Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.1518-2011 L.C.SU no.1374-2011
CNR MHCC010055802018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1518 OF 2011
IN
L.C. SUIT NO.1374 OF 2011
Manojbhai Thanawala ]...Plaintiff.
Versus
Municipal Corporation of ]
Greater Mumbai & Anr. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 20th April, 2018.
Mr. S.P. Dalal with Mr. Kapadia, advocate for plaintiff.
Ms. Patil, advocate for defendant.
ORDER
1. The plaintiff has taken out this notice of motion for
appointment of Court Commissioner to inspect the suit premises and
report. Secondly, the plaintiff has prayed for temporary injunction for
restraining the defendant Corporation from acting in pursuance of
impugned notice dated 14.5.2011 issued under Section 351 of the
M.M.C. Act and the final order dated 16.6.2011.
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2. The facts, in brief, are that the suit building is owned by the
defendant no.2 society and constructed in 1960, on the gradient of
Padma tekadi (Hill). The land where the suit building has been
constructed descends from south to north and also from west to east.
There are in all nine garages, out of which the garage nos.6 and 9 are at
split level, as narrated in the plaint.
3. According to the plaintiff, the suit relates to the rear upper
portion / level to garage no.6. This portion is attached with a
bathroom. In 1998, the plaintiff acquired the suit premises with garage
no.6 from M/s. Greenwich Radio Corporation. The defendant no.2
accepted the plaintiff as nominal member.
4. In second week of April, 2011 the officers of the defendant
called the plaintiff to allow inspection of the suit premises and the
garage no.6. However, the plaintiff was out of station and could not
allow inspection as required.
5. The plaintiff received notice dated 14.5.2011 issued under
Section 351 of the M.M.C. Act alleging that the plaintiff has carried
out an unauthorized constructions of platform, cabin, toilet and
changed the user from parking to commercial use. The plaintiff replied
the said notice denying the allegations and by contending that the
notice structure exists since beginning. The plaintiff also submitted
documents, plans etc. However, by ignoring the same and without
application of mind the defendant passed an order directing the plaintiff
to remove the notice structure or to face an action for its demolition,
which led institution of suit.
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6. The defendant Corporation opposed the motion by
contending that it received a complaint from local resident Ms. Manju
Sharma on 4.3.2011. Consequently, upon inspection of suit site on
28.3.2011 an unauthorized construction of notice structure was found
and therefore, the impugned notice was issued. The plaintiff did not
reply satisfactorily and therefore, the impugned order was passed. The
plaintiff by filing an affidavit in rejoinder refuted the contentions raised
by the defendant and contended that as the plaintiff was out of station,
the garage was locked and therefore, there was no opportunity to the
defendant to inspect the same and therefore, the report of inspection is
false.
7. Considering the submissions made by the respective
advocates and the copies of documents placed on record, the following
points are decided for the reasons stated below:
SR.
NOS.
POINTS FINDINGS
1 Whether the plaintiff has made out a prima
facie case?
In affirmative.
2 Whether the points of balance of
convenience, hardship and irreparable loss lie
in favour of the plaintiff?
In affirmative.
3 Whether the plaintiff is entitled to temporary
injunction as prayed for?
In affirmative.
4 Whether the plaintiff is entitled for
appointment of Court Commissioner for
purpose mentioned in the motion?
In the negative.
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REASONS
As to point nos.1 to 3:
8. It is necessary to look into the documents placed on record,
the copy of estate register maintained by defendant no.2 Society prima
facie shows the existence of garage no.6. Similarly, the copy return of
Municipal taxes under Section 155 of the M.M.C. Act also shows prima
facie that the said garage has been assessed for Municipal taxes. The
copy of undertaking given by the plaintiff to the defendant no.2 Society
dated 21.7.1998 shows that the said garage is splited in upper and
lower levels as stated in the sanctioned plan.
9. The copy of sanctioned plan dated 11.7.1977 prepared for
the purpose of installation of second lift prima facie shows the existence
of said garage and toilet block near the said garage.
10. The copy of impugned notice shows the levels in which the
garage is divided. Under such circumstance, when the existence of the
garage and the toilet block can be gathered from 1977 as shown in the
aforesaid copy of approved plan, there is possibility of their existence
since prior to 1977. However, the defendant did not issue copy of
original sanctioned plan of the suit building to the plaintiff when it was
requested under R.T.I. Act. Moreover, when it prima facie appears that
the plaintiff was out of station and the garage was locked, how the
concerned officer inspected it and in whose presence it was so
inspected, and whether it was really inspected. Therefore, at this
juncture the intervention of this court is necessary. If the defendant is
not restrained, there may be demolition of the notice structure which
will cause irreparable loss to the plaintiff. Thus, the plaintiff has made
prima facie case. Accordingly, point nos.1 to 3 are answered in
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affirmative.
As to point no. 4:
11. So far as point no.4 is concerned, it is well settled position
of law that Commissioner cannot be appointed for collection of
evidence. Commissioner can be appointed for local investigation to
obtain evidence which from its peculiar nature can only be had on the
spot like boundary dispute or identity of land as held in the case of
Kisanlal vs. Dinkar reported in 2003 (4) All M.R. 1083. Here, the
plaintiff can very well bring on record the factual aspects of the said
garage and location of toilet block etc. Moreover, the matter in dispute
relates to legality and vires of the construction of the notice structure
and of the impugned notice and the order. Therefore, Commissioner
cannot be appointed for the purpose, for which the plaintiff has prayed
for the same. Accordingly point no.4 is answered in the negative and
the following order is passed.
ORDER
1. Notice of Motion no.1518 of 2011 is made absolute in terms of
prayer clauses (b) by restraining the defendant from demolishing
the notice structure in pursuance of the impugned notice and
order.
2. The notice of motion no.1518 of 2011 is dismissed in respect of
the prayer clause (a).
3. Parties to bear their respective costs.
Sd/
(M.S. Deshpande)
Ad Hoc Judge,
City Civil Court, Mumbai.
Dated: 20.04.2018
Directly typed on : 20/04/2018.
Checked by HHJ on : 23/04/2018.
Signed by HHJ on : 24/04/2018.
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6 NM no.1518-2011 L.C.SU no.1374-2011
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.05.2018 At 02.00 p.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
20.04.2018
JUDGMENT/ORDER signed by
P.O. on
23.04.2018
JUDGMENT/ORDER uploaded
on
04.05.2018
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