Final Order 1

Order Details: Notice of Motion
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CNR NO.MHCC010075532019
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2742 OF 2019
IN
L.C. SUIT (STAMP) NO. 11028 OF 2018
Muhibur Rehman Haji Israr Alam Siddiqui )
aged about 46 years, Occupation: Business, )
residing at Flat No. 902, Sugra Park, )
Rani Sati Marg, Pathan Wadi, Malad (East))
Mumbai 400097. )...Plaintiff.
Versus
Municipal Corporation of Greater )
Mumbai, Municipal Corporation Building, )
5, Mahapalika Marg, Fort, )
Mumbai 400001 )
through its Designated Officer/ )
Assistant Engineer ( Building & Factory) )
D Ward, Mumbai. )..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 25th July, 2019
Appearance:
Ld. Adv. Mr. P.D. Gandhy for the plaintiff.
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
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ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendants from taking any action pursuant to the
notice by the Corporation on 19/07/2019.
It is the contention of the defendant/Corporation that the suit
premises was inspected on 16/7/19 and the notice structure was found
reconstructed. The plaintiff was directed to remove the unauthorized
construction within 24 hours.
2. Heard learned advocate for the plaintiff and the learned advocate
for the defendant/Corporation.
It would be appropriate to take into consideration few facts of
the suit. The plaintiff on 14/8/2018 had moved this court and sought
to temporary injunction in respect of notice dtd. 9/8/2018 issued
under section 354 of the M.M.C. Act by the defendant/Corporation. It
was observed by the court in the order of notice of motion that the
extension activity was in progress by using of M.S. Sections and G.I.
Sheets. It was observed from the old walls that the roof portion was
extended vertically so as to accommodate a mezzanine floor having
suitable height. It was observed that the plaintiff had not produced any
documents to show that he had obtained permission or approved plans
from the defendant/ Corporation. It was further observed that the work
depicted in the photograph was beyond the scope of tenantable repairs
and the intervention of court was not warranted. The ad interim relief
was rejected.
On 23/08/2018, the draft notice of motion again was filed for
restraining the defendant from acting upon the order dated
18/08/2018. Again the ad interim relief was refused.
The plaintiff that appeal from the order dtd. 24/8/2018
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passed by this Court in notice of motion in St.No. 11028/2018 was
challenged before the Hon'ble High Court. The appeal was dismissed.
3. The Hon'ble High Court in the order dtd. 24/8/2018 observed by
the Hon'ble High Court that the record prima facie shows that the
plaintiff had undertaken construction without permission. The appeal
was accordingly dismissed.
4. The plaintiff now seeks to challenge the order dated
19/07/2008. It is the allegations of the Corporation that the plaintiff
has again carried out reconstruction on the notice structure. The
defendant/Corporation has filed reply to the notice of motion reiterated
the contention.
Admittedly, the findings of the Hon'ble High Court are conclusive
as on today.
5. It is contended by the learned advocate for the plaintiff that the
defendant had earlier partly demolished the notice structure and now
again on the basis of the notice dated 19/07/2019, undertakes further
demolition. The learned advocate for the plaintiff has argued that the
prior to the notice dated 19/07/19, the defendant had issued notice to
the plaintiff on 30/11/2018 no action is taken pursuant to the notice.
The learned advocate for the plaintiff further argued that the action of
the defendant/Corporation now is totally unwarranted.
6. Considering the facts discussed above the position emerges that
the plaintiff was found to have carried out Vertical extension on the
industrial shed and was carrying out construction of mezzanine floor
by using of M.S. Sections and G.I. Sheets unauthorizedly. It is now
contended by the plaintiff that he has documents i.e. Repair Plan of
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MHADA and other documents showing that the notice structure is
authorised.
7. Admittedly, the findings of the Hon'ble High Court in the appeal
against order preferred by the plaintiff intact. So also, the plaintiff had
moved twice for ad interim relief before this Court. The adinterim relief
was refused and no relief is granted to the plaintiff.
8. It is the allegation of the defendant/Corporation that the plaintiff
has again commenced unauthorized construction. The
defendant/Corporation has filed photographs to that effect.
Admittedly, the construction carried out by the plaintiff again is
without permission. The plaintiff again is reiterated the contention
raised on earlier occasion when he he had prayed for ad interim relief.
The prayer for ad interim reliefs were rejected earlier. The notice
of motion, therefore, cannot be entertained and plaintiff cannot be
permitted to reconstruct the notice structure.
The prima facie no fault is found out in the notice dated
19/07/2019. The plaintiff has failed to make out prima facie case. The
balance of convenience does not lies in favour of the plaintiff. The
plaintiff is not entitled for injunction as prayed for.
In the result, following order is passed.
ORDER
The Notice of Motion No. 2742/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 25.07.2019 City Civil Court, Mumbai.
Dictated on : 25/07/2019
Transcribed on : 25/07/2019
Signed by HHJ on : 26/07/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 26.07.2019 at 5.00 pm.
NAME OF STENOGRAPHER : Mrs. V.V.Malgaonkar
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
25.07.2019
JUDGMENT/ORDER signed by
P.O. on
26.07.2019
JUDGMENT/ORDER uploaded
on
26.07.2019
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