Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Draft Notice of Motion
In
Suit No 1377 of 2018
Abbasali Morawala ...Plaintiff
V/s
MCGM ... Defendants
Advocate B.P.Shukla for plaintiff
Advocate Mr. Diwate for BMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 13th June 2018.
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this draft notice of motion to
restrain defendant/corporation, Gr. Mumbai from demolishing the suit
premises i.e. flat No. 801, admeasuring 250 sq Ft. situate on 8th floor,
Mercury Apartment, City Survey No. 1038 of Byculla Division, 183 191
Maulana Azad Road, (Duncan Road) Mumbai 400 008, without
following due process of law.
2 According to plaintiff, plaintiff is owner and in possession
of the suit premises. Suit premises is situated at Mercury Apartment
and developed and constructed by Shri Abdul Mukit Hifzur Rahman in
pursuance of approved plan and Commencement Certificate dated
14/4/2007. Accordingly, the builder had permitted to construct the
building up to 13th floor by an order dated 7/2/2011.
3 Plaintiff has purchased the suit premises from said Abdul
Mukit Hifzur Rahman by agreement for sale dated 11/9/2015 for
valuable consideration. Plaintiff has taken electricity connection and
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he also pays maintenance charges to the society. However, on the basis
of some false complaints the officer of the defendant came in the suit
premises on 14/5/ 2018 and partly damaged the partition wall of the
suit premises, without issuing any notice or prior intimation..The
defendant has also not given notice U/s 488 of the MMC Act. On
6/6/2018, at about 1.00p.m. the officer of defendant came and
threatened the plaintiff to demolish the suit property. Thus, defendant
has not followed the principle of natural justice. Defendants ought to
have followed the due process of law. If defendant succeeds in
demolishing the suit premises irreparable loss will be caused to the
plaintiff. Hence, prayed to grant adinterim injunction as sought.
4 Notice is served to defendant. The defendant filed short
affidavit of its officer Yogesh Kondgekar and also produced certain
documents. Defendant opposed to grant adinterim relief in favour of
plaintiff.
5 Shri B.P.Shukla Adv. for plaintiff has invited my attention
towards the agreement for sale. According to him, the builder has
constructed the Mercury Apartment as per the Commencement
Certificate. There are 13 floors of the said Apartment. The suit premises
is situate on 8th floor. Plaintiff has purchased the suit premises by
registered agreement. Defendant is a body corporate and under works
the MMC Act. Therefore it was mandatory for defendant to give prior
notice or intimation to the plaintiff before demolition. On 16/05/2018,
the officer of the defendant partly demolished the suit structure
without following due process of law. Again on 6/6/2018, officer of the
defendant threatened to demolish the suit premises. Hence, he prayed
to grant adinterim relief.
6 Shri Diwate advocate for defendant has invited my
attention towards the sanctioned plan. According to him, the
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unauthorized structure is in refuge area of 8th floor. On 10/11/2015,
the defendant has issued a notice to developer/owner and asked to
explanation about the construction of room on 8th floor in refuge area.
The said notice was issued U/s 152(1) of MRTP Act. Thereafter, the
developer builder had filed L.C. Suit No 2896/2015 before this Court.
The court directed the defendant to verify the owner and occupier and
then take proper steps. Thereafter, defendant issued a notice to the
developer/builder. However, they did not remove the unauthorized
structure and accordingly earlier two times the said structure was
removed. Defendant has taken action on the basis of notice dated
10/10/2015. Hence, he prayed to refuse the adinterim relief.
7 Plaintiff has come with a specific case that he is owner and
in possession of flat no. 801. It is true that the developer has executed
registered agreement in favour of plaintiff in respect of flat no.801. The
plaintiff has contended that he paid maintenance charges to the society
however, the receipts of maintenance charges pertains to flat no.802.
8 Here in the present case the disputed portion is refuge area
on 8th floor. From the perusal of sanctioned plan it appears that there
is refuge area on 8th floor. The photographs produced by the defendant
show that there is construction on room in the said refuge area. Thus,
it prima facie appears that the said construction is unauthorized.
9 From the documents produced by defendant it reveals that
earlier notice was given to the developer applicant in respect of the
construction of the refuge area however, no explanation came from the
builder. Thus, in pursuant of the earlier notice the said structure is
partly demolished by the defendant. Therefore, it cannot be said that
the due process of law is not followed.
8 From the above discussion, it prima facie appears that the
disputed structure is in a refuge area on 8th floor. The refuge area is
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meant for protection of Apartment dwellers in case of fire, storm etc.
in case of emergency. The construction is in refuge area therefore, it
cannot be protected. Hence, following order:
ORDER
1 Ad interim relief is hereby refused.
2 Draft notice of motion be registered.
Date : 13/6/2018. (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 13/06/2018
Typed on : 13/06/2018
Signed by HHJ. :13/06/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
15/6/2018 Mrs. S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
13/06/2018
JUDGEMENT/ORDER signed by
P.O. on
13/6/2018
JUDGEMENT/ORDER uploaded
on
15/6/2018
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