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 1514 of 2018
Shri Naseem Ahmed Siddique ...Plaintiff
V/s
MCGM ... Defendants
Advocate Suraj Kudalkarfor plaintiff
Advocate Puranik a/w Mr Mali for BMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 28th 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 or
removing or pulling down the suit premies i.e. ground +Mezzanine
floor bearing City Survey No. 4/643 of Mazgaon Division, situated at
Plot no. 4, Bai Hirabai Compound, 3535A, Ghodapdeo Cross Road, No.
1, Mazgaon, Mumbai 400 010 on the basis of notice dated
28/12/2015 and order dated 11/06/2018
2 According to plaintiff, the suit premises is Pucca
construction and is in existence prior to 1921. Plaintiffs grandfather
was tenant of the suit premises. After his demise plaintiff came in
possession of the suit premises in the year 1972 and his tenancy
continued. However, the tenancy of the suit structure was taken in the
name of his elder brother Shameem Ahmed Siddique. Plaintiff was
using the ground floor for storing and selling scrap material and
mezzanine floor was used as office premises. Plaintiff has obtained
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shop and establishment certificate . Plaintiff has taken electricity
connection. The said structure is shown in the sanctioned plan. In the
year 1989, the said tenancy in respect of the suit premises was
converted into ownership basis by the landlord and the necessary
documents executed between the parties. Thus, plaintiff is occupying
the suit premises since 1972. Plaintiff has made only tenantable repairs.
The suit premises is assessed prior to 196162.
3 According to plaintiff, one professional complainant by
name Mohammed Khalid Khan had filed complaint to the defendant in
respect of the first floor of the suit premises. Accordingly, on
11/07/2014 defendant issued a notice to the plaintiff. Plaintiff had
challenged the said notice by filing L.C.Suit No 38/2015. In that suit
there was no dispute in respect of the ground floor. Thus, court had
dismissed the notice of motion. Hon'ble High Court also dismissed
appeal from order. However, in that proceeding defendant had not
disputed the ground floor. Thereafter defendant issued notice to
plaintiff on 28/12/2015. Plaintiff gave reply and produced the
documents. The officer of the defendant held that the notice structure
is authorized. However, the complainant had filed writ petition No.
354 of 2018 before the Hon'ble High Court therefore defendant
corporation has withdrawn earlier order and passed the present order
and directed the plaintiff to remove the said structure.
4 Plaintiff further avers that the notice and order are illegal
and malafide. Defendant has not considered the documents produced
by the plaintiff. Plaintiff is in possession of the suit premises since 1972.
Hence prayed to grant ad interim relief.
5 The notice is served to defendant. Defendant appeared and
filed affidavit of Subodh Bamborde. According to defendant, the suit
structure is unauthorized. Defendants have produced the documents
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and prayed to refuse the ad interim relief
5 Shri Kudalkar advocate for plaintiff has submitted that
earlier the officer of the defendant passed the order and hold that the
notice structure is authorized. However, thereafter defendant has
withdrawn the earlier order and passed the impugned order. He had
invited my attention towards documents and according to him in
L.C.Suit No . 38/2015 there was no dispute in respect of the ground
floor. The ground floor i.e. suit premises is in existence prior to 1921.
Plaintiff has not made any addition or alteration. Suit premises is
assessed prior to 1960. There are triable issues between the parties.
Hence, he prayed to grant ad interim relief.
6- Shri Puranik advocate for defendant has submitted that
earlier there was open plot. The assessment record do show that there
was A.C. Shed, however, now there is ground + Mezzanine floor.
According to him, from perusal of photographs it appears that the suit
structure is new one. Plaintiff has not produced any documents to show
that the suit premises is in existence prior to the datum line. He further
submitted that in writ petition no. 354 of 2018 defendant has
withdrawn the earlier order which shows that the structure is
authorized one and thereafter, after, considering the entire record
passed the impugned order. Hence, he prayed to refuse the ad interim
relief.
7 Plaintiff has come with a specific case that the suit
premises is constructed prior to 1921 and subject of assessment prior to
1960 i.e. the datum line. Plaintiff also contended that the suit premises
is in sanctioned plan.
8 I have perused the documents produced by the plaintiff. It
is to be noted that by the letter dated 1/1/2015, issued by the
defendant, it appears that the first date of assessment of the property is
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prior to 19611962. However, from the careful perusal of documents it
appears that the property having description of A.C.Shed is assessed
prior to 196061. Earlier the tenancy was in respect of open land.
Thereafter, the A.C.Shed came into existence. Now the description of
the suit premises is ground+mezzanine floor .
9 Plaintiff has produced the electricity bills. However,
electricity bills pertain to the 4th floor, plot no.9, Modi
Compound,Ghodapdeo, Mazgaon, Mumbai. The electricity bills no way
matches with the suit premises. In sanctioned plan the structure is
shown in a doted line. Though, there is a structure in the said plot
however, it pertains to the A.C.Shed and not permanent structure i.e
ground+ Mezzanine floor as alleged by the plaintiff.
10 From perusal of documents filed by defendant, it appears
that one Mohammed Khalid Khan had filed complaint. It has
specifically alleged that plaintiff is having this plot no. 4 at Hirabai
Compound, admeasuring only 400 sq. ft. However plaintiff has made
construction of room admeasuring 500 sq ft.(Ground + Upper floor)
behind plot no. 4 and also encroached upon the private road about 3ft.
The officer of the corporation visited the suit premises and issued a
notice U/s 351 of the MMC Act. It is true that earlier defendant had
issued a notice in respect of the first floor. Plaintiff had filed suit
bearing suit no.38 of 2015 and in that suit defendant had not disputed
the ground floor. However, thereafter after issuing of the impugned
notice the officer of the defendant had passed order holding that the
suit structure is authorized. Complainant Khalid Khan had filed writ
petition no. 354 of 2018 in the Hon'ble High Court. Defendant
corporation has withdrawn the said order. The Hon'ble High Court
directed the defendant to follow the law laid down in Sopan Maruti
Thopte & Anr V/s Pune Municipal Corporation, 1996 (2) ALL MR
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383 and pass fresh order. Thereafter, plaintiff produced the documents
and after consideration of the documents produced by the plaintiff the
present order is passed by the defendant. It has specifically noted by by
the designated officer that plaintiff made unauthorized construction. It
is also noted that plaintiff made unauthorized construction of excess
area of 200 sq.ft. Further more there are photographs filed by
defendant, it appears that the suit premises is new one. As discussed in
supra defendant has assessed A.C.Shed. However, suit premises consist
ground + Mezzanine floor. Thus, the description of the suit premises
does not match to description of property (A.C.Shed) It is assessed
prior to 196061. It prima facie appears that plaintiff has not proved
that construction is authorized and prior to the datum line. Therefore,
plaintiff is not entitled for ad interim relief. Hence following order:
ORDER
1 Ad interim relief is hereby refused.
2 Draft notice of motion be registered.
Date :28/6/2018. (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 28/06/2018
Typed on : 30/06/2018
Signed by HHJ. : 30/6/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
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
28/06/2018
JUDGEMENT/ORDER signed by
P.O. on
30/6/2018
JUDGEMENT/ORDER uploaded
on
2/7/2018
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