Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M Nos.2238/19&2116/19 in Suit No.1558/19
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.2238 OF 2019
(CNR NO. MH CC010061392019)
AND
NOTICE OF MOTION NO.2116 OF 2019
(CNR NO. MH CC010058712019)
IN
L.C. SUIT NO. 1558 OF 2019
CNR NO. MH CC010051842019)
Ekta Kokari Aagar CHS, Association ]
Ltd. Registered under Maharashtra ]
Cooperative Society Act, 1960. ]
Having Registered No. MUM/MMRDA/ ]
GEL(O)/08/2012/2013. ]
All 29 Buildings Registered under Central ]
Committee Association, having office at: ]
Gala No.3, Building No.C/2, ]
New M.M.R.D.A. Colony, Kokari Aagar, ]
Wadala (East), Mumbai 400 037. ]
Through its authorized Representative, ]
Mr. B.B. Garud, ]
An adult aged about 59 years, ]
Indian Inhabitant, ]
Mobile No.9820559656. ].. Plaintiff.
V/s.
1 MLA Capt. Shri R. Tamilsalvan ]
An adult aged about 58 years, ]
Indian Inhabitant, ]
Occupation: Member of State Legislative ]
Assembly, Having Office at 179, Sion ]
Koliwada, Vidhan Sabha Kalpak Estate, ]
Shaikh Misree Marg, Antop Hill, ]
Mumbai 400 037. ]
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2 N/M Nos.2238/19&2116/19 in Suit No.1558/19
Residing at Room No.10/B/604 ]
Kalpak Estate, Shaikh Misree Marg, ]
Antop Hill, Mumbai 400 037. ]
2 Mr. R.A. Rajiv, ]
Metropolitan Commissioner MMRDA ]
Address: New MMRDA Building. ]
Bandra – Kurla Complex, Bandra, ]
Mumbai – 400 051. ]
3 Mr. Anil Wankhade, ]
Deputy Metropolitan Commissioner ]
MMRDA, 7th Floor, MMRDA Building, ]
Bandra – Kurla Complex, Bandra, ]
Mumbai – 400 051. ]
4 Nitin Waghamare ]
Land Manger and Estate Cell, ]
MMRDA Building, Bandra – Kurla Complex,]
Bandra, Mumbai – 400 051. ]
5 The Collector, Mumbai City District ]
Planning Committee, Having Office at ]
Old Custom House, Shahid Bhagatsing ]
Road, Fort, Mumbai 400 001. ]..Defendants
Advocate Ms. Anushka Shreshta for the plaintiff.
Advocate Mr. Anand Jondhale for defendant no.1.
Advocate Ms. Subhedar for defendant nos.2, 3 and 4.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 2nd AUGUST 2019
COMMON ORDER
This Notice of Motion has been taken out by the plaintiff
for giving directions to defendant nos. 2 to 4 to take appropriate action
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against defendant no.1 and stop the construction work of Community
Hall and Gym/Yoga Hall. Further, the plaintiff has prayed for
restraining defendant nos.2 to 4 from issuing any “No objection
Certificate” and or any permission of whatsoever nature to defendant
no.1 in respect of the said premises and for cancellation of NOC dated
27.10.2017 and “Revised NOC” dated 27.11.2017. Further, the plaintiff
has prayed for restraining defendant no.1 temporarily from continuing
the construction of Community Hall and Gym/Yoga Hall at the said
premises, without following due process of law.
2 On behalf of the plaintiff, its authorized representative
Mr. B. B. Garud has filed affidavit, wherein he has stated that if reliefs
prayed for, are not granted, the plaintiff will suffer immense hardships
and irreparable loss, which cannot be compensated in terms of money.
The balance of convenience lies in favour of the plaintiff. Defendant
no.1 has violated and breached the conditions of NOC granted by
defendant nos.2 to 4, for construction of Community Hall and
Gym/Yoga Hall without taking permission from defendant nos.2 to 4.
The construction of Community Hall and Gym/Yoga Hall by defendant
no.1 is nothing, but using public fund for the purpose of benefit of an
individual. The present construction being started by defendant no.1
under the guise of NOC given by defendant no.1, but defendant no.1
has violated the conditions of NOC given by defendant nos.2 to 4. If
this notice of motion is allowed, no prejudice would be caused to the
defendants. Hence, prayed for allowing notice of motion.
3 On behalf of defendant nos.2 to 4, the Deputy Planner Shri
Prashik Ganvir has filed affidavit in reply, wherein he has stated that
defendant nos.2 to 4 have granted “No Objection” for construction of
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composite structure for recreational Community Hall and Gym/Yoga
hall to defendant no.1 on 27.10.2017, in the available space in RG5
plot of the layout of S.R. Scheme. No objection was granted subjected
to certain terms and conditions. The revised NOC was issued by
defendant nos. 2 to 4 on 27.11.2017, changing the site of construction
of the proposed composite structure to RG6 instead of RG5. The copy
of the plan enclosed with MMRDA's NOC sufficiently depicts the exact
location of proposed development. The NOC of seven societies has been
received by these defendants, who are in favour of construction of the
composite structure. As per the site visit done on 12.07.2019 by the
officials of defendant nos.2 to 4, it was found that construction is at
plinth stage and the plinth area is as per order i.e. less than 10% of total
R.G. area. It is also observed that the construction of the composite
structure is done within the plot boundaries of the R.G.6 i.e. not
encroaching upon adjoining 5% Amenities Plot. He has denied the
averments made in the complaint, which are contrary and inconsistent
with what is stated in the affidavit.
4 It is contended that the plaintiff has failed to make out any
prima facie case for grant of temporary injunction against defendant
nos.2 to 4. Therefore, notice of motion is liable to be dismissed with
compensatory costs. Hence, prayed for dismissal of notice of motion.
5 In the notice of motion taken out by the plaintiff, my
learned predecessor has granted adinterim against defendant no.1 on
23.05.2019. Therefore, defendant no.1 has taken out this notice of
Motion No.2116 of 2019 for setting aside the said adinterim order.
6 Defendant no.1 has filed affidavit in support of notice of
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motion and he has stated that he is the elected Member of Legislative
Assembly from Sion Koliwada Vidhan Sabha. He was approached by
nearly more than 10 Cooperative Housing Societies regarding the
construction of one community center since last nearly more than two
years, in the area of new MMRDA colony. Accordingly, he did the
correspondence with the MHADA and MMRDA and obtained the no
objection certificate and letters from MHADA and MMRDA. The request
had been come from the local housing societies on their letter head and
from the local citizens. Therefore, he has obtained permission and
started the work of construction of Community Hall and Gym/Yoga
Hall. Further he has stated that he has not the local resident of the said
new MMRDA colony and he has no personal interest in the
construction of Community Hall and Gym/Yoga Hall.
7 It is further averred that there are some antisocial
elements, who are working in that area and who were opposing the
construction of Community Hall for which a letter was issued by
MMRDA officials to the local police station for their malafide gains and
illegal motives and they are opposing the construction of this
community hall for which the MMRDA officers and MHADA officers had
already given letter to the local police station against those antisocial
elements. Thus, they have filed this false and frivolous suit before the
Court.
8 It is further averred that the construction of the
Community Hall is for the the welfare of the local people. In order to
grab the possession of the said construction, as evident from the letters
written by them to the MMRDA and MHADA and others authorities, the
plaintiff has obtained this injunction/stay order without disclosing the
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reals facts and the real documents before the Court. The letters issued
by the local housing societies and the federations will clearly state that
this proposal had come from the local associations. Hence, prayed for
allowing notice of motion.
9 The Authorized Representative of the plaintiff has filed
reply and contended that the matter was kept for hearing on
23.05.2019. All the defendants except defendant no.5 were present.
After hearing both the parties, adinterim order has been passed and
thereafter, the matter was kept for hearing on 12.06.2019. On
12.06.2019, none of the defendant or their advocates were present.
Hence, earlier order is continued till 29.06.2019. Thereafter,
immediately, on 14.06.2019, defendant no.1's advocate sent what's App
notice, but it was not uploaded. When the same was uploaded, he
came to know that the matter was kept for hearing on 14.06.2019 at
2.45 p.m. Hence, he tried to contact his advocate, but his advocate was
out of Bombay. Therefore, he could not able to attend the Court.
Defendant no.1 though received adinterim order on the same day, but
till 14.06.2019, he did not file his reply to the plaintiff's notice of
motion, but chosen to file the present notice of motion, just to mislead
the Court. Notice of Motion taken out by defendant no.1 is to be
treated as reply to Notice of Motion of the plaintiffs. Thus, notice of
motion taken out by defendant no.1 is baseless.
10 It is contended that it is true that defendant no.1 is the
elected Member of Legislative Assembly from Sion Koliwada Vidhan
Sabha, but he denied that he approached by nearly more that 10 Co
operative Housing Societies for the said construction. The defendant
has relied upon the fabricated letters of society for year 2018. Apart
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from, there is cyclostyle letters of total 6 societies produced by
defendant no.1 which itself shows, those are false and fabricated one.
There are total 29 societies and the present plaintiff is an Association of
all 29 societies.
11 The information provided by MMRDA under RTI itself
shows that defendant no.1 has not complied with the terms and
conditions of NOC dated 27.10.2017. The plaintiff has denied all
allegations made by defendant no.1 against the plaintiffs in toto. The
plaintiff is an Association of 29 societies and working for the welfare of
the local citizens and 29 societies.
12 The MHADA and defendant no.1 are in collusion. The
plaintiff received the Notice of Motion taken out by defendant no.1 and
the plaintiff Association called urgent special general meeting to verify,
whether the societies are consenting to the construction work of
defendant no.1. During meeting all the society representatives were
present on 16.06.2019 and accordingly, the minutes of meeting were
prepared, wherein all the societies are following the Association. Apart
from that the language of the alleged letters of the societies shows that
there is no community hall in their vicinity, but in fact there are 8
community hall in their vicinity.
13 It is contended that defendant no.1 has not taken out
notice of motion with clean hands. The reliefs as prayed for by the
defendants are based on false and fabricated letters of the societies.
The balance of convenience is lying in favour of the plaintiff. The
plaintiff will suffer immense hardships and irreparable loss, which could
not be compensated in terms of money, if any reliefs granted to
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defendant no.1. Defendant no.1 has violated and breached the
conditions of NOC granted by defendant nos. 2 to 4 for construction of
Community Hall and Gym/Yoga Hall. The construction of Community
Hall and Gym/Yoga Hall by defendant no.1 is nothing, but using public
fund for the purpose of benefit of an individual. No prejudice would be
caused to the defendants if reliefs prayed by the plaintiff granted in
favour of the plaintiff. Hence, prayed for dismissal of notice of motion
of defendant no.1
14 Heard the learned advocate for the plaintiff and the learned
advocates for the defendants.
15 The following points arise for my determination. I have
recorded points and findings thereon alongwith the reasons are as
follows:
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff has established
prima facie case ?
In the
Negative.
2 Whether balance of convenient lies in
favour of the plaintiff ?
In the
Negative
3 To whom irreparable loss would be
caused, if this notice of motion is
allowed ?
To the
Defendant
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4 Whether defendant no.1 is entitled for
modification of adinterim order passed in
notice of motion of the plaintiff ?
Redundant
5 What Order ? As per final Order
R E A S O N S
16 In view of reliefs claimed, I would like to mention here that
for setting aside the order passed in Notice of Motion No.2238/2019 of
the plaintiff dated 23.05.2019, defendant no.1 has taken out notice of
Motion no.2116/2019 under Order XXXIX Rule 4 of the Code of Civil
Procedure. Therefore, notice of motion of the plaintiff as well as
defendant no.1 are necessary to be decided by common order. Further,
I would like to mention that the present plaintiff had filed Writ Petition
(st.) No. 12523/2019 before the Hon'ble High Court and the plaintiff
has withdrawn the said Writ Petition on 05.07.2019 with liberty to file a
fresh petition. In this back ground, let us consider the points.
17 The plaintiff has come before the Court being Association
of 29 Cooperative Societies. According to the plaintiff, defendant
nos.2 to 4 have not taken any action, after verification of the illegal and
unauthorized work started by defendant no.1 by violating the condition
precedent of NOC granted by defendant nos.2 to 4. Defendant no.1 has
started the work of construction of Community Hall upon R.G.6 Plot
situated at M.M.R.D.A., Vasahat Kokari Aagar, Behind Building No.D7
and D2, Sion Koliwada, Mumbai. It is not in dispute that defendant
no.1 is MLA. According to defendant no.1, he is not the local resident
of the said new MMRDA colony. The plaintiff has not denied the same.
That means, it is acceptable that defendant no.1 is not resident of the
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same MMRDA colony, where suit subject construction has been started
by defendant no.1.
18 Primafacie, it appears that defendant no.1 has obtained No
objection from MMRDA for the suit subject construction and the said No
Objection was granted on certain terms and conditions. The plaintiff
has filed on record copy of Application for registration of the plaintiff
society vide list Exh.7. It discloses names of promoters of concerned
society. Here, I would like to mention that the said application discloses
the names of 28 societies and at serial nos.21 and 22 of the said
enclosure to application, there are no signature of the concerned
promoter of concerned two societies.
19 The plaintiff has filed on record the copy of Byelaws of the
plaintiff Association, but primafacie, it appears that the two societies
were not registered as plaintiff and accordingly letter was issued by the
Deputy Registrar Cooperative Society to the Chief Promoter of the
plaintiff on 17.02.2011. The plaintiff has not filed copy of the
application accordingly, submitted for registration disclosing 29
societies as a members of the plaintiff. The plaintiff has tendered the
copy of Registration Certificate dated dated 19.12.2012, but it nowhere
discloses how many members are of the plaintiff society and their
names.
20 Thus, primafacie, there is no specific evidence to accept
that 29 societies are the members of the plaintiff. The plaintiff has filed
on record the copy of District Planning Committee of Collector dated
23.08.2018 about the sanction of fund from the State Government
under RTI Act. It is not in dispute that defendant no.1 was granted
fund for the purpose of suit subject construction from MLA Fund.
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Defendant no.4 has given “No Objection for the construction of the
Community Hall. The plaintiff has filed NOC letter dated 27.10.2017
given by MMRDA. It discloses that defendant no.4 has issued NOC in
respect of the suit subject construction in the available space in R.G.5 of
the lay out of S.R. Scheme at Kokari Agar, Wadala and there were
certain conditions. The said conditions are as follows:
1 The exact location in the R.G5 for above
composite structure shall be confirmed from this
office along with the detailed plans of the
proposed composite structure. The proposal for
construction of above composite structure shall
also come from the societies or federation of
societies as per regulation no.23(g)(ii)(b) of DCR
1991.
2 The BUA of above composite structure shall not
exceed 15% of the area of the R.G.5 as per the
provision in regulation no.23(g)(ii) of DCR 1991,
which comes to about 251.64 sq. mt. (2708.65 sq.
feet).
3 The structure design and drawings of proposed
composite structure shall be got prepared from
Lic. Structural Engineer along with Structural
Stability Certificate. The work shall be executed
under the supervision of Lic. Site Supervisor and
Lic. Structural Engineer, strictly as per the plans
approved by the competent authority.
4 All the applicable approvals/NOCs shall be
obtained from the competent authority for the
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construction of above composite structure prior
executing the actual work on site.
5 In the event said land is required by
MMRDA/Govt. Maharashtra for any public
purpose, same should be vacated forthwith.
21 The plaintiff has filed on record letter issued by defendant
no.4 to defendant no.1 with revised NOC and it was issued for
construction of suit subject proposed composite structure in available
open space in RG6 instead of RG5 along with earlier same conditions.
The plaintiff has filed on record photographs of the construction site
and letter issued to the police officers by defendant no.4 disclosing the
fact of breach of condition of NOC for the construction at the hands of
defendant no.1. In this background, prima facie the role of defendant
nos.2 to 4, who have granted NOC is very necessary to take into
consideration.
22 Defendant nos. 2 to 4 have filed on record letters i.e. letters
of Jai Balaji Cooperative Housing Society, New Navratna SRA Co
operative Housing Society Limited, Sant Krupa (SRA) Cooperative
Housing Society Limited, Jai Santoshi Mata SRA Cooperative Housing
Society Limited, Shri Siddhivinayak Cooperative Housing Society,
Sanjeevani SRA Cooperative Housing Society, Kohinoor (SRA) Co
operative Housing Society Limited forwarded as NOC from the society
for the suit subject structure. Advocate for defendant nos.2 to 4 during
the arguments has placed reliance on Development Control Regulations
for Greater Bombay 1993 (23). The learned advocate for defendant
nos.2 to 4 has submitted that proposal was received and even on
12.07.2019, inspection was carried out again and it is submitted that it
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is found that construction is exactly in the RG6. There is no
encroachment. According to the advocate for defendant nos.2 to 4, the
MMRDA has considered the proposal of the society and observed the
compliance made by defendant no.1, in view of NOC granted.
23 Besides, it is argued by the learned advocate for the
plaintiff that on 01.03.2019, MMRDA have given letter to defendant
no.1, wherein it is specifically informed to defendant no.1 that
defendant no.1 without obtaining permission of the plaintiff Association
started the construction work and informed further about receiving
complaint from the Association. Further, she has placed her reliance on
letter dated 26.03.2019 of MMRDA obtained under RTI Act. It appears
that on 20.03.2019, Shirish Ramlu Mutayal filed an application for
seeking information in respect of construction. It appears that in respect
of area mentioned in the application, it was informed that MMRDA has
not granted any permission and there is information as sought for, by
the said applicant with MMRDA office. It is pertaining to note that the
plaintiff has not tendered copy of the said application dated
20.03.2019. IN the absence of copy of the said application, this letter
tendered by the plaintiff is of no use to support the case of the plaintiff.
Further, on behalf of the plaintiff, one authorized representative Mr.
B.B. Garud has filed the suit, but the plaintiff's association has not
tendered authority letter issued to Mr. B.B. Garud by passing resolution
by the plaintiff's association. The plaintiff has not disclosed in what
capacity Shirish Ramlu Mutayal filed the said application to MMRDA
and what exact information was sought in the said application.
24 It appears that defendant no.1 on 16.07.2019 tendered
consent letter of the societies to MMRDA. The said documents have
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also been tendered by defendant nos.2 to 4. Letter dated 16.07.2019 is
the covering letter written by defendant no.1 to the authority of
defendant nos.2 to 4. It appears that J. Balaji Cooperative Housing
Society gave consent letter dated 20.05.2018 and again on 05.07.2019
to defendant no.1. Further, New Ratna Cooperative Housing Society
has given Consent Letters dated 20.05.2018 and 06.07.2019 to
defendant no.1. Further, Kohinoor SRA Cooperative Housing Limited
has given consent letter on 20.05.2018 and Sanjeevani SRA Co
operative Housing Society has given Consent letter on 25.05.2018.
Further, Shri Siddhivinayak Cooperative housing society has given
consent letter n 25.05.2018 and Jai Santoshi Mata SRA Cooperative
Society Limited has given consent letter on 30.05.2018. Further, Sant
Krupa Housing Society Limited have also given consent letters on
30.05.2018 and 07.07.2019.
25 According to the plaintiff, the said proposals are forged
one. The plaintiff has filed an affidavit of Kalpnath M. Yadav vide
Exh.11 in the capacity of Chairman of Santoshi Mata CHS Limited. I
would like to mention here that he has mentioned in an affidavit that he
is the Chairman of Santoshi Mata CHS Limited and filed records
submitted to the Registrar about the election details. He has filed on
record order passed in respect of Jai Santoshi Mata (SRA) Cooperative
Housing Society Limited and not of Santoshi Mata CHS Limited. Apart
from, his name has been discloses as one of the elected members. He
has not specifically shown as 'Chairman/President' of the society.
According to him, he has not signed consent letter. It appears that
Consent Letter dated 30.05.2018 has been signed by President of the
society and prima facie, nothing discloses that he is the President of the
said society.
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26 Similarly, it is to be noted that though the plaintiff has filed
affidavit of one Devendra Subramaniyam Tanda, being the Chairman of
Shri Siddhivinayak CHS Ltd., he has stated that the Secretary of their
society has not signed the consent letter. No doubt he has tendered
documents disclosing that he is the Chairman of the society and Mr.
Jaiswar Kamalashankar Muneshwar is the Secretary of the society. In
this background, it was for the Secretary to file an affidavit denying his
signature on the consent letter dated 30.05.2018. There is no cause
stated by the Chairman of the society, as to why secretary has not filed
affidavit when the society is challenging consent letter issued by him
with his signature. In the absence of specific denial by the secretary of
the society in respect of his signature, prima facie, in the absence of any
police complaint, it is not acceptable that signature is forged one. Thus,
prima facie there is no evidence regarding forged signature on the
consent letters as alleged by the plaintiff. Therefore, primafacie it is
not acceptable that said societies have not given consent letters for suit
subject construction.
27 In this background, there are letters from MMRDA dated
27.10.2017, 27.11.2017 and 15.03.2018 in respect of NOC granted by
MMRDA. Letter dated 15.03.2018 has been issued by Officer on Special
duty SRA Cell, MMRDA to the Executive Engineer and requested to
process the proposal and get the construction done by following due
procedure, in view of revised NOC dated 27.11.2017.
28 Further, defendant no.1 has tendered letter issued to police
by MHADA dated 08.01.2019. It appears that MMRDA intimated to
the police regarding obstruction to the suit subject construction.
Besides, the plaintiff's association has filed letter issued by the plaintiff
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in respect of objection raised to the suit subject construction and also
filed letter issued by the plaintiff dated 07.01.2019 to PI Wadala T.T.,
Police Station and letter dated 12.06.2018 issued to Land Manager,
MMRDA to the Commissioner MMRDA. All the said letters disclose
objection for the construction and seeking custody and possession of the
said hall with the plaintiff. It is argued by learned advocate for
defendant no.1 that the plaintiff has no locusstandi to file present suit,
as some members of the alleged association have given consent for
construction.
29 Primafacie from the documents of defendant nos.2 to 4, it
appears that seven societies have given consents for the said
construction, who are the members of the plaintiff's association. The
plaintiff has filed on record DCR23. It discloses that the proposal for
construction in a recreational open space should come as a proposal
from the owner/owners/society/societies or federation of societies
without any profit motive and shall be meant for the beneficial use of
the owner/ owners/members of such society/societies/federation of
societies. It appears that seven societies for their members have given
consent for the construction of the suit subject and prima facie, it
appears that defendant nos.2 to 4 have accepted the same as a proposal
and granted NOC.
30 The plaintiff has filed on record minutes of urgent special
general meeting dated 16.06.2019 called to verify that whether the
societies are consenting to the construction work of defendant no.1.
The plaintiff has stated that during the meeting all the society
representatives were present. After perusal of the said minutes, prima
faice it appears that the plaintiff has not mentioned specifically names
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of the societies against the names, who were present being members of
concerned societies having authority to attend the said meeting. Thus,
primafacie nothing discloses that the persons present in the said
meeting were representatives of all 29 societies.
31 Further, at this juncture, MMRDA has not submitted to the
Court that there is any breach of conditions of revised NOC at the hands
of defendant no.1. It appears that all the societies allegedly registered
as plaintiff has not taken objection for the construction. Seven societies
are supporting to defendant no.1. That means, primafacie the plaintiff
being the representative of all the concerned societies, without
obtaining consent of all the societies and without passing resolution in
respect of authority to file the suit, has filed this suit.
32 The plaintiff has not filed on record documents showing the
existence of other Community Hall in the said area and further, it was
not the condition for NOC for suit construction. Thus, the letters
tenanted by defendant no.1 discloses the request for Community Centre
by Jai Balaji Cooperative Housing Society, New Navratna, Sant Krupa
(SRA) Cooperative Housing Society Limited, Jai Santoshi Mata SRA Co
operative Housing Society Limited, Shri Siddhivinayak Cooperative
Housing Society, Sanjeevani SRA Cooperative Housing Society,
Kohinoor (SRA) Cooperative Housing Society Limited along with the
other societies.
33 Therefore, it leads me to accept that there was proposal
from society/societies from that vicinity, for construction of suit
structure hall and the defendants have accepted the said proposal in
view of DCR Rule23 and accordingly, NOC has been issued for the said
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construction. Thus, prima facie, defendant no.1 has established the
case to show that as per the provisions in DCR 23(g)(ii)(b), defendant
no.1 has started construction work and that too, it is for beneficial use
for the members of the society and further, even defendant no.1 is not
residing in the said colony. Prima facie, it appears that there is no
breach of terms and conditions of NOC granted by defendant nos.2 to 4
for the construction of the suit structure. Considering MLA fund granted
to defendant no.1, at this stage, it is not just and proper to stop further
construction. Thus, I have no hesitation to hold that the plaintiff has
failed to establish prima facie case.
AS TO POINT NOS.2 AND 3;
34 So far as balance of convenience is concerned, it appears
that by using MLA fund, defendant no.1 has started construction of
community hall for the benefits of the members of the said societies.
Therefore, balance of convenience is lying in favour of defendant no.1.
If notice of motion is allowed, irreparable loss would be caused to the
defendants only, as from MLA fund already construction has been
started. Hence, I answer point nos.2 and 3 accordingly.
35 In the light of my above discussion and findings as to points
notice of Motion No.2238/2019 is to be dismissed. Consequently,
notice of motion no.2116/2019 taken out by defendant no.1 has
become redundant. Therefore, notice of motion of defendant no.1 is to
be disposed of. With this, I proceed to pass the following order:
ORDER
Notice of Motion No.2238 of 2019 of the plaintiff is hereby
dismissed with costs and accordingly disposed of.
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2. Notice of Motion No.2116 of 2019 of defendant no.1 stands
disposed of.
(S. P. PONKSHE)
Judge,
Date: 02/08/2019. City Civil Court,
Gr. Bombay.
Dictated on : 02/08/2019
Transcribed on : 06/08/2019
Signed on : 27/08/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
27/08/2019 At 4.30 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
02/08/2019
Judgment/Order signed by P.O. on 27/08/2019
Judgment/Order uploaded on 27.08.2019
-- 19 of 23 --
20 N/M Nos.2238/19&2116/19 in Suit No.1558/19
Heard the learned advocate for the plaintiff and the learned advocate
for defendant no.1. It is urged by the learned advocate for the plaintiff
that defendant no.1 is carrying out unauthorized and illegal
construction. The plaintiff has approached to this Court to restrain
defendant no.1 from carrying out construction. On 23.05.2019 ad
interim relief was granted in favour of the plaintiff. The advocate for
the urged for extension of adinterim relief.
The learned advocate for defendant no.1 has argued that the suit
subject construction has been started by using Public Funds of
Government. Already huge loss has been caused to the Government
Treasury because of stoppage of work. If stay is extended, it shall cause
loss to not only the Government, but to the public also. Moreover, the
plaintiff has no loss in this matter. He has further submitted that even
the Hon'ble High Court has refused to grant any stay in this matter. The
plaintiff has no locus standi for seeking extension of adinterim relief.
-- 20 of 23 --
21 N/M Nos.2238/19&2116/19 in Suit No.1558/19
Admittedly, adinterim relief has been passed on 23.05.2019. Today,
this Court has passed order in Notice of Motion on merits and dismissed
Notice of Motion. The order passed is not executable order. Further,
primafacie nothing has been disclosed by the plaintiff that substantial
loss may result to the plaintiff, if earlier order is not continued. Hence,
this application is rejected.
-- 21 of 23 --
22 N/M Nos.2238/19&2116/19 in Suit No.1558/19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
14/06/2019 At 2.55 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
13.06.2019
-- 22 of 23 --
23 N/M Nos.2238/19&2116/19 in Suit No.1558/19
Judgment/Order signed by P.O. on 14.06.2019
Judgment/Order uploaded on 14.06.2019
-- 23 of 23 --