Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Draft Notice of Motion
In
Suit No 1571 of 2018
Mrs. Firdaus Abdul Aziz Gigani ...Plaintiff
V/s
MCGM & Anr ...Defendants
Advocate Chandra Naik for plaintiff
Advocate Mr. Mali for BMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 2nd July 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 taking any action of
demolition on the basis of notice dated 24/05/2018 and order dated
21/06/2018 in respect of the suit premises.
2 According to plaintiff, plaintiff is the coowner of property
bearing C.S.No. 1047 of Byculla Division, Building No. 249255
Maulana Azad Road, Do Taki, Nagpada, Mumbai 400 008. Plaintiff
has 47% share in the said building. ( Said property is referred as a suit
property). The said property consists ground plus first floor and partly
ground plus 2 upper floors. The said property indicates in the City
Survey record and constructed prior to 1943. The ground floor and
first floor were being used for industrial work shop by previous owner
and 2nd floor consisting 6 rooms are being used for residential
purpose. Plaintiff has not made any construction in the suit premises.
On the ground floor in the suit premises there is Union Bank of India
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and the ATM Center and strong room of the Union Bank of India. The
suit premises is assessed by the Municipal Corporation. However,
defendant issued a notice to the plaintiff U/s 351 of the MMC Act.
Plaintiff gave reply and documents to the defendant no. 2 However,
defendant no. 2, did not consider documents and passed stereotype
order. Hence, prayed to grant ad interim relief.
3 Notice is served to defendant. Defendants filed short
affidavit of Shri Yogesh Kondgekar and also produced documents.
According to defendant, plaintiff has made construction and thereby
prayed to refuse ad interim relief.
4 Shri Chandra Naik advocate for plaintiff has invited my
attention towards the documents. According to him, the suit property is
in existence prior to 1943. Plaintiff has not made any unauthorized
construction. The suit property consists ground plus two floors. Thus,
there must be stair case in the suit property. Now the Union Bank of
India runs its business in one of the room. There is ATM and also
strong room of the said bank. The defendant without verifying the
documents has passed the order contending that the documents do not
prove the existence of the structure before the datum line. He further
submitted that the suit premises is subject to the assessment and it is
assessed long back. Therefore, defendant ought to have considered the
documents produced by the plaintiff. There are triable issues between
the parties. The same requires detail trial. Hence, he prayed to grant
interim relief.
5 Shri Mali Advocate for defendant has submitted that
plaintiff made unauthorized construction. Plaintiff could not produce
the documents to prove the authorization of the structure. The officer
of the defendant has visited the site and prepared detailed inspection
report. He took photographs. The impugned order is in accordance
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with law. Hence, he prayed to refuse the ad interim relief.
6 It is to be noted that one Ishtiyak Ahmed Khan lodged
complaint to the defendant/corporation and contended that plaintiff
made unauthorized construction. Admittedly, plaintiff is owner of 47%
in the said building. It also appear that one Niyaz Ahmed and others
were owners of 53% in the said building. Plaintiff has also lodged
complaint against them. Thus, there are cross complaints of each
others with the defendant. I have perused the approved plan. It
appears that the suit property consists ground plus two floors. It also
appears that the said property is assessed by the corporation in the
year 19921993. Plaintiff pays taxes to the corporation. Electricity bill
do show that plaintiff has given some of the portion on rent to Union
Bank of India, its ATM and strong room. The notice is in respect of the
unauthorized construction of slot, stair case etc. However, there are
counter complaints of both the coowners. The suit property is subject
to assessment prior to 19921993. Therefore I find that there are triable
issues in the suit. Hence, in such a circumstances plaintiff is entitled for
ad interim relief. Hence following order:
ORDER
1 Ad interim relief in terms of prayer clause (a) in notice
of motion is granted.
2 Draft Notice of motion be registered.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 2/07/2018
Typed on : 3/07/2018
Signed by HHJ. :4/07/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
4/7/2018 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
2/07/2018
JUDGEMENT/ORDER signed by
P.O. on
4/7/2018
JUDGEMENT/ORDER uploaded
on
4/7/2018
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