Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2079-19 in Suit No. 1330-19
CNR NO.MHCC01 00575719
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2079 OF 2019
IN
L.C. SUIT NO. 1330 OF 2019
Mr. Sohail Bashir Wazifdar ....Plaintiff
V/s.
The Municipal Corporation of Greater Mumbai & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 20th June, 2019.
Appearance:
Ld. Adv. Eventa Gonsalves for the plaintiff.
Ld. Adv. Mr. Vyas a/w Adv. Mrs. Rawade for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon the notice dated
11.01.2019 and the order dated 30.05.2019, issued by the defendant
corporation under Section 351 of the Mumbai Municipal Corporation
Act, 1888 (hereinafter referred to as the MMC Act).
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. The defendant seeks to challenge the notice annexed at page no.
33 of the plaint. The schedule of the notice reads as under:
i) Unauthorized construction of rooms on part open terrace on 4th
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2 NM 2079-19 in Suit No. 1330-19
floor at 292, Jamna Building, L.T. Marg, Mumbai02 by way of using
plywood and fibre sheet admeasuring size of 11.50m x 3.90m x 2.5m
(ht) without prior permission from competent authority i.e. M.C.G.M.
ii) Unauthorized erection of mobile towers on terrace floor
without prior permission from competent authority i.e. M.C.G.M.
iii) Unauthorized construction of walls and erection of collapsible
gate in common passage on 4th floor without prior permission from
competent authority i.e. M.C.G.M.
4. The plaintiff had relied the notice vide reply dated 18.03.2019,
contending that three alleged unauthorized constructions are legal. It is
contended that room no. 72 on the 4th floor is assessed by the municipal
taxes for the year 199293. It is contended that the alleged rooms are
temporary in nature and partitions are fixed with screw, nuts and bolts
on aluminum frames and can be easily dismantled. It is contended that
the Jamna building in which the room no. 72 is located is assessed prior
to 196162. It is stated that there are discrepancies in the assessment
records of the Jamna building. The plaintiff had sought rectification of
the errors from the authorities. It is stated in the assessment report that
room no. 72 is shown on the ground floor with area of 2.3 sq. mtrs. as a
commercial premises. It is contended that there is no open terrace on
the 4th floor. It is contended that the suit structure was purchased on
06.07.2001. It is contended that the suit structure exists from 196162
as is assessed cannot be treated as unauthorized structure.
5. The defendant corporation had filed the say to the notice of
motion and had denied all the allegations leveled against them. It is
stated that the suit premises was inspected and on the basis of the
inspection report, notice was issued to the plaintiff on 11.01.2019
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3 NM 2079-19 in Suit No. 1330-19
under Section 351 of the MMC Act. The reply of the plaintiff was
considered and the speaking order was passed on 30.05.20119. It is
contended that the plaintiff had filed earlier L.C. Suit No. 844/2018, the
Notice of Motion bearing No. 1286/2018 was dismissed by the order
dated 20.08.2018 and the Appeal from Order was disposed off by the
Hon'ble High Court on 11.10.2018 directing the defendant to issue
fresh notice under Section 351 of the MMC Act. After taking fresh
inspection of the site and regarding the fresh inspection was carried on
11.10.2018 and notice was issued on 11.03.2019. Accordingly,
speaking order was passed by Designated Officer on 30.05.2019. It is
contended that the sanctioned plan issued by MHADA, the notice
structure is not shown in the plan. The mobile tower is also erected
without permission. It is contended that the plaintiff is not entitled for
relief as prayed for.
6. The plaintiff in the plaint had not disclosed anything about the
earlier suit filed by the plaintiff. It is not in dispute that the plaintiff
had carried out construction on 4th floor. Admittedly, the plaintiff is not
having permission to show that he had carried out the structure with
permission from defendant corporation. It is for the plaintiff to show
that the suit structure exists prior the datum line. It is the contention
that room no. 72 is assessed structure for the year 199293. The deed
of conveyance, assessment bill, electricity bill and other documents
were considered by the concerned Designated Officer and found that
the plaintiff had failed to show that the suit structure is authorized.
7. The details of capital value for the purpose of calculation of
property taxes of the suit building dated 22.12.2012 and 14.09.2017
shows that room no. 72 existed on the ground floor. The existence of
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4 NM 2079-19 in Suit No. 1330-19
room no. 72 is not shown on the 4th floor. The plaintiff is required to
explain the existence of room no. 72 on the 4th floor and when it is
existence is not shown in the assessment record as well as building
repair plan in the year 1994.
8. The copy of building repair plan for the year 1994 shows the
existence of room nos. 53 to 61 at the 4th floor alongwith open terrace.
The assessment extract for the years 199293, 199697 and 2000 prima
facie shows the existence of room no. 72 on the ground floor and room
nos. 53 to 61 at the 4th floor. There is no material on record to show
that the suit premises were in existence prior to the datum line and also
reflected in the building repair plan. The list of tenant mentioned in the
deed of conveyance only points out the numbers, it does not point out
the location. The suit structure may be assessed in the year 2018 it
cannot be inferred that the suit structure is correctly assessed and the
error is rectified. It is does not show the existence of the suit structure
from the datum line.
So far as mobile towers is concerned, the notice is issued to Amit
Grover Cluster Head, Reliance Communications Limited, Manek Mahal
Flat no. 19 and 20, 6th Floor 90 Veer Nariman Road, Churchgte
Mumbai20 and to Managing Director ATC Telecom Infrastrucutre Pvt.
Ltd. 404 4th floor, Skyline Icon, Andher Kurlla Road, Andheri (E)
Mumbai59. It needs to be mentioned that the notice was issued to the
plaintiff alongwith the officers of Telephone Communication. It was for
the ATC Telecom to took challenge the said order as the structure are
erected by the Telecom companies and the plaintiff might have
provided the space to them. The plaintiff cannot be claim for temporary
injunction on their part. The plaintiff had not disclose the orders passed
in Notice of Motion bearing no. 1286/2018 in L.C.Suit No. 844/2018
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5 NM 2079-19 in Suit No. 1330-19
and the orders of Hon'ble High Court, in the present suit.
This facts are not explained by the plaintiff. The plaintiff had
seeking equitable relief to the Court. It was for the plaintiff to approach
the Court with clean hands.
Considering the facts and circumstances of the case, the plaintiff
has failed to made out primafacie case. 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. 2079/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 20.06.2019 City Civil Court, Mumbai.
Dictated on : 20.06.2019
Transcribed on : 26.06.2019
Signed by HHJ on : 27.06.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 27.06.2019 at 5.27 pm.
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
20.06.2019
JUDGMENT/ORDER signed by
P.O. on
27.06.2019
JUDGMENT/ORDER uploaded
on
27.06.2019
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