Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1817-19 in Suit No. 1913-19
CNR NO.MHCC010051382019
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1817 OF 2019
IN
L.C. SUIT NO. 1913 OF 2019
Mr. Mohammad Imran Akhtar Qureshi ......Plaintiff
V/s.
Municipal Corporation of Greater Mumbai & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 19th September, 2019
Appearance:
Ld. Adv. Mr. Rakesh Kumar I/b Judicature Law Associates for plaintiff.
Ld. Adv. Ms. Dhuri for defendant/MCGM.
ORDER
1. By this Notice of Motion plaintiff seeks temporary injunction
against defendant nos. 1 to 3 from acting upon notice dtd. 12.10.2018
issued under Section 351 of MMC Act and the order dated 10.12.2018.
2. Heard Ld. advocate for the plaintiff and Ld. advocate for the
defendant. Schedule of the notice issued under Section 351 of MMC Act
dated 12.10.2018 reads as under :
1) Unauthorisedly constructed 1st floor and G.I. Sheet shed on
compulsory open terrace at M/s Abdullah Hotel 74/76 Guzar Street,
Mutton Street jn. Chor Bazar, Mumbai 400 003 by way of using M.S.
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2 NM 1817-19 in Suit No. 1913-19
girder for columns and Beams, M.S. joist for ladi slab admeasuring 7.40
mt X 14.70 mt. X 2.70 mt.
2) Unauthorisedly constructed the shed on compulsory on open
terrace by way of using M.S. pops frame work and roof covered with
G.I. Sheet admeasuring 7.40 mt X14.70 mt X 2.70 mt.
3. The notice was replied by the plaintiff vide reply dated
22.10.2018. It is stated that notice structure was in occupation and
possession of his father prior to 1960. After his death plaintiff is
running the hotel business. It is contended that suit structure was in
existence prior to 1960. It is contended that in the year 1996 the
structure was demolished by him and reconstructed by him by approved
plan dtd. 06.03.1997. In the said approved plan structure is shown as
ground + 1. The ground floor consists of kitchen and hotel service area
with 60% loft. It is stated that the first floor shed is also shown in the
approved plan. It is contended that the height is wrongly shown in the
notice. It is further pointed out that covering of the shed in terrace
mentioned in the notice is temporary monsoon shed and not
unauthorised as alleged in the notice. It is stated that the plaintiff is in
process of regularizing notice structure.
The reply was considered by the corporation and order dated
10.12.2018 was passed. It is concluded that the first floor is
constructed with G.I. Sheet on compulsory open terrace using M.S.
girder for columns and Beams, M.S. joist for ladi coba ladi slab
admeasuring 7.40 mt X 14.70 mt X 2.70 mt without prior permission of
the competent authority.
4. The defendant Corporation alleged that no sanction plain is
produced to show the authenticity of notice structure. The plaintiff has
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3 NM 1817-19 in Suit No. 1913-19
failed to show that the notice structure exists prior to the datum line.
5. The Ld. advocate for the plaintiff argued that the loft is in
existence prior to 1997. It is stated that there is no first floor in the
premises adm. 7.40 mt. X 14.70 mt. X 2.70 mt.
Ld. advocate for the Corporation argued that plaintiff have
carried out unauthorised structure on the first floor as described in the
notice. The plaintiff has failed to justify the notice by producing prior
sanction for carrying out the alleged construction in Notice of Motion.
6. Reverting back to the reply of the plaintiff to the Notice, the
plaintiff in para no. 7 of his reply to the notice contended that the
covering shed on terrace is temporary monsoon shed and not
unauthorised. In para no. 9 he contended that he is in process of
regularizing the alleged unauthorised structure.
Considering the reply of the plaintiff himself there exists shed on
terrace. The plaintiff had sought permission to get it regularized. It
itself shows that the plaintiff had unauthorizedly constructed the first
floor and G.I. sheet shed on compulsory open terrace. The contention
of plaintiff itself shows the existence of notice structure. The plaintiff
himself contended that first floor does not exist but also contended that
there exist a temporary structure above the ground floor. The plaintiff
wants to be regularized it.
It impliedly shows the structure is without authorization. The
plaintiff has failed to make out case for temporary injunction in his
favour. The plaintiff has failed to make out prima facie case. The
balance of convenience does not lies in favour of the plaintiff. The
plaintiff would not be put to irreparable loss, if the temporary
injunction is refused. In the result, following order is passed.
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ORDER
The Notice of Motion No. 1817/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 19.09.2019 City Civil Court, Mumbai.
Dictated on : 19.09.2019
Transcribed on : 19.09.2019
Signed by HHJ on : 21.09.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 23.09.2019 at 1.15 p.m.
NAME OF STENOGRAPHER : Mrs. Aparna V. Lele
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ ORDER
19.09.2019
JUDGMENT/ORDER signed by P.O.
on
21.09.2019
JUDGMENT/ORDER uploaded on 23.09.2019
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