Order 2

Order Details: Notice of Motion
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IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO.2363 OF 2019
The Kurla Dawoodi Bohra Masjid ]
& Kabristan Trust ]...Plaintiff.
Versus
Municipal Corporation for Gr. ]
Mumbai. ]...Defendant.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 29th August, 2019.
Mr. B.P. Shukla, Advocate for plaintiff.
Ms. Mhatre, Advocate for MCGM/Defendant.
ORAL ORDER
1. The plaintiff has sought adinterim relief to restrain the defendant
to act upon a notice dated 24.8.2019 issued for removal of the suit
premises i.e. Patra covered terrace with M.S. angle and tin sheet roof.
2. In brief, the plaintiffs’ case is that, the plaintiffs are owners of
building known as Zainee Complex, consisting Ground + first floor
alongwith a tin covered terrace with M.S. angle and patra sheet roof,
measuring 18.30 meters x 21.50 meters. The said covered terrace with
tin sheet roof is the suit premises. The defendant has issued a notice on
24.8.2019 directing the plaintiff to remove said roof of the terrace
alleging that it is illegal. In fact the plaintiff has replied said notice
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however, no order is yet passed.
3. Advocate for plaintiff submitted that the suit premises is existing
since long. Earlier also defendant had issued a notice under Section
53(1) of the MRTP Act and it was challenged. The Court has granted
adinterim relief. According to him, the impugned notice cannot be
acted upon by the defendant until and unless the plaintiff's
representation served upon defendant is decided by it. He further
submitted that the documents on record do indicate that the structure is
assessed prior in the year 1962 and thus is to be protected.
4. On the other hand the advocate for defendant submitted that the
inspection report reveals that unauthorised erection of G.I. pipe and
M.S. Angles was done recently. A notice under Section 53(1) of the
MRTP Act is already issued. The photographs produced on record reveal
ongoing erection of the structure with the help of G.I. pipes and M.S.
Angles. Therefore, the defendant has served an order on the plaintiff to
remove the said unauthorised structure. According to her no separate
notice is required for removal of said unauthorised work as the notice
under Section 53(1) of the MRTP Act is already served on the plaintiff.
5. The Advocate for plaintiff has submitted on record copy of plaint
in L.C. Suit No.542 of 2017. Paragraph 1 of the plaint in L.C. Suit
No.542 of 2017 describes the building known as Zainee Complex,
consisting of Ground + first floor. There is no reference to the shed
made up of M.S. Angles and G.I. pipes in the description of the building
known as Zainee Complex. Said suit is filed in the year 2017.
Comparing description of the suit premises in earlier suit and in the
present suit clearly reveals that the part covered terrace with M.S.
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Angles and Patra sheet roof measuring 18.30 meters x 21.50 meters was
not existing in the year 2017 and is a development after filing of earlier
suit.
6. Prima facie when it is concluded that the part covered terrace
with M.S. Angles and G.I. pipes is a recent development, it will attract
the provisions of M.R.T.P. Act. At the same time the defendant will
have to follow the due process of law. The defendant cannot bank upon
the notice issued under Section 53(1) issued to the plaintiff in the year
2017 when the part covered terrace was not existing at all. Therefore,
the order dated 24.8.2019 cannot be considered as an order. It can be
considered as a notice to which the plaintiff has replied. The only
recourse available to the defendant is to decide the representation filed
by the plaintiff in response to the communication dated 24.8.2019 and
then to act upon it.
7. Considering the above circumstances, therefore, I pass the
following order:
ORDER
1. Adinterim relief is granted in terms of prayer Clause (a) till next
date.
2. Defendant is directed to decide the representation filed by the
plaintiff and to pass an order thereon.
3. Leave is granted to register the Notice of Motion.
Sd/
(A.N. MARE)
Judge,
29/08/2019 City Civil Court, Mumbai.
Dictated On : 29.08.2019
Transcribed on : 30.08.2019
HHJ Signed on : 03.09.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
03/09/19 06.00 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
29.08.2019
JUDGEMENT /ORDER signed by
P.O. on
03.09.2019
JUDGEMENT /ORDER uploaded
on
03.09.2019
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