Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO : MHCC010070472018. 1 Notice of Motion No. 2183/2018
in L.C. Suit No. 2936/2018.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2183 OF 2018.
IN
L.C. SUIT NO. 2936 OF 2018.
Nirmala Pandurang Bhide. ...........................…... … PLAINTIFF.
V/s.
MCGM+1. ...............……………………………... … DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 8th April, 2024.
APPEARANCES :
Mr. R.V. Sankpal, Ld. Advocate for the Plaintiff.
Mr. S.C. Khandagale, Ld. Advocate for the Defendants / MCGM.
*****
01. The plaintiff has taken out this Notice of Motion (the NM),
restraining the defendants to act upon the suit Notice dtd. 19.04.2018,
issued U/sec. 55 of the Maharashtra Regional Town Planning Act, 1966
(for short the MRTP Act) and the Order of dtd. 02.06.2018. Perused the
NM, supporting affidavit of Mr. Jagannath Pandurang Bhide, the C.A. of
plaintiff, the defendants' reply, the plaintiff's reply rejoinder, additional
reply of the defendants and the documents, replied upon by the parties.
Heard both the sides.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(1). Whether the plaintiff has a prima facie
case in her favour? …..........…................ … Yes.
(2). Whether balance of convenience lies in
favour of the plaintiff? ….…..….............. … Yes.
(3). Whether the plaintiff would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted?...…................ … Yes.
(4). What Order? …............…....................... … As per final Order.
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CNR NO : MHCC010070472018. 2 Notice of Motion No. 2183/2018
in L.C. Suit No. 2936/2018.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are interconnected, to maintain the brevity,
I am taking the same for joint discussion. By this suit, the plaintiff came
with a case that she is landlady of the plots bearing CTS Nos. 365-A,
366 and 368 of Village Bhandup, Taluka Kurla, Mumbai (for brevity the
said property). She acquired the same on 07.04.2013, after death of her
husband. She, along-with the other owners of the said property, entered
into joint venture Agreement with one M/s. Jaydeep Enterprises for the
development of plots bearing CTS Nos. 366 and 368. Accordingly, even
the developer constructed two towers on the said plots and sold it to the
purchasers. Further, as there was some disputes between them relating
to the possession, amenities and Occupation Certificate, the purchasers
lodged complaints with the concerned authorities to pressurize her and
the developer. However, since beginning, plot bearing CTS No. 365-A is
separate and she did not create any third party rights on the said plot.
Moreover, she granted access through the said plot for limited purpose
of ingress and egress for the construction and vehicles. That apart, after
completion of the construction, she also placed tin shade compound on
the plot of CTS No. 365-A, which was earlier removed from the work of
construction. However, upon the complaints of some of the purchasers,
the defendants threatened to demolish the said partition and hence, by
issuing the notice dtd. 06.04.2018, she informed the defendants to visit
the site. However, instead, they issued the notice on 19.04.2018, which
she replied on 26.04.2018. However, without considering this reply, on
02.06.2018, the defendants passed the Order, without following the due
process of law. Further, in view of the intimation of dtd. 08.05.2009, the
defendants conveyed disapproval to the said developer, U/s. 346 of the
MMC Act. Additionally, as per the I.O.D. dtd. 08.05.2009, the developer
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CNR NO : MHCC010070472018. 3 Notice of Motion No. 2183/2018
in L.C. Suit No. 2936/2018.
did not comply with the conditions. Rather, this IOD was in her favour
and therefore, she put the said temporary shade of the compound wall,
to protect the plot of CTS No. 365-A. She undertook to remove the same
as and when the developer constructs a permanent wall, enclosing plot
Nos. 366 and 368. However, as she apprehended such a demolition, she
filed this suit. In support of her contentions, she relied upon the copy of
POA, the Plan of plots bearing CTS Nos. 365-A, 366 and 368, the notice,
her reply and the Order.
04. The defendants resisted this NM on the grounds that on the
receipt of complaint, the concerned Officer visited the site and he found
unlawful construction of fencing, in size 13 X 9 X 2 meter, by using GI
sheet and MS frame. On inquiry, the occupier didn’t furnish documents
about its permission and therefore, the notice was issued. The plaintiff
replied the same and after considering her reply, the Order was passed
on 02.06.2018. She didn’t come before this Court with clean hands. In
reply rejoinder, the plaintiff denied their contentions and submitted that
the developer was under obligation to construct a compound wall as per
the I.O.D., wherein he failed. However, the defendants did not take any
action against him. By their additional reply, the defendants contended
that the said I.O.D. was not in respect of plot No. 365-A, as is alleged by
the plaintiff. In support of their claims, the defendants filed the copies
of complaint, the inspection report, the notice, the Order, etc..
05. The advocate for plaintiff submitted that the notice was not
addressed to the plaintiff. It was lacking in the material particulars of
the alleged fencing and details of the plot, where it was so situated. In
fact, the very notice is vague in nature. Moreover, the plaintiff put this
fencing only for protection of her property and therefore, the same may
be protected. She is further ready to remove the same as and when the
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CNR NO : MHCC010070472018. 4 Notice of Motion No. 2183/2018
in L.C. Suit No. 2936/2018.
developer constructs compound wall as per the said IOD. To support of
her contentions, she relied on the cases of Shameem Shah Vs. MCGM,
2009 (Supp.) Bom.CR.171 and King George V. Memorial Vs. MCGM, in
WP (L) No. 26795/2023, dtd. 06.12.2023. During pendency of this NM,
the plaintiff further placed the Authority dtd. 28.03.2022, issued by the
said developer in favour of plaintiff’s POA, for completion of remaining
compound wall on his behalf.
06. Considering the rival submissions, at the outset, it is worth
notable that by this suit, the plaintiff contended that the plot, bearing
CTS No. 365-A was not forming subject matter of the said development
agreement and it is the separate property. The plaint averments further
show that even she did not dispute to have placed fencing of tin shade
compound on the said plot mainly to protect the same from trespassers.
It is further her claim that in fact, the developer was bound to construct
the compound wall for the plots bearing CTS Nos. 366 and 368, where
he failed. Initially, he was allowed to access from the plot, bearing CTS
No. 365-A to carry such development and as the said construction was
completed, she placed this fencing. She could, prima facie, show that as
per the I.O.D., dtd. 08.05.2009, filed at Exhibit 'F' of Ch/s. No. 2030 of
2018 (Decided on 10.06.2019), construction of the compound wall on
all the sides of plots, bearing CTS Nos. 365-B, 366 and 368 was needed
even before getting plinth CC. However, the record is silent to conclude
any inquiry, on this aspect of matter, by the defendants. More so, during
pendency of this NM, the plaintiff could substantiate that even the said
developer, vide letter dtd. 28.03.2022, permitted her authorized POA to
complete construction of remaining compound wall.
07. Continuing my discussions, here, it is pertinent to note that
perusal of the notice dtd. 19.04.2018, issued U/s. 55 of the MRTP Act,
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CNR NO : MHCC010070472018. 5 Notice of Motion No. 2183/2018
in L.C. Suit No. 2936/2018.
shows that it is vague in entirety and is missing material particulars of
the alleged unauthorized fencing and details of the plot, where it was so
placed. Moreover, it was not addressed to the plaintiff. Consequently, in
view of ratios laid in the matters of Shameem Shah and King V. George,
Cited Supra, the same can not be justified at this stage. Simultaneously,
the plaintiff's contentions require to be tested on trial and therefore, till
that time, the notice structure is to be protected. Needless to say that if
the notice structure is demolished, the very purpose for instituting this
suit would be frustrated. In this way, the plaintiff could present a prima
- facie case and balance of convenience also tilts in her favour. Certainly,
she would suffer irreparable loss, if this notice structure is demolished.
Hence, I answered point Nos. 1 to 3 in the affirmative and in answer to
point No. 4, I pass the following Order :
-: O R D E R :-
(i). Notice of Motion No. 2183/2018 is made absolute in
terms of prayer clause (a) only, till disposal of the suit.
(ii). Notice of Motion No. 2183/2018 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 08.04.2024. City Civil Court, Mumbai.
Dictated on :08.04.2024.
Transcribed on :16.04.2024.
Checked Signed on :23.04.2024.
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CNR NO : MHCC010070472018. 6 Notice of Motion No. 2183/2018
in L.C. Suit No. 2936/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
24.04.2024 at 12.21 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 08.04.2024.
Judgment/Order signed by P.O. on 23.04.2024.
Judgment/Order uploaded on 24.04.2024.
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