Final Order 1

Order Details: Notice of Motion
Pdf Text: Draft N/m in Stamp No. 5522/2020. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
DRAFT NOTICE OF MOTION
IN
STAMP NO. 5522 OF 2020
Mr. Shivdhar Mewalal Yadav ...Plaintiff
Versus
Municipal Corporation Of Greater Mumbai and Others ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
(HOLIDAY JUDGE).
DATE : 13th NOVEMBER, 2020.
Mr. Nilesh Pandey, Advocate for Plaintiff.
Ms. Hajare, Advocate for Defendant Nos.1 and 2 / MCGM.
Mr. P.S.Tiwari, Advocate for Defendant No.3.
ORDER
This is a motion taken out by plaintiff for issuance of
temporary injunction against defendant no.3 to stop the work and
mandatory directions against defendants 1 and 2 to demolish
unauthorized construction initiated by the defendant no.3.
2. Suit premises is a Room No.3, Mewalal Chawl, Munshi
Mahal, Bhandup (West). In view of various photographs submitted by
plaintiff, ld. Adv. Nilesh Pandey for plaintiff submits that despite
pendency of the suit, defendant no.3 is in continuation of the work in
speed. Considering situation shown in the photographs, this Court has
directed the defendants 1 and 2 for spot visit and panchanama as per
order in roznama dated 12/11/2020.
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Draft N/m in Stamp No. 5522/2020. 2 Order.
3. Perused reply submitted by defendant no.3 vide Exh.4. It is
submitted by ld. Adv. P.S.Tiwari for defendant no.3 that in a Suit No.
149/197 of 2009, it is recited that suit premises is ground plus upper
floor. According to defendant no.3, it was in dilapidated condition, it is
also picturized in one photograph with defendant no.3 that warning in
respect of collapse of the property came to be affixed by MCGM on the
outer wall of the building. Defendant no.3 has changed the iron beams
as old beams were rusted. According to defendant no.3, there is no
vertical or horizontal extension of any wall nor there is increase in
height and length of the property. It is prayed to reject the motion.
4. In view of situation narrated in a short reply alongwith the
photographs submitted by MCGM vide Exh.6, ld. Adv. Tiwari for
defendant no.3 submits that present status shown in the photographs
alongwith Exh.6 would be maintained by the defendant no.3 and he
may be permitted to move MCGM for permission to repair.
5. Ld. Adv. Hajare for MCGM/defendants 1 and 2 submits that
in view of photographs annexed with panchanama alongwith Exh.6
clearly indicate unauthorized construction and vertical extension
carried out by the defendant no.3. MCGM has issued a notice under
Section 354A of MMC Act, wherein in para 27, description of
unauthorized construction is narrated as follows :
“Unauthorised Construction by extending structure
to 1st floor without permission of competent
authority admeasuring 22 sq. m., Construction with
bricks, A.C. roof, steel members and ladi coba.”
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6. It is added that MCGM has issued a notice under Section
354A of MMC Act. It is requested to peruse panchanama drawn by the
Junior Engineer Mr. Adsul of Ward 'S'. There was gathering of mob. It
appears attempt to create obstruction in process of panchanama. It is
prayed for appropriate order.
REASONS FOR ORDER
7. It is to note at the inception that the relations between
plaintiff and defendant no.3 are strained being landlord and tenant. The
copy of suit preferred before the Small Causes Court, description of the
property in that suit etc. are not produced before this Court for minute
perusal. However, according to defendant no.3, it is ground plus upper
floor and suit premises was requiring urgent repair that it might
collapse at any time.
8. According to defendant no.3, there is a warning banner
pasted on the building by the MCGM. It means not only plaintiff and
defendant, but public at large were informed by the public authority in
respect of condition of the suit property. The natural question arose in
such a situation, was there any obstacle to the defendant no.3 to submit
application to repair the premises ? It is replied by ld. Adv. Tiwari for
defendant no.3 that today he will move for permission to repair. This
submission placed by Mr. Tiwari for defendant no.3 after report vide
Exh.6 came to be submitted by Junior Engineer Mr. Sagar Adsul of 'S'
Ward, as per order by this Court in roznama dated 12/11/2020 at 1.30
p.m. and urgent visit of MCGM officer came to be directed by this Court
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at 5.00 p.m. on same day. The Court could consider the submission of
defendant no.3 if he would have placed the submissions when the suit
was heard for ad-interim relief for the first time on 10/11/2020.
Therefore, this Court is of view to impose Commissioner cost of
Rs.5,000/- (Rupees Five Thousand Only) be deposited by the defendant
no.3 to the office of MCGM within two weeks.
9. There is a settled position of law that one must approach
the Court with authenticity of the structure. The photographs
submitted by the public officer is to be believed usually as genuine as he
holds no enmity. Considering situation brought before the Court in
view of various photographs, it appears some repairing was urgent in
nature. However, any building cannot be lead to such a condition i.e.
'C1' within one or two weeks. It was the duty of landlord or the
occupier to carry out maintenance regularly as per requirement.
10. There is no case of defendant no.3 that responsible person
for the repairing has avoided to repair, despite his request. There is no
copy of application submitted by the defendant no.3 that he made an
endeavour to intimate authority that landlord / responsible person has
avoided to repair the building.
11. It is material to note that MCGM 'S' Ward has issued a
notice under Section 354A of MMC Act on 12/11/2020. There is a
mechanism to issue speaking order by the designated officer after
submission of reply by the occupier. Defendant no.3 may submit his
reply, it is upto defendant no.3 to move the MCGM for regularization as
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per rules.
12. In Namdev Pandurang Panchal V/s. MMC (indiankanoon
256413 dated 16/09/2005) it is observed by the Hon’ble Lordship of
Bombay High Court that,
“There cannot be any substitute for written
permission of the BMC for construction nor there
cannot be any substitute for approved plan before
construction.”
13. In view of aforesaid discussion, following are the important
points to note :
a) There is different issue pending between plaintiff and
defendant no.3 in respect of possession, eviction, as
landlord and tenant etc. However, it is not the question
for consideration before this Court.
b) It is admitted by defendant no.3 that now he will move
for regularization as he had initiated repairing.
c) Considering inspection image with latitude and longitude
of location, supported with various photographs,
unscaled map, etc., it shows some construction alongwith
installation of iron beam / pillar came to be initiated by
the defendant no.3.
d) In view of settled position of law, there cannot be any
substitute for permission in writing.
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Draft N/m in Stamp No. 5522/2020. 6 Order.
14. Considering aforesaid discussion, motion is deserved to be
partly allowed. Hence the order :
- ORDER -
1. Motion at draft level is partly allowed.
2. Defendant no.3 is at liberty to submit reply in view of first
inspection report dated 12/11/2020 or may proceed for
regularization as per rules.
3. Defendant no.3 to deposit Commissioner cost of Rs.5,000/-
(Rupees Five Thousand Only) with MCGM, 'S' Ward within
two weeks.
4. Defendant no.3 to maintain status-quo as covered in
panchanama and photographs alongwith Exh.6 till
speaking order issued by the designated officer.
5. Present motion at draft level is disposed off, it be register
for statistical purpose, parties are at liberty to move fresh
motion after speaking order issued by the MCGM.
6. Authenticated copy of operative order be given to both
side.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 13/11/2020. Mumbai.
1. Dictated online on : 13/11/2020.
2. Placed for correction on : 24/11/2020.
3. Correction carried on : 25/11/2020.
4. Signed on : 25/11/2020.
5. Delivered to Certified :
Copy Section on
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Draft N/m in Stamp No. 5522/2020. 7 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
31/12/2020. 3.00 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 13/11/2020.
Judgment/Order signed by P.O. on 25/11/2020.
Judgment/Order uploaded on 31/12/2020.
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