Final Order 2

Order Details: Notice of Motion
Pdf Text: (CNR No.:MHCC010057562019) 1 Notice of Motion No. 2052/2019
in L.C. Suit No. 1372/2019.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2052 OF 2019.
IN
L.C. SUIT NO. 1372 OF 2019.
Santosh Mithilesh Singh……………………………. …. PLAINTIFF.
V/s.
MCGM. ....………………………………………........ …. DEFENDANT.
CORAM : SHRI. S.H. SALUNKHE.
(Court Room No.11).
DATED : 4th February, 2025.
APPEARANCES :
Mr. V.T. Dubey, the Ld. Advocate for Plaintiff.
Mr. Arvind Rathod, the Ld. Advocate for Defendant/MCGM.
*****
01. The plaintiff has taken out this Notice of Motion (‘the NM’),
to stop work notice issued U/s. 354-A of the MMC Act and for perpetual
injunction, restraining defendant/BMC from implementing the notice.
Facts of the plaintiff’s case can be summarized as below :-
02. The notice structure is in existence since long and it is old
structure. Its roof was badly damaged, hence, the plaintiff has replaced
broken roof sheet and carried out plaster and painting. However, the
defendant/BMC has issued impugned notice, alleging that the plaintiff
commenced the unauthorized construction of the notice structure. On
the basis of the false complaint of neighbour, the defendant has issued
the notice. The plaintiff has replied the said notice. However, Officers of
the BMC threatened to demolish the said structure. Hence, the plaintiff
has compelled to file this suit and prayed for interim injunction.
03. Inspite of sufficient opportunity the defendant did not file
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in L.C. Suit No. 1372/2019.
any reply, hence the NM is heard without reply of the BMC. Defendant
No. 2 came to be added subsequently, as per the Order passed in Ch/s.
He filed reply-cum-WS, below Exhibit 4. Defendant No. 2 opposed the
NM and stated that he is in lawful possession and occupation of Room
No. 4 and the plaintiff has erected the suit structure illegally, on the
land in possession of defendant No. 2. Defendant No.2 supported the
action initiated by BMC and submitted that the notice structure is illegal
and prayed for dismissal of the NM.
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in her favour? …..........…...................…In the affirmative.
(ii). Whether balance of convenience lies in
favour of the plaintiff? ….…..…............….…In the affirmative.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim reliefs, as
prayed for, are not granted?.….................. …In the affirmative.
(iv). What Order? …..........….…....................... …As per final Order .
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
04. Ld. Advocate for the plaintiff filed written submissions and
re-iterated the contentions of the plaint. It is stated that the plaintiff has
replied the show cause notice. He further submitted that no any work
was in progress at the time of impugned notice. As such, provisions of
sec. 354-A of the MMC Act are not applicable to the present case. The
BMC has not produced inspection report, photographs, panchnama in
support of its contention that unauthorized work was in progress. The
BMC has not shown that the work was in progress at the time of
issuance of the notice. Thus, the defendant/BMC has not followed the
due process of law and it is the fit case for granting injunction.
05. Defendant Nos. 1 and 2 filed written submissions stating
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in L.C. Suit No. 1372/2019.
that the notice structure is illegal and unauthorized and the BMC has
followed the due process of law. Hence, the NM needs to be dismissed.
06. The subject matter of the suit is notice under sec.354-A of
the MMC Act. It is contention of the plaintiff that the notice structure is
in existence since long. He has only carried out the repairs of the roof
and done plastering and painting. According to the plaintiff, no any
work was going on i.e. no any work in progress at the time of issuance
of notice and thereby the defendant has questioned action under sec.
354-A of the MMC Act. As per the circular of defendant/BMC, if its
Officer detect any work in progress the said Officer should prepare the
panchanama and take photographs showing date and status of the
work. The Officer has also to make entry of unauthorized work in
detection register and to make report to the concerned police station.
However, the BMC have not produced panchanama, photographs or
copy of detection register to show that at the relevant time the work
was in progress. Contrarily, the sketch annexed to the notice shows that
the structure is complete in all respects. Thus, the material on record,
prima-facie shows that alleged unauthorized construction was complete.
In the circumstances, action u/s. 354-A of the MMC Act cannot be said
to be due process. Therefore, the structure needs to be protected till the
decision of the suit. In the circumstances, I hold that the plaintiff has
made out
prima-facie case for grant of temporary injunction. The
balance of convince tilts in favour of the plaintiff. If, the temporary
injunction is refused, the plaintiff would suffer irreparable loss.
Accordingly, I answer point Nos. 1 to 3 in the affirmative and in answer
to point No. 4, I pass the following Order :
-: ORDER :-
Notice of Motion No. 2052/2019 is partly allowed in following terms :
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(i). The defendant/BMC or any body through it is hereby
temporarily restraining from implementing the
impugned notice, till the decision of the suit.
(ii). Notice of Motion No. 2052/2019 is, accordingly,
disposed of.
(S.H. Salunkhe)
Mumbai. Judge,
Dated : 04.02.2025. City Civil Court, Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
13.02.2025 at 5.26 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri Salunkhe
(Court Room No.11).
Date of Pronouncement of Judgment/Order 04.02.2025.
Judgment/Order signed by P.O. on 13.02.2025
Judgment/Order uploaded on 13.02.2025
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