Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3634-2019 in SU 2556-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3634 OF 2019
IN
SUIT NO.2556 OF 2019
CNR NO. MHCC01-009898-2019
Kafil Ahmed Khan … Plaintiff
Vs.
The Slum Rehabilitation of Authority & Anr. … Defendants
Appearance:
Ld. Adv Rajesh Patil for the plaintiff.
Ld. Adv Trivedi for the defendants.
CORAM : HIS HONOUR JUDGE
SHRI. R. S. PAVASKAR
(C.R.NO.12)
DATE : 06th APRIL 2021
ORAL ORDER
The plaintiff has taken out this notice of motion under
Order XXXIX Rule 1 of the Code of Civil Procedure, 1908 (in short
“CPC”).
2. Heard the learned Advocates for the parties. Perused the
record.
3. Admittedly, the Housing Development and Infrastructure
Limited (HDIL) has constructed Wings ‘A’ to ‘E’ of Galaxy Apartment,
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Bhandary Compound on the plot bearing C.T.S. Nos.13/1 to 13/4,
13/14B, 13/16, 20 and 21, Kurla (E), Mumbai 400070.
4. From the copy of the agreement for Sale dated 29.10.2011,
it
prima facie appears that the plaintiff had purchased Flat No.1602,
16th Floor, Wing-E, Galaxy Apartment, Bhandary Compound, Kurla (E),
Mumbai 400070 from the HDIL (hereinafter referred to as “the suit
flat”).
5. From the notice dated 12.07.2019 at Exh.H, it appears that
defendant No.2 had issued the notice dated 12.07.2019 at Exh.H to the
plaint to the HDIL for handing over possession of flats in Wings ‘A’ to ‘E’
of Galaxy Apartment to the flat purchasers without obtaining the Chief
Fire Officer’s Completion Certificate, Lift Completion Certificate and
Occupancy Certificate.
6. From the Commencement Certificate at Exh.A to the plaint,
it
prima facie appears that on 05.05.2016, defendant No.2 had granted
permission to the HDIL for construction of Wing E up to 17th floors.
7. It seems that on 01.03.2014, the Electrical Inspector (Lifts)
Mumbai and the Chief Engineer Electrical had issued the licence for
working of two lifts in Wing E of Galaxy Apartment.
8. From the affidavit in reply, it appears that after issuance of
the notice under Section 53(1) of the Maharashtra Regional Town
Planning Act, 1966 (in short “MRTP Act”), the HDIL had obtained
permission from the Chief Executive Engineer (SRA) and it was directed
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to pay a penalty of Rs.25,28,58,000/- for regularization of the
unauthorized construction and Rs.77,09,050/- for handing over
possession of the sale components to the flat purchasers without
obtaining the Occupancy Certificate.
9. From the reply, it appears that HDIL has paid the penalty of
Rs.20,48,10,860/- for regularization of the unauthorized construction
and Rs.7,70,905/- for giving possession of the sale components to the
flat purchasers without obtaining the Occupancy Certificate. However,
the HDIL has not paid the penalty of Rs.69,38,145/- which was to be
paid at the time of issuance of the Occupancy Certificate.
10. From the record, it
prima facie appears that the HDIL has
sold the suit flat to the plaintiff before obtaining the Chief Fire Officer’s
Completion Certificate and the Occupancy Certificate from the
Competent Authority, and therefore, defendant No.2 has issued notice
dated 22.08.2019 under Section 53(1) of the MRTP Act to him calling
upon him to vacate the suit flat within one month from the receipt of
the said notice.
11. In the present notice of motion, the plaintiff has sought a
temporary injunction restraining defendants from taking action on the
dint of notices dated 12.07.2019 and 22.08.2019 issued by the
defendants under Section 53(1) of the MRTP Act.
12. The learned Advocate for the defendants has vehemently
submitted that in view of the bar under Section 149 of the MRTP Act,
this Court has no jurisdiction to entertain and try the present suit.
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13. Section 149 of the MRTP Act gives finality to a notice
issued by any Regional Board, Planning Authority or Development
Authority under the said Act and bars a suit challenging such notice. In
view of the embargo contained in Section 149 of the MRTP Act, no ad-
interim relief can be granted to the plaintiff. (See Sonu Sood and
another Vs. The Municipal Corporation of Greater, Mumbai and another
(APPEAL FROM ORDER (STAMP) NO.270 OF 2021 dated 21-1-2021).
14. Sub-section (3) of Section 53 of the MRTP Act provides that
any person aggrieved by notice may, within the period specified in the
notice and in the manner prescribed, apply for permission under
Section 44 for retention on the land of any building or works or the
continuance of any use of the land, to which the notice relates.
15. Indubitably, neither the HDIL nor the plaintiff has applied
to the Planning Authority under Section 44 of the MRTP Act within the
time stipulated in the notice issued to them under Section 53(1) of the
MRTP Act for grant of permission to retain the unauthorized
construction of Galaxy Apartment. Consequently, the question of
retention of the unauthorized construction of Galaxy Apartment does
not arise.
16. The plaintiff has not made the HDIL as a party to the
present suit. The said fact also militates against the plaintiff.
17. It cannot be gainsaid that Fire escape in multistoreyed
buildings is necessary, and the Chief Fire Officer has to approve the
plans. So also, the Occupancy Certificate is required to show that the
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building is suitable for occupancy. However, the plaintiff who is the
advocate by profession has purchased the suit flat from the HDIL
without verifying the fact as to whether the HDIL has obtained the
Occupancy Certificate and Chief Fire Officer’s Completion Certificate for
Galaxy Apartment. As such, the question of protecting the
unauthorized of Galaxy Apartment does not arise.
18. The plaintiff has no equity in his favour. So, even assuming
for a moment that this Court has jurisdiction to entertain and try the
present suit, the plaintiff is not entitled to the equitable and
discretionary relief of temporary injunction.
19. The plaintiff has, thus, failed to make out a
prima facie
case. The balance of convenience does not lie in his favour. So, I hold
that the plaintiff is not entitled to the relief of a temporary injunction as
sought. Consequently, the notice of motion is liable to be dismissed.
Accordingly, I proceed to pass the following order:
ORDER
1. Notice of Motion No.3634 of 2019 is dismissed.
2. Costs shall be costs in the cause.
3. Notice of Motion No.3634 of 2019 is accordingly
disposed of.
Sd/-
R. S. PAVASKAR
Judge,
Date : 06/04/2021 City Civil Court, Gr. Bombay
Dictated on : 06/04/2021
Transcribed on : 06/04/2021
HHJ signed on : 06/04/2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
08.04.2021 11.08 a.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Shri. R.S. PAVASKAR (CR 12)
Date of Pronouncement of
JUDGEMENT /ORDER
06.04.2021
JUDGEMENT /ORDER signed by
P.O. on
06.04.2021
JUDGEMENT /ORDER uploaded
on
08.04.2021
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