Order 1

Order Details: Notice of Motion
Pdf Text: NM 207018 in Stamp No. 695218 : 1 : Dt. 02.07.2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2070 OF 2018
(CNR NO. MHCC010067242018)
IN
STAMP NO. 6952 OF 2018
Mrs. Sulochana Sitaram Khamkar ...Plaintiff
Versus
1. The Ward Officer N Ward
2. Municipal Corporation for
Greater Mumbai ...Defendants
CORAM : HER HONOUR JUDGE
SMT. SANJASHREE J. GHARAT
(C.R. NO.08)
DATE : 02.07.2018.
Adv. Mr. R.D. Salve for Plaintiff present.
Adv. Mr. Giri for Defendant / BMC present.
ORAL ORDER
The present Notice of Motion is filed by plaintiff for
restraining the Defendant / Corporation from acting upon the order
came to be passed on 12.05.2018. It is the grievance of the plaintiff
that Corporation has issued Notice on 12.04.2018 alleging that suit
structure is unauthorized and on footpath. The plaintiff replied the said
notice and produced the documents to show that the suit structure is in
existence prior number of years and same is authorized one. It is
further grievance of the plaintiff inspite of submitting detail reply and
documentary evidence the Corporation had passed final Order on
12.05.2018. The plaintiff claims that the order passed by the Defendant
/ Corporation is illegal and improper. It is further submitted that the
impugned order is passed to harass the plaintiff. Therefore plaintiff
prayed that interim protection be granted to her from the order passed
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by the Defendant / Corporation.
2. The Defendant / Corporation filed reply and Written
Statement vide Exh. 2 and resisted the Notice of Motion filed by the
plaintiff.
3. It is submitted by the Defendant / Corporation the suit
itself is not maintainable due to various provisions of law, therefore
question of granting ad interim injunction not arises. The Defendant
claims that suit is not maintainable for want of notice u/s. 527 of MMC
Act. It is further pointed out even the suit is not maintainable for want
of correct description of the suit property as required under Order 7
Rule 3 of CPC. It is further submitted by Defendant / Corporation that
the suit notices are executive / Administrative act or orders and same
can not be challenged in the Court of Law. The Defendant / Corporation
also raised objection that the suit is not properly valued.
4. It is further submitted by Defendant / Corporation that
Defendant / Corporation has undertaken the project of widening road
and desalting of the Monsoon drain and construction of new drainage
line for prevention of water logging in the area. However, on inspection
the Defendant / Corporation found number of structure on the old
drainage line by covering the footpath. Therefore the notice came to be
issued on 12.04.2018. It is further pointed out that plaintiff replied the
said notice and submitted various documents. However the documents
relied by the plaintiffs not shown the authenticity of the structure and
same was in existence prior to the 01.04.1964, therefore, final order
came to be passed after giving full opportunity to the plaintiff to prove
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the authorization of suit structure. Therefore Defendant / Corporation
claims that the final order is rightly passed by the Corporation.
Therefore, prayed to reject the prayer made by the plaintiff.
5. Considering the rival pleadings made on behalf of both the
parties following Points arise for my determination and I answer the
same together with reasons thereon as under :
POINTS FINDINGS
1. Whether plaintiff made out prima facie
case ? In the Negative.
2. Whether balance of convenience lies in
favour of plaintiff ?
Does not Survive.
3. To whom irreparable loss will be caused ? Does not Survive.
REASONS
As to Point Nos. 1, 2 and 3 :
6. It is settled law that one who approaches the Court should
come with the clean hands. The plaintiff came with the case that she is
having title over the suit structure which is a commercial premises. It is
further contention of the plaintiff that suit structure is in existence for a
number of years and she had not carried out any addition, alteration in
the suit structure. The plaintiff further claims that the suit structure is
authorised structure. Therefore plaintiff have challenged the action on
the part of Corporation.
7. Per contra, it is the contention of the Corporation that suit
structure is not authorised structure. Secondly the said structure was
not in existence prior 01.04.1964, therefore, it is not a protected
structure. Thirdly, the suit structure is available on drainage line by
covering the footpath. Therefore, in order to resolve the issue of water
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logging in the monsoon the Corporation initiated the action of removal
of such structure. It is further contention of the Defendant /
Corporation that they want to construct new drainage line. Since suit
structure is in existence covering the drainage line it is necessary to
demolish the said unauthorised construction.
8. The plaintiff claims that suit structure is authorized suit
structure. Moreover plaintiff claims title over the suit structure. In
support of her contention plaintiff produced the copy of affidavit in
respect of suit structure executed with erstwhile owner in favour of
Vinod Naidu. The plaintiff claims that she purchased the suit structure
from Vinod Naidu on 16.12.2014 and she produced the copy of Sale
Deed on record. Admittedly neither the affidavit executed by original
owner nor the Sale Deed executed in favour of plaintiff in registered
documents. Therefore, it is not conveyance.
9. In order to prove the existence of the structure the plaintiff
filed Electricity Bill of March 2018, Survey Receipt issued in the name
of erstwhile owner, the copy of license issued by Health Dept., copy of
license issued and the Shop and Establishment Act, Tax bill and receipt
in respect payment of Municipal taxes, receipt of payment of charges for
convertion of use of land for non agriculture purpose and order passed
to that effect, map issued by additional Tehsildar Kurla. It is pertinent
to note that the existence of structure is not in dispute. The structure is
in existence therefore notice came to be issued. So also mere payment
of assessment charges will not prove that the structure in existence is
authorized structure. Moreover, permission for use of land or non
agriculture purpose will not prove, that the suit structure available on
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N/A lay out is authorized. The plaintiff not produced any document
evidence to show that either plaintiff or erstwhile owners took
permission for construction of suit structure. It is also not case of
plaintiff that suit structure is constructed prior 01.04.1964.
10. It is specific contention of deft that suit structure is
constructed over drainage line by covering the footpath. The plaintiff
herself produced the map issued by additional Tehsildar vide Exh. D. In
the said map it is specifically mentioned that the suit structure is
available on road and land is owned by municipal corporation. It is also
specifically mentioned the said map pertains to unauthorized
construction. The plaintiff also produced photographs in respect of suit
structure. It appears that the suit structure are adjacent to main road
covering the footpath.
11. It is specific contention of the defendant that the said road
is constructed recently and thereafter the plaintiff have carried out
illegal construction. I have gone thorough the Municipal tax bill
produced on record vide Exh. C for the year 20082009. In the said
Assessment Bill the suit structure was shown made from AC sheet.
However, in the notice given by the corporation the suit structure is
made from brick wall and tin sheet. Even the photographs filed by the
plaintiff shows that suit structure are made from brick wall having
collapsible shutter with tin roof.
12. Therefore considering the evidence produced on record the
suit structure was not in existence on datum line. Secondly there is
nothing on record to show that suit structure is authorized. Thirdly suit
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structure is available on drainage line covering footpath. The residents
has to face severe problems due to logging of water. Therefore
corporation being public body has to do the work in public interest
which includes construction of new drainage, remove the structure
available on footpath for the interest of public at large. Therefore, the
legal action initiated by the Defendant / Corporation can not be stopped
by passing adinterim injunction. The plaintiff failed to make out
primafacie case. Therefore I record my findings at Point No. 1 in the
Negative. Since Plaintiff failed to make out primafacie case question of
balance of convenience and irreparable loss will not arise. Hence, I
record my findings at Point Nos. 2 & 3 as does not survive. As a result
I proceed the pass following order :
ORDER
The Notice of Motion bearing No. 2070 of 2018
stands rejected.
(SANJASHREE J. GHARAT )
Judge
City Civil Court,
Gr. Mumbai.
Date : 02.07.2018.
Dictated on : 02.07.2018.
Transcribed on : 10.07.2018.
Signed on : 12.07.2018.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
16.07.2018 at 1.40 p.m. (Y.M. SAKHARKAR)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SMT. SANJASHREE J. GHARAT
(C.R. NO.08)
Date of Pronouncement of
JUDGMENT/ ORDER
02.07.2018
JUDGMENT/ORDER signed by P.O.
on
12.07.2018
JUDGMENT/ORDER uploaded on 16.07.2018
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