Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2467-19 in Stamp No.6858-19
CNR NO.MHCC0100676119
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2467 OF 2019
IN
L.C. SUIT (STAMP) NO. 6858 OF 2019
Ms. Pooja Arambhan …...Plaintiff
Versus
The Municipal Corporation of Greater Mumbai & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 23rd July, 2019.
Appearance:
Ld. Adv. Mr. Dalal for the plaintiff.
Ld. Adv. Mrs. Tondwalkar for defendant/MCGM.
Ld. Adv. Mr. R.A. Shaikh for defendant no. 4 present.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon the notice
issued under Section 351 of the Mumbai Municipal Corporation Act,
1888 (herein after referred to as 'the MMC Act') dated 09.05.2019 and
the order dated 11.06.2019.
2. Heard Learned Advocate for the plaintiff, Learned Advocate for
defendant corporation and defendant no. 4.
The plaintiff was issued with notice dated 09.05.2019 calling
upon the plaintiff to show the sufficient cause for the structure
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2 NM 2467-19 in Stamp No.6858-19
mentioned in the schedule of notice which reads as under:
''Unauthorized construction of Ground+ 01 composite structure
(Ground floor occupied by A.A. Shah Institute and first floor occupied
by M/s. Aranbhan Hospitality Ltd.) with sloping A.C. sheet roof adm.
27.2m x 5.30m x (2.65m ground floor ht.+ 4m first floor ht.) at the
rear open space of the building known as Bahubali Building, Cawasji
Patel Street, Fort, Mumbai01.''
3. The notice was replied by the plaintiff on 17.05.2019. The
speaking order was passed on 03.06.2019, directing the plaintiff to
demolish the notice structure within 7 days from the receipt of the
notice.
4. The short question to be dealt alongwith is whether the suit
structure are needs to be maintained in statusquo till the disposal of
the suit. The reason's for the conclusion of speaking order dated
03.06.2019 are that the plaintiff had failed to produce documents to
show the permission of the disputed structure and failure by plaintiff to
show the suit structure existed prior to 1964.
It is the contention of the plaintiff that the assessment record was
not considered by the defendant corporation. It is contended that the
defendants are required to consider the relevant documents before
passing the order. It is contended that suit property exists prior to the
datum line.
5. The defendant corporation contended that the plaintiff has failed
to show that the notice structure exists on the datum line. The plaintiff
had failed to produce the documents showing that the suit structure
existed prior to the datum line.
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3 NM 2467-19 in Stamp No.6858-19
6. It is submitted by the plaintiff that in Notice of Motion No.
2095/2019 in L.C. Suit No. 1350/19, this Court is restrained the
defendant corporation from acting upon the order dated 03.06.2019.
It is contended that the notice structure is in the said premises
located on 1st floor.
7. The plaintiff had relied upon the inspection report for the year
1992 93 and for the year 20092010.
It goes to suggest that the suit structure existed in the year 1992
93. It is the contention of the plaintiff that suit structure is in existence
prior to the datum line. The plaintiff had relied upon document in form
of agreement and other documents to show the existence of the
structure prior to the datum line. It is the contention of the defendant
that the plaintiff had carried out unauthorized construction in open
land, besides the original Bahubali building. It was for the defendant to
establish that the plaintiff was in occupation of any other premises
other than premises in question was or is in existence. The defendant
had not shown any other premises in possession of the plaintiff in
existence.
The plaintiff appears to be in possession of the notice structure
since long. It is his contention that the suit structure is in existence
prior to the datum line.
The defendant corporation contends that plaintiff has failed to
show the existence of structure prior to datum line. It is not the case of
the corporation that the suit structure is brought in existence after
datum line.
The defendant no. 4 objected the notice of motion and contended
that the unauthorized construction should not be tolerated.
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4 NM 2467-19 in Stamp No.6858-19
8. There is triable issue involved in the suit which can be gone into
at the time of trial. Moreover, in other connected premises, the plaintiff
in this said suit is protected by the orders of this Court.
The plaintiff has made out primafacie case in his favour. The
balance of convenience lies in favour of the plaintiff. The plaintiff
would be put to irreparable loss, if the temporary injunction is refused.
In the result, following order is passed.
ORDER
1. The Notice of Motion No. 2467/2019 is hereby allowed.
2. The defendants corporation are hereby restrained from acting upon
Notice dated 09.05.2019 under Section 351 of the MMC Act and the
order dated 11.06.2019 till the disposal of the suit.
3. The Notice of Motion is disposed off accordingly.
(Sanjay N. Yadav)
Judge,
Date : 23.07.2019 City Civil Court, Mumbai.
Dictated on : 23.07.2019
Transcribed on : 24.07.2019
Signed by HHJ on : 26.07.2019
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5 NM 2467-19 in Stamp No.6858-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 26.07.2019 at 4.45p.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
23.07.2019
JUDGMENT/ORDER signed by
P.O. on
26.07.2019
JUDGMENT/ORDER uploaded
on
26.07.2019
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