Order 1

Order Details: Other
Pdf Text: 1 Ad-Int Order- Draft NM in SU3357-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF ON
DRAFT NOTICE OF MOTION
IN
SUIT NO. 3357 OF 2019
(CNR no. MHCC010131502019)
Mr. Saghir Ahmed Khan ]
Age : 61 years, Occ Scrap Vendor ]
having address at T/O/X/281/2 ]
(Municipal Structure No.21), ]
Ramchandra Patil Chawl, Goregon Mulund Link Road, ]
Opp. Marind India Ltd., Mumbai 80. ]... Plaintiff
Versus
Municipal Corporation of Greater Mumbai, ]
Assistant Commissioner "T" Ward, ]
Lala Devi Dayal Marg, Mulund (W), Mumbai 80. ]....Defendant
Appearances:
Ld. Advocate Mr. Kudalkar for the Plaintiff.
Ld. Advocate Mrs. R. M. Hazare for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 8)
DATED : 20th December, 2019
O R A L O R D E R O N A D I N T E R I M R E L I E F
1. Perused plaint, Notice of Motion, documents annexed to
the plaint, documents filed by either parties including photographs and
heard both sides. The plaintiff has challenged notice dated 13.12.2019
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and speaking order dated 17.12.2019 purported to be under Section
354A of Mumbai Municipal Corporation Act, 1888 (hereinafter "MMC
Act") in respect of the suit premises for alleged "Unauthorized vertical &
horizontal extension of brick masonry wall instead of M.S. Sheet wall
and A.C. sheet roof admeasuring as shown in sketch". Ld. Advocate for
the plaintiff has vehemently argued that considering the location and 4
boundaries mentioned in the plaint there is no scope for horizontal
extension and the defendant/MCGM has given the instant notice to
harass the plaintiff who not only removed part of its structure for road
widening but also carried out repairs prior to 06.11.2019 after taking
permission of defendant/MCGM. Ld. Advocate for the plaintiff has
further argued that the construction/repair of the suit premises was
completed and therefore, the notice under Section 354A (stop work
notice) is not maintainable. He has also raised issue of law that the suit
premises is located in slum area and therefore, defendant/MCGM has
no authority under MMC Act to issue the impugned notice.
2. I have gone through the documents and photographs filed by
both sides. The plaintiff has produced voluminous documents showing
his long standing occupation in the suit premises. However, any suit to
protect or enforce or protect the property which is governed by the
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municipal statue, the interest protected to be with respect to plea that
prima facie the structure which is being targeted is authorized structure.
The plaint must make an averment of the sanction obtained from the
corporation and must make an averment that the structure targeted is
prima facie governed by the sanction. In this matter, the plaint does not
incorporate any averment of the sanction or showing existence of the
suit premises prior to the datum line i.e.01/04/1962.
The plaintiff has not averred that slum rehabilitation scheme is
being implemented in the area where the suit premises is located.
Therefore, in view of judgment of Hon'ble Bombay High Court in Mr.
Mohd. Zuber Mohd. Yusuf Memon Vs. Municipal Corporation for
Gr. Mumbai [order dated 15.10.2016 in A.O.(St.) No.27460 of
2016] mere declaration of the area as slum area is not sufficient to hold
that the Municipal Corporation has not authority to take any action
against unauthorized construction falling in slum area. The municipal
corporation, being the Town Planning Authority, is having every power
and authority to take such action. In view of above principle, there is no
merit in the contention that defendant/MCGM has no authority to take
action against the suit premises because it is located in slum area.
Ld. Advocate for the plaintiff has contended that the plaintiff has
not made any new construction in the suit premises and the
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photographs filed by the defendant/MCGM are of the different
structure. Even if there is no prayer in the notice of motion for
appointment of Court Commissioner, he has prayed to appoint the
Court Commissioner to find out whose photographs are correct. After
carefully going through the photographs, it can be seen that the plaintiff
has closed two windows on the upper side of the suit structure after
18.12.2019, only to show that the defendant/MCGM is not tendering
true photographs of the suit premises. From this it is clear that the
plaintiff is not coming before the Court with clean hands.
3. For the reasons given above, I do not find prima facie case in
favour of plaintiff to grant temporary injunction against
defendant/MCGM, a local authority, therefore, following order :
ORDER
Adinterim relief is rejected.
(C. V. Marathe)
Judge,
Date : 20.12.2019 City Civil Court, Gr. Mumbai.
Dictated on : 20.12.2019
Transcribed on : 20.12.2019
Signed by HHJ on : 21.12.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 23.12.2019 at 11.29 a.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
20/12/2019
JUDGMENT/ORDER signed by
P.O. on
21/12/2019
JUDGMENT/ORDER uploaded
on
23/12/2019
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