Final Order 1

Order Details: Other
Pdf Text: 04.01.2024
Sr. No. 37
CORAM: H.H.J. SHRI. A.G. SANTANI (C.R. NO.11)
SU 1388/19
NM 2262/19
Adv. Mr. Suresh Rajeshwar for the plaintiff is present.
Adv. Mr. Giri h/f Adv. Khandagale for defendant/MCGM is present.
After hearing the parties, the following Order is passed in NM
No. 2262/2019 :
01. Considering their rival submissions, at the outset, it is
to be noted that at this stage of the matter, the plaintiff could prima
facie show that earlier, the defendant took possession of the portion
admeasuring 1009.40 sq. mtr. and issued the possession receipt, at
Exhibit-D. The record further shows that as per the sanction plan,
filed at Exhibit H, the said portion was recognized by the Office of
defendant. That apart, after completion of G+22 floors structures,
the Occupation Certificate was granted. Thus, it is clarified that the
portion of 1004.40 sq.mtrs. was so acquired by the defendant. More
so, the plaintiff timely replied the impugned notice and the same is
under consideration of the said Office. The record further reveals
that as per the statement, recorded in roznama dtd. 23.04.2019, of
Mr. Kalpesh Kishore Mhaskar, Road Engineer-1, Asst. Engineer, he
informed to arrange the requisite hearing before the DMC Zone VI
and till completion thereof, no action was to be proposed as against
the structure. However, later, the defendant did not contest this NM
and the suit and therefore, the matter proceeded ahead without his
defence as per roznama Order dtd. 17.11.2022. On this backdrop,
as of now, there is nothing on record to rebut the plaintiff’s stand.
This being the position of record, I am of the opinion that as the
earlier acquisition of the affected portion is apparently proved, the
defendant is bound to follow due process of law prior to initiating
further acquisition proceeding against the suit structure. It would
also afford fair opportunity of hearing to the plaintiff. Consequently,
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till that time, the defendant is to be restrained to execute the notice
dtd. 04.05.2018. Hence, the Order :
01. Notice of Motion No. 2262/2019, is partly allowed. The
defendant, his agents, his servants and anybody else claiming
through him are hereby restrained to act upon the notice dtd.
04.05.2018, as against the suit structure, except by following the
due process of law.
02. Notice of Motion No. 2262 of 2019, is accordingly, disposed
of.
Adjourned for RE (No WS) to 21.02.2024.
Judge
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