Final Order 1

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IN THE COURT OF :COURT 04 ADHOC ASST SESSIONS JUDGE
Case No. :SUIT/0101414/2019
Harikishan Narayandas Nagori Vs MCGM
Date : 30112022
Business : Adv. Shobeth Shukla h.f. Adv. A.R. Pande for
plaintiff present. Adv. Mr. Sutar h/f Adv. Mrs.
Tondwalkar for defendant/ MCGM is present.
Following order is passed on Notice of Motion
No.2201/2019 ORDER 1. This is a suit to
challenge the Show Cause Notice under
Section 351 of the MMC issued by the
Corporation and the plaintiff prayed for
interim injunction restraining the
defendant/Corporation from implementing
the notice. 2. It is the contention of the
plaintiff that he is a tenant of the suit
structure and he is in possession of the suit
structure from the date of construction of suit
building. The plaintiff has challenged notice
on various grounds. It is the main contention
of the plaintiff that the impugned notice has
not been served upon him and it is served
only upon the landlord. It is his further
contention that the impugned notice ought to
have been served upon him and given
opportunity of putforth his case. It is a matter
of record that previously notice under Section
351 of the MMC Act was given to the plaintiff
which was challenged by him, by filing suit LC
No. 166/2012. This Court has decreed the
said suit with liberty to the Corporation to
take action only after correcting the defects as
observed by the Court and by following due
process of the law. 3. Advocate for the
corporation submitted that the Corporation
has issued fresh notice to the landlord as per
the observations of this Court in LC No.
166/2012. He further submitted that
corporation has follow due process of law. 4.
Admittedly the impugned notice has not been
issued to the Plaintiff. The plaintiff is a tenant
and he in possession of suit structure since
1987. The plaintiff being a tenant has interest
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in the suit structure. It is well settled that
where the rights of the person are adversely
and prejudicially affected by an order made by
the Authority, such person is entitled for
notice and no decision should be taken in
such proceeding without first giving the
person adversely affected an opportunity of
putting his case. An order of demolition of
structure under Section 351 of the MMC Act
results in serious civil consequences leading to
loss of money and property. Moreover, my Ld.
Predecessor while granting adinterim relief
observed that the interpretation of the word
used in the Section 351 of the MMC Act is
applicable when the owner himself is in
occupation of the suit structure. In other
words, if person other than the owner is in
occupation of the suit structure, then mere
notice to the owner will not be sufficient. 5. In
this case on hand the impugned notice has not
been served upon plaintiff. Therefore, in view
of the settled principle of law and facts of the
case interest of the justice would be served if
fair opportunity is given to the plaintiff to
Show Cause to the notice. Therefore, in my
view, if defendant/Corporation is requested to
serve impugned notice to the plaintiff and
decide issue again after giving opportunity to
the plaintiff to submit reply and documents,
will curtail further litigation as well as resolve
the dispute at the earliest. The interest of
justice will be served by adopting this course
of action. Hence I pass following order O R D
E R 1. Assistant Engineer/Designated Officer
to issue impugned notice to the plaintiff and
give opportunity to him to submit reply and
document as per provisions of Section 351 of
The Mumbai Municipal Corporation Act and
pass fresh Speaking Order. 2. It is made clear
that the defendant/Corporation not to take
further action based upon the impugned
notice till Assistant Commissioner/Designated
Officer decide the issue again after giving
opportunity to the plaintiff. 3. The Assistant
Commissioner/Designated Officer to dispose
off the issue as expeditiously as possible. 4.
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The earlier order to continue for two weeks
thereafter passing fresh Speaking Order if the
adverse is passed against the plaintiff. 5. In
view of the observations above made, nothing
remains in the suit, therefore, suit as well as
Notice of Motion is disposed of.
Nature of Disposal: OTHER
Disposal Date : 30112022
COURT 04 ADHOC ASST SESSIONS JUDGE
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