Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2788-19 in Suit No. 2062-19
CNR NO.MHCC01 00768319
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2788 OF 2019
IN
L.C. SUIT NO. 2062 OF 2019
M/s. B.S.B. Developers & Anr. ....Plaintiffs
V/s.
The Municipal Corporation of Greater Mumbai & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 3rd August, 2019
Appearance:
Ld. Adv. A.R. Pande for the plaintiff.
Ld. Adv. Smt. Rawade for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon the letter dated
11.07.2019. It is the case of the plaintiff that the letter is not
contemplated by any provision of the MMC Act.
2. It is contended that the defendant corporation is bound to issue
the notice under Section 351 of the MMC Act and give opportunity to
the plaintiff. It is contended that the defendant had not followed the
due process of law and therefore the defendant needs to be restrained
from acting upon the letter dated 11.07.2019.
-- 1 of 4 --
2 NM 2788-19 in Suit No. 2062-19
3. The defendant corporation had replied to the notice of motion of
the plaintiff and contended that the notice under Section 351 of the
MMC Act was issued to the plaintiff to be landlord/owner/occupier on
29.06.2017. The authenticity of the structure was not proved that order
was passed on 29.09.2017. It is contended that the plaintiff was issued
notice under Section 354A of the MMC Act. The notice of motion
challenging the notice dated 29.06.2017 and the order dated
29.09.2017 for temporary injunction, which was rejected by this Court.
The appeal from order was also dismissed by the Hon'ble High Court.
It is contended that the present notice of motion cannot be
entertained and deserves to be dismissed.
4. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation. The plaintiff seeks to challenge the
notice annexed at Exh. 'C' with the plaint to the owner/occupier.
The plaintiff claims to be the owner of the suit building after
receipt of the notice, that the plaintiff by reply Exh. 'D' had informed the
corporation that the plaintiff is going to approach the appropriate Court
seeking necessary relief. Pausing for a while, it needs to be mentioned
that the grounds raised in the notice of motion were never raised by the
plaintiff in his reply dated 12.07.2019 to the notice dated 11.07.2019.
It is not contended by the plaintiff that the notice under Section 351 of
the MMC Act is not issued to the plaintiff and the present notice is bad
in law. This ground is the raised for the first time in the Court.
5. So also, it needs to be considered that the Notice of Motion No.
4155/2017 in L.C. Suit No. 2457/2017 was preferred by the tenant,
seeking to challenge the notice dated 29.06.2017 and the order dated
29.09.2017. This Court was pleased to dismiss the notice of motion.
-- 2 of 4 --
3 NM 2788-19 in Suit No. 2062-19
6. The appeal preferred was also dismissed. The Hon'ble High Court
in Appeal from Order in paragraph no. 8 had observed as follows:
''8) As regards the contention that major repairs and
redevelopment construction for ground + 7 floors is complete, it is
done despite the fact that the trial Court has granted status quo order
thereby clearly indicating that the appellant could not have proceeded
further with the said construction. Thus, in this case, there is
disobedience and breach of the said order and also misleading of the
Court. Moreover, even if the alleged plan is taken into consideration, it
was of the year 1979 and that was only for repairs. It was not at all for
major repairs or redevelopment of the said property. The notice of stop
work was issued in the year 2016 and thereafter also in fragrant
disregard to the order of status quo, further construction is carried out.
No document, worth the name, is produced by the appellant to show
that this construction was carried out after obtaining requisite
permission or getting the plan sanctioned for the same. The landlord or
the developer are not coming before the Court to state that this
construction was undertaken after the plan got sanctioned or by
obtaining permission from the corporation. In such situation, this
construction, is not only patently illegal but unauthorized, it being
carried out in violation of the order of status quo passed by this Court,
no protection can be granted to such unauthorized construction.''
7. The Hon'ble High Court was pleased to dismiss the Appeal from
Order with costs of Rs. 1,00,000/. It was observed in the order that
the landlord or the developer are not coming before the Court to state
that the construction was undertaken after the plan got sanctioned or
by obtaining permission from the corporation. It was observed that the
construction is illegal and unauthorized is carried out in violation of the
-- 3 of 4 --
4 NM 2788-19 in Suit No. 2062-19
order of the statusquo passed by the Court.
In the light of the observation of Hon'ble High Court and the
contentions raised by the defendant, the plaintiff has failed to make out
primafacie case. The balance of convenience does not lies in favour of
the plaintiff. The plaintiff would not be put to irreparable loss, if the
temporary injunction is refused. In the result, following order is passed.
ORDER
The Notice of Motion No. 2788/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 03.08.2019 City Civil Court, Mumbai.
Dictated on : 03.08.2019
Transcribed on : 05.08.2019
Signed by HHJ on : 07.08.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 07.08.2019 at 3.22 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
03.08.2019
JUDGMENT/ORDER signed by
P.O. on
07.08.2019
JUDGMENT/ORDER uploaded
on
07.08.2019
-- 4 of 4 --