Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3162-19 in Suit No.2332-19
CNR NO.MHCC0100919219
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3360 OF 2019
IN
L.C. SUIT NO. 2408 OF 2019
Mrs. Suryakumari Raju Datla …...Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 26th September, 2019.
Appearance:
Ld. Adv. Mr. Rahul Thorat for plaintiff.
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
Ld. Adv. Mr. Dalal for Caveator.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from acting upon the Notice
bearing No. D/DO2D/219/351MMC Act/D65N01 issued under Section
351 of the Mumbai Municipal Corporation Act,1888 (hereinafter
referred to as 'the M.M.C Act') dated 03.06.2019 and the Order dated
30.08.2019.
2. Heard Learned Advocate for the plaintiff, Learned Advocate for
the defendant corporation and Learned Advocate for Caveator.
3. The plaintiff was issued notice under Section 351 of the MMC
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Act. The schedule of the notice dated 03.06.2019 reads as under:
''Unauthorized erection of shed approx. 23.25 mt. x 6.65 mt. x 2.8
mt. (ht). with A.C. Sheet, Bison Sheet, M.S. Channels and Other
Material at Ground Floor, Flat No. 1, Mistry Manor Building, 62/A,
Nepean Sea Road, Mumbai 06 as shown in sketch in red colour.''
4. The notice was replied by the plaintiff on 07.06.2019 submitting
that the structure mentioned in the notice is old and is existence since
1972. M/s. Biological Evans Ltd. had purchased Flat No. 1 on the
ground floor of Mistry Manor Cooperative Housing Society Ltd. on
13.10.1972 from the society. On 18.10.1972 the society had permitted
the plaintiff to cover the said terrace portion of Flat No. 1.
Since 1981, the plaintiff and late husband Mr. Ashok D. Raju
were in possession and occupation of the Flat No. 1 alongwith covered
terrace, in the capacity of an Executive Director of the said M/s.
Biological Evans Ltd. The Flat was purchased by an agreement dated
24.09.1993 by her late husband Mr. Ashok D. Raju from M/s. Biological
Evans Ltd. It is contended that no illegal construction is carried out by
the plaintiff.
5. The defendant corporation had filed reply to the notice of motion.
It is contended that the plaintiff had erected the unauthorized shed on
the ground floor of Mistry Manor CHS Ltd. without permission,
therefore the notice under Section 351 of the MMC Act was issued to
the plaintiff. The reply of the plaintiff as was not found satisfactory.
The defendant corporation vide order dated 30.08.2019 directed the
plaintiff to renew the notice structure.
6. The Learned Advocate for the plaintiff submitted the letter dated
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16.09.1964 which was issued by E.H.Toovey to the M/s. Biological
Evans Ltd., alleging that a large structure is being erected on the terrace
and he trusted it to be of a temporary in nature. It was apprehended
that the structure would be subjected to be accidental fires. The
Learned Advocate for the plaintiff relied on the document to justify that
the structure was in existence on 01.09.1964. The Learned Advocate
for the corporation on the other hand contends that the date of 1st
assessment of the Flat No. 1 was 01.04.1961 and the terrace was
assessed first time in the year 2005.
7. The Learned Advocate for the Caveator supported the case of the
corporation, contending that the structure/shed erected was
unauthorised without permission and need not be protected by orders
of interim injunction.
The Caveator was only heard as he had filed Caveator. Only with
intent to assist the Court, he has not added as a party defendant in the
suit, as he has limited scope of argument.
8. Reverting back to the reply of the plaintiff to the notice of motion,
the plaintiff herself contends that the notice structure was purchased by
M/s. Biological Evans Ltd. on 13.10.1972. The society had permitted to
cover the terrace portion on 18.10.1972.
Going by the reply, it seems that the plaintiff had obtained
permission to cover the terrace on 18.10.1972 from the society. The
notice is silent as to whether the plaintiff had moved the corporation
seeking permission to erect the notice structure.
9. The plaintiff had submitted the following documents:
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Sr.
No.
Documents.
1 Copy of Share Certificate dtd. 18.08.1972 in the name of M/s.
Biological Evans Ltd., Smt. D. Suryakumari issued by Mistry
Manor CHS Ltd.
2 Copy of Award dtd. 28.03.2003 given by Hon'ble Cooperative
Court No. II, Mumbai in case No. 381/2002, Mr. Ashok D.
RajuDisputant V/s Mistry Manor CHS Ltd.Opponent.
3 Copy of Minutes of Meeting dtd. 14.03.2003 of Mistry Manor
CHS Ltd. alongwith Consent Terms in Dispute No.
CC/II/381/2002.
4 Copy of letter u/no. ACD/3748/PB/BF dtd. 26.05.2007 of Asstt.
Engineer (B&F)'D' Ward addressed to Shri A.V. Kasbekar
(Advocate)
5 Copy of Tabulated Ward Report for the Fortnight ended 1511
2005 of Asstt. Assessor & Collector 'D' Ward.
6 Copies of Receipts issued by Society (1) Receipt No. 2759 dtd.
28061018 in the name of Smt. D. Surya Kumari (2) Bill No.
1266 dtd. 21.06.2018 in the name of Smt. D. Surya Kumari for
the period of April to March 2019.
7 Copies of (1) Description, & details of Capital Value Calculation
(Annexure 'A') for property A/c No. DX 1701520050000,
DX2361322052015. (2) Assessment Bill dtd. 22.05.2015 for
the year 201516 for property A/C. No. DX1701520050000.(3)
Special Notice u/S. 154(1C) of the MMC Act, 1888 bearing No.
DX23613 for the Assessment Year 201516 dtd. 22.05.2015 (4)
Complaint u/S. 154(1C) of the MMC Act, 1888 dtd. 22.05.2015
in respect of Special Notice bearing No. DX23613.
8 Letter dtd. 13.04.2019 of F.X. D'Souza, Office Manager, Mistry
Manor CHS Ltd. addressed to Mr. Mitin C. Shah and Letter dtd.
10.04.2019 of D. Suryakumari, Flat No. 1, Mistry Manor
addressed to the Chairman, Mistry Manor CHS.
9 Letter dtd. 02.05.2019 of D. Suryakumari, Flat No. 1 Mistry
Manor addressed to the Chairman, Mistry Manor CHS.
10 Copies of Bills & Receipts (1) Receipt No. 2653 dtd.
31.07.2017 (2) Bill No. 1160 dtd. 01.07.2017 (3) Receipt No.
00902 dtd. 22.02.1997 (4) Bill No. 1172 dtd. 17.02.1997 (5)
Discharged on Payment Bill No. 592 dtd. 31.12.1996 of
Assessment Department. (6) Receipt No. 000723 dtd.
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15.12.1997 (7) Bill No. 946 dtd. 15.12.1995 (8) Discharged on
Payment Bill No. 590 dtd. 24.11.1995 of Assessment Department
(9) Receipt No. 000512 dtd. 24.09.1994 (10) Bill No. 690 dtd.
17.09.1994 (11) Discharged on Payment Bill No. 593 dtd.
06.09.1994 of Assessment Department.
Admittedly, the permission from the corporation is not produced
to erect the notice structure. The contentions of the plaintiff show that
the notice structure was erected by the plaintiff in the year 1972 with
the permission of Society. The plaintiff is required to show the
permission for the erection of the notice structure. No permission is
produced on record.
In circumstance of the case, it has to be inferred that the plaintiff
had failed to make out primafacie case in its support. The balance of
convenience does not lies in favour of the plaintiff. The plaintiff would
not be put to irreparable loss, if the temporary injunction is refused.
In the result, following order is passed.
ORDER
The Notice of Motion No. 3360/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 26.09.2019 City Civil Court, Mumbai.
Dictated on : 26.09.2019
Transcribed on : 27.09.2019
Signed by HHJ on : 30.09.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 30.09.2019 at 5.52 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
26.09.2019
JUDGMENT/ORDER signed by
P.O. on
30.09.2019
JUDGMENT/ORDER uploaded
on
30.09.2019
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