Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3152-19 in Stamp No.8882-19
CNR NO.MHCC0100859719
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3152 OF 2019
IN
L.C. SUIT (STAMP) NO. 8882 OF 2019
Palak Investment Private Limited …...Plaintiff
Versus
Designated Officer Executive Engineer
(B&F)'D' Ward & Anr. ...... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 27th August, 2019.
Appearance:
Ld. Adv. Mr. P. D. Gandhi for the plaintiff.
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks injunction restraining
the defendant corporation from acting upon the notice issued under
Section 354A of the Mumbai Municipal Corporation Act, 1888
(hereinafter referred to as 'the MMC Act') dated 26.07.2019 and the
order dated 07.08.2019.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. The Schedule of the notice reads as under:
''Ongoing unauthorized Erection of M.S. Fencing
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admeasuring 25.60m Length x 2.0m height adjacent to common
passage in front of shops at Hakim wadi/Chawl Compound, behind
Super Cinema, Grant Road (E), Mumbai08.''
4. The wording used in the schedule is ongoing authorization
Erection of M.S. Fencing.
5. The notice was replied by the plaintiff on 29.07.2019. It points
out that no ongoing erection of fence was in progress on the date of the
notice.
6. The speaking order was passed on 07.08.2019. The documents
were considered by the defendant corporation and it was observed that
the unauthorised work was being carried out without the requisite
permission.
7. The defendant corporation had filed reply to the notice of motion.
It pointing out that the erection of fencing was without proper
permission. It is contended that the notice of motion is devoid of merits
and needs to be dismissed.
8. The question to be dealt with is as to whether the plaintiff was
carrying out the erection of fencing. The stage and construction
mentioned in the inspection report shows the length of erection to be
25.60m.
The panchanama in respect of erection of fence is not prepared.
9. The Learned Advocate relied upon the judgment of the Hon'ble
High Court in Appeal No. 266 of 1984 in W.P. No. 521/1982 in case of
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Bharat Petroleum Corpn. Ltd. and Ors. V/s M.C.G.M. and Ors.
In paragraph no. '5' has observed as follows:
'5. Section 3(s) defines ''building'' as under:
''building includes a house, outhouse, stable, shed, hut and
every other such structure, whether of masonry, bricks, wood, mud
metal or any other material whatever.''
It is an inclusive definition. Random House Dictionary
defines ''building'' at page 194 as
''a relatively permanent, essentially boxlike construction
having a roof and often windows and enclosing within its walls space,
usually on more than one level, for any of a wide variety of activities, as
living, entertaining, manufacturing, etc.''
10. The Learned Advocate on the other hand argued that the erection
of fence is the part of the building and therefore Section 351 of the
MMC Act cannot be attracted.
The definition of building in the MMC Act includes ''a house, out
house, stable, shed, hut and every other such structure, whether of
masonry, bricks, wood, mud metal or any other material whatever.''
Going by the definition, every other such structure whether of
masonry, bricks, wood, mud metal or any other material whatever such
being the position. Therefore, the fencing also is the part of the
building.
It needs to be concluded that the fencing is the part of the
building. The erection of fence can attract Section 354A of the MMC
Act.
11. The stage of erection is a vital. The plaintiff has contended that
the erection was not in progress. It was for the defendant to show the
exact stage of the erection of the fence. There is nothing to infer in the
absence of panchanama as to be exact stage of the alleged erection. The
plaintiff has pleaded that the erection of fence was not in progress.
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It was for the corporation the exact stage of erection. There is
nothing to infer that erection was in progress at the time of inspection.
The plaintiff has made out primafacie case in his favour. The
balance of convenience lies in favour of the plaintiff. The plaintiff
would be put to irreparable loss, if the temporary injunction is refused.
In the result, following order is passed.
ORDER
1. The Notice of Motion No. 3152/2019 is allowed.
2. The defendants corporation are hereby restrained from acting upon
the notice dated 26.07.2019 issued under Section 354A of the MMC
Act and the order dated 07.08.2019 till the disposal of the suit.
3. The Notice of Motion stands disposed off accordingly.
(Sanjay N. Yadav)
Judge,
Date : 27.08.2019 City Civil Court, Mumbai.
Dictated on : 27.08.2019
Transcribed on : 28.08.2019
Signed by HHJ on : 30.08.2019
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5 NM 3152-19 in Stamp No.8882-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 31.08.2019 at 03.15 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
27.08.2019
JUDGMENT/ORDER signed by
P.O. on
30.08.2019
JUDGMENT/ORDER uploaded
on
31.08.2019
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