Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 4790/19 in Suit No. 3010/19. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4790 OF 2019
(CNR NO. MHCC010130752019)
IN
LONG CAUSE SUIT NO. 3010 OF 2019
(CNR NO. MHCC010118012019)
Crescent Business Premises Cooperative Ltd. ...Plaintiffs
Versus
Shri Manjeesh Valecha and another ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 2nd JANUARY, 2020.
Mrs. Harshita ChoukKinikar, Advocate for Plaintiffs.
Mr. V.T.Dubey, Advocate for Defendant No.1.
Ms. Mhatre, Advocate for Defendant No.2 / MCGM.
ORDER
This is a motion taken out by plaintiff to demolish
unauthorized construction done by defendant no.1 on suit premises i.e.
Unit No.503, Crescent Business Premises Cooperative Society situated
at Kherani Road, Sakinaka, Andheri (East).
2. According to plaintiff, defendant no.1, owner of suit
premises has constructed 7 internal units in the suit structure. Every
unit is selfcontained with attach toilet and bathroom. There is no
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N/m No. 4790/19 in Suit No. 3010/19. 2 Order.
permission obtained by defendant no.1. It is claimed to initiate action
to stop the construction and to demolish the construction partly
completed by the defendant no.1.
3. Perused reply submitted by defendant no.1. It is averred
that there is no illegal construction done by the defendant no.1. In
response to various applications submitted by defendant no.1 against
the illegal construction of other society members, this is a counterblast
preferred by plaintiff. It is claimed to reject the motion.
4. There is no reply submitted by defendant no.2. i.e. MCGM.
Ld. advocate Mhatre for MCGM submits that MCGM will consider
propriety of the construction and will obtain appropriate action if
impugned construction is found illegal. It is added that when defendant
no.1 approached the Court alongwith application that proposal for
authorization of structure has been filed, which infer that impugned
construction is illegal. It is submitted for appropriate order.
ARGUMENTS
5. Ld. advocate Kinikar for plaintiff submits that defendant is
owner of Unit No.503. Defendant has constructed 7 internal units
alongwith attach toilet and bathroom which has increased massive
weight on the structure. In view of letter dated 19/08/2019, plaintiff
has informed the impugned construction activity of defendant no.1 to
the MCGM. However no action initiated by the MCGM against the
defendant no.1. In view of circular of MCGM dated 27/03/2012,
partition to some extent is allowed, however impugned construction of
defendant no.1 is a structural change. It is claimed for immediate
action against defendant no.1.
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N/m No. 4790/19 in Suit No. 3010/19. 3 Order.
6. Ld. advocate V.T.Dubey for defendant no.1 submits that in
view of registered agreement dated 03/07/2019, defendant no.1 has
purchased suit premises from Mr. Gulam Shaikh. It is requested to
peruse two N.C. cases and three complaints preferred by defendant
no.1. Defendant no.1 has requested the appropriate authority for illegal
construction on various floors of the building. Therefore plaintiff has
preferred this suit to harass defendant no.1. In view of Structural
Stability Certificate issued by Mr. Mehta dated 10/10/2019, it will
cause no harm to the entire structure of the building. On the contrary,
defendant no.1 has submitted application for authorization alongwith a
map on 25/10/2019. It is added that one unit was handed over to
every purchaser by the builder, wherein internal changes has been
carried out by every unit holder. It is requested to reject the motion.
REASONS
7. According to defendant no.1, he is owner of 50% share in
the suit premises alongwith his father. However there is no submission
of defendant no.1 that suit is bad for nonjoinder of necessary parties.
Defendant no.1 is failed to produce copy of the agreement. There is no
map annexed by either side in respect of sanction plan or occupation
certificate issued by MCGM.
8. On perusal of copy of agreement dated 03/07/2019, now
shown by ld. advocate for defendant no.1, it is not disputed that
defendant no.1 is a legal owner of suit premises comprising 856 sq.ft.
Admittedly there is no case of encroachment.
9. On perusal of two N.C. dated 05/09/2019 and 27/11/2019
and three complaints to MCGM dated 18/09/2019, 23/09/2019 and
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N/m No. 4790/19 in Suit No. 3010/19. 4 Order.
01/12/2019 preferred by defendant no.1, it appear that in entire
building various unit holder has done required changes and
construction of internal units. It is surprising to note that despite
various correspondence by both side to MCGM, no action came to be
initiated by the concern officer.
10. It is amazing to note that there is no document submitted
by MCGM in respect of visit by concern officer to the office premises of
Crescent Cooperative Society to verify substance in any complain, as
mentioned above.
11. In view of four photographs submitted by plaintiff, it was in
respect of construction in progress. However, as per photograph
submitted by defendant no.1 alongwith reply, internal units are
complete and they are in use of defendant no.1. It is material to note
that there is no case of encroachment on public premises / society
premises nor there is a case of encroachment by any adjacent owner.
There is no notice issued by MCGM in respect of illegal or unauthorized
construction.
12. As mentioned above, sanction plan of entire structure is not
produced by either side, therefore, it cannot conclude that what was the
position of structure prior to purchase by defendant no.1. Considering
aforesaid discussion, there is no prima facie case in favour of plaintiff.
As discussed above, structure is already completed, therefore, both
parties are at liberty to proceed for appropriate remedy. Resultantly,
balance of convenience lies in favour of defendant no.1. It will cause no
irreparable loss to the plaintiff, if application stands rejected.
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N/m No. 4790/19 in Suit No. 3010/19. 5 Order.
13. MCGM is at liberty to initiate proper action in view of
various reports submitted by both side in respect of numerous
allegations moved on behalf of plaintiff and defendant no.1. Hence the
order :
ORDER
1. Notice of Motion No. 4790/2019 stands dismissed.
2. N/m No. 4790/19 is disposed off accordingly.
3. MCGM is at liberty to initiate proper action in respect of
various reports submitted by both side, as mentioned
above.
4. Defendant no.1 is directed to produce photocopy of various
documents, as mentioned above and referred during
arguments.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 02/01/2020. Mumbai.
1. Dictated on : 02/01/2020.
2. Transcribed on : 02/01/2020.
3. Signed on : 02/01/2020.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 4790/19 in Suit No. 3010/19. 6 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06/01/2020. 1.02 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 02/01/2020.
Judgment/Order signed by P.O. on 02/01/2020.
Judgment/Order uploaded on 06/01/2020.
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