Order 1

Order Details: Other
Pdf Text: 1 Ad-Int Order on Draft NM SU-2733-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF IN
DRAFT NOTICE OF MOTION
IN
SUIT NO. 2733 OF 2019
(CNR no. MHCC010106122019)
Pandharinath Moreshwar Pathare ]
Age : 62 years, residing at D132, ]
situated on plot bearing CTS No.1224(Pt), ]
1224/1, 1224/2, 1224/3, 1223, 1223/1, ]
Chembur Gaothan, Chembur(East), Mumbai400071. ]... Plaintiff
Versus
1. The Municipal Corporation of Gr. Mumbai, ]
a body Corporate duly incorporated under ]
the provisions of MMC Act, 1888 having ]
its office at Mahanagar Palika Marg, ]
Mumbai400 001, through its ]
Assistant Engineer (B&F)/D.O., ]
M/West ward, Municipal office, ]
Sharadbhau Acharya Marg, Near Natraj Cinema, ]
Chembur, Mumbai400071. ]
2. Mr. Dharmendra Bhagwant Mhatre ]
Age : 49 years, Occupation : Service ]
3. Mrs. Nanda Satish Thakur ]
Age : 48 years, Occupation : Service ]
4. Mr. Kiran Bhagwant Mhatre ]
Age : 46 years, Occupation : Service ]
All residing at 54, "Pitashray", 2nd floor, ]
Chembur Gaothan, Chembur, Mumbai400071. ]....Defendants
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2 Ad-Int Order on Draft NM SU-2733-19
Appearances:
Ld. Advocate Mr. P. S. Bhosale with Ld. Advocate Mr. S. K. Bhosale for
the Plaintiff.
Ld. Advocate Mr. Pratap Singh for defendant no. 2.
None for defendant no. 1/MCGM.
None for defendants no. 3 and 4.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 8)
DATED : 23th October, 2019
O R A L O R D E R O N A D I N T E R I M R E L I E F
1. Perused plaint, documents annexed thereto, notice of
motion and heard both sides. After perusal of the plaint allegations and
the prayers made therein, it can be gathered that the plaintiff is
challenging various proceedings initiated under Section 351 Mumbai
Municipal Corporation Act,1888 (hereinafter "MMC Act") for the
following alleged unauthorized work carried out by the plaintiff in the
suit premises (as described in the plaint):
"Unauthorized construction of first floor over existing ground
floor structure using brick masonry and RCC slab roof at D/132,
Chembur, Gaothan, Mumbai71."
2. While arguing in support of the Notice of Motion, Ld. Advocate
for the plaintiff has stressed upon the fact that the suit premises is
located in ‘Gaothan’, it is very old structure existing prior to 1962 and
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3 Ad-Int Order on Draft NM SU-2733-19
existence of first floor was much prior to the plaintiff coming in to
possession of the suit premises in 1994. Ld. Advocate for the plaintiff
has also pointed out that the defendant no.2, a complainant, has also
narrated in his complaint dated 03.10.2017 that the tenant Balkrishna
Sadanand Mhatre is residing at ground floor and the said fact suggests
that the plaintiff resided on first floor of the suit premises since
beginning. However, it can be seen from the Conveyance Deed dated
16.04.1994 that at the time of conveyance, the plaintiff was residing at
D131 which is a separate structure adjacent to the suit premises. The
said Conveyance Deed also shows that the suit premises was in
dilapidated condition due to its old age and it was consisting of two
tenants and the vendor was unable to evict them. In the entire
description of the suit premises in that deed it is nowhere mentioned
that the same is a G+1 structure. The utility bills,
documents/assessment extracts of the suit premises are insufficient to
show existence of first floor with prior permission of defendant/MCGM.
Ld. Advocate for the defendant no. 2 has shown an extract prepared by
defendant no.1/MCGM dated 22.05.2015 which clearly shows that the
suit premises having only ground floor was considered for capital value
calculation.
Gaothan is portion of the land of the village which is ordinarily
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4 Ad-Int Order on Draft NM SU-2733-19
used for settlement. “Gaothan “or” village site" means the land included
within the site of a village, town or city as determined by section 122 of
Maharashtra Land Revenue Code, 1966. Ld. Advocate for the plaintiff
has failed to show any special provision for Gaothan land which
exempts the occupier from prior permission of the Planning Authority
before starting construction or making changes/extension to the
existing structure of the building. For all the above reasons, the plaintiff
has failed to prima facie establish that the first floor to the existing
structure of the suit premises is not in existence prior to the datum line
17.04.1964 or it is an authorized structure or it is constructed as per
plans approved by AE(B&F)/Ward M/West or by any other Competent
Authority.
3. Ld. Advocate for the plaintiff has tried to show from the letter
dated 20.12.2017 that the plaintiff initially applied for repair
permission on 18.02.2016 and after receiving no reply from the
defendant no.1/MCGM, he carried out the tenantable repairs in the suit
premises. However, the said letter dated 18.02.2016 is no supported by
the building plan prepared by Architect or not giving any details of
existing structure. Moreover, in that letter the plaintiff sought extension
of height of the mezzanine floor. This prayer does not come within the
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definition of tenantable repair and the same can be made only after
permission of defendant no.1/MCGM. As discussed hereinearlier, the
plaintiff has failed to prove existence of first floor with authorization or
it is tolerated structure. Therefore, the plaintiff is not entitled for ad
interim relief. Hence, adinterim relief is liable to be rejected and
following order:
ORDER
1. Adinterim relief is rejected.
(C. V. Marathe)
Judge,
Date : 23.10.2019 City Civil Court, Gr. Mumbai.
Dictated on : 23.10.2019
Transcribed on : 23.10.2019
Signed by HHJ on : 23.10.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 23.10.2019 at 5.28 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
23/10/2019
JUDGMENT/ORDER signed by
P.O. on
23/10/2019
JUDGMENT/ORDER uploaded
on
23/10/2019
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