Interim Order 1

Order Details: Notice of Motion
Pdf Text: :1: DRAFT NM IN SU 221919
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
DRAFT NOTICE OF MOTION
IN
SUIT NO.2219 OF 2019
Mohd. Shakeel Khan ]....Plaintiff.
Versus
The Asst. Municipal Commissioner ]... Defendant
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 8th August, 2019.
Mr. V.T. Dubey, Advocate for plaintiff.
Mr. Giri Advocate for Defendant/M.C.G.M.
ORAL ORDER
1. The plaintiff is seeking adinterim relief to restrain the defendant
from acting against the suit premises.
2. In brief plaintiff's case is that, he is possessing structure
measuring 1800 sq. ft. being Ground + First floor with antiloft
constructed with B.M. Walls, ladi coba slab. It is very old and exists
since prior to 1934. The defendant had issued notice dated 6.5.2015
under Section 535B of the MMC Act. Accordingly, the plaintiff got the
structural Audit done. The Structural Auditor suggested repairs.
Plaintiff's sought permission for repairs which defendants has granted.
The plaintiff' has carried out repairs in accordance with the permission.
The defendant has issued notice under Section 354A. However, the
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defendant has not pointed out how plaintiff has violated the permission.
The plaintiff has not raised any unauthorized construction as alleged.
The defendant has not prepared any panchanama and has not inspected
the suit premises. The plaintiff is disputing the identity of notice
structure as the suit premises.
3. Perused. Heard.
4. The Structural Audit Report submitted by the plaintiff describes
the suit premises as a Ground + First storied structure with upper anti
loft. It is load bearing having brick walls and the roof is of mangalore
tiles. The description of the suit premises in the plaint is almost same
except the slab.
5. The impugned Notice alleges completely new construction of
Ground + First floor. The plaintiff has come with a case that only the
repairs are carried out in accordance with the repairs permission.
6. The defendant has produced on record an inspection report dated
24.7.2019 wherein the new structure with brick masonary wall is alleged
to have been constructed. Column 15 of said Inspection Report mentions
that it is an extension to the existing structure. The photographs are
produced by the defendant claiming to be of the suit premises. Those
reveal construction by the siporex i.e. cement block. However, the
Inspection Report as well as impugned notice allege construction by
brick masonry wall and not by cement block. The Inspection Report
claims that ongoing construction was an extension to the existing
structure whereas impugned notice alleges entire new construction of
Ground + First floor. Thus there are prima facie glaring discrepancies in
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description of the alleged ongoing construction in the Inspection Report,
impugned notice and the photographs. These discrepancies when
considered in the light of dispute raised by the plaintiff that the suit
premises and notice structure are different, make out a prima facie case
for the plaintiff. Hence the Order:
ORDER
1. Adinterim relief is granted till next date in terms of prayer clause
(a) till next date.
2. Leave is granted to register the Notice of Motion.
3. Defendant to file reply.
4. Plaintiff to file photographs of the suit premises tomorrow bearing
the date and time of the photographs.
Sd/
(A.N. MARE)
Judge,
08/08/2019 City Civil Court, Mumbai.
Dictated On : 08.08.2019
Transcribed on : 13.08.2019
HHJ Signed on : 14.08.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
14/08/19 02.50 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
08.08.2019
JUDGEMENT /ORDER signed by
P.O. on
14.08.2019
JUDGEMENT /ORDER uploaded
on
14.08.2019
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