Order 1

Order Details: Notice of Motion
Pdf Text: NM 168518 in SU 119818 : 1 : Dt. 14.08.2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1685 OF 2018
(CNR NO. MHCC010055842018)
IN
LONG CAUSE SUIT NO. 1198 OF 2018
(CNR NO. MHCC010039002018)
Mr. Shankar Bhiku Rahate ...Plaintiff
Versus
1. Municipal Corporation for
Greater Mumbai
2. Assistant Municipal Commissioner
M / West Ward
3. Designated Officer ...Defendants
CORAM : HER HONOUR JUDGE
SANJASHREE J. GHARAT
(C.R. NO. 08)
DATE : 14.08.2018.
Ld. Adv. Mr. Vidnyan Daware for Plaintiff.
Adv. Ms. Tadvi for Defendant / BMC.
ORAL ORDER
The present Notice of Motion is taken out by the
Plaintiff to restrain the Defendants by way of adinterim
injunction from executing and / or implementing and / or
acting pursuant to the impugned order passed by the
Corporation on 16.03.2018 u/s. 351 of MMC Act.
2. The Plaintiff claims that he is in lawful use,
occupation of the suit premises which is specifically described
in the Para No. 1 of the Plaint.
3. It is the contention of the Plaintiff that suit
-- 1 of 6 --
NM 168518 in SU 119818 : 2 : Dt. 14.08.2018
premises is in their possession for last 90 years. Therefore
Plaintiff claims that the order passed by the Defendant /
Corporation on 16.03.2018 is against the rules of Natural
Justice. It is further contention that it is necessary to give the
reasons while passing the order. It is the grievance of the
Plaintiff that before passing the order no opportunity was
given to the plaintiff. Therefore he is entitled for adinterim
relief.
4. The Defendant / Corporation filed reply vide
Exh. 3 and resisted the Notice of Motion filed by the Plaintiff.
The Defendant / Corporation challenged the maintainability
of the suit for want of Notice. It is the contention of the
Defendant / Corporation that they have received several
complaints from one Tunga K. Devadiga in respect of illegal
and unauthorised construction. In pursuance of the said
complaint, the officials of the Defendant / Corporation
inspected the said building. On inspection they found that
Plaintiff had carried out unauthorised structure of Ground
Floor structure with brick masonry wall. Therefore, Plaintiff
was called upon to produce the documentary evidence to
show the authorisation of structure. However Plaintiff failed
to produce evidence, the officer prepared Inspection Report.
Thereafter Notice came to be issued against Plaintiff u/s. 351
of MMC Act. It is submitted that as per the Schedule the
Plaintiff carried out unauthorized construction of ground floor
structure with the help of brick masonry wall having A.C.
Sheets Roofing. It is further submitted that plaintiff failed to
-- 2 of 6 --
NM 168518 in SU 119818 : 3 : Dt. 14.08.2018
produce documentary evidence showing authorisation of
structure prior to Datum line. Therefore Speaking Order
came to be passed in respect of the demolition of suit
structure. It is contention of the Defendant / Corporation that
Plaintiff carried out construction of suit structure
unauthorizedly without permission. Therefore, impugned
order passed by the Corporation is legal and proper.
Therefore, Defendant / Corporation prayed to reject the
application.
5. Considering the rival submissions made on behalf
of both the parties following points arise for my
determination and I answer the same together with reasons
thereon as under :
POINTS FINDINGS
1. Whether Plaintiff made out prima facie
case ? In the Affirmative.
2. Whether balance of convenience lies in
favour of Plaintiff ?
In the Affirmative.
3. To whom irreparable loss will be caused ? To Plaintiff.
REASONS
As to Point Nos. 1 to 3 :
6. It is contention of the Plaintiff that suit structure
is in existence for number of years and he had not carried out
any unauthorized construction. It is the contention of the
Plaintiff that the suit structure is in existence for last 90 years.
In support of the said contention plaintiff filed Voters List in
the year 1971, Extract of Voters List1995, Voters ID issued in
-- 3 of 6 --
NM 168518 in SU 119818 : 4 : Dt. 14.08.2018
his name, Ration Card, Aadhar Card, Ruled Card and
Property Card.
7. The Plaintiff claims that they are residing in the
suit structure for last 90 years. Initially they used to cultivate
the land and also used to reside there. Therefore, Plaintiff
denied that they have carried out unauthorized construction
of suit premises. It is pertinent to note that the Plaintiff
produced number of documentary evidence to show the
existence of structure for number of years. The Notice was
issued by the owner of the Property demanding the rent from
1984. The Electoral Roll of the Marvali village of the year
1971 also bears his name. Therefore existence of structure is
proved by the Plaintiff. I have gone through the impugned
Notice. The impugned Notice is issued alleging unauthorized
construction of ground floor structure with brick masonary
walls and A.C. sheet roof in area admeasuring 9.14 m. x 3.04
m. with average height of 2.43m. It is not the contention of
the Corporation that Plaintiff carried out any extension in the
existing structure before issuance of impugned Notice. The
documentary evidence produced on record shows existence of
structure prior 1971. Therefore primafacie Plaintiff produced
documentary evidence to show the existence of structure. If
the impugned Notice and Speaking Order is not passed in
respect of existing structure then Corporation has to specify in
their Schedule what was the existing structure available and
what extension carried out by the Plaintiff.
8. Therefore if impugned Notice and Speaking
-- 4 of 6 --
NM 168518 in SU 119818 : 5 : Dt. 14.08.2018
Order is acted upon then entire purpose for filing of suit will
be frustrated. The Plaintiff made out prima facie case for
grant of injunction. The balance of convenience lies in favour
of Plaintiff. If adinterim injunction as prayed by the Plaintiff
is not granted, then irrepairable loss will be caused to the
Plaintiff which can not be compensated in terms of money.
Therefore, I record my findings at Point Nos. 1 and 2 in the
Affirmative and Point No. 3 in favour of Plaintiff. As a result,
I proceed to pass following Order :
ORDER
1. Notice of Motion No. 1685 of 2018 is allowed
and made absolute in terms of prayer clause (a).
2. The Defendant / Corporation, their agents, officers
or anybody acting on their behalf are hereby restrained by
way of ad interim injunction from acting upon the
impugned notice and order till final decision of the suit.
(SANJASHREE J. GHARAT)
Judge
City Civil Court,
Date : 14.08.2018. Gr. Mumbai.
Dictated on : 14.08.2018.
Transcribed on : 18.08.2018.
Signed on : 21.08.2018.
-- 5 of 6 --
NM 168518 in SU 119818 : 6 : Dt. 14.08.2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
21.08.2018 at 1.53 p.m. (Y.M. SAKHARKAR)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SANJASHREE J. GHARAT
(C.R. NO.08)
Date of Pronouncement of
JUDGMENT/ ORDER
14.08.2018.
JUDGMENT/ORDER signed by P.O.
on
21.08.2018.
JUDGMENT/ORDER uploaded on 21.08.2018.
-- 6 of 6 --