Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3802-19 in Stamp No.10828-19
CNR NO.MHCC0101027419
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 3802 OF 2019
IN
L.C. SUIT (STAMP) NO. 10828 OF 2019
Smt. Shailaja S. Mhatre …...Plaintiff
Versus
Brihanmumbai Municipal Corporation & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 07th November, 2019.
Appearance:
Ld. Adv. Mr. S. Venkateshwar for the plaintiff.
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary 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 03.07.2019 and
the Speaking Order dated 22.07.2019.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. The schedule of the notice dated 03.07.2019 reads as under:
''Unauthorized reconstruction of unauthorized structure
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2 NM 3802-19 in Stamp No.10828-19
which were demolished by this office on 09.06.2015 and 30.03.2017 in
pursuant to notice issued under Section 354A of the MMC Act u/no.
D/Bldg/SE215/354/A/BF dtd. 17.09.2014 by way of unauthorized
addition and alteration at 2nd floor including construction of 8 nos. of
rooms with Brick Masonry walls alongwith W.C. in each room at 2nd
Floor, Pathare House, J.S.S. Road, Kennedy Bridge, Opera House,
Mumbai04 as shown in sketch in red colour.''
4. The defendant corporation had visited the suit site on 16.09.2014
and found that unauthorized addition/alteration at 2nd Floor including
construction of 6 rooms with Brick Masonry Wall alongwith W.C. in
each room. The notice was issued under Section 354 A of the MMC Act
on 17.09.2014. The plaintiff has submitted the reply dated 17.09.2014
stating for regularization. Thereafter, it was concluded by the
corporation that the notice structure was unauthorized and speaking
order was passed on 22.07.2019. The notice structure was demolished
on 09.06.2015 with the help of D.B. Marg Police Station. In the routine
inspection, the notice structure was found to be reconstructed.
Therefore, the notice was issued to plaintiff on 03.07.2019. The
plaintiff did not reply the notice and therefore speaking order was
passed on 22.07.2019. The present suit is instituted on 07.10.2019. It
is contended by the plaintiff that the notice is in contravention with law.
5. The plaintiff had submitted the regularization proposal for repairs
and alteration. The plaintiff had not deny the reconstruction of the
notice structure. Going by the pleadings by the defendant corporation
the notice work is demolished on 09.06.2015. The proposal for
regularization is not considered by the corporation and construction
was found to be unauthorised. The plaintiff again had reconstructed
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3 NM 3802-19 in Stamp No.10828-19
the notice structure. The construction of the plaintiff is without
sanction and cannot be protected. The plaintiff had sought equitable
relief. The equity is not in favour of the plaintiff.
The plaintiff has failed to make out the primafacie case in his
favour. The balance of convenience does not lie 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. 3802/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 07.11.2019 City Civil Court, Mumbai.
Dictated on : 07.11.2019
Transcribed on : 08.11.2019
Signed by HHJ on : 19.11.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 20.11.2019 at 3.37 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
07.11.2019
JUDGMENT/ORDER signed by
P.O. on
19.11.2019
JUDGMENT/ORDER uploaded
on
20.11.2019
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