Final Order 1

Order Details: Notice of Motion
Pdf Text: (CNR No. :MHCC010052212019) 1 Notice of Motion No. 1853/2019
in L.C. Suit No. 1145/2019.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1853 OF 2019.
IN
L.C. SUIT NO. 1145 OF 2019.
Lallan Khan Shammu Khan………………………… …. PLAINTIFF.
V/s.
MCGM....……………………………………………... …. DEFENDANT.
CORAM : SHRI. S.H. SALUNKHE
(Court Room No.11).
DATED : 20th February, 2025.
APPEARANCES :
Mr. Ashok Sarogi, the Ld. Advocate for Plaintiff.
Mr. Suryakant Botlawar, the Ld. Advocate for Defendant/MCGM.
*****
01. The plaintiff has challenged legality of notice u/s.354-A of
the Mumbai Municipal Corporation Act, 1888, (‘the MMC Act’) and
taken out present Notice of Motion (‘the NM’) for temporary injunction,
restraining the defendants/BMC from demolishing the notice structure,
pursuant to the notice and the speaking Order.
Facts of the plaintiff’s case can be summarized as below :-
02. It is stated that the plaintiff is a tenant of the suit structure,
which belongs to Mr. Nelson D’Souza.The plaintiff has made application
on 22.11.2018, for carrying out tenantable repairs. The plaintiff was
told that no such permission is required for tenantable repairs, hence,
the plaintiff has carried out tenantable repairs. More so, in the month of
Novermber/December, 2018 the plaintiff has not made any alternations
or additions. Inspite of that the defendant/BMC has issued stop work
notice u/s. 354-A of the MMC Act. The plaintiff submitted reply and
BMC has final Order.
03. It is further stated that no any work was in progress.
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(CNR No. :MHCC010052212019) 2 Notice of Motion No. 1853/2019
in L.C. Suit No. 1145/2019.
Hence, provisions of u/s.354-A are not applicable and therefore,
impugned notice is bad in law. Hence, the plaintiff has taken out the
present NM for temporary injunction. The BMC has not filed reply.
Hence, as per roznama Order dtd. 10.10.2022, the NM is listed for
‘hearing without reply’.
04. Ld. Advocate for the plaintiff filed the written notes of
arguments. Heard advocate for the parties.
05. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in her favour? …..........…...................…In the negative.
(ii). Whether balance of convenience lies in
favour of the plaintiff? ….…..…............….…In the negative.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim reliefs, as
prayed for, are not granted?.….................. … In the negative.
(iv). What Order? …..........….…....................... …As per final Order .
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
06. Ld. Advocate for the plaintiff submitted that the plaintiff
challenged validity of notice u/s.354-A of the MMC Act and subsequent
Order, but BMC has not filed reply as well as WS. Hence, the suit be
decreed. Further, it is submitted that the plaintiff is the tenant and there
is no question of carrying out construction by the plaintiff. It is further
stated that possibly, the landlord with intention to get vacated the
premises, got issued the notice. The provisions of u/s. 354-A are not
attracted, as no any work was in progress at the relevant time. On the
basis of these submissions, Ld. advocate for the plaintiff prayed for
temporary injunction. Ld. Advocate for the BMC submitted that the
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(CNR No. :MHCC010052212019) 3 Notice of Motion No. 1853/2019
in L.C. Suit No. 1145/2019.
plaintiff has suppressed the material fact and therefore, entitled for
equitable relief of injunction. It is further stated that the roznama dtd.
30.04.2019 merely, shows that he has no objection for initiating action
by the BMC against the structure above existing 1st floor. Therefore, the
Court has refused ad-interim protection. He has further pointed out that
the notice has been issued to on going work above the Ground+1st floor
existing structure, to which plaintiff has no objection, hence, he is not
entitled for injunction as prayed.
07. The plaintiff is seeking relief of equitable injunction in
respect of the the structure and challenged notice u/s. 354-A issued to
on going work above existing Ground+1st floor. To begin with, the
plaintiff has not given description of the structure. Merely, it is
mentioned that the plaintiff is in possession of Gala No. E-7 DPK
Compound. Further, it is pleaded that the plaintiff’s structure is
Ground+mezzanine floor and he has not carried out any additions or
alternation. Indeed the notice has been issued to on going work above
Ground+1st floor existing structure. As per roznama dtd. 30.04.2019,
the plaintiff made statement that the structure is Ground+1st floor
structure and he has no objection for taking action against structure
above the 1st floor structure. Admittedly, notice has been issued to
unauthorized on-going structure above 1st floor. In the circumstances,
there is no question of granting interim protection restraining the
defendant/BMC from implementing notice given to the on going work
above 1st floor structure. In the circumstances, the NM deserves to be
dismissed. Accordingly, I answer point Nos.1 to 3 in the negative and in
answer to point No. 4, I pass the following Order :
-: ORDER :-
(i). Notice of Motion No. 1853/2019 is dismissed.
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(CNR No. :MHCC010052212019) 4 Notice of Motion No. 1853/2019
in L.C. Suit No. 1145/2019.
(ii). Notice of Motion No. 1853/2019 is, accordingly,
disposed of.
(S.H. Salunkhe)
Mumbai. Ad-hoc Judge,
Dated : 20.02.2025. City Civil Court, Mumbai.
Directly typed on computer on : 20.02.2025.
Draft given on : 28.02.2025.
Checked and Signed on : 01.03.2025.
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(CNR No. :MHCC010052212019) 5 Notice of Motion No. 1853/2019
in L.C. Suit No. 1145/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
on 01.03.2025 at 11.07 a.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri Salunkhe
(Court Room No.11).
Date of Pronouncement of Judgment/Order 20.02.2025.
Judgment/Order signed by P.O. on 01.03.2025
Judgment/Order uploaded on 01.03.2025
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