Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No : MHCC01-007829-2019. 1 Notice of Motion No.2841/2019.
in L.C. Suit No. 2028/2019.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2841 OF 2019.
IN
L.C. SUIT NO. 2028 OF 2019.
Gama Samarthu Yadav. ...............................….. ….. PLAINTIFF.
V/s.
MCGM. ....................……………………………. …. DEFENDANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 17th October, 2023.
APPEARANCES :
Mr. V.T. Dubey, Ld. Advocate for the Plaintiff.
Mr. G.O. Giri, Ld. Advocate for the Defendant/MCGM.
*****
01. The plaintiff has taken out this Notice of Motion (for short
‘the NM’), restraining the defendant from demolishing, pulling down or
removing the suit premises viz. residential-cum-commercial premises, in
pursuance of the notice dtd. 26.06.2019, under Section 351 of the MMC
Act. Perused the NM, his accompanying affidavit and reply-cum-written
statement of the defendant. Also gone through the written submissions
of the parties on this NM.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in his favour? …..........…................... …Yes.
(ii). Whether balance of convenience lies in
favour of the plaintiff? ….…..…............…. …Yes.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim reliefs, as
prayed for, are not granted?.….................. …Yes.
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CNR No : MHCC01-007829-2019. 2 Notice of Motion No.2841/2019.
in L.C. Suit No. 2028/2019.
(iv). What Order? …..........….…....................... …As per final
Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are interconnected, to maintain the brevity,
I am taking the same for a joint discussion. Since inception, the plaintiff
came with the specific case that he is in occupation of the suit premises.
His nephew - Arjun Yadav is a monthly tenant of this premises, which is
owned by one Trivedi. The said Arjun also has the documents like Shops
and Establishments license, Electricity Bill, etc. relating to this premises.
The plaintiff is carrying his business at ground floor and is residing with
his family on mezzanine floor of the suit premises. This structure is old
one and existed even prior to the year of 1962. It is also assessed to the
Municipal taxes. Since inception, it is in the same condition and he only
carried minor repairs to it, such as plastering and painting. Still, on the
instance of some interested persons, the defendant issued the suit notice
alleging the unauthorized construction thereat. He replied the same on
12.07.2019. However, without considering the same, this defendant had
passed the Speaking Order on 18.11.2019. Further, the suit premises is
declared as ‘slum’ area. On this background, issuance of this notice and
passing of such Speaking Order are unjustified. Therefore, he had to file
this suit along-with this NM. To support his stand, at this juncture, he
relied on the Shops and Establishments license, Electricity bills, Notice,
his reply and the Speaking Order. Additionally, he filed the copy of rent
receipt and Assessment bills. Contrarily, the defendant resisted this NM
by contending that on receiving the complaint, he inspected the site and
found the said unauthorized vertical extension and change of user from
on residential to commercial. Hence, he issued this notice. The plaintiff
replied the same and after considering his reply, he passed the Speaking
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CNR No : MHCC01-007829-2019. 3 Notice of Motion No.2841/2019.
in L.C. Suit No. 2028/2019.
Order on 18.11.2019. The plaintiff failed to prove its legality. Further,
he had no locus to file the suit. To support his contentions, at this stage,
the defendant filed the copies of inspection report, the notice, Speaking
Order and photographs. The plaintiff denied his contentions by filing his
reply rejoinder. That apart, by filing their written notes on the NM, the
parties reiterated their respective contentions.
04. Considering this record, at the outset, it is notable that it is
nowhere the plaintiff’s case that after securing due permission from the
defendant or say in view of a sanctioned plan, the notice structure was
brought into existence. That’s why, even the plaint averments are silent
on this aspect. Contrarily, he tried to justify this notice structure on the
counts that it existed prior to 1962 and was duly assessed to the taxes.
Further, it is situated at slum area and he only carried the minor repairs.
To fortify this position, he could file the copy of assessment bill, which is
bearing the first date of assessment as on 31.03.1962. Simultaneously,
he placed copies of Electricity bills, separately issued for residential and
commercial portions of the suit premises. Here, it is worth notable that
while passing the Speaking Order, the defendant referred to assessment
remarks and discarded this assessment bill, as pertained to the original
structure only and not to the subsequent changes. Moreover, the area of
structure was not recorded and user of the structure was recorded as
residential till 31.03.2010. However, be that as it may, at this stage, the
defendant could not negate the prima-facie long existence of the notice
structure in the light of this assessment bill and the separate electricity
bills for residential and commercial use of this structure. At the costs of
repetition, it is nowhere the plaintiff’s case that this notice structure was
so constructed in view of the permission/sanctioned map and as such, it
is legal one. And, he is presenting the same as protected one, as existed
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CNR No : MHCC01-007829-2019. 4 Notice of Motion No.2841/2019.
in L.C. Suit No. 2028/2019.
prior to the year 1962 and accordingly, assessed to taxes. To that extent,
certainly, he could substantiate his case. Needless to say that once it is
so proved that the notice structure existed prior to the datum line and is
protected one, the other requirements viz. its authenticity, permission or
sanction would be of no consequence. However, that would require the
trial on merits and till that time, the notice structure is to be preserved.
Obviously, if the notice structure is demolished as per this notice, which
is issued U/s. 351 of the MMC Act, the very purpose for filing this suit
would be frustrated. To sum up, the cumulative effect of this record led
me to conclude that at this interim juncture, this plaintiff could present
a prima-facie case and the balance of convenience also tilts in his side.
Moreover, if the structure is demolished, he would suffer irreparably. In
the result, I answered point Nos. 1 to 3 in the affirmative and in answer
to point No. 4, I pass the following Order :
-: O R D E R :-
(i). Notice of Motion No. 2841/2019 is made absolute in terms
of prayer clause (a) only, till disposal of the suit.
(ii). Notice of Motion No. 2841/2019 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 17.10.2023. City Civil Court, Mumbai.
Dictated on : 17.10.2023.
Transcribed on : 26.10.2023.
Checked and Signed on : 30.10.2023.
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CNR No : MHCC01-007829-2019. 5 Notice of Motion No.2841/2019.
in L.C. Suit No. 2028/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
01.11.2023 at 10.42 a.m.
Name of the Stenographer
Mrs. S.R.Mejari
Name of the Judge (with Court Room No.11) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 17.10.2023.
Judgment/Order signed by P.O. on 30.10.2023.
Judgment/Order uploaded on 01.11.2023.
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