Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2095-19 in Suit No. 1350-19
CNR NO.MHCC0100581119
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2095 OF 2019
IN
L.C. SUIT NO. 1350 OF 2019
Sayani Mohammed Yahya Yusuf @ M. Y. Sayani …...Plaintiff
Versus
The Municipal Corporation of Greater Mumbai & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 18th June, 2019.
Appearance:
Ld. Adv. Sunita Poddar for the plaintiff.
Ld. Adv. Mrs. Tondwalkar for defendant/MCGM.
Ld. Adv. Rehana Begum Shaikh for defendant no. 4.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon the notice
bearing no. A/DOA/225/351MMCAct/A62N01/09052019 under
Section 351 of the Mumbai Municipal Corporation Act, 1888 (herein
after referred to as 'the MMC Act') dated 09.05.2019 and the order
dated 03.06.2019.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for defendant and defendant nos. 1 to 4.
The defendant no. 4 Laxmi Sampat Naidu had tendered the
documents. The plaintiff was issued with notice dated 09.05.2019
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calling upon the plaintiff to show the sufficient cause for the structure
mentioned in the schedule which reads as under:
''Unauthorized construction of Ground+01 composite structure
(Ground floor occupied by A.A. Shah Institute and first floor occupied
by M/s. Aranbhan Hospitality Ltd. ) with sloping A.C. sheet roof adm.
27.2m x 5.30m x (2.65m ground floor ht.+4 m first floor ht.) at the
rear open space of the building known as Bahubali Building, Cawasji
Patel Street, Fort, Mumbai01.''
3. The notice was replied by the plaintiff on 14.05.2019 and
17.05.2019. The speaking order was passed on 03.06.2019, directing
the plaintiff to demolish the notice structure within 7 days from the
receipt of the notice.
4. The short question to be dealt alongwith is whether the suit
structure are needs to be maintained in statusquo till the disposal of
the suit. The reason's for the speaking order dated 03.06.2019 are that
the plaintiff had failed to produce documents to show the permission of
the disputed structure and failure by plaintiff to show the suit structure
existed prior to 1964.
It is one of the contention of the plaintiff in the suit that the
assessment record produced by the plaintiff is not considered by the
defendant. It is further the grievance of the plaintiff that corporation
had failed to consider that the suit structure existed prior to 19611962.
The plaintiff relied on extract issued by Assessment Department and
Electricity Bill.
5. The defendant had filed the say to the notice of motion, pointing
out that in the inspection by the officials it was found that the plaintiff
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had carried out unauthorized structure without permission and had also
failed to show that the suit structure existed prior to 1962.
It is the contention of the plaintiff that the suit structure was
assessed since 199293. It is now required to seen that as to whether
the plaintiff had show that the suit structure existed from prior to
datum line.
The defendant no. 3 a complainant had contended that the action
of the corporation is legal. The complaint of the defendant no. 4 is
based on correct facts. It is contended that the plaintiff is entitled for
the temporary injunction as prayed for.
The defendant no. 4 had relied upon the documents filed with list
dated 14.06.2019 at page no. 6 in the list.
The defendant no. 4 had annexed the letter issued by
Superintendent/AWard to the Assistant Engineer (B & F) AWard,
dated 23.04.2019 .
In column no. 'B', it is pointed out that
b) Whether the structure
under reference is assessed to
Municipal Taxes, if so then
please the name of Assessee &
the 1st date of assessment.
Yes, the structure under reference is a
part of property assessed to Municipal
Taxes under SAC No.
AX1000200050000. As per form XII for
the year 200910 the name of the
assessee is TILOKCHAND V SHAH
UMEDMAL TILOKCHAND JAIN AND
PRAINKUMAR TILOKCHAND SHAH
Partners of the firm M/S. TRILO
TRADING COMPANY 1st date of
assessment of the property is prior to
6162.
6. The above referred entry shows that the suit property was
assessed prior to 196162. The plaintiff in the plaint had contended
that the Bahubali building was assessed by the defendant no. 1 vide
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4 NM 2095-19 in Suit No. 1350-19
Property bearing No. AX1000200050000. The documents at page no. 6
points out that the information asked by Asstt. Engineer (B & F), 'A'
Ward in respect of unit no. Ground +1 structure at Ground floor
Bahubali building, Fort Mumbai is furnished as below. The documents
indicates that the structure under reference is a part of property
assessed to Municipal Taxes under SAC No. AX1000200050000. It
points out that the date of assessment is prior to 19611962 and area of
the property is not known.
In column no. 'G' it points out that
g) Please also inform the 1st date
of assessment & the area at the
time of 1st date of assessment.
As per form XII for the year 2009
10, the 1st date of the assessment is
prior to 196162 & area of the
property at the time of 1st date of
assessment is not known.
7. It points out that the area of the property at the time of 1st date of
assessment is not known. Admittedly, it is clear from the documents at
page no. 6 filed by defendant no. 4 that the suit structure is a part of
Bahubali building and is assessed by the corporation prior to 196162.
The defendant in their say has pleaded that the plaintiff has carried out
the construction in the rear open space of the building. The documents
at page no. 6 annexed by defendant no. 4, the document issued by the
defendant corporation shows that it is a part of Bahubali building. The
document further points out that the area assessed in the year 196162
cannot be known.
Going by the contentions of the defendant in the documents at
page no. 6 filed by defendant no. 4. The notice structure is said to be a
part Bahubali building of property assesses and shows that it was
assessed that the 1st date of assessment was 196162. It shows that the
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existence of the notice structure from 196162.
The plaintiff has a prima facie case in his favour. There is triable
issued involved in the suit. The notice structure therefore deserves to
be maintained in statusquo till the disposal of the suit.
The plaintiff has made out primafacie case. The balance of
convenience lies in favour of the plaintiff. The plaintiff would be put to
irreparable loss, if the temporary injunction is refused. In the result,
following order is passed.
ORDER
1. The Notice of Motion No. 2095/2019 is hereby allowed.
2. The defendants corporation are hereby restrained from acting upon
Notice bearing No. A/DOA/225/351MMC Act/A62N01/09052019
dated 09.05.2019 under Section 351 of the MMC Act and the order
dated 03.06.2019 till the disposal of the suit.
3. The Notice of Motion is disposed off accordingly.
(Sanjay N. Yadav)
Judge,
Date : 18.06.2019 City Civil Court, Mumbai.
Dictated on : 18.06.2019
Transcribed on : 19.06.2019
Signed by HHJ on : 20.06.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 20.06.2019 at 5.35 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
18.06.2019
JUDGMENT/ORDER signed by
P.O. on
20.06.2019
JUDGMENT/ORDER uploaded
on
20.06.2019
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