Order 1

Order Details: Notice of Motion
Pdf Text: L.C. Suit No. 131718 : 1 : Dt. 05.06.2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
DRAFT NOTICE OF MOTION
IN
LONG CAUSE SUIT NO. 1317 OF 2018
(CNR NO. MHCC010066172018)
Harbhajan Kaur Sodhi )
age 66 years, Occupation : Homemaker )
Indian inhabitant, residing at bungalow no. 8, )
in "Basant Vihar" Coop. Housing Society, )
Dr. C.G. Road, Chembur, Mumbai 400 074. ) ...Plaintiff
Vs.
1. Municipal Corporation Of Greater Mumbai )
a body Corporate, duly incorporated under the )
provisions of M.M.C. Act, having its office at )
Mahanagarpalika Marg, Mumbai 400 001. )
2. The Assistant Commissioner )
'M/E' Ward, 2nd Floor, M.T. Kadam Marg, )
Govandi, Mumbai 400 043. ) ...Defendants
CORAM : HER HONOUR JUDGE
SMT. SANJASHREE J. GHARAT
(C.R. NO.08)
DATE : 05.06.2018.
Ld. Adv. Mrs. Shubhangi Subhedar for Plaintiff.
Ld. Advocate Mr. Giri for BMC / Defendant.
Mr. Pravin Katare, Sub Engineer, M East Ward, BMC.
ORAL ORDER
Perused the Notice of Motion which is supported by an
affidavit. Perused the documents produced on record. The defendant
i.e. Municipal Corporation of Greater Mumbai has not filed reply to the
Notice of Motion.
2. The Plaintiff filed application for adinterim injunction for
restraining the defendant from implementing and / or enforcing the
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L.C. Suit No. 131718 : 2 : Dt. 05.06.2018
notice issued u/s. 351 dated 07.06.2017 and 21.05.2018. The plaintiff
claims that he is owner and in use, occupation and possession of
Bungalow No. 08 situated at Basant Vihar Cooperative Society. It is
specific contention of the plaintiff that a cluster of about 36 Bungalows
was planned to be constructed by the Developer. Accordingly the
developer gave the part possession of the Bungalow in the year 1986
87. Thereafter the Compound Wall of plaintiff Bungalow was
constructed in the year 198788. The said compound wall is the subject
matter of the present suit, therefore, it will be referred as a 'suit
structure' for sake of brevity.
3. It is the grievance of the plaintiff that the said suit structure
was constructed by the developer in the year 198687. The defendant
issued the notice dated 05.06.2017 u/s. 351 of MMC Act. The plaintiff
replied the said Notice. However, no action was initiated for a period of
one year after receipt of notice reply. However surprisingly the
defendant / Corporation issued notice on 21.05.2018 which is received
by the plaintiff on 22.05.2018 u/s. 351 of MMC Act directing to remove
the suit structure claiming the same as unauthorized within 15 days. It
is further submitted by the plaintiff that the 15 days of the said notice
will expire on 06.06.2018 . Inspite of the same today in the morning
the defendant Corporation served the notice u/s. 488 of MMC Act and
intimated their visit for demolition of compound wall on 06.06.2018 i.e.
before expiry of 15 days mentioned in the Notice. It is submitted on
behalf of plaintiff that if defendant succeeds to demolish the said suit
structure before the expiry of time period mentioned in the Notice then
irreparable loss will be caused to the plaintiff which can not be
compensated in terms of money. Therefore plaintiff prayed that
defendant corporation be restrained by way of adinterim injunction not
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L.C. Suit No. 131718 : 3 : Dt. 05.06.2018
to act upon the notice issued on 21.05.2018.
4. The learned counsel Mr. Giri appeared on behalf of
Corporation. He submitted that before seeking interim relief it is
necessary on the part of the plaintiff to prove that the said construction
is authorised and legal. It is submitted on behalf of the defendant that
plaintiff have not filed any documentary evidence to show that the suit
structure i.e. compound wall is authorised. It is submitted on behalf of
the defendant that the construction is not carried out before datum line.
Moreover, the plaintiff failed to adduce the best possible evidence to
prove that suit structure is authorised construction. It is submitted that
the plaintiff can very well produce the development plan, assessment
order, etc.
5. The plaintiff filed photographs to show existence of said
compound wall for number of years. So also various correspondence,
survey / inspection report is filed to show that the said compound wall
is in existence for number of years. The only grievance of the defendant
/ corporation is that the said wall is unauthorised. It is pertinent to
note that defendant / corporation issued the notice u/s. 351 of MMC
Act on 31.05.2017. Thereafter till 21.05.2018 no action is initiated. It
is pertinent to note that by Notice dated 21.05.2018, the defendant /
Corporation granted 15 days time to plaintiff to demolish the suit
structure. However before completion of the said period the
defendant / Corporation issued the notice u/s. 488 of MMC Act for their
visit on 06.06.2018. Therefore, if defendant / Corporation act upon the
notice issued u/s. 488 of MMC Act, then irreparable loss will be caused
to the plaintiff which can not be compensated in terms of money.
Moreover entire purpose of filing suit will be frustrated. After going
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L.C. Suit No. 131718 : 4 : Dt. 05.06.2018
through the pleadings and documentary evidence produced on record
the plaintiff made out primafacie case and therefore till defendant /
corporation files the detailed reply to this Notice of Motion, the suit
structure needs to be protected. Hence, following Order is passed :
ORDER
1. Adinterim relief as per prayer clause (a) is granted till next
date i.e. 18.06.2018.
2. The defendant is directed to positively file reply on next
date.
3. Leave is granted to register the Notice of Motion.
(Sanjashree J. Gharat )
Asstt. Sessions Judge,
City Civil & Sessions Court,
Gr. Mumbai.
Date : 05.06.2018.
Dictated on : 05.06.2018.
Transcribed on : 06.06.2018.
Signed on : 06.06.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
07.06.2018 at 11.45 a.m. (Y.M. SAKHARKAR)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
DR(SMT) SRISHTY NEELKANTH (C.R.
No.02)
Date of Pronouncement of
JUDGMENT/ ORDER
05.06.2018
JUDGMENT/ORDER signed by P.O.
on
06.06.2018
JUDGMENT/ORDER uploaded on 07.06.2018
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