Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3694-19 in Suit No. 1726-16
CNR NO.MHCC0101005519
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3694 OF 2019
IN
L.C. SUIT NO. 1726 OF 2016
Mr. Sudhir K. Sethna …...Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 21st November, 2019.
Appearance:
Ld. Adv. Mr. Rajendra K. Yadav for plaintiff.
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks injunction restraining
the defendant corporation from acting upon the Notice issued under
Section 351 of the Mumbai Municipal Corporation Act, 1888
(hereinafter referred to as 'the MMC Act') dated 02.07.2015 and the
Order dated 17.10.2015.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. The Schedule of the Notice dated 02.07.2015 reads as under:
''Unauthorized covering of passage leading to drainage duct
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by providing wooden doors, with frames on both sides of passage
admeasuring 3.80 x 1.10 mt.''
4. The Learned Advocate for the plaintiff had filed its written
argument at Exh.5. The plaintiff is the Coowner of the suit premises
and one Mr. Gopalkrishna S. Pai is the tenant of the said premises. One
Mr. Ajay Shah who is the one of the occupant had made complaint
against the plaintiff. The room was used for the purpose of residence
and the same came to be assessed to the Municipal Taxes since 1961.
It is denied that there is unauthorised covering of passage
leading to the drainage duct by providing wooden doors with the
frames on both sides of passage. The notice was issued and reply filed
by Mr. Gopalkrishna Pai.
5. The Learned Advocate relied upon the letter dated 29.08.2012
issued by the Assistant Commissioner, ''D'' Ward. It is submitted as
follows:
''The site under reference was inspected by the office staff when it
is observed that there are two Nos. of Old wooden doors on either sides
of the passage leading to drainage duct. The Wooden doors are similar
to the other doors in the Building and seems to be in existence from the
inception of the Building and not of recent origin. Those doors appears
to be are provided for security reasons and to prevent
misuse/encroachment of the drainage duct/passage. In this case no
unauthorised work was seen in the drainage duct or passage under
reference. Your Complaint is regarding non allowance/entry in the
passage and drainage duct for service and maintenance of drainage
pipes, chambers, water pipes. In this regard, it is to state here that this
matter does not come under the purview of Building Department and it
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is for Landlord/Owner/Society/Tenants Association to maintain the
rights of free access to the drainage duct & passage by providing
Watchmen/Security Guards.''
6. The plaintiff had relied upon following judgments:
a) in case of Raveesh Chand Jain Vs. Raj Rani Jain (2015) 8
Supreme Court Cases 428.
b) in case of Raj A. Menda & Ors. Vs. M/s Rani Rasamani Real Estate
& Ors. 2007 AIHC 2630 (DB).
c) in case of Uttam Singh Dugal & Col Ltd. Vs. Union Bank of India
& Ors. AIR 2000 Supreme Court 2740.
d) in case of Charanjit Lal Mehra & Ors. Vs. Smt. Kamal Saroj
Mahajan & Anr. AIR 2005 Supreme Court 2765.
e) in case of Razia Begum V/s Sahebzadi Anwar Begum & Ors. AIR
1958 Supreme Court 886 (V 45 C 122).
f) in case of Pransukhlal Mafatlal Hindu, Swimming Boat Club Trust
& Ors. Vs. Vasant Joshi & Ors. AIR 2004 Bombay 270.
g) in case of Hope Plantations Ltd. V/s Taluk Land Board, Peermade
& Anr. (1999) 5 Supreme Court Cases 590.
h) in case of District Collector & Anr Vs. B. Suresh & Ors. (1999) 5
Supreme Court Cases 612.
7. The defendant argued that the plaintiff had covered the passage
by putting frames. No case is made out by the plaintiff.
The Schedule of the Notice dated 02.07.2015 reads as under:
''Unauthorized covering of passage leading to drainage duct
by providing wooden doors, with frames on both sides of passage
admeasuring 3.80 x 1.10 mt.''
The notice is alleged to have issued on 02.07.2015.
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8. In response to the notice, the documents filed by the plaintiff
were considered and speaking order was passed.
The documents tendered were considered and the order was
passed. The plaintiff had submitted the assessment for the year 2007
08. The plaintiff had not produced permission to show the
authorization of the notice structure. In the absence of permission it
was for the plaintiff to show the existence of notice structure prior to
1964.
9. The defendant tried to justify the findings given by Assistant
Commissioner:
Findings: a) This document is the photocopy of Tenancy
Agreement dtd. 25.09.2008 in between Shri. Sudhir K. Sethna and Ors.
(Landlords) and Shri. Gopalkrishna Pal. This document does not prove
the permission received from the competent authority i.e. M.C.G.M. or
the existence of notice structure prior to 17.04.1964 which is basic
requirement for residential structure to be in a tolerated category.
b) This document is the photocopy of inspection of Extract for
the year 200910 in respect of the property bearing Ward No. D2857
58 Stl. No. Gamdevi Road and 2.2A2K, Girgaum Road,Mumbai07
issued to Shri Gopalkrishna S Pal. C/o M/s. Hindu Vishranti Grih,
Ishwardas Mansion Building, Nana Chowk Mumbai07. The said
inspection extract is for the year 200910 and same is for the Shop No.
3 of the captioned building and not for the notice structure. This
document does not prove the existences of the notice structure prior to
17.04.1964 which is basic requirement for residential structure to be in
a tolerated category.
The letter dated 29.08.2012 alleged to be issued by the Assistant
Commissioner does not help the case of the plaintiff. The issue involved
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in the said proceeding did not call for any opinion. So also the opinion
of the said officer cannot be said to be the opinion of the competent
authority to pass speaking orders.
10. The Learned Advocate for the defendant corporation had filed the
order passed in Notice of Motion No. 309/2016 in L.C. Suit No.
2625/2015 is filed by the tenant. The said notice of motion of
temporary injunction was dismissed. The notice involved in the
present suit is also challenged in the said suit. The notice of motion for
temporary injunction is dismissed. The Appeal From Order (Stamp No.)
25789/2019 with Interim Application No. 01/2019 filed by Ramdas Pal
before the Hon'ble High Court. The Hon'ble High Court also dismissed
the Appeal From Order by order dated 23.09.2019.
In view of the findings of this Court upheld by Hon'ble High
Court, the present notice of motion cannot be entertained.
Considering the facts and circumstances of the case, the
judgments relied by the plaintiff do not help this case.
The plaintiff has failed to make out the 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. 3694/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 21.11.2019 City Civil Court, Mumbai.
Dictated on : 21.11.2019
Transcribed on : 23.11.2019
Signed by HHJ on : 30.11.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 30.11.2019 at 11.50 a.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
21.11.2019
JUDGMENT/ORDER signed by
P.O. on
30.11.2019
JUDGMENT/ORDER uploaded
on
30.11.2019
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