Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4511-19 in Suit No. 3296-19
CNR NO.MHCC0101230619
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 4511 OF 2019
IN
L.C. SUIT NO. 3296 OF 2019
Salman Imamodin Nensey & Ors. …...Plaintiff
Versus
Asst. Engineer (B&F) 'D' Ward & Anr. ...... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 20th January, 2020.
Appearance:
Ld. Adv. Mr. Shashipal Shaknar for plaintiff.
Ld. Adv. Mr. Suryavanshi 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 27.11.2013 and the
Order dated 31.01.2014.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. The Schedule of the Notice dated 27.11.2013 reads as under:
''a. Lowering of plinth by 0.75 mt & 1.00 mt. Average
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b. Construction of mezzanine floor ad. @ 20.00 mt x 5.80 mt x 2.20 mt
(avg.ht) by providing two nos. of staircase for mezzanine floor.
c. Removal of internal load bearing walls.
d. Making entrance opening for going inside the premises by
construction of steps in front of open space.
e. Making opening for going to open chowk of building.
f. Change of user from residential to commercial shop/office.''
4. The learned Advocate submitted that vide letter dated 01.10.1986
the defendants have approved lowering of plinth and construction of
mezzanine floor approved by Building Proposal Department and
therefore it is deemed to be regularized.
The mezzanine floor is in existence since 1982 and as per policy it
can be regularized.
So far as allegation of removing of load bearing walls, it is
submitted that those are vague. It is stated regarding the entrance the
permission is granted by the Fire Department. It is stated that
unauthorised constructions are of compoundable nature and can be
regularized.
5. The learned Advocate for the defendant corporation submits that
the documents filed by the plaintiff alongwith his reply were
considered. The speaking order was passed calling upon the defendant
to demolish the unauthorised structure and was also informed his
liability to be prosecuted under Section 475A of the MMC Act.
6. The plaintiff is required to show that the structures mentioned in
the notice were as per sanctioned plan or the plaintiff has to show that
the structures mentioned in the notice were in existence prior to 1962
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as it is a commercial structure. So far as lowering of plinth it is
observed in the order that W.O. (Estates) have directed the plaintiff to
produce the documentary evidence proving the authorization
permission of lowering of plinth and construction of mezzanine floor
approved by Building and Proposal Department. There is nothing to
indicate that the plaintiff was ever granted permission to lowering of
the plinth. The plaintiff had not produced evidence so as to legalize the
lowering of the plinth.
7. So far as allegation of mezzanine floor is concerned the plaintiff
had produced assessment record showing existence of mezzanine floor
since 1986. The said structure can be regularized in the light of policy
of corporation dated 15.08.1997. The mezzanine floor needs to be
protected during the pendency of the suit.
8. The allegation regarding removal of internal load bearing walls
are not justified by the plaintiff in its reply or in the pleading in the
plaint no permission to that effect is produced.
9. So as far the entrance at the opening is concerned, the plaintiff
relies upon the letter dated 25.02.1987. The permission was subject to
conditions. There is noting to infer that the conditions were ever
complied with by the plaintiff.
10. The plaintiff submits that he had made an application for
regularization of change of user of the notice structure, no permission
of structure appears to be granted in favour of the plaintiff. It is a
independent remedy available for plaintiff to prosecute.
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11. Considering the documents averments in the plaint the plaintiff
has option to get regularize the mezzanine floor. So far as item Nos. 1,
3 to 6 of the notice under Section 351 of the MMC Act, there is no
evidence to show the authorization of the structure. The plaintiff had
failed to make out case regarding item Nos. 1, 3 to 6.
In the result, following order is passed.
ORDER
1. The Notice of Motion No. 4511/2019 is partly allowed.
2. The defendants corporation are hereby restrained from demolishing
the mezzanine floor i.e. item No. 2 mentioned in the schedule of the
Notice under Section 351 of the MMC Act till the disposal of the suit.
3. The Notice of Motion relating to item Nos. 1, 3 to 6 of the Notice
dated 27.11.2013 and Order dated 31.01.2014 under Section 351 of
the MMC Act stands dismissed.
4. The plaintiff is directed to apply regularization of mezzanine floor
within four weeks from today.
5. The Notice of Motion stands disposed off accordingly.
(Sanjay N. Yadav)
Judge,
Date : 20.01.2020 City Civil Court, Mumbai.
Dictated on : 20.01.2020
Transcribed on : 21.01.2020
Signed by HHJ on : 22.01.2020
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5 NM 4511-19 in Suit No. 3296-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 22.01.2020 at 1.10 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
20.01.2020
JUDGMENT/ORDER signed by
P.O. on
22.01.2020
JUDGMENT/ORDER uploaded
on
22.01.2020
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