Interim Order 1

Order Details: Notice of Motion
Pdf Text: L.C. Suit No. 144518 : 1 : Dt. 30.06.2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
DRAFT NOTICE OF MOTION
IN
LONG CAUSE SUIT NO. 1445 OF 2018
(CNR NO. MHCC010071822018)
M/s. Pawani & Co. ...Plaintiff
Versus
Municipal Corporation Of
Greater Mumbai ...Defendants
CORAM : HER HONOUR JUDGE
SMT. SANJASHREE J. GHARAT
(C.R. NO.08)
DATE : 30.06.2018.
Ld. Adv. Mr. A.M. Saraogi for Plaintiff.
Ld. Adv. Mrs. Kamble for BMC / Defendant.
ORAL ORDER
The present draft Notice of Motion is moved by the plaintiff
seeking adinterim reliefs.
2. It is specific contention of plaintiff that they are in lawful use,
occupation and possession of suit structure admeasuring 195 sq. mtrs.
made out of the bricks wall, A.C. Sheets situated at Pawani Plot,
Mulund, Mumbai. It is contended by the plaintiff that suit structure is
in existence prior 196162. It is further contention of the plaintiff that
the plaintiffs are owner of larger property. However suit structure is
only 195 sq. mtrs. The plaintiff developed their property in the year
1980 and the Defendant / Corporation sanctioned the building plan of
the plaintiff. However surprisingly the Defendant issued the Notice
u/s. 355 of MMC Act. The plaintiff replied the said notice and also
tendered documents In spite of the same the Corporation had issued
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Demolition Notice. Therefore, plaintiff preferred a Suit bearing
No. 640 of 2018 and challenged the validity of the Notice issued by the
Corporation. The said suit came to be disposed of on 06.03.2018 with
liberty to the plaintiff to submit additional documents and additional
reply to the office of Defendant/ Corporation. Plaintiff complied the
said order. However, the defendant not considered the said reply and
issued the Notice and served the copy of Order on 16.03.2018 directing
the plaintiff to remove the said structure alleging that the suit structure
is unauthorised. Therefore, plaintiff preferred second Suit bearing
No. 1012 of 2018. The said suit also came to be disposed of on
10.04.2018. Thereafter again Defendant / Corporation by
misinterpreting the documents filed by the plaintiff passed an order of
demolishing of structure within a period of Seven (7) days on
06.06.2018. It is the contention of the plaintiff that the act of the
Defendant in respect of passing an order is illegal and bad in law.
Therefore, adinterim protection as prayed by the plaintiff, if not
granted, then it will cause irreparable loss which can not be
compensated.
3. The Defendant / Corporation filed reply and resisted the Notice of
Motion of plaintiff. The Defendant / Corporation challenged the
maintainability of the Suit itself. It is submitted that plaintiff claims
themselves as a registered Partnership Firm. However no Registration
Certificate is produced on record. It is submitted that plaintiff carried
out illegal construction and he himself moved to the Court seeking
adinterim relief and therefore such litigant should not be benefited by
order of the Court. In support of the said contention the Defendant /
Corporation placed reliance on observations made by the Hon'ble Apex
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L.C. Suit No. 144518 : 3 : Dt. 30.06.2018
Court in case of Dilip Kumar Mukharjee vs. Kolkata Municipal
Corporation and Ors.
4. It is specific contention of the Defendant that the officials of the
Defendant / Corporation personally inspected the suit structure and
found that Plaintiff has done unauthorized construction of ground floor
by using RSJ, Ladi coba and brick masonry wall without permission of
Competent Authority. Therefore, earlier the Notice came to be issued
u/s. 351 of MMC Act. However, before initiating any action the
plaintiff filed premature suit. It is further submitted that thereafter in
pursuance of the order passed on 06.03.2018, the reply and documents
tendered by the plaintiff has been considered. However inadvertently
the date of Second Reply 12.03.2018 is not reflected in the Speaking
Order passed by the Corporation. Therefore Defendant / Corporation
expressed their readiness to pass fresh order mentioning the date of
both the reply. Accordingly, the second Suit came to be disposed of.
Thereafter, the Corporation passed final Speaking Order on 06.06.2018.
It is submitted that after going through both reply and documents relied
by the Plaintiff, it does not reflect that the suit structure is authorised. It
is further pointed out that suit land was reserved for Garden. As per the
Assessment (b) the original structure was made from the A.C. Sheets.
However, as on today the Notice structure is load bearing. Permanent
structure constructed in BM Wall. Therefore, Defendant / Corporation
claims that Plaintiff is not entitled for the adinterim relief. Lastly it is
submitted by the Defendant / Corporation that since Plaintiff failed to
make out primafacie case the Plaintiffs are not entitled for adinterim
relief. The Defendant / Corporation produced the Copy of Complaint
received, Inspection Report, Notice issued u/s. 351 of MMC Act, the
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Copy of the Speaking order.
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 a primafacie case ? In the Negative.
2. In whose favour balance of convenience lies ? Does not survive.
3. To whom irreparable loss would be caused ? Does not survive.
4. What Order ? NM is rejected.
REASONS
As to Point No. 1 :
6. I have gone through the pleadings made on behalf of both
the parties. It is specific contention of the Plaintiff that suit structure is
in existence prior to 196162. Plaintiff also produced Map of City
Survey for City Survey No. 49 dated 17.06.1977. It is contended that
suit structure appears in the said City Survey Map which is of the year
1977. Therefore Plaintiff denies that suit structure is constructed
recently without permission of the Corporation and the same is
unauthorised construction. The plaintiff produced number of
documents to show that the structure was in existence prior number of
years. Plaintiff also produced Assessment Extract, Electricity Bills,
Water Bills. However payment of Electricity Bills, Assessment Water
charges will not prove that the suit structure is legal and authorised.
The said documents are meant for fiscal purposes to collect revenue.
The Plaintiff relied on Map to show the existence of structure.
However, it is the specific contention of the defendant that earlier suit
structure was meant from A.C. Sheets and at present the Defendant
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L.C. Suit No. 144518 : 5 : Dt. 30.06.2018
carried out unauthorised construction and constructed the same by
brick wall. The Plaintiff themselves produced the Assessment Extract
for the year 199293 in which suit structure is shown meant from A.C.
Sheets. It is further contention of the Plaintiff that they have carried
out repairs on basis of repair permission granted by Corporation. In
support of said contention the Plaintiff placed reliance on letter issued
to the Corporation seeking permission to carry out repairs at Exh. 58.
Plaintiff claims that the Municipal Corporation granted permission to
carry out the repairs. In support of said contention the learned counsel
appearing on behalf of the plaintiff attracted my attention towards Exh.
E (pg. 59) the letter issued by the Sub Engineer (Building), T Ward
dated November 1995. However, I have gone through the said letter.
The said letter is issued to the plaintiff with direction to produce certain
documents to get the repair permission. Therefore the said document is
not repair permission, as alleged by the plaintiff. From the Map, the
existence of structure is established. However the documentary
evidence relied by the plaintiff itself shows that the earlier the structure
was made by A.C. Sheets. The Corporation issued the notice alleging
that the Plaintiff have carried out unauthorized construction as per
Schedule of Ground floor structure by using RSJ, Ladi coba and brick
masonry wall. The Assessment Extract relied by the Plaintiff for the
year 199394 shows that the structure for which Assessment is made is
of A.C. Sheets. The plaintiff not produced any document to show that
repair permission to carry out structure as per Schedule enclosed with a
Notice. The existence of the structure for number of years will not be
sufficient to prove that said structure is authorised. So also there is
nothing on record to show that suit structure is carried out before
datum line. After going through the documentary evidence relied by
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the Plaintiff he failed to point out any documents showing the suit
structure is legal and authorised. Therefore Plaintiff failed to make out
primafacie case for grant of injunction. Hence, on record my findings
as Point No. 1 in Negative. Since my findings of Point No. 1 is in
Negative. Question of balance of convenience and irreparable loss will
not survive. Therefore I record my findings as to Point No. 2 and 3
does not survive. Hence, I proceed to pass following Order :
ORDER
1. The Draft Notice of Motion filed by Plaintiff stands rejected.
2. Draft Notice of Motion be registered for statistical purpose.
(Sanjashree J. Gharat )
Additional Sessions Judge,
City Civil & Sessions Court,
Gr. Mumbai
Date : 30.06.2018.
Dictated on : 30.06.2018.
Transcribed on : 10.07.2018.
Signed on : 11.07.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
11.07.2018 at 3.00 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
30.06.2018
JUDGMENT/ORDER signed by P.O.
on
11.07.2018
JUDGMENT/ORDER uploaded on 11.07.2018
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