Final Order 1

Order Details: Other
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IN THE COURT OF :COURT 04 ADHOC ASST SESSIONS JUDGE
Case No. :SUIT/0101435/2019
Ishrat Shafi Momin 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.2222/2019 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. 180/2012. 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 suit LC No.
180/2012. 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
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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.
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
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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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