Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3228-19 in Suit No.2275-19
CNR NO.MHCC0100881119
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3228 OF 2019
IN
L.C. SUIT NO. 2275 OF 2019
Mr. Ifran Abdul Latif Bhamla ....Plaintiff
Versus
The Municipal Corporation of Greater Mumbai & Anr. .... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 28th August, 2019.
Appearance:
Ld. Adv. Mr. A.R. Pande for the plaintiff.
Ld. Adv. Mrs. Rawade for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks injunction restraining
the defendants corporation from acting upon the notice issued under
Section 351 of the Mumbai Municipal Corporation Act, 1888 (herein
after referred to as 'the MMC Act') dated 16.07.2019 as referred in the
impugned order dated 10.08.2019 without serving notice to the plaintiff
giving opportunity to show cause against the said notice, giving
personal hearing and or considering the reply of the plaintiff, passing
speaking order to the reply of the plaintiff giving opportunity to plaintiff
to challenge the order, if those are against the plaintiff.
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2 NM 3228-19 in Suit No.2275-19
2. Heard Learned Advocate for the plaintiff, Learned Advocate for
defendant corporation.
3. It is the case of the plaintiff that the plaintiff is owner of the suit
shops with the mezzanine floors since 31.08.2004.
4. It is case of the plaintiff that he was not served with the notice
under Section 351 of the MMC Act.
5. The speaking order dated 10.08.2019 is in the name of the
plaintiff. It points out that the plaintiff had not replied or submitted
any authenticated documentary evidence and is concluded that the
plaintiff has unauthorizedly encroached upon the balcony,
unauthorizedly erected the MS ladder in the house gully from 1st floor
to 3rd floor.
6. The defendant had appeared and and filed the say to the notice of
motion, with list of documents. The notice dated 16.07.2019 is filed
with the service of the notice. The endorsement to the service of the
notice points out that the copy is received by one Mohd. Tahir on
19.07.2019.
In the say to the notice of motion by the corporation, it is
contended in paragraph no. 15 that the notice dated 16.07.2019 was
served upon the plaintiff and signature was obtained. The copy is
alleged to be accepted by Mohd. Tahir. Irfan Abdul Latif Bhamla is the
plaintiff. The notice does not seems to be served upon the plaintiff and
speaking order is passed i.e. in violation of the principle of natural
justice. It is clear that the plaintiff was not served with the notice under
Section 351 of the MMC Act. He was not given opportunity to represent
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3 NM 3228-19 in Suit No.2275-19
the case and speaking order is passed behind his back.
In such circumstances, the opportunity deserves to be given to the
plaintiff by directing the defendants to serve the notice and allow the
plaintiff to represent his case and thereafter pass the speaking order.
In the result, following order is passed.
ORDER
1. The Notice of Motion No. 3228/2019 is allowed.
2. The defendants corporation are directed not to act upon the notice
dated 16.07.2019 under Section 351 of the MMC Act,1888 and
order dated 10.08.2019.
3. The defendants corporation are hereby directed to serve the copy of
the notice to the plaintiff and provide him opportunity of being
heard and thereafter pass the speaking order.
4. In case of any adverse order passed against plaintiff, the defendants
not to take any coercive action for 15 days.
5. In view of directions above, nothing survives in the suit, hence the
suit also stands disposed off.
(Sanjay N. Yadav)
Judge,
Date : 28.08.2019 City Civil Court, Mumbai.
Dictated on : 28.08.2019
Transcribed on : 29.08.2019
Signed by HHJ on : 30.08.2019
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4 NM 3228-19 in Suit No.2275-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 31.08.2019 at 3.18 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
28.08.2019
JUDGMENT/ORDER signed by
P.O. on
30.08.2019
JUDGMENT/ORDER uploaded
on
31.08.2019
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