Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.1786-2009 L.C.SU no.2300-2009
CNR MHCC01-005732-2018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1786 OF 2009
IN
L.C. SUIT NO.2300 OF 2009
1. Javed Iqbal Koradia and Anr.]...Plaintiffs.
Versus
The Municipal Corporation of ]
Greater Mumbai. ]... Defendant.
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 17th April, 2018.
Mr. Lulia, advocate for plaintiff.
Ms. Patil, advocate for defendant.
ORDER
1. The plaintiff has taken out this notice of motion seeking
interim relief of injunction for restraining the defendant from
demolishing the notice structure mentioned in notice dated 3.10.2009
and order dated 20.10.2009.
2. The facts, in brief, are as follows:
The plaintiffs are in occupation of the premises
admeasuring about 30 ft. x 10 ft. of area (for short, “suit premises”)
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located at the first floor of the building no.55 (for short, “the suit
building”), Maruti lane, Fort, Mumbai. According to the plaintiffs, the
suit building consists of ground plus first floor. Earlier, it was a
building consisting of ground plus four upper floors. However, in 1977
the second, third and forth floors were collapsed.
3. According to the plaintiffs, earlier they were using the suit
premises as licensee. However, on 18.6.2009 the plaintiff no.2 with
another person acquired entire property. The suit building was assessed
for municipal taxes prior to 196162. As the structure was old, the
plaintiff carried out tenantable repairs to the suit building by changing
flooring, plastering, doors, windows and also did painting etc. The
plaintiffs have not changed the structure of the suit building. According
to the plaintiff, in 1958 the suit building was repaired by obtaining valid
permission.
4. However, on 3.10.2009 the plaintiffs received a notice
under Section 354 A of the M.M.C. Act, alleging that they have carried
out unauthorized vertical extension to ground floor with M.S. Sections
and ladi coba slab admeasuring about 15 meter x 3.20 meter x 3.20
meter in height. On 5.10.2009 the plaintiffs replied the same and filed
documents in support of their claim. According to the plaintiffs, on
3.10.2009 no work was in progress. However, on 20.10.2009 the
defendant by passing an order, directed the plaintiff to remove the
construction or to face an action of its demolition.
5. The defendant by filing the reply opposed notice of motion
by contending that the suit and motion are not tenable. According to
the defendant, its engineer visited the suit site on 3.10.2009 and found
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that unauthorized construction of the suit premises was in progress. He
inquired with the plaintiffs about permission for raising structure.
However, the plaintiffs could not produce any permission or approved
plan. Therefore, the officer of the defendant took photographs and
prepared first inspection report and issued impugned notice. Though,
the plaintiff has replied the same they have not shown authorization of
the notice structure and therefore, the designated officer passed an
order of demolition of the notice work. By filing rejoinder the plaintiff
has denied the contentions raised by the defendant.
6. Heard respective advocates at length. They have made
submissions in consonance with contentions raised by the respective
parties.
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 plaintiffs have 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 plaintiffs?
In affirmative.
3 Whether the plaintiffs are entitled to
temporary injunction as prayed for?
In affirmative.
REASONS
As to point nos.1 to 3:
8. It is necessary to look into the copies of documents placed
on record. A copy of block plan issued by the City Survey office shows
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that earlier, the construction of the suit building was consisting of five
floors. The copy of assessment extract shows that the property was
assessed first in the year 196162.
9. The copy of impugned notice shows the description of
unauthorized work as follows:
Unauthorized vertical extension to the ground floor
structure with M.S. J. Sections and ladi coba slab admeasuring 15
meters x 3.20 meters with height 3.20 meters. The copy of order dated
20.10.2009 prima facie shows that the reply was rejected on the ground
that the documents produced by the plaintiffs were not showing
authorization of the notice structure.
10. It also prima facie apears from the copies of IOD dated
5.11.1958, plan dated 24.7.1958 and commencement certificate dated
14.1.1959 that the suit building was allowed to be repaired.
11. The Hon'ble High Court of Bombay in the case of Sopan
Maruti Thopte vs. Pune Municipal Corporation reported in A.I.R.
1996 Bombay 304 in paragraph no.19 of the judgment has laid down
the guiding principles in paragraph (i) to (vi). The clause (iii) would
be applicable to the present set of facts, which can be read as under:
19(iii) “In the case the staff of the Corporation detects
the building which is in the process of being constructed and / or
reconstructed and / or extended without valid permission from the
Corporation, it would be open to the Commissioner to demolish the
same by giving a short notice of 24 hours after drawing a
panchanama at the site and also by taking photographs of such
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structure and/or extension. The photographs should indicate the
date when the same were taken.”
12. Though the defendant has filed detail reply, it has not
produced any documents on record, and therefore, there is nothing on
record to show that the defendant has followed the guidelines laid
down by the Hon'ble High Court. The defendant has not produced the
inspection report, photographs and panchanama to show the exact
position of the construction on the date of impugned notice. Therefore,
if an interim protection is not granted to the plaintiff, the defendant will
demolish the construction which will result into irreparable loss to the
plaintiffs. Thus, the plaintiffs have made out a prima facie case. The
points of balance convenience, hardship and irreparable loss lie in
favour of the plaintiffs. Accordingly, point nos.1 to 3 are answered in
affirmative and the following order is passed:
ORDER
1. Notice of Motion no.1786 of 2009 is made absolute in terms of
prayer clause (a).
Sd/
(M.S. Deshpande)
Ad Hoc Judge,
Dated: 17.04.2018 City Civil Court, Mumbai.
Dictated on : 17/04/2018.
Transcribed on : 25/04/2018.
Signed by HHJ on : 03/05/2018.
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“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
17.04.2018
JUDGMENT/ORDER signed by
P.O. on
03.05.2018
JUDGMENT/ORDER uploaded
on
04.05.2018
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