Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 23652019 IN SU 301318
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO.2365 OF 2019
IN
L.C. SUIT NO.3013 OF 2018
Smt. Madhuri Madhusudan Mhaprolkar ...Plaintiff
Versus
The Municipal Corpn. of Gr. Mumbai & Ors....Defendants
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 9th AUGUST, 2019.
Mr. Priyank Shukla, Advocate for Plaintiff.
Ms. Chavan, Advocate for defendant/B.M.C.
ORAL ORDER
1. By this Notice of Motion. the plaintiff has sought temporary
injunction to restrain the defendant from acting upon impugned notice
and order.
2. In brief plaintiff's case is that, she resides in Room No.1 having
Ground + mezzanine floor in chawl No.7 at Navjeevan Nagar, Hariyali
Village, Vikhroli (West), Mumbai, (hereinafter to be referred as “Suit
Premises”). The suit premises is existing since long. It was badly in
need of repairs. The plaintiff has carried out tenantable repairs in June,
2018. The defendant's officer however, alleged that the plaintiff has
constructed unauthorized horizontal extension. A Notice under Section
351 was issued to which the plaintiff has replied however, mechanically
-- 1 of 5 --
: 2 : NM 23652019 IN SU 301318
an order is passed. The suit premises is existing in declared slum area
and thus the defendant has no authority to act against the suit premises.
Thus entire action of defendant is illegal.
3. In reply the defendant has come with a case that on inspection an
unauthorized construction was found. Accordingly an inspection report
was prepared, based upon which impugned notice was issued. Plaintiff
replied the notice but failed to prove the authorization of notice
structure. Therefore, impugned order was passed directing the plaintiff
to pull down the notice structure. Merely because the plaintiff alleges
that the suit premises is situated in declared slum area it does not
preclude defendant from acting against it as it being planning authority
has every power to restrict unauthorized construction. The plaintiff has
no documents such as photo pass etc. in respect of the notice structure.
4. Perused. Heard.
5. Following points arise for determination against which findings
are recorded for the reasons to follow:
Sr. No. POINTS FINDINGS
1. Does plaintiff prove a prima facie case
in his favour?
In the affirmative.
2. Whether the balance of convenience lies
in plaintiff’s favour?
In the affirmative.
3. Whether the plaintiff will suffer
irreparable loss if injunction as sought
is refused?
In the affirmative.
4. What Order ? Notice of motion is
made absolute.
-- 2 of 5 --
: 3 : NM 23652019 IN SU 301318
REASONS
As to point Nos.1 to 4.
6. This notice of motion can be considered on the ground of
authority of defendant to act against the suit premises. The plaintiff has
produced on record the Government Notification declaring the land
survey No.19 as a slum area. The suit premises is existing in Survey
No.19.
7. The defendant has come with a case that though the suit premises
exists in slum area, it has powers to act against the unauthorized
construction wherever the defendant Corporation is a planning
authority.
8. The defendant has prepared and produced a copy of Inspection
Report dated 19.7.2018 wherein in column No.9 it has come with a
case that SRA is a Planning Authority in respect of the suit premises.
9. Thus, from the inspection report produced with list Exh.2 it is
defendant's own contention that SRA is the Planning Authority. It is
also defendant's case that it can act against the unauthorized
construction wherever it is the Planning Authority. Thus, the action of
issuing impugned notice and passing impugned order by the defendant
prima facie appears to be without authority as, according to its own
document, it is not he planning authority in respect to the suit premises.
Hence, I hold that the plaintiff has made out a prima facie case in her
favour. In the light of circumstances discussed above, the balance of
convenience lies in favour of plaintiff. The plaintiff has also made out
the case of irreparable loss in the case of refusal of injunction. Hence, I
-- 3 of 5 --
: 4 : NM 23652019 IN SU 301318
record affirmative findings on point No.1 to 3 and in response to point
No.4, pass following order.
ORDER
1. Notice of Motion No.2365 of 2019 is made absolute in terms of
prayer Clause (a).
2. The defendant is restrained from acting against suit premises in
pursuance to the impugned notice and order till disposal of the
suit.
3. Costs in cause.
Sd/
(A.N. MARE)
Judge,
09.08.2019 City Civil Court, Mumbai.
Dictated On : 09.08.2019
Transcribed on : 13.08.2019
HHJ Signed on : 16.08.2019
-- 4 of 5 --
: 5 : NM 23652019 IN SU 301318
“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
16/08/19 05.30 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
09.08.2019
JUDGEMENT /ORDER signed by
P.O. on
16.08.2019
JUDGEMENT /ORDER uploaded
on
16.08.2019
-- 5 of 5 --