Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2028-19 in Suit No. 1270-19
CNR NO.MHCC0100560219
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2028 OF 2019
IN
L.C. SUIT NO. 1270 OF 2019
N.H. Harsora Pvt. Ltd. & Anr. .....Plaintiffs
Versus
Designated Officer Asst. Engineer (B & F)'D'' Ward & Anr. ... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room No. 05)
Date : 02nd December, 2019.
Appearance:
Ld. Adv. Mr. P.D. Gandhy for plaintiff
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
ORDER
1. The plaintiffs by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon the notice
issued under Section 354A of the Mumbai Municipal Corporation Act,
1888 (hereinafter referred to as 'the MMC Act') dated 24.05.2019 and
the Order dated 03.07.2019.
2. Heard Learned Advocate for the plaintiffs and Learned Advocate
for the defendant corporation.
3. The Schedule of the Notice dated 24.05.2019 reads as under:
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2 NM 2028-19 in Suit No. 1270-19
''Ongoing unauthorised extension of vertical height above
existing first floor adm. 29.30 m x 11.30 m x 2.0m (Avt ht.) as shown in
red colour in sketch at Hakim Chawl Building, Patte Bapurao Marg,
Grant Road East Mumbai07.''
4. The notice was replied by the plaintiffs on 29.05.2019. The
plaintiffs had denied to the alleged unauthorised construction. It is
contended that no photographs and panchanama are prepared.
It is contended that no work is in progress. It is contended that
the plaintiffs are the owners of the structure. It is contended that the
building is classified in ''A'' Category. The building is occupied by several
tenants. It is contended that the inspection extract shows the existence
of the suit building on dated 01.04.1961.
The plaintiff had relied upon following judgment:
in Writ Petition No. 799/1981 in case of Dr. Hakimwadi Tenant's
Association & Two others Vs. The State of Maharashtra & Ors.
5. Going by the contentions the suit building is categorized into ''A''
Category. Admittedly, it goes to suggest that the notice structure is in
dilapidated condition. It is the allegation that ongoing unauthorised
extension of vertical height above existing first floor adm. 29.30 m x
11.30 m x 2.0m (Avt ht.) is to be carried out. The plaintiffs failed to
show the authorization of the notice structure at the time of inspection.
The photographs are tendered by the defendant corporation shows the
construction in progress. The photographs primarily show the
dilapidated condition of the notice structure. The plaintiff himself
admits that the notice structure is in dilapidated condition and the
building is categorized as ''A'' Category building. It was for the plaintiffs
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3 NM 2028-19 in Suit No. 1270-19
to be more cautious. The photographs in the inspection report prima
facie shows the on going construction. The plaintiff has contended that
tenantable repairs are being carried out.
6. It was for the plaintiff to show that nature of tenantable repairs.
He was expected to produce photographs. It primafacie appears that
the plaintiffs was carrying out the construction. The plaintiffs had
relied on other documents alongwith reply to the notice. The plaintiffs
had not submitted any permission to show the construction in progress.
The defendant may not have prepared the panchanama. The technical
lapses on the part of the defendant corporation does not make the
unauthorised construction as authorized.
The judgment relied by the plaintiff also does not help his case.
The Hon'ble High Court in Public Interest Litigation No.
67/2017 had clarified the legal position for the benefit of this Court
and benefit of all the judges in State of Maharashtra were on such
grounds the suits are instituted. It had observed in paragraph no. ''5'' as
follows:
''5. Concerning a property, a suit to enforce or protect an interest in
the property which is governed by a Municipal Statute, the interest
protected has to be with respect to a plea that primafacie, the structure
which is being targeted is an authorized structure. Meaning thereby, the
plaint must make an averment of the sanction obtained from the
Corporation and must make an averment that the the structure targeted is
primafacie governed by the sanction. Merely pointing out deficiencies in
the notice or the authority of the person issuing the notice is neither here
nor there. Thus, the sine qua non of such kinds of suits is a positive
assertion made with reference to the sanctioned building plans.''
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4 NM 2028-19 in Suit No. 1270-19
7. In the absence of any permission for on going construction. It is
to be inferred that reconstruction of the structure commenced by the
plaintiff is unauthorised.
The plaintiffs has failed to make out the primafacie case in their
favour. The balance of convenience does not lies in favour of the
plaintiffs. The plaintiffs would not be put to irreparable loss, if the
temporary injunction is refused. In the result, following order is passed.
ORDER
The Notice of Motion No. 2028/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 02.12.2019 City Civil Court, Mumbai.
Dictated on : 02.12.2019
Transcribed on : 03.12.2019
Signed by HHJ on : 07.12.2019
''CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 07.12.2019 at 2.29 p.m.
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
02.12.2019
JUDGMENT/ORDER signed by
P.O. on
07.12.2019
JUDGMENT/ORDER uploaded
on
07.12.2019
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