Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion 1572-2018 in St no.5277-2018
CNR MHCC01-004890-2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1572 OF 2018
IN
STAMP NO. 5277 OF 2018
Mrs. Dina Rajesh Sosa ]... Plaintiff.
Versus
The Municipal Corporation of ]
Greater Mumbai. ]... Defendant.
Coram : M. S. Deshpande, Judge
(Court Room no. 05)
Date : 17th April, 2018.
Mr. Vaibhav Mehta, advocate for plaintiff.
Ms. Chandramore, advocate for defendant.
ORDER
1. The plaintiff has taken out this notice of motion seeking ad
interim relief for restraining the defendant Corporation from acting in
pursuance of the notice dated 26.11.2016 issued under Section 351 of
the Mumbai Municipal Corporation Act, (for short, “M.M.C. Act”) and
consequent order dated 4.4.2018 passed by the Designated Officer of
the defendant.
2. By impugned notice the plaintiff was directed to show
cause in respect of the unauthorised construction of a room
admeasuring about 4.5 meters x 1.8 meters of area made in open space
and construction of a room below staircase and open space behind
-- 1 of 5 --
2 Notice of Motion 1572-2018 in St no.5277-2018
staircase admeasuring about 2.2 meters x 4.0 meters on the ground
floor of Cursandas Natha Girgaon Sanitorium Trust Building, Rajaram
Mohan Roy Road, Khetwadi, Girgaon, Mumbai as specifically shown in
the schedule in the impugned notice.
2. By order dated 4.4.2018, plaintiff was directed to remove
the extended portion of notice structure made in open space,
admeasuring 1.60 meters x 1.80 meters within seven days. It led
institution of the suit and filing the notice of motion.
3. Heard, the learned advocate Vaibhav Mehta for plaintiff.
He submitted that the suit building is about 110 years old and the
documents show the existence of notice structure as covered common
washing place. According to him, the order has been passed after a
period of about 14 months and the structure described in the schedule
of the notice is different from the structure directed to be removed by
the impugned order. According to him, a structure of a small size than
the notice structure is directed to be removed and therefore, the said
order cannot be implemented being absurd.
4. On the other hand, the learned advocate for the defendant
submitted that the plaintiff unlawfully extended the construction of a
room in open space between the two buildings. The officers of the
defendant have verified the position and come to a conclusion that a
portion about 1.60 meters x 1.80 meters has been raised illegally in the
open space and the same is required to be removed.
5. It is necessary to look into documents placed on record.
The learned advocate for the plaintiff submitted that the copy of Trust
-- 2 of 5 --
3 Notice of Motion 1572-2018 in St no.5277-2018
deed dated 21.7.1908 in paragraph no.5 shows the existence of the
notice structure i.e. two rooms for watchman and third room as a
common washing place. He further relied on the extract of cadastral
survey sheet issued by the office of City Survey and Land Records
Mumbai to show block plan of the suit building and the portion where
the suit premises are located. It prima facie shows the suit premises of
a rectangular shape indicated by letter “R” and an open space between
the said structure and portion of the main building.
6. The tabulated ward report dated 31.1.2007 prima facie
shows existence of two rooms on the ground floor and one room is
under the used as common water supply place with hall. It is
undisputed prima facie that the suit building was assessed for municipal
taxes on 31.3.1961. However, extract of the description and details of
capital value calculation of the suit building does not show the existence
of the suit premises i.e. room no.10. Be that as it may. The plaintiff has
filed rent receipts showing that she is tenant in respect of room no.10
located on the ground floor of the suit building.
7. In order to show existence of notice structure, the plaintiff
has filed copies of two repair plans for the year 1981 and 1999. The
plan of the suit building for the year 1981 shows the suit structure
admeasuring about 2.90 meters x 1.80 meters and described as covered
washing place. Its location is near the staircase. A room below the
staircase is also shown. However, on West side of the said structure,
there is an open space between the suit premises and the part of the
main building. Same position has been shown in the repair plan, 1999.
The measurement of the suit premises are shown 9.6 ft. x 6 ft.
-- 3 of 5 --
4 Notice of Motion 1572-2018 in St no.5277-2018
8. Thus, prima facie, it appears that there were no
construction between the suit premises i.e. room no.10 or the cover
washing place and the portion of the suit building.
9. The impugned notice prima facie shows that the
construction of room has been raised in the said open space between
the suit premises and the portion of the suit building. It appears from
the schedule of the impugned notice that the measurement of the entire
premises are mentioned to the tune of 4.5 meters x. 1.8 meters. A room
below the staircase has also been shown admeasuring about 2.2 meters
x 4 meters. The learned advocate for the plaintiff submits that the
plaintiff has no nexus with room below the staircase and wants to
protect only the aforesaid structure admeasuring 4.5 meters x 1.8
meters. Considering the measurement of the suit premises shown in
both the repair plans i.e. 2.90 meters x 1.80 meters or 9.6 ft. x 6 ft., it
prima facie appears that the suit premises is extended by the 1.60
meters x 1.80 meters. Except the bare words plaintiff has not placed
anything on record to show prima facie the authorization of said
extended portion. Therefore, intervention of this Court at adinterim
stage is not warranted. Thus, the following order is passed :
ORDER
Adinterim relief is rejected.
Sd/
(M.S. Deshpande)
Ad Hoc Judge,
City Civil Court, Mumbai.
Dated: 17.4.2018
Dictated on : 17/04/2018
Typed on : 17/04/2018.
Signed by HHJ on : 18/04/2018.
-- 4 of 5 --
5 Notice of Motion 1572-2018 in St no.5277-2018
ERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 19.04.2018 At 11.50 a.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
17.04.2018
JUDGMENT/ORDER signed by
P.O. on
18.04.2018
JUDGMENT/ORDER uploaded
on
19.04.2018
-- 5 of 5 --