Final Order 1

Order Details: Other
Pdf Text: Daily Status
IN THE COURT OF :COURT 04 ADHOC ASST SESSIONS JUDGE
Case No. :SUIT/0101420/2019
Rohidas Arjun Sawant Vs MCGM
Date : 03012023
Business : None for plaintiff. Adv. Mrs. Rawade h/f Adv. Mrs.
Tondwalkar for defendant/ BMC is present. Following
order is passed on Notice of Motion No.2207/2019 O
R D E R 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 L.C. No.
162/2012. 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 L.C. Suit No.162/2012. 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 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
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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. 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 : 03012023
COURT 04 ADHOC ASST SESSIONS JUDGE
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