Order 1

Order Details: Other
Pdf Text: :1: Adinterim Order in L.C. Suit No.1530/2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO. 1530 OF 2018
CNR. NO.: MHCC010075252018
Mr. Devesh Narendra Shah ]...Plaintiff.
Versus
The Municipal Corporation of Greater ]
Mumbai. ]...Defendant.
Appearances:
Ld. Advocate Mr. R.D. Thorat for the Plaintiff.
Ld. Advocate Mrs. Meena Dhuri for the defendant/MMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATED : 16th OCTOBER, 2018
(Court Room No.06)
O R D E R
1. Plaintiff has taken out this draft Notice of Motion to
restrain the defendant/Municipal Municipal Corporation, Greater
Mumbai from taking action from demolishing or pulling down or
removing the suit premises or any portion thereof, i.e., loft admeasuring
about 250 sq. fts. and cabin admeasuring about 220 sq. fts., situated in
Gala No. B17, admeasuring about 1709 sq. fts. (carpet) in the
basement of building known as Bharat Industrial Estate of Prakash
Industrial Premises Cooperative Society Ltd., Sewree, Mumbai
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:2: Adinterim Order in L.C. Suit No.1530/2018
400 015, in pursuance of Notice dated 21.03.2018 issued under Section
351 of Mumbai Municipal Corporation Act, 1888 and Order dated 18th
June, 2018 till the decision of the suit.
Facts in brief are as under:
2. Plaintiff is in use, occupation and possession of the suit
premises. The said Bharat Industrial Estate was duly constructed as per
sanctioned building plans somewhere between years 19631964. One
M/s. H.K. Textile Corporation, being a partnership Firm was prior to the
Plaintiff, in peaceful use, occupation and possession of Gala bearing
No.B17, alongwith suit premises there at. In the year 1989, by letter
dated 12.10.1989, said M/s. H.K. Textile Corporation sought permission
from defendant for construction of loft and cabin. The Assistant
Engineer (Buildings and Factories) had addressed a letter to said M/s.
H.K. Textile Corporation dated 15th November, 1989 for permission to
construct loft and cabin. Thus, M/s. H.K. Textile Corporation had
constructed the loft and cabin and same is used for the purpose of
storage of articles. The suit premises is assessed by the defendant
somewhere in the year 1994. Plaintiff has purchased the suit premises
by Registered Sale Deed dated 21st July, 2010 from M/s. H.K. Textile
Corporation. Thus, plaintiff has not made any addition and alteration.
3. Plaintiff further contended that he runs his business in the
suit premises. Plaintiff has Electricity Bills and Telephone Bills at the
address of suit premises. Plaintiff has obtained the licenses to run his
business. However, defendant issued Notice to the plaintiff and alleged
that the said loft is unauthorized. Plaintiff gave reply to the Notice.
Accordingly, defendant passed Order. Thereafter, plaintiff gave reply to
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:3: Adinterim Order in L.C. Suit No.1530/2018
the Notice and Officer of defendant again passed Order. The impugned
Notice is illegal, bad in law. The Officer of defendant has passed the
Order without application of mind. Hence, prayed to grant adinterim
relief.
4. Notice is served to defendant. Defendant filed Affidavit of
Smt. Anchal Arun Gunjal. Defendant also produced documents.
5. Ld. Advocate Mr. R.D. Thorat for the plaintiff submitted
that plaintiff has not made any additions and alteration. In fact, the
earlier occupier M/s. H.K. Industrial Corporation had given application
to the defendant for construction of loft and cabin. The Assistant
Commissioner by letter dated 15.11.1989 granted permission for the
construction of loft and cabin. The loft and cabin are duly assessed.
Plaintiff had given reply to the Notice. However, defendant did not
consider the reply. The suit premises is duly assessed by the defendant.
Thus, there are triable issues. Hence, he prayed to grant adinterim
relief.
6. Per contra, Ld. Advocate Mrs. Meena Dhuri for the
defendant/MMC submitted that there is difference between loft and
mezzanine floor and also pantry found in the suit premises. The said
construction is not as per the sanctioned plan. She drew my attention
towards photographs and according to her, plaintiff has constructed the
mezzanine floor without the permission of the defendant. Further the
Assistant Engineer had given permission to the plaintiff to construct the
loft and cabin. However, that permission was subject to the approved
plan sanctioned by the defendant. The plaintiff has not produced any
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:4: Adinterim Order in L.C. Suit No.1530/2018
documents to prove the authorization of structure. Hence, the
Designated Officer has passed Speaking Order. Therefore, she prayed to
refuse adinterim relief.
7. In the present suit plaintiff has come with specific case that
he has purchased the suit premises in the year 2010. However, earlier
M/s. H.K. Industrial Corporation, was in possession of the suit premises
and they constructed loft and cabin by the permission of defendant. The
Notice and Order are illegal.
8. The Notice is in respect of the unauthorized construction of
mezzanine floor admeasuring 4.50m x 5.75m ht. 1.80 mtrs.
approximately made of MS Sections, unauthorized construction of cabin
on mezzanine floor and also unauthorized construction of pantry on
mezzanine floor. Plaintiff gave reply to the defendant and produced
permission letter for cabin and loft issued by the Assistant Engineer
dated 15.11.1989. I have perused the said permission letter. It is true
that the Assistant Engineer had granted the permission to earlier
occupier M/s. H.K. Industrial Corporation for construction of loft and
cabin. It was further directed that the said construction must be in
accordance with the plan duly approved by the Officer of defendant.
9. Plaintiff has not produced the sanctioned plan. The
assessment record shows that the loft is assessed by defendant.
However, there is difference between loft and mezzanine floor.
According to the plaintiff, the said loft is being used for the storing of
articles. However, from the photographs it is seen that the employees of
plaintiff are working in the suit premises i.e. in the mezzanine floor. It is
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:5: Adinterim Order in L.C. Suit No.1530/2018
also seen that there are cabin and pantry. The structure is prima facie
mezzanine floor. Plaintiff has not produced any documents to show the
authorization of the structure. Therefore, I find that plaintiff has not
made out prima facie case, balance of convenience does not lies in
favour of plaintiff and if adinterim injunction is granted then it will
amount to protect unauthorized construction. Therefore, plaintiff is not
entitled for adinterim relief. Accordingly, I pass the following Order :
O R D E R
1. Adinterim relief is refused.
2. Draft Notice of Motion be registered.
Dated : 16.10.2018
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on :16.10.2018
Typed on :17.10.2018
Signed by HHJ :17.10.2018
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:6: Adinterim Order in L.C. Suit No.1530/2018
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
17.10.2018, 5:26 p.m. Mr. Subhash S. Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
16.10.2018
JUDGEMENT/ORDER signed
by P.O. on
17.10.2018
JUDGEMENT/ORDER
uploaded on
17.10.2018
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