Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1595-18 in Suit No.1647-18
CNR NO.MHCC01-004943-2018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1595 OF 2018
IN
L.C. SUIT NO. 1647 OF 2018
M/s. Noor Sheetal Roadways …..Plaintiff
Versus
Municipal Corporation for Gr. Mumbai & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 05th March, 2020.
Appearance:
Ld. Adv. Mr. Kunal for plaintiff.
Ld. Adv. Mrs. Rawade for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon the Notice
issued by the defendants under Section 314 of the Mumbai Municipal
Corporation Act, 1888 (hereinafter referred to as 'the MMC Act') dated
02.04.2018 and the Order dated 18.04.2018.
2. Heard learned Advocate for the plaintiff and learned Advocate for
the defendant Corporation.
3. The learned Advocate for the plaintiff submitted that the
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structure mentioned in the order does not fall on 60 feet width road.
The Draft Development Plan does not show any such street.
It is stated that the suit structure is located on the property of the
Bombay Port Trust. The documents tendered by the plaintiff were not
considered by the defendant corporation and had arrived at wrong
conclusion. The plaintiff had relied on assessment extract, rent receipts
and other documents. It is stated that allegation in the notice called for
action under provisions of the MMC Act or under the MRTP Act. It is
contended by the Advocate for plaintiff that this is a fit case for grant of
injunction.
4. The learned Advocate for the corporation submits that plaintiff
had encroached upon the public street. The list forwarded for the
Bombay Port Trust includes the name to be encroacheres including
plaintiff. It is pointed out that the structure is illegal. It is contended
that the notice of motion should not be allowed and deserves to be
dismissed.
5. The plaintiff had relied upon the rent receipts, electricity bills, an
application for loan. The plaintiff had not produced the building
permission or sanctioned plan regarding the construction of the suit
structure. The letters issued to the defendant corporation by the
Bombay Port Trust show that the plaintiff had raised unauthorized
construction. The Bombay Port Trust had called upon the corporation
to remove the unauthorized structure and to restore the premises to its
original form.
The plaintiff in paragraph no. 1 of the plaint points out that he is
in possession of commercial structure adm. 20 x 15 sqft being Office No.
8/12/ Plot No. 13, Isak Garage, Poona Street, Dana Bunder, Mumbai.
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It is stated that the structure of the plaintiff is surrounded by other
occupants from last three decades.
Pausing for while, it needs to be mentioned that the plaintiff
contends that the structure is in existence prior to 1962. It was for the
plaintiff to explain the exact location of the structure by describing the
notice structure properly.
It would be appropriate to refer to the reply of the defendant to
the notice of motion, in paragraph no. 3 of the say it is contended that,
the defendant had initiated a demolition action against the
unauthroised encroachments on 60 feet wide T.P. Scheme Municipal
Street connecting Solapur Street, Poona Street, Kalyan Street and Thane
Street under Section 314 of the MMC Act. It is specifically contended
that the plaintiff had carried out unauthorized construction of size adm.
19 feet x 12 feet upon Municipal Street which is 60 feet wides.
6. The notice was issued to the plaintiff by defendants on
07.03.2018 under Section 314 of the MMC Act. The plaintiff had
replied to the notice and submitted the documents. The speaking order
was passed on 18.04.2018. The plaintiff had relied upon the Rent
receipts, MTNL Bill, BEST Bill, Bank Loan Document, Dock Entry
Permit.
The plaintiff does not appear to have submitted any documents,
pointing out that his structure does not fall on the municipal street. The
reply of the corporation points out that the defendant had obtained
remarks from Town Planning Department about the designation of the
land, where the plaintiff had constructed the unauthorized Office. It
was clarified that the land under consideration is on Municipal Street
having width 60 w.e.f. 01.12.1957 and under the possession of MCGM.
The plaintiff had denied the said fact. Merely sake denied it
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would not suffice to conclude that the structure is not on public street.
It was for the plaintiff to conclusively show that his structure does not
fall on municipal street. It has been specifically remarked by Town
Planning Department that the structure falls on the Municipal Street.
The plaintiff has failed to make out the prima-facie case in his
favour. The balance of convenience does not lies in favour of the
plaintiff. The plaintiff would not be put to irreparable loss, if the
injunction is refused.
In the result, following order is passed.
ORDER
The Notice of Motion No. 1595/2018 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 05.03.2020 City Civil Court, Mumbai.
Dictated on : 05.03.2020
Transcribed on : 09.03.2020
Signed by HHJ on : 14.03.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 16.03.2020 at 11.21 a.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. No. 05
Date of Pronouncement of
JUDGMENT/ORDER
05.03.2020
JUDGMENT/ORDER signed by
P.O. on
14.03.2020
JUDGMENT/ORDER uploaded on 16.03.2020
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