted by the
plaintiff, there is a reference of a copy of plan in para 2.2 as
Annexure-I. However, no such plan is annexed by the plaintiff. Ld.
advocate for plaintiff requested to peruse TILR map of C.T.S.No. 186
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N/m No. 1632/2020 in Stamp No. 5480/2020. 4 Order.
annexed on page no.18 of the plaint. It bear reference of C.T.S.No.
186A, 186B-1 to 5. However, it is not clarified in the plan in respect of
exact location of the suit premises.
9. On perusal of letter dated 01/06/1989 addressed by the
Deputy Collector-II to the predecessor of the plaintiff i.e. Sonabai
Sonawane, it is clearly mentioned that application for NOC for repair
came to be rejected by the Dy. Collector being the structure was on
private land. In short, there is no prima facie case in favour of plaintiff.
10. Following are the important points to note :
a) Plaintiff is failed to establish the exact location and
description of the suit premises.
b) There is no unscaled map in respect of exact location of
suit premises annexed by the plaintiff nor it was drawn in
agreement to sale dated 24/11/1992.
c) Plaintiff has made a reference about a copy of plan in
reply dated 31/10/2020, however it is not annexed.
d) Hill area is reserved for hospital. Various colour
photographs clearly establish that plaintiff is intending to
use the space in between compound wall of co-operative
housing society and cement road.
e) Various colour photographs clearly establish various
bricks came to be brought by the plaintiff for pakka
construction.
f) Plaintiff is failed to wait till issuance of speaking order,
therefore suit is filed at immature stage.
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N/m No. 1632/2020 in Stamp No. 5480/2020. 5 Order.
11. Merely having Shop Act Licence does not lead for
authorization of the structure. The copy of unscaled location map is not
drawn in agreement to sale nor a copy of plan came to be submitted by
the plaintiff as mentioned in reply. In short, it clearly establish that
plaintiff has submitted various documents of some another location to
protect illegal installation of new shop adjacent to the hill. In result,
there is no balance of convenience in favour of plaintiff. No irreparable
loss would be caused to plaintiff. Resultantly, motion deserves to be
rejected. Hence the order :
- ORDER -
1. Notice of Motion No. 1632/2020 stands rejected, no order
of cost.
2. Defendant to submit W.S. to expedite hearing.
3. N/m No. 1632/2020 stands disposed off.
4. Plaintiff to register the suit within ten days.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 23/11/2020. Mumbai.
1. Dictated on : 23/11/2020.
2. Transcribed on : 24/11/2020.
3. Signed on : 25/11/2020.
4. Delivered to Certified :
Copy Section on
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N/m No. 1632/2020 in Stamp No. 5480/2020. 6 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25/11/2020. 12.34 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 23/11/2020.
Judgment/Order signed by P.O. on 25/11/2020.
Judgment/Order uploaded on 25/11/2020.
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