Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4079-19 in Suit No. 2688-19
CNR NO.MHCC0101119819
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 4079 OF 2019
IN
L.C. SUIT NO. 2688 OF 2019
Abubaker Salim Begmohamed …...Plaintiff
Versus
Designated Officer, Asst. Engineer (B & F)D Ward …... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room No. 05)
Date : 25th November, 2019.
Appearance:
Ld. Adv. Mr. Hardik Desai 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 16.10.2018 and the
Order passed thereon on 01.10.2019.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. The Schedule of the Notice dated 16.10.2018 reads as under:
''1. Unauthorised extension of existing room at 4th Floor Flat
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by constructing Brick Masonry Wall & A.C. Sheet roof admeasuring 1.89
mt x 1.22 mt. as shown in sketch in red colour.
2. Unauthorised construction of shed with A.C. Sheet roof
supported over M.S. Angle at the balcony portion admeasuring 18. 0 mt
x 1.58 mt at Noor Mansion, 4th Floor, 7, Chowpatty Sea Face, Opp.
NanaNani Park, Mumbai07 as shown in sketch in red colour.''
4. The notice was issued to the plaintiff on 16.10.2018 by the
defendant corporation. The notice was replied by the plaintiff on
24.10.2018. It is argued by the plaintiff that the work mentioned in the
notice under Section 351 of the MMC Act is authorized and sanctioned
by the corporation. The plan approved of the year 1990 was referred in
the reply. It is contended that the plan shows the existence of notice
structure. It is argued that the notice was issued to harass the plaintiff.
It is contended that the notice structure was inspected on several
occasions.
The Learned Advocate submitted that further reply was given by
the plaintiff. It is contended that the allegation no. 1 in the notice is
repetition of the earlier notice issued to the father of the plaintiff under
Section 351 of the MMC Act. The same was subsequently withdrawn
on 21.02.1991. It is argued that alleged violation was in fact a
structure/construction which was sanctioned by the BMC. It is argued
that the show cause notice was issued at the behest of the complainant.
It is argued that the MHADA plan shows the existence of the premises.
It is contended that a lack of interdepartmental coordination led to the
issuance of the notice and the speaking order was passed on
01.10.2019.
The Learned Advocate argued that the notice of motion be
allowed. The corporation needs to be restrained from acting upon the
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notice and the order.
5. The Learned Advocate for the defendant corporation argued that
the three documents filed by the plaintiff were considered.
The Learned Advocate argued that the plaintiff had not attached
the copy of alleged earlier notice and the order issued under Section
351 of the MMC Act. The plaintiff had only relied upon the letter dtd.
21.02.1991 that too the photocopy. The Learned Advocate also
submitted that the MHADA's Repair Plan for the year 1990 does not
authorized the notice structure nor shows its existence prior to 1964.
The block plan relied by the plaintiff it is not approved by the Planning
authority.
The Learned Advocate submitted that the plaintiff has failed to
make out 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.
6. At the out set it needs to be mentioned that the plaintiff had
relied on the following three documents which is replied to the notice.
a) Letter u/no. DW/8780/BF dtd. 21.02.1991 of Ward Officer 'D'
Ward addressed to Shri. Salim E. Begmohammed, Noor Mansion, 4th
floor, Chopatty Sea Face, Bombay07.
b) MHADA's Repair Plan dtd. 13.08.1990
c) Block Plan u/no. DW/8780/BF dtd. 21.02.1991 bearing
signature of the then Ward Officer 'D' Ward.
7. Admittedly, there are two replies filed by the plaintiff. Reply
dated 24.10.2018 points out that the works are authorized and
sanctioned by BMC and are as per to repair plans of building approved
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in August 1990. The copy of plan for the year August 1990 relates to
MHADA's Repair Plan. Admittedly, at the plan of MHADA's repairs
cannot be said to be the Building Approved Plan by Planning Authority
i.e. Building and Proposal Department, MCGM.
In the reply dated 24.10.2018 it is contended that the alleged the
notice work is duly authorized and sanctioned by the corporation. It is
alleged that the structures are shown to be existing in the repairs plans.
Further the reply is given by additional reply dated 16.04.2019. It is
contended that the earlier notice was issued under Section 351 of the
MMC Act to the father of the plaintiff, Mutawalli of the Wakf. The
notice was withdrawn by letter dated 21.02.1991. The plaintiff had
relied upon letter dtd. 21.02.1991 of ward officer. In the speaking
order it is observed as follows:
''This document is photocopy of letter u/no. DW/8780 BF dtd.
21.02.1991 of Ward Officer 'D' ward addressed to Shri Salim E.
Begmohammed, Noor Mansion, 4th floor, Chowpatty Sea face, Bombay
07 wherein it is seen mentioned that ''By direction of Dy. Municipal
Commissioner (ZoneI) the notice under Section 351 of BMC Act under
No. D/Bldg. JE7/1/8990 dtd. 10.11.89 is herewith withdrawn please.''
You have not attached copy of said notice with your reply. Copy of any
such notice or letter could not be found in this office records even after
diligent search. You have not submitted authenticated copy of this
letter/document neither you have submitted any authenticated coy of
Notice mentioned in this copy of letter. Hence, this documents cannot
be considered as proof of authorization of structure to which the notice
presently issued. The said document cannot be considered as it does
not prove authorization of the notice work.''
8. The plaintiff alongwith letter dated 21.02.1991 had not filed the
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copy of the notice, the reply and the order. The defendant inspite of
diligent search could not find the letter in its record. The documents
was not considered. The Learned Advocate for the plaintiff tried to harp
on the facts that the structures are shown in the MHADA plan dtd.
13.08.1999. The said documents was not considered as plan was not
prepared by the Building Proposal Department. The block plan dated
21.02.1991 was also not considered as was signed by ward officer, it
was not approved by the Planning Authority i.e. Building Proposal
Department MCGM.
In the suit the plaintiff had filed the notice alleged to be issued on
10.11.1991. The order was passed on 18.02.1991. Admittedly, these
two documents were not filed before the competent authority with the
reply to the notice issued under Section 351 of the MMC Act. These
two documents are not reflected in the two replies filed by the plaintiff.
It is also not pleaded in the plaint that the earlier notice under section
351 of the MMC Act and the order were not in the knowledge of the
plaintiff and subsequently at the time of filing of the suit has come to
his knowledge.
Admittedly, the photocopy in earlier notice and the order and the
documents are filed. The letters also do not appear have the seal of the
corporation or any officer. So also, the reply of the plaintiff to the
notice do not find any reference to these two documents. The repair
plans may show the existence of the structure. It therefore cannot be
inferred that the construction in accordance with sanctioned plan or
was to in existence prior 1964.
9. Even assuming for while that the earlier notice under Section 351
of the MMC Act and the present notice under Section 351 of the MMC
Act issued by the corporation are same. It was for the plaintiff to show
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that the measurements in the earlier notice and the measurement
mentioned in the present notice are the same. The corporation in the
notice contended that the plaintiff had unauthorizedly extended the
existing room at 4th Floor Flat by constructing Brick Masonry Wall &
A.C. Sheet roof admeasuring 1.89 mt x 1.22 mt. and had constructed
the shed with A.C. Sheet roof supported over M.S. Angle at the balcony
portion admeasuring 18. 0 mt x 1.58 mt. The corporation has alleged
all together a new construction in the notice.
10. The plaintiff had not explained as to why the alleged earlier
notice under Section 351 of the MMC Act and the order passed thereon
was not filed the reply. There are no pleadings regarding the
knowledge to two these documents in the plaint. So also these two
documents are photocopies. It is difficult to rely on these documents.
The plaintiff also had not filed on record the assessment in
respect of the notice structures. No assessment record is tendered with
the defendant corporation alongwith the reply to infer that the structure
existed in 1964. The construction primafacie appears to be
unauthorised.
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. 4079/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 25.11.2019 City Civil Court, Mumbai.
Dictated on : 25.11.2019
Transcribed on : 02.12.2019
Signed by HHJ on : 03.12.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 03.12.2019 at 5.15 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
25.11.2019
JUDGMENT/ORDER signed by
P.O. on
03.12.2019
JUDGMENT/ORDER uploaded
on
03.12.2019
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