Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1869-19 in Suit No. 1274-19
CNR NO.MHCC01-005249-19
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1869 OF 2019
IN
L.C. SUIT NO. 1274 OF 2019
Bhupendra Thaker …...Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 03rd March, 2020.
Appearance:
Ld. Adv. Mr. Mohit Jadhav 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 351 of the Mumbai Municipal
Corporation Act, 1888 (hereinafter referred to as 'the MMC Act') dated
16.11.2018 and the Order dated 14.05.2019.
2. Heard Learned Advocate for the plaintiff and learned Advocate
for the defendant corporation.
3. The Schedule of the Notice dated 16.11.2018 reads as under:
‘’Unauthorized construction of brick masonry walls in open
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chowk within the building and encroach the open space for commercial
purpose admeasuring size of 10.6 m x 2.90 m x 3.8 m without
permission from competent authority.’’
4. The notice was replied by the plaintiff on 20.11.2018. It is
argued by the Advocate for plaintiff that Shop No. 7 and 7A is the part
of the building No. 147, Gaiwadi Sadan, Dr. Vegas Street, Kalbadevi,
Mumbai. It is contended in the reply that the building is in existence
since 1960. The plaintiff contends that the corporation had issued
assessment extract to show the existence of the notice structure. It is
further contended that plaintiff’s father was in occupation of the notice
structure. It is contended that he has Shop and Establishment
Certificate, Health License, Electricity Bills.
It is contended that the plaintiff deserves be protected by order
of temporary injunction.
5. The defendant corporation on the other hand contended that the
notice structure is unauthorized. The plaintiff had not produced the
permission and the sanctioned plan for the construction.
6. It is contended by the corporation that the plaintiff is required to
show the existence of the notice structure prior to the datum line or is
required to show that the structure was constructed with permission
and sanctioned plan. The plaintiff had relied upon following
documents:
i) Representation letter by Adv. J.S.Yadav on behalf of Shri. Bhupendra
Thakker, owner of the shop No. 7 and 7A had replied vide letter dtd.
20.11.2018.
ii) Photocopy of survey register.
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iii) Photocopy of Assessment extract of SAC no. CX0706150070000 dtd.
22.12.2012.
iv) Photocopy of License Certificate issued by C ward office on dtd.
31.12.2000 and 08.01.2013 in name of Bhupendra Thakker for M/s.
Janata Tea House shop.
v) Photocopy of License issued by MOH ‘C’ ward office on dtd.
30.12.2014 in name of Bhupendra Thakker for M/s. Janata Tea
House Shop.
vi) Photocopy of letter issued by you to Senior Inspector of Police, L.T.
Marg Police Station on dtd. 11.12.2015.
vii) Photocopy of Electricity bill of dtd. 05.10.2018 in name of
Bhupendra Thakker to Shop no. 7A, GF, 147, Gaiwadi Sadan,
Mumbai-02.
viii) Representation letter from Shri. Navratan Varma addressed to The
Designated Officer C ward on dtd. 14.12.2018.
ix) Xerox copy of Assessment bill dtd. 31.01.1996.
x) Copy of letter issued by Asstt. Assessor & Collector C ward in year
1990-91.
xi) Copy of Annexure A dtd. 16.12.2017.
7. The plaintiff is required to show the existence of the notice
structure prior to the datum line. The plaintiff had filed the assessment
for the year 1990-91, 1996-2012. These documents do not show the
existence of the notice structure prior to 1962. It was for the plaintiff to
show by concrete evidence the existence of the structure prior to 1961-
62.
It also needs to be mentioned that it is the allegation of the
corporation that shop constructed in the notice structure is in open
space. The solitary structure in open space cannot be said to be a part
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of sanctioned plan. So also the plaintiff had not denied in his reply the
existence of the notice structure in open space. The only ground
available for the plaintiff is to show the existence of the notice structure
from 1962. The plaintiff had failed to show the documents showing the
existence of the notice structure prior to 1962. The notice of motion,
therefore, cannot be entertained.
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. 1869/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 03.03.2020 City Civil Court, Mumbai.
Dictated on : 03.03.2020
Transcribed on : 04.03.2020
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 : 14.03.2020
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
03.03.2020
JUDGMENT/ORDER signed by
P.O. on
14.03.2020
JUDGMENT/ORDER uploaded on 14.03.2020
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