Interim Order 1

Order Details: Notice of Motion
Pdf Text: Draft Notice of Motion ..1.. In Suit No.2780/2019
CNR NO.MHCC010063262018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO. 2780 OF 2019
Pravin Ramchandra Sonawane,
Aged : 44 Years,
Residing At : Gala No. 10,
Valibhai Haiderbhai Compound,
Near State Bank of India,
Bail Bazar, Kurla (West),
Mumbai 400 070. ...Plaintiff
Versus
The Municipal Corporation of
Gr. Mumbai,
Having their Head Officer At :
Mahapalika Bhavan,
Mahapalika Marg,
Mumbai 400 001. ...Defendant
Appearance :
Mr. V. T. Dubey, Advocate for Plaintiff.
Ms. Mhatre, Advocate for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI A. N. MARE (C.R.No.11)
DATE : 24TH OCTOBER, 2019.
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Draft Notice of Motion ..2.. In Suit No.2780/2019
O R A L O R D E R
Plaintiff has sought adinterim injunction to restrain the
Defendant Corporation from implementing impugned notice issued
under Section 351 of the M.M.C. Act and to restrain it from demolishing
the first and second floor of the suit premises. The suit premises is a
ground plus two storey structure. The original structure's affected area
admeasuring 20 x 15 ft. was demolished for clearance of Tansa
Pipeline. The plaintiff was found ineligible for alternate accommodation
but was told by concerned officer to construct additional floor under
Kurar pattern. Therefore, he has constructed additional floor on the first
floor. The notice issued is vague.
2. Perusal of documents reveals that the plaintiff was
originally having structure consisting of ground plus mezzanine floor.
Mezzanine floor cannot be equated with the first floor. The assessment
bills submitted by the plaintiff reveals that the original structure
assessed in the year 1980 was an A.C. Shade and the mezzanine floor
was thereafter assessed with effect from 01.04.2010. Thus the
mezzanine floor is not the part of original structure.
3. According to plaintiff the officer has orally informed that
plaintiff can construct an additional floor as per Kurar pattern.
However, it needs to be mentioned that to raise construction even
under the Kurar Pattern permission is required.
4. Advocate for plaintiff has submitted that plaintiff has, vide
application dated 22.03.2018, applied for permission under Kurar
Pattern. Till date he has not received any reply on said application and
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Draft Notice of Motion ..3.. In Suit No.2780/2019
therefore, a deemed permission is considered to have been granted. It
needs to be mentioned here that for compliance of provisions of Section
237 of the M.M.C. .Act a person intend to erect a building has to submit
a plan specifying the position of building, its description the purpose for
its erection, its dimensions etc. In this case the application dated
22.03.2018 does not contain any details and therefore, the plaintiff
cannot take shelter of alleged deemed permission.
5. Above circumstances reveal that, the plaintiff on one hand
claims to have constructed the second floor on the basis of oral
permission whereas on the other handhe claims to have constructed it
on the basis of deemed permission. Thus, the palintiff is blowing hot
aand cold at the same time. This makes his entire case unreliable.
6. The documents produced by the plaintiff did not even at
this stage establish that the second floor is either authorized or
tolerated. Similar is the case with first floor as the mezzanine floor was
assessed only in the year 2010.
7. It is the plaintiff’s case that after service of impugned notice
dated 28.07.2019 he had been to the concerned officer who told the
plaintiff that its mere formality and therefore he did not file reply to the
impugned notice. The defendant has therefore, passed speaking order
dated 23.09.2019 to remove the notice structure of first and second
floor on the ground that plaintiff has not submitted reply and
documents. It is further plaintiff’s case that after receipt of speaking
order he again visited the officer who asked him not to worry about it.
However, on 19.10.2019 another officer threatened demolition and
therefore plaintiff has submitted reply to the defendant. Advocate for
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Draft Notice of Motion ..4.. In Suit No.2780/2019
plaintiff submitted that defendant may consider this reply and pass
another speaking order.
8. Even if an opportunity is given to the plaintiff, he will
produce the same documents before the defendant which hehas
produced before this Court. After considering all the documents, this
Court has concluded that the challenge to notice under section 351 is
unwarranted. Hence, directing the defendant to consider plaintiff's reply
will be futile exercise. Considering the circumstances of this case, the
conduct of the plaintiff and the delay on his part, I do not find
substance in the submission of the advocate for plaintiff that defendant
can now be directed to consider the reply filed after almost one month
of passing this speaking order.
9. Viewed from any angle even at this stage plaintiff’s case is
not believable. Hence, following order.
ORDER
1. Adinterim releif is refused.
2. Leave is granted to register Notice of Motion.
3. Defendant to file reply on the next date.
(A. N. MARE)
Judge,
Date : 24.10.2019 City Civil Court, Mumbai.
Dictated On : 24.10.2019
Transcribed on : 25.10.2019
HHJ Signed on : 04.11.2019
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Draft Notice of Motion ..5.. In Suit No.2780/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
04.11.2019 4.04 p.m. Mahendrasing D. Patil (H.G. Steno)
Name of the Judge H.H.J. SHRI. A. N. MARE
(Court Room No. 11)
Date of pronouncement of Order 24.10.2019
Order signed by P.O. on 04.11.2019
Order uploaded on 04.11.2019
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