Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1944-19 in Stamp No. 5764-19
CNR NO.MHCC01 00539019
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1944 OF 2019
IN
L.C. SUIT (STAMP) NO. 5764 OF 2019
Madanraj S. Jain .....Plaintiff
Versus
Designated Officer, Asst. Engr.
(B & F), 'C' Ward, Municipal Office,
76, Shrikant Palekar Marg, Off. Chandawadi,
Mumbai02 & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 15th June, 2019
Appearance:
Ld. Adv. Mr. P.D. Gandhy for the plaintiff.
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendants from taking any action pursuant to the notice
under Section 351 of the Mumbai Municipal Corporation Act, 1888
(hereinafter referred to as 'the MMC Act') dated 02.02.2019 and order
dated 19.05.2019.
It is the allegation of the defendant corporation that the plaintiff
had carried out unauthorizedly addition / alteration in Room No. 1703,
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2 NM 1944-19 in Stamp No. 5764-19
7th floor, 28/30 Vardhaman Galaxy, Maheshwari CHS Ltd., Naviwadi
Kalbadevi, Mumbai 02 by way of removal of the existing brick masonry
wall and increasing area by amalgamation of flower bed of study room
and which is contravention to approved plan u/no. EEBP /833/C/A dtd.
19.10.2015.
2. The plaintiff had replied the notice and had contended that the
plaintiff is residing in the said premises alongwith his family. It is
pointed out that it is only done for better lives of family members
without causing any structural in stability to the over all structure.
Thereafter, the speaking order was passed considering the documents
filed by the plaintiff.
It was observed that the alleged addition/alternation change in
Room No. 1703, 7th floor, 28/30 Vardhaman Galaxy, Maheshwari CHS
Ltd., Naviwadi Kalbadevi. Mumbai 02 by removing the brick masonry
wall and by amalgamating flower bed of study room. The plaintiff was
directed to remove, demolish or pull down the notice structure within 7
days from receipt of the order. Failing the same would be removed /
demolished by this office at risk and cost and consequences. The
plaintiff was also informed liability of his prosecution under Section
475A of the MMC Act.
3. Heard the Learned Advocate for the plaintiff and Learned
Advocate for the defendant corporation.
At the cost of repetition, the schedule of the notice is again
considered. It reads as under:
''Unauthorized addition / alteration in Room No. 1703, 7th floor,
28/30 Vardhaman Galaxy, Maheshwari CHS Ltd., Naviwadi Kalbadevi,
Mumbai 02 by way of removal of the existing brick masonry wall and
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3 NM 1944-19 in Stamp No. 5764-19
increasing area by amalgamation of flower bed of study room and
which is contravention to approved plan u/no. EEBP /833/C/A dtd.
19.10.2015.''
4. Going by the order of the n otice, it is the allegation of the
corporation that the plaintiff had unauthorizedly added/altered Room
No. 1703 by removing the existing brick masonry wall and increasing
area of amalgamation of flower bed of study room in contravention to
approved plan. It is not the allegation of the corporation that the
plaintiff had carried out any new construction by building a wall or
carrying out any construction what is alleged is the removal of wall and
amalgamation of flower bed of study room .
The question of demolition does not arise. The corporation had
called upon the plaintiff to remove the structure within 7 days from the
receipt of notice. The prayer in the notice of motion of the plaintiff is
restringing the defendant from acting upon the defendants from taking
action pursuant to the notice under Section 351 of the MMC Act. The
only action proposed in order by the defendant corporation is to remove
demolish or pull down the notice structure.
The order cannot be executed. The question of demolition in the
instant suit does not arise. The corporation had not sought restoration
of the structure in its order. The question of injunction therefore cannot
be considered.
5. In the light of the order by the corporation that the action
proposed is not executable and cannot be executed. Therefore, the
question of injunction does not arise. The corporation had also
proposed action under Section 475A of the MMC Act, an independent
remedy for the defendant corporation to prosecute. The application of
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4 NM 1944-19 in Stamp No. 5764-19
the plaintiff therefore cannot be considered. The reliefs claimed cannot
be granted.
The question of granting temporary injunction does not arise.
In the result, following order is passed.
ORDER
The Notice of Motion No. 1944/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 15.06.2019 City Civil Court, Mumbai.
Dictated on : 15.06.2019
Transcribed on : 17.06.2019
Signed by HHJ on : 21.06.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 21.06.2019 at 3.50 pm.
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
15.06.2019
JUDGMENT/ORDER signed by
P.O. on
21.06.2019
JUDGMENT/ORDER uploaded
on
21.06.2019
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