Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 44362019 IN ST 12891/19
CNR NO. MHCC010121782019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4436 OF 2019
IN
STAMP NO.12891 OF 2019
Mr. Mohammed Sajid Yunus Qureshi )
Age : 29 years Occ : Business, )
Residing at Shop No.3, Chawl No.57, )
Mohamed Safi Vali Mohammed Chawl, )
Opposite Badi Majid, Haji Karamatali Road, )
Qureshi Nagar, Kurla (East) )
Mumbai 400 070. )....Plaintiff.
Versus
1. Municipal Corporation of Greater Bombay )
a body corporate, Incorporated under )
the provisions of M.M.C. Act, 1988, )
Having its offices at Mahapalika Bhavan )
Mahapalika Marg, C.S.T. Fort, Mumbai )
2. Asst. Municipal Commissioner )
LWard, Municipal market/L.Y. Market Building )
S.G. Barve Marg, Kurla (West), )
Mumbai 400 070 )... Defendants.
CORAM : HIS HONOUR JUDGE
SHRI G.G. Bhansali
(C.R. No.11)
DATE : 6th December, 2019.
APPEARANCE :
Ld. Advocate Mr. Pratap Singh for the plaintiff.
Ld. Advocate Mr. Giri for the MCGM/Defendant.
-- 1 of 5 --
: 2 : NM 443619 IN ST 1289119
O R D E R
1. This is a motion taken out by plaintiff tenant to challenge
the notice dated 19.11.2018 issued by the MCGM u/sec. 354(A) of
Mumbai Municipal Corporation Act. According to plaintiff suit property
is Shop No.3, situated at Survey No.275, Hissa No.4, Kurla, known as
“Mohd. Safi Vali chawl”.
2. Learned advocate Pratap Singh for plaintiff submits that
notice to stop work was issued to the landlord owner Ms. Kamrunissa on
19.11.2018. Thereafter speaking order was passed by the MCGM on
27.11.2018. On 11.11.2019, the notice u/sec. 488 of MMC Act, came to
be issued by the defendant. The guidelines given in Sopan Maruti
Thopte and another v. Pune Municipal Corporation and others (AIR
1996 BOMBAY 304) are not followed by the defendant/MCGM. Plaintiff
is possessing on ground floor since his ancestor. He has paid regular rent
to the landlord. In view of property assessment, it was the first
assessment on 01.04.1961. Plaintiff is having a water connection, electric
bill, rent card and passport. In view of survey slip dated 26.07.2000,
plaintiff is shown as a protected tenant. As plaintiff remember, since long
there is a ground plus one structure over the suit property. According to
structural audit report, suit property is in livable, so many tenants are
staying there. It is prayed for temporary injunction.
3. Learned advocate Mr. Giri for MCGM/defendant submits
that there is no proper service of notice. If plaintiff has served the notice
by private courier or speed post, defendant has not received the notice. It
is added that there are numerous and repeated litigation filed by the
plaintiff by fresh person as one gets rejected. It is added that the landlord
-- 2 of 5 --
: 3 : NM 443619 IN ST 1289119
has filed a suit to protect her ground plus seven structure, thereafter one
purchaser Mr. Nadeem Khan preferred a suit, thereafter tenants has filed
the suit. It is claimed to reject the Motion with cost.
:: R E A S O N S F O R O R D E R ::
4. Learned advocate Mr. Pratap Singh for plaintiff relied on
Mohd Zuber Mohd. Yusuf Memon V/s Municipal Corporation Gr.
Mumbai reported in (Stamp) No. 27460 of 2016 with Civil Application
(Stamp)No.27463 of 2016, Muni Suvrat Swami Jain V/s. Arun
Nathuram Gaikwad & Others (2006) 8 supreme Court cases 590,
appeal from order (St.) No. 26811/2017 Mohd. Salim V/s. The
Municipal Corporation of Gr. Mumbai & Anr. In aforesaid case laws,
the scope of section 353(A) and 351 (1) of MCGM is discussed at length.
5. Admittedly, the provision of Section 354(A) have nothing to
do with the question of demolition. However, it was observed in the
peculiar facts when no work was carried out. In present case, plaintiff
himself narrated in paragraph (9) and (21) that landlord and Mr.
Nadeem Khan has unauthorisely constructed four floors without any
permission. In such situation, plaintiff can not claim to stay effect to the
notice issued issued by MCGM u/sec. 354(A) of MMC Act.
6. Admittedly, the impugned notice dated 29.11.2018 is
challenged in various litigation prior to the plaintiff. It is opined by this
court in repeated order that in view of assessment list, as annexed by
plaintiff on page No.42, the assessment is pertaining to "Tiled Shed". In
such situation, if there is any additional construction, it is duty of
-- 3 of 5 --
: 4 : NM 443619 IN ST 1289119
occupier to explain its authenticity and illegality. As observed in Mohd.
Zuber V/s. Municipal Corporation Gr. Mumbai (supra) that,
"The suit premises are not assessed to census so as
to attract the bar under the provisions of the
Maharashtra Slum Area Act and hence according
to learned counsel for the respondent Municipal
Corporation, the impugned order passed by the
Trial Court does not call for any interference."
7. Plaintiff is entering into the shoes of landlord
Smt. Kamrunissa. The suit preferred by Kamrunissa that is L.C. Suit
No.661/2019 came to be unconditionally withdrawn by her. The Notice
of Motion preferred by her legal heir also rejected by this court. As
observed in Mohd. Ismail Allabax Hirapure & Ors V/s. The Municipal
Corporation of Gr. Mumbai in Appeal No.771 of 2019 in Stamp
No.15043 of 2019 dated 28.06.2019 that "the tenant can not claim
protection to its structure which is unauthorised." Considering aforesaid
discussion, there is no primafacie case in favour of plaintiff.
8. Plaintiff is failed to produce rent agreement. The detail
reasons are given by this court in order dated 04.12.2019 passed in
unregistered Notice of Motion in Stamp No.12535/2019. It clearly
indicate that plaintiff has endeavor to protect unauthorise construction
of landlord by preferring one after another suit. It clearly establish a
good case of abuse of process of law. There is balance of convenience lies
in favour of defendant. Irreparable loss would be cause to public at large
and people reside nearby, if building collapse. Hence, Notice of Motion
deserves to be rejected. Hence, the order.
-- 4 of 5 --
: 5 : NM 443619 IN ST 1289119
ORDER
1. The Notice of Motion No.4436 of 2019 stands rejected.
2. MCGM is at liberty to take action in accordance with law against
the illegal construction made on the suit property.
3. The Notice of Motion No. 4436 of 2019 is disposed off accordingly.
Date : 06/12/2019 (G. G. BHANSALI)
Judge, City Civil Court,
C.R.No.11, Gr. Mumbai.
Dictated On : 06.12.2019
Transcribed on : 06.12.2019 & 07.12.2019
HHJ Signed on : 07.12.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
07.12.2019 05.51 p.m. Harshal D. Jagtap (H.G. Steno)
Name of the Judge H.H.J. SHRI. G.G. BHANSALI
(Court Room No. 11)
Date of pronouncement of Order 06.12.2019
Order signed by P.O. on 07.12.2019
Order uploaded on 07.12.2019
-- 5 of 5 --