Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2015-18 in Suit No. 1493-18
CNR NO.MHCC0100657918
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2015 OF 2018
IN
L.C. SUIT NO. 1493 OF 2018
Himanshu Kamdar ....Plaintiff
Versus
The Municipal Corporation of Greater Mumbai & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 16th April, 2019.
Appearance:
Ld. Adv. Anita Trivedi for the plaintiff.
Ld. Adv. Asif Shaikh a/w Adv. Smt. Patil for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant from demolishing the structure mentioned in
the notice dtd. 09.01.2018 and the order dated 22.05.2018.
2. It is the case of the plaintiff that the notice structure is in
existence since 1997 and is the part of the mezzanine floor located in
the shop of the plaintiff.
In the reply to the notice, it is contended by the plaintiff that the
canopy is in existence since the inspection of the building.
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2 NM 2015-18 in Suit No. 1493-18
3. The defendant on the other hand contend that in the inspection
it was found that M/s. Kamdar Sweets have carried out construction
unauthorized entry gate to canopy It is alleged that the said canopy is
used for commercial purpose and therefore rightly notice under Section
314 of the MMC Act was issued.
4. The action under Section 314 of the MMC Act can be taken
against plaintiff by showing that the plaintiff had erected the canopy
structure without any legal authorization. The photographs filed by the
defendant alongwith the reply show that the canopy the name Board of
'Rajkot Suprasiddha Pedha Kamdar Sweets comes on the foot path, a
public place.
It is tried to be contended by the plaintiff that the canopy is the
part of the mezzanine floor and by virtue of the injunction in L.C. suit
no. 1779/2011 which was in relation to the notice under Section 351 of
the MMC Act in respect of mezzanine floor, the present notice under
Section 314 of MMC Act cannot be issued.
5. It is for the plaintiff to show that the construction of canopy is
legal and is not on the foot path. The only contention of the plaintiff is
that the suit structure is in existence since 1997 and is part of the
mezzanine floor.
It is to be noted that the mezzanine floor and canopy are distinct
portions. The order dated 22.05.2018 alleges that the canopy is on foot
path and it is not the part of mezzanine floor. The said canopy is alleged
used for storage of material, cooking food.
It may be true that the plaintiff may have come in possession of
the suit shop in the year 2006. It cannot be said that the actions of the
person previously in possession of the premises are legal. The plaintiff
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3 NM 2015-18 in Suit No. 1493-18
was given opportunity to prove the legality of the notice structure. The
order points out that the plaintiff had failed to show the authorization
of the notice structure.
Admittedly, the plaintiff in the suit also had not produced any
documents to show permission of the construction of the canopy which
is described in the notice. The photographs filed by the defendant
corporation clearly indicate that the notice structure is on the foot path.
A) The plaintiff in paragraph no. 4 of the plaint has described the suit
premise, situated at shop no. 6 adm. 340 sq. ft approximately built up
area including the mezzanine floor open terrace. It does not disclose
the existence of the canopy.
B) It was for the plaintiff to primafacie show that the canopy was in
existence much prior to 1962 or was constructed after obtaining
necessary permission.
Despite the opportunity, the plaintiff failed to prove the legality
and validity of the canopy made to be existing in the ground floor. The
plaintiff cannot be entitled for relief of temporary injunction restraining
the defendant corporation from demolition the same.
The plaintiff has not made out primafacie case. 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
Notice of motion no. 2015/2018 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 16.04.2019 City Civil Court, Mumbai.
Dictated & directly typed on computer on : 16.04.2019
Checked by HHJ on : 22.04.2019
Signed by HHJ on : 22.04.2019
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4 NM 2015-18 in Suit No. 1493-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 22.04.2019 at 5.52 pm.
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
16.04.2019
JUDGMENT/ORDER signed by
P.O. on
22.04.2019
JUDGMENT/ORDER uploaded
on
22.04.2019
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