Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1923-18 in Suit No.1316-18
CNR NO.MHCC0100636918
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1923 OF 2018
IN
L.C. SUIT NO. 1316 OF 2018
Akramal Najibul Sarkar …...Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 18th January, 2020.
Appearance:
Ld. Adv. Mr. B.P.Shukla for the plaintiff.
Ld. Adv. Mrs. Rawade for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon the notice
issued under Section 354A of the Mumbai Municipal Corporation Act,
1888 (hereinafter referred to as 'the MMC Act') dated 28.04.2018 and
the Order dated 07.05.2018.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. The Schedule of the Notice dated 28.04.2018 reads as under:
''In spite of earlier 3 stop work notices 1) B/DOB/224/354
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A MMC Act/B34NO1/13.03.2018 2) B/DOB/224/354A MMC
Act/B40NO9/10.04.2018, 3) B/DOB/224/354A MMC
Act/B44NO1/16.04.2018 in B.C.C.C Suit 791/2018, Stamp No.
5278/2018, Stamp No. 5514/2018 respectively, Unauthorized
construction of seventh floor admeasuring 15'70' using material Rolled
Steel Joist section as shown in sketch below.''
4. The plaintiff claims to be the owner of building Vazir Mansion,
situated at 244, Narshi Natha Street, Pydhonie,Mandavi, Mumbai03.
The premises is occupied by various tenants. The suit building is
assessed building. It needed urgent repairs. The notices were issued by
M.H.A.D.A Authorities for repairs. The notice dated 14.05.2015 was
issued to the tenants to vacate the building. The tenants were shifted in
the transit camp as building is in dilapidated condition and required
urgent repairs. No Objection Certificate was issued by M.B.R. & R
Board for the repairs.
It is alleged that false complaint were made to the Designated
Officer. It is the case of the plaintiff that the notices were issued to
make payment for arrears of assessment tax. It is stated that notices
were issued previously and which are challenged the other suit. The
plaintiff was issued notice under Section 354A of the MMC Act
28.04.2018 which was replied by the plaintiff through his Advocate on
02.05.2018. It is stated that the building is old, no construction was in
progress. It is stated that the inspection extract of Assessor and
Collector reflects the existing of the building. The plaintiff accordingly
had prayed for injunction restraining the defendant corporation from
acting upon the Notice and the Order.
5. The defendant submitted in its say that unauthorised construction
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3 NM 1923-18 in Suit No.1316-18
is in progress. The suit structure was inspected. It was found that the
unauthorised construction was in progress. Photographs were taken
and inspection report was prepared. The plaintiff failed to show the
authorization of the notice structure, therefore notice was issued under
Section 354A of the MMC Act. It is stated that plaintiff had suppressed
material facts. It is submitted that under the garb of repair entire, no
construction was carried out.
6. The learned Advocate for plaintiff argued that the notice under
Section 354A is not maintainable as the construction of the work is
over. The corporation had failed to show any evidence, pointing out
the construction to be in progress. It is submitted that the work is
carried out as per the orders of MHADA. It is contended that circular
dated 29.04.2006 is not followed. The learned Advocate relied upon
the judgment of Hon'ble Supreme Court in case of Muni Suvrat Swami
Jain, SMP Sangh Vs. Arun Gaikwad (2006)8 Supreme Court Cases
590, had observed as follows:
''The provisions of Section 354 have nothing to do with the question
of demolition, when the structure is in existing.''
7. The learned Advocate for the defendant corporation argued that
under the garb the permission for repairs, demolished the entire suit
being and new construction is being carried out by the plaintiff.
8. It is not in dispute that M.B.R. & R Board had issued letters to the
plaintiff and the occupants that the suit building is in dilapidated
condition and is unfit for human habitation and were informed to
vacate the same. The plaintiff was also informed that the building was
taken on priority for structural repairs were received from the plaintiff.
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Vide letter dated 6.03.2016, M.B.R. & R Board had informed that
the work order was issued repair work. It was also informed that
tenants were required to shift to transit camps. The plaintiff was also
informed by M.B.R. & R Board that it had no objection for structural
repairs and asked to seek IOD and commencement certificate from the
defendant corporation. It was also informed that no unauthorised work
should be carried out. It clear that the plaintiff was directed to carry
out structural repairs.
9. It is the allegation of the corporation that the unauthorised work
was carried out on 7th floor. It is also the case of the defendant that
demolition was carried out on 21.03.2018 to still continued
unauthorised work and carried out new construction upto 8th floor. The
plaintiff was also issued notice under Section 52 (43) of MRTP Act
1966. It is further stated that earlier 3 stop work notice 1)
B/DOB/224/354A MMC Act/B34NO/13.03.2018 notice 2)
B/DOB/224/354A MMC Act/B40NO9/10.04.2018 3)
B/DOB/224/354A MMC Act/B44NO1/16.04.2018 in B.C.C.C. Suit
791/2018, Stamp No. 5278/2018, Stamp No. 5514/2018 respectively.
After hearing both parties this Hon'ble Court dismissed notice of motion
on merit. The plaintiff challenged the orders dated 03.05.2018 passed
by City Civil Court by filing common A.O. 446 of 2018, 477 of 2018,
488 of 2018 before Hon'ble High Court by order dated 18.09.2018
Hon'ble High Court dismissed A.O.
10. It needs to be mentioned that NOC dated 23.09.2016 was granted
for structural repairs only, by defining the duties and responsibilities of
plaintiff, as Architect and Contractor for carrying out the structural
repairs and the plaintiff was directed to bring IOD or commencement
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certificate. It is clear that the construction carried out by the plaintiff
primafacie shows that it was without IOD and commencement
certificate. The NOC was given under Section 102 of the M.H.A.D.A Act
for structural repairs only. The plaintiff had not produced any
permission to show that the work was carried out with valid permission.
11. The document on record primafacie show that the plaintiff was
permitted to carry out structural repairs and was not permitted to
demolish and reconstruct the building. The plaintiff, primafacie
appears to have acted contrary to the repairs plan permitted by M.B.R.
& R Board. It needs to be mentioned that the plaintiff had carried out
construction contrary to the repaired plan therefore repeated stop work
notices were issued to the plaintiff.
12. The learned Advocate for the corporation had relied upon the
orders passed in A.O. challenging the dismissal of the Notice of Motion
filed by the plaintiff. The Hon'ble High Court in paragraph Nos. 14 &
and 15 had observed as follows.
''14. Thus, as per this Proviso, no permission shall be necessary
for ''demolition'' of an existing structure, erection or building or part
thereto. Therefore, what it contemplates is that permission from the
Municipal Corporation shall not be necessary when the demolition of
the existing structure is in compliance of a statutory notice received
from a Planning Authority or a Housing and Area Development Board
or the Bombay Repairs and Reconstruction Board of the Bombay Slum
Improvement Board established under the Maharashtra Housing and
Area Development Act, 1976, This Proviso nowhere states that even for
carrying out the repairs as per the said notice or for carrying out totally
a new construction at the site, the permission from the Municipal
Corporation is not required. Such permission is always necessary
except when the dilapidated building is to be demolished, but so far as
erection of the building is concerned, it has to be done as per the
procedure laid down in the MMC Act. Even for the repair work as
already observe by the Trial Court, the compliance has not been done
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by the appellants of obtaining IOD and CC from the Municipal
Corporation. Now admittedly the construction of suit building is
completed upto 10th floor. As rightly submitted by the learned counsel
for the respondent, the appellant has cleverly not given the description
of the earlier building, thereby trying to mislead the Court.
15. In view of all these facts on record, the Trial Court has rightly
rejected th Notices of Motion filed in the suits. In Appeal From Orders,
no interference is warranted in the impugned order passed by the Trial
Court. The Appeals, therefore, being without merit stand dismissed.''
13. The construction carried is without permission and contrary to
repair plans.
The plaintiff has failed to make out the primafacie case in his
favour. The balance of convenience does not lies in favour of the
plaintiff. The plaintiff would not be put to irreparable loss, if the
temporary injunction is refused.
In the result, following order is passed.
ORDER
The Notice of Motion No. 1923/2018 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 18.01.2020 City Civil Court, Mumbai.
Dictated on : 18.01.2020
Transcribed on : 18.01.2020
Signed by HHJ on : 20.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 20.01.2020 at 12.20 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
18.01.2020
JUDGMENT/ORDER signed by
P.O. on
20.01.2020
JUDGMENT/ORDER uploaded
on
20.01.2020
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