Final Order 1

Order Details: Other
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IN THE COURT OF :COURT 04 ADHOC ASST SESSIONS JUDGE
Case No. :SUIT/0101436/2019
Shabana Kamruddin Lasne 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.2223/2019 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.
175/2012. 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.175/2012. 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
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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 remains in
the suit, therefore, suit as well as Notice of Motion
is disposed of.
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Nature of Disposal : OTHER
Disposal Date : 03012023
COURT 04 ADHOC ASST SESSIONS JUDGE
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