Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2046-19 in Suit No. 1329-19
CNR NO.MHCC0100566819
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2046 OF 2019
IN
L.C. SUIT NO. 1329 OF 2019
Raajeev A. Saawant ......Plaintiff
Versus
Municipal Corporation of Gr. Mumbai ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room No. 05)
Date : 02nd December, 2019.
Appearance:
Ld. Adv. Mr. K.D. Jha for plaintiff
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
ORDER
1. The plaintiff 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 30.05.2019 and
the Order dated 03.06.2019.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. The Schedule of the Notice dated 30.05.2019 reads as under:
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2 NM 2046-19 in Suit No. 1329-19
''Unauthorised horizontal extension to the existing structure
by constructing siporex walls admeasuring 3.85 mtr x 3.45 mtr. having
average height of 2.92 mtr. covered with fiber sheet roof supported on
M.S. Channels as shown in the sketch in red colour at Tardeo Court
CHS Ltd, Javji Dadaji Marg, Old Chikalwadi, Tardeo, Mumbai,
Maharashtra07.''
4. The notice was replied by the plaintiff. It is contended that the
tenantable repairs were being carried out and the same has been
completed prior to issuance of the notice dated 30.05.2019. It is
contended that the tenantable repairs were over on 30.05.2019. The
notice is complied vide order dated 03.06.2019.
In the order dated 03.06.2019 it is observed that the plaintiff has
not submitted any authenticate documents, approved copy of plans,
permission if any from competent authority i.e. MCGM to prove the
authorization of the notice structure.
The Learned Advocate for the plaintiff argued that no
unauthorised construction was in progress. The society members are in
enemical terms with the plaintiff. The plaintiff is pressurized and is
issued notice under Section 354A of the MMC Act by the defendant
corporation at the behest on 30.05.2019.
It is submitted that on 03.06.2019 the reply of Advocate with
documents were submitted.
5. Admittedly, the order is passed by the corporation on 03.06.2019.
It is the contention of the plaintiff that the tenantable repairs were
carried out. It was for the plaintiff to explain what tenantable repairs
were carried out by him. In the reply to the notice dated 30.05.2019 it
is merely stated that tenantable repairs were carried out. The non
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3 NM 2046-19 in Suit No. 1329-19
explanation of the specific contention raised by plaintiff regarding the
tenantable repairs leads to the conclusion that the plaintiff is putting an
evasive reply to the contentions raised by the defendant corporation in
the notice.
6. The defendant corporation contended that the plaintiff was
unable to justify the construction at the time of inspection and failed to
show permission.
7. The allegations regarding the unauthorised construction are to be
justified by the plaintiff. The plaintiff either has to show that the notice
structure is in existence since 1964 or the plaintiff had permission to
carry out the construction. The photographs submitted by the
defendnat shows fresh construction in the progress. It cannot be said
that tenantable repairs. The plaintiff had denied the contentions raised
by the defendant corporation by filing affidavitinrejoinder. In the
absence of permission in favour of the plaintiff the structure primafacie
appear to be unauthorised.
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
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4 NM 2046-19 in Suit No. 1329-19
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 positive assertion
made with reference to the sanctioned building plans.''
The plaintiff has failed to make out the primafacie case in his
favour. 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 Notice of Motion No. 2046/2019 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 2.24 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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