Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3474-19 in Suit No. 2489-19
CNR NO.MHCC0100948719
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3474 OF 2019
IN
L.C. SUIT NO. 2489 OF 2019
Pawan Kumar Bechraj Chandan …...Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 27th September, 2019.
Appearance:
Ld. Adv. Khan Javed Akhtar for plaintiff.
Ld. Adv. Ms. Meena Dhuri for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendant corporation from implementing the Notice
issued under Section 53(1) of the Maharashtra Regional and Town
Planning Act,1966 (hereinafter referred to as 'the M.R.T.P Act') dated
22.05.2019 and Order dated 01.07.2019 to demolish/remove illegal
addition, alteration and amalgamation of suit flat and flat No. 2103 and
2104 at 21st floor of building known as Chandan Height Plot1/3072
3076, 379, 11 and 13, Near Gol Deol, Mumbai04.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
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3. The schedule of the notice dated 22.05.2019 reads as under:
(Description of the unauthorized development together with the
particular of land)
''Illegal addition, alternation and Amalgamation of Flat 2103 and
2104 at 21st floor of building known as Chandan Height Plot1/3072,
30723076, 379, 11 and 13, 1 st Carpenter Street, near Gol Deol,
Mumbai04 by way of covering of pocket terrace, Balcony and E.T.
which is contravention to the approved plan u/no EEBP/552/C/A dtd.
13.04.2012''.
4. It is the case of the plaintiff that the defendants have approved
the plan for 22nd floor in the suit building. In the year 2015, the
plaintiff noticed some minor mistake in the 21st floor plan approved by
the defendants. The mistake was through oversight. On 21st floor the
word Terrace remained on the plan and design also shown the partition
wall of the 21st floor of Flat No. 2103 and 2104.
The plaintiff had applied for rectification on 10.12.2015. It is
mentioned that there is no terrace on the 21st floor nor the two flats are
amalgamated.
5. The notice was replied by the plaintiff. The defendant
corporation had issued order. In the order it is observed that the
plaintiff had failed to prove the authorization of the notice structure as
illegal and addition, alteration and amalgamation of Flat No. 2103 and
2104 on 21st floor is made.
6. Reverting back to the pleadings of the plaintiff, the plaintiff
noticed that in the year 2015, there was some minor mistake. The plan
was approved on 09.05.2014. It needs to be noted that each floor has
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to be in accordance with plan. The construction has to be in accordance
with plan.
Admittedly, the plaintiff is constructed the entire building and the
plaintiff had applied for Occupation Certificate on 10.05.2016. The
plaintiff ought not have carried out the constructions prior to rectifying
the mistake. The plaintiff seems to have carried out construction and
now is seeking to rectify it.
7. At present the changes made in 21st floor by the plaintiff are
without the sanctioned plan. It is specific case of the defendant
corporation that the unauthorized construction of addition, alteration
and amalgamation of Flat No. 2103, 2104 is carried out by the plaintiff.
Primafacie it appears that the construction alleged is without
permission. The plaintiff ought not have carried out the construction
without its rectification. At present the construction is in contravention
to the sanction plan.
The plaintiff had failed to make out primafacie case in his favour.
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. 3474/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 27.09.2019 City Civil Court, Mumbai.
Dictated on : 27.09.2019
Transcribed on : 30.09.2019
Signed by HHJ on : 01.10.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 01.10.2019 at 5.55 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
27.09.2019
JUDGMENT/ORDER signed by
P.O. on
01.10.2019
JUDGMENT/ORDER uploaded
on
01.10.2019
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