Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3706-19 in Suit No. 1447-17
CNR NO.MHCC0101007619
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3706 OF 2019
IN
L.C. SUIT NO. 1447 OF 2017
Shri Lal Krishn Gopwani …...Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai ….Defendant
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 25th November, 2019.
Appearance:
Ld. Adv. Mr. B.P. Shukla for plaintiff.
Ld. Adv. Mrs. Tondwalkar 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 (herein
after referred to as 'the MMC Act') dated 27.05.2017 and the order
dated 25.09.2019.
2. The Schedule of the Notice dated 27.05.2017 reads as under:
''Unauthorized horizontal extension to the flat no. 01 by
constructing part brick wall admeasuring 3.2m x 0.9m (ht) and part
m.s. jali admeasuring 3.5m x 2.6m (ht) at ground floor Candy House
Mere weather Road, Mumbai01 as shown in the sketch.'' It is not the
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2 NM 3706-19 in Suit No. 1447-17
case of the defendant that the plaintiff had carried out new
construction. It is extension to the existing structure.
The Learned Advocate for the plaintiff argued that interior were
repaired in the suit premises. It is contended that no structure as
alleged in the notice is constructed. The structure is in existence since
last 70 years.
It is for the plaintiff to show that the structures are included in
the sanctioned plan or the structure existed prior to 1964. The
documents filed by the plaintiff alongwith the reply are R.T.I.
application. Certified copy of the plan submitted from the City Survey
Office. The plan of City Survey Office does not show the internal
structures in the building. It is contended that the notice structure is
assessed from 1961. The flat may be assessed by the Municipal
Corporation but not the notice structure. The plaintiff has failed to
produced material to infer the existence of the notice structure.
3. The Hon'ble High Court in Public Interest Litigation No.
67/2017 had clarified the legal position for the benefit of this Court
and benefit of all the judges in State of Maharashtra were on such
grounds the suits are instituted. It had observed in paragraph no. ''5'' as
follows:
''5. Concerning a property, a suit to enforce or protect an interest in
the property which is governed by a Municipal Statute, the interest
protected has to be with respect to a plea that primafacie, the structure
which is being targeted is an authorized structure. Meaning thereby, the
plaint must make an averment of the sanction obtained from the
Corporation and must make an averment that the the structure targeted is
primafacie governed by the sanction. Merely pointing out the deficiencies
in the notice or the authority of the person issuing the notice is neither
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here nor there. Thus, the sine qua non of such kinds of suits is positive
assertion made with reference to the sanctioned building plans.''
The plaintiff has failed to show the sanction/permission of the
notice structure.
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. 3706/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 25.11.2019 City Civil Court, Mumbai.
Dictated on : 25.11.2019
Transcribed on : 25.11.2019
Signed by HHJ on : 28.11.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 28.11.2019 at 4.55 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
23.11.2019
JUDGMENT/ORDER signed by
P.O. on
28.11.2019
JUDGMENT/ORDER uploaded
on
28.11.2019
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