Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Draft NM in Stamp No. 5709-19
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C. SUIT (STAMP) NO. 5709 OF 2019
M/s. Mazda Enterprises ....Plaintiff
V/s.
The Municipal Corporation of Greater Mumbai ..... Defendant
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 3rd June, 2019.
Appearance:
Ld. Adv. C.B. Yadav for the plaintiff.
Ld. Adv. Kumavat for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon the notice dated
11.04.2019 and the order dated 19.05.2019, issued by the defendant
corporation under Section 351 of the Mumbai Municipal Corporation
Act, 1888 (herein after referred to as the MMC Act).
2. Heard Advocate for the plaintiff and the Advocate for the
defendant corporation.
Perused the plaint, the notice of motion, the documents annexed
with the plaint and the say filed to the notice of motion by the
defendant corporation.
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2 Draft NM in Stamp No. 5709-19
3. The plaintiff was issued notice dated 11.04.2019 under Section
351 of the MMC Act. The in respect of the unauthorized construction
described in the schedule of the notice. The schedule reads as under:
''Unauthorized lowering of plinth level and construction of
mezzanine floor by way of using M.S. Angles ladi coba slab
admeasuring size of 7.84m x 2.80m x 2.10m (ht) in Shop no. 1, Ground
Floor, 205/207, Mazda Video Games, C.H. Street, Dhobitalao, Mumbai
02 and construction of toilet at backside of shop without taken prior
permission from competent authority, i.e. MCGM.''
It is the contention of the corporation that the landlord Mrs.
Paricher Khudabux Zorabian had filed a complaint about the illegal
construction carried out by the plaintiff. The shop of the plaintiff is a
commercial structure and was inspected on 15.03.2019. In the visit to
the shop, it was found that the plaintiff had carried out the construction
of mezzanine floor by using M.S. Angles and ladi coba slab admeasuring
7.84m x 2.80m x 2.10m without permission. Also he had lowered of
plinth level and constructed of toilet. The plaintiff was accordingly
issued the notice under Section 351 of the MMC Act dated 11.04.2019
for challenging the suit.
4. The plaintiff had filed the say to the notice on 24.04.2019. It is
contended in the reply that the notice is false. It was submitted that he
is the tenant of the premises and is in possession of the same. He
submitted that he had not carried out any construction in the shop
premises from the date of the tenancy. He denied to have carried out
the unauthorized construction of mezzanine floor. He had not denied
the construction of toilet.
5. The say and the documents filed by the plaintiff were considered
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3 Draft NM in Stamp No. 5709-19
and the speaking order dated 19.05.2019. After findings the plaintiff
did not have valid permission for construction of mezzanine floor and
construction of toilet. The plaintiff was called upon to remove the
construction in 7 days and was also informed about his liability to be
prosecuted under Section 475A of the MMC Act.
It was argued by the Plaintiff that the notice under Section 351 of
the MMC Act was issued at the behest of the landlord. It was pointed
out that the plaintiff is only person to had not vacated the premise for
redevelopment purpose. It was pointed out that in collusion with the
defendant corporation, the landlord had made the corporation issue
notice under Section 351 of the MMC Act.
The plaintiff had not disputed the schedule in the notice issued to
him under Section 351 of the MMC Act. It was pointed out that he is
merely a tenant and had not carried out any construction.
It was pointed out that the notice under Section 351 of the MMC
Act ought to have been issued to the landlord and not to the tenant. It
needs to be mentioned that the complaint was made to the M.C.G.M.
about the unauthorized construction by the landlord himself against the
plaintiff. The question of issuing the notice to the landlord therefore
does not arise.
The map submitted by the plaintiff with the plaint in respect of
shop no. 1 i.e. the suit structure shows the existence of loft and also
shows the length the breadth of the shop. It does not point out the
existence of mezzanine floor and height of the loft from the ground
level.
The corporation had come up with specific allegation in the
notice under Section 351 of the MMC Act about the construction of
mezzanine floor and the construction of toilet by the plaintiff. The
contention is also supported by the inspection report filed alongwith the
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4 Draft NM in Stamp No. 5709-19
say by the defendant corporation to the notice of motion. It was for the
plaintiff to show that he had valid permission for construction of
mezzanine floor or was required to show the existence of the mezzanine
floor in the commercial premise since 1962. The plaintiff in his say to
the notice had not contended about any valid permission or the
existence of the notice structure since 1962. The only contention raised
is that the suit structure is the same since inception of the tenancy.
The plaintiff in the plaint describes the length and breadth of the
shop no. 1, but fails to describe the height of the shop. It is the
contention of the defendant corporation that the plaintiff had lowered
the plinth level of the shop. It goes to suggest that the plinth was
lowered to accommodate the mezzanine floor.
In the light of the discussion made above, the plaintiff cannot be
said to have made prima facie case in his favour. The plaintiff has
sought equitable relief but had not approach the court of law with clean
hands. 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.
ORDER
The Draft notice of of motion is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 03.06.2019 City Civil Court, Mumbai.
Dictated and direct typed on computer on : 03.06.19
Checked by HHJ on : 07.06.19
Signed by HHJ on : 07.06.19
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5 Draft NM in Stamp No. 5709-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 17.06.2019 at 1.15 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
03.06.2019
JUDGMENT/ORDER signed by
P.O. on
07.06.2019
JUDGMENT/ORDER uploaded
on
17.06.2019
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