Order 2

Order Details: Notice of Motion
Pdf Text: 1 N.M.No. 2104 of 2018
CNR:MHCC01-006807-2018
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO. 2104 of 2018
IN
L.C.SUIT NO. 1139 of 2015
Gajanan Vinayak Naik .. Plaintiff
V/s.
The Municipal Corporation of
Greater Mumbai & Anr. .. Defendants
Appearance:-
Adv. Kanekar h/f Adv. Harish Pawar for Plaintiff.
Adv. Jawale for defendant No.1/MCGM.
Adv. Fernadis for defendant No.2.
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 29/08/2024.
ORDER
By this Notice of Motion, the defendant No.2/Society has
prayed to vacate/set aside the interim protection granted by the Hon’ble
High Court by an order dt. 16/06/2007 in A.O. No. 920 of 2015 in
favour of the plaintiff.
2 Perused the affidavit in support of the Notice of Motion and
reply of the plaintiff. Heard both sides.
3 Before proceeding to discuss the contentions raised by the
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parties, it will be just and appropriate to reproduce the earlier
instances/incidents which gave rise to this Notice of Motion. As can be
seen from the record, the plaintiff has filed this suit for declaration and
injunction challenging the notice dt. 19/08/2014 issued by the
defendant No.1 under Section 53 (1) of the MRTP Act 1966 and order
dt. 30/03/2015 issued under Section 53 (6) (b) of the MRTP Act 1966
in respect of the suit premises. The plaintiff had also taken out Notice of
Motion for the interim relief restraining the defendant No.1 from
demolishing the notice structure under the impugned notice and order,
pending the hearing and decision of the suit. My learned predecessor by
an order dt. 24/06/2015 dismissed the ad-interim relief which was
challenged by the plaintiff before the Hon’ble Bombay High Court in
A.O. No. 920 of 2015. The Hon’ble High Court by an order dt.
16/06/2017 set aside the order dt. 24/06/2015 and Notice of Motion
taken out by the plaintiff has been made absolute in terms of prayer
clause (a) ad (b).
4 Thereafter, the defendant No.2/Society filed Revision
Petition (St.) No. 36457 of 2017 before the Hon’ble High Court seeking
review of the order dt. 16/06/2017 passed by the Hon’ble High Court in
A.O. No. 920 of 2015. Accordingly, while deciding the said Review
Petition, the Hon’ble High Court observed that no grounds are made out
for review of the order dt. 16/06/2017. However, while disposing off
the Review Petition, the Hon’ble High Court granted liberty to the
defendant No.2/Society to file substantive application or Notice of
Motion in the present suit. The Hon’ble High Court issued further
directions to this Court to consider the said application of the defendant
No.2/Society on its own merits uninfluenced by the observations made
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by the Hon’ble High Court in the order dt. 16/06/2017. The defendant
No.2/Society, therefore, filed the present Notice of Motion to vacate/set
aside the order dt. 16/06/2017 in A.O. No. 920 of 2015 as per the
aforesaid directions.
5 In the aforesaid background, if the contentions raised by
the defendant No.1/Society are taken into consideration, it can be seen
that the defendant No.2/Society placed on record several documents by
way of Ex.A to Ex.H alongwith affidavit in support of the Notice of
Motion. After careful perusal of the copies of these documents, it reveals
that these documents are consisting complaints made by the officer
bearers and members of the defendant No.2/Society and
correspondences received from the defendant/MCGM in response to
those complaints. In fact, having regard to the copies of these
correspondences, it can be seen that the defendant/MCGM has already
initiated action towards the notice structure which has been challenged
by the plaintiff in the present suit.
6 It is pertinent to note that the scope of the present Notice
of Motion is restricted only to the extent of deciding as to whether the
order dt. 16/06/2017 passed by the Hon’ble High Court in A.O. No.
920 of 2015 deserves to be vacated or set aside. The defendant
No.2/Society is, therefore, duty bound to show by way of prima facie
case that the notice structure in the impugned notice which is described
as illegal construction of room in an open terrace with the help of brick
masonry wall and Mangalore tiled roof as well as unauthorized
extension of kitchen within the open terrace with the help of brick
masonry wall and tiled roof at the 3rd floor of the said building is not as
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per the approved plan. It was, therefore, incumbent on the part of the
defendant No.2/Society to bring authenticated documents to show
factual situation of the open terrace at the 3rd floor of the said building
in the occupation and possession of the plaintiff.
7 In this context, it will be significant to mention that the
Hon’ble High Court in its order dt. 16/06/2017 while allowing the
Notice of Motion in terms of prayer clause (a) and (b) has specifically
observed that while rejecting the interim relief, the learned Judge of the
City Civil Court placed reliance on the original plan filed by the MCGM
which did not form part of the record and it was merely shown to the
Court. Second plan relied upon by the learned Judge of the City Civil
Court was an official plan prepared by the MHADA is of dt. 16/07/2005
and the learned Judgment then concluded that the construction was
after that date. The Hon’ble High Court, therefore, arrived at the
conclusion that this does not, however, mean that the construction was
unauthorized or illegal which was the only point that was required to be
tested. In fact, it appears to be common ground that the building was
in fact reconstructed by MHADA, a Government Agency. It surely
cannot be suggested that it is for an individual citizen to ensure that
MHADA reconstructs according to MCGM-sanctioned plans. Individual
citizens are not in any position to supervise, control or direct the work
of public authorities. The noticed areas appear prima facie to be in
accordance with the MHADA plan of 2005. It seems to be thoroughly
unfair for the MCGM to then ask the plaintiff to produce the original
sanctioned plans from a time before the MHADA reconstruction and to
indirectly question the legality of the MHADA construction. It is not the
MCGM’s case that the MHADA construction was illegal or not in
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conformity with any authorized plan. The Hon’ble High Court further
held that at a minimum, at the ad-interim stage, a document that was
on record such as the MHADA plan should have received due weightage
as opposed to some unidentified document merely shown to the Court.
8 While reproducing the aforesaid observations and findings
of the Hon’ble High Court in an order dt. 16/06/2017, it is necessary to
mention that this Court is not ignorant of the fact that the present
Notice of Motion is to be decided without being influenced by the
aforesaid directions in the order dt. 16/06/2017. However, these
observations and findings are necessary to be taken into consideration
to determine the scope of the present Notice of Motion which is
restricted to the extent of deciding whether the order dt. 16/06/2017
deserves to be vacated/set aside. In the aforesaid backdrop, it is already
discussed that the defendant No.2 was required to bring original plan
which is the determinative factor in arriving at a prima facie conclusion
that the notice structure has been constructed in contravention of the
approved building plan under No.EEBP/88611/D/AR dt. 05/09/2002.
However, as can be seen from the record, said approved plan dt.
05/09/2002 is neither produced by the MCGM nor by this defendant
No.2/Society. In fact, in the compilation of the plaintiff, one sketch is
available on record which has been given in the schedule of the
impugned notice while giving description of the unauthorized
development of the plaintiff. However, this sketch cannot be taken into
consideration as determinative factor in the absence of the copy of
approved plan dt. 05/09/2002 to find out the actual description of the
suit premises of the plaintiff situated on the 3rd floor of the said
building.
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9 Therefore, in view of these reasons, I come to the
conclusion that in the absence of copy of approved plan dt. 05/09/2002
or any other authenticated document showing the actual description of
the said premises to ascertain the notice structure at this juncture as
illegal or unauthorized, the order passed by the Hon’ble High Court dt.
16/06/2017 in A.O. No. 920 of 2015 deserves no interference.
Therefore, in view of these reasons, following order is passed.
ORDER
1 The Notice of Motion No. 2104 of 2018 stands dismissed.
2 Costs in cause.
3 The Notice of Motion stands disposed off accordingly.
Date:29/08/2024. (R. M. Mishra )
Dictated on :29/08/2024. Judge, City Civil Court,
Typed on :29/08/2024. Gr.Mumbai.
Signed on :29/08/2024.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29/08/2024. 05.52 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
29/08/2024.
JUDGMENT/ORDER signed by P.O.on 29/08/2024.
JUDGMENT/ORDER uploaded on 29/08/2024.
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