Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO. 2443 OF 2019
(CNR NO. MHCCO10080902019)
Dattatray Mahadev Deshmukh )...Plaintiff
Versus )
Municipal Corporation of Greater )
Mumbai & Ors. )...Defendants.
Appearance:
Adv. Mr.Pathak for plaintiff.
Advocate Mr.Kumavat for defendant/MMC.
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
DATE : 23rd SEPTEMBER, 2019.
(C.R.No.06)
O R D E R
Heard learned counsel on behalf of the plaintiff and learned
counsel on behalf of the defendants. Read the present notice of motion.
Perused the record.
2. The learned counsel on behalf of the plaintiff has submitted that
the plaintiff has a land situated at Sr.No.360/2/K, Moje Gavan,
Tal.Panvel, District: Raigad, which is a low lying area. The plaintiff is
desirous to use the said property for personal use by filling the said
property with construction a demolition waste. The condition precedent
before uploading of the permission on the site of M.C.G.M. portal is that
the builder/developer/architect gives a bank guarantee as per the
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satisfaction of MCGM. The plaintiff made application dated 24/03/2019
to the defendants for uploading new dumping site at the suit property
for dumping of construction and demolition waste (application is at
exhibitD). Defendants conducted survey to the said premises on
04/05/2019. Advocate for the plaintiff further argued that the
uploading site for the purpose of dumping of the debris/earth/silt at the
said property is situated outside the jurisdiction and limits of Municipal
Corporation of Grater Mumbai. Therefore, the question of availing of
bank guarantee by the Municipal Corporation wouldn't arise as the
plaintiff seeks to simplicitor offer his property as a dumping site for
uploading building and construction waste and accordingly a
correspondence came to be forwarded by the plaintiff on 21/05/2019,
its copy is at exhibit'F'. The plaintiff has complied with all the terms
and conditions as laid and sought by the corporation by way of their
letter dated 20/05/2019 except that of bank guarantee as enumerated
in clause iii of the said query in as much the said property is situated
outside the limits and jurisdiction of the MCGM and same is not
required and applicable to the plaintiff, because of the very fact that the
plaintiff has offered its property as a dumping site. Bank guarantee is
directed to be availed from the builder and not by the plaintiff.
3. The advocate for the plaintiff further states that, in cases similar
to that of the plaintiff the corporation has uploaded two dumping sites
of construction and demolition of waste materials on MCGM portal,
without taking any Bank Guarantee from the applicants therein. It is
pertinent to note that the unloading sites in these two cases were also
outside the limits of MCGM and that they were also situated at District:
Raigad. Annexed hereto and marked as exhibit'M' and exhibit'N' are
the two applications allowed by the M.C.G.M., without availing bank
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guarantee. In these circumstances and the nature of the case, it is
necessary that this Hon'ble Court is pleased to grant ad interim in
aforesaid terms.
4. The learned counsel on behalf of the defendants has argued that
the officer of the defendants is present and he stated that the
application of the plaintiff before the defendants is already allowed. On
07/08/2019, Mr. Pralhad Rajaram Pofale, S.E.SWM Dept.,BMC present
and stated that the application of the plaintiff has been approved.
Therefore, present suit of the plaintiff is not maintainable. On these
grounds, the learned advocate on behalf of the defendants has
requested that the present application of the plaintiff may kindly be
dismissed.
5. After hearing the arguments advanced by both the counsels
on behalf of both the sides at length and after scrutiny of the present
notice of motion and documents produced on behalf of the plaintiff, it
appears that it is not disputed that the plaintiff is the owner and
possessor of the land property situated on Survey No.360/2/K, Moje
Gavan, Tal.Panvel, District: Raigad. It is admitted that the property of
the plaintiff is outside of the jurisdiction of the defendants Municipal
Corporation of Greater Mumbai. It is pertinent to note that the
employee of defendant Mr. Pralhad Rajaram Pofale, S.E.SWM
Dept.,BMC present on 07/08/2019 and he submitted that the
application of the plaintiff has been approved. Now the real dispute
remains in between the parties that according to the plaintiff he is not
Builder. His property is outside the jurisdiction of the defendants.
Therefore, it does not require to furnish bank guarantee. Whereas, it is
the submission on behalf of the defendants that after approval of the
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application of the plaintiff, he has to bind and comply the condition
imposed by the defendants. It is pertinent to notes that it is the
contention of the plaintiff that in cases similar, the corporation has
uploaded two dumping sites of construction and demolition of waste
materials on MCGM portal, without taking any Bank Guarantee from
the applicants therein. These two cases are produced by the plaintiff at
Exhibit M and L. Therefore, it requires to hear the notice of motion
finally. At this stage, on perusal of the documents produced on behalf of
the plaintiff, it appears that the plaintiff is made out prima facie case.
Therefore, I have proceed to pass following order.
ORDER
1. The Ad interim relief in terms of prayer(a) of the plaint is hereby
granted.
2. The defendants their agents, servants, officers or anybody on their
behalf are temporarily restrained from asking any bank guarantee from
the plaintiff in respect of suit subject till the final disposal of the notice
of motion.
3. Notice of motion kept for hearing on 23/10/2019.
4. Notice of motion be registered.
Date : 23.09.2019. (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 23.09.2019
Transcribed on:23.09.2019
Signed by HHJ: 23.09.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
23/09/2019 5.50 p.m. Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.06)
Date of Pronouncement of
Judgment/Order
23/09/2019
Judgment/order signed by P.O on 23/09/2019
Judgment/order uploaded on 23/09/2019
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