Final Order 1

Order Details: Order below exhibit
Pdf Text: ORDER BELOW EXH.1 AND DRAFT NM 1 IN L.C SUIT (ST) NO.14113/2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER BELOW EXHIBIT 01
AND
DRAFT NOTICE OF MOTION
IN
L.C. SUIT (ST) NO. 14113 OF 2019
Mr. Jawaharlal Agicha )
Proprietor of Lachmandas & Co., )
Adult, Indian Inhabitant, Near )
Ghorapdev Temple, 99, Ready Road, )
Mumbai – 400 033. )…Plaintiff
Versus
1. Municipal Corporation of Greater )
Bombay, (Brihanmumbai )
Mahanagarpalika Mahapalika Marg )
Mumbai – 400 001. )
2. Assistant Municipal Commissioner )
E Ward, of Municipal Corporation of )
Greater Bombay (Brihanmumbai )
Mahanagarpalika), 10, Shaikh )
Hafizuddin Marg, Byculla (W), )
Mumbai – 400 008. )....Defendants
APPEARANCE:
Ld. Adv. Prakash Nichani along with Ld. Adv. Vikas Kumbhar for
plaintiff.
Ld. Adv. Vidya Vyavahare for defendants/MCGM present.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 19th MARCH, 2021.
O R D E R
Read the plaint, Notice of Motion, perused the documents
filed along with plaint. Heard both the learned advocates.
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ORDER BELOW EXH.1 AND DRAFT NM 2 IN L.C SUIT (ST) NO.14113/2019
2. The plaintiff vide this notice of motion seeks temporary
injunction restraining the defendants BMC from taking any action from
demolition in respect of suit premises in pursuance of notice u/sec.354
A of MMC Act dated 23.08.2018 and speaking order dated 13.03.2019.
Description of Suit Premises
3. Plot No.99, Ray Road, Near Ghorupdev Temple, Next to
Patidar Saw Mill, Mumbai – 400 033.
Description of Notice Structure as described in impugned notice
dated 23.08.2018
4. 1) Unauthorized Construction of 09 nos of cabins each adm
3.5m X 3.0m X 3.0m (ht) by using M.S. angle and iron sheet partitions
on ground floor of Lalchmandas & Co. 99 Ray Road, Ghodepdev
Temple, Mumbai, Maharashtra 400 010, India.
2) Unauthorized construction of 18 nos of Toilet each adm
1.5m X 1m X 2m (ht) by using M.S. angle and iron sheet partitions on
ground floor of Lachmandas & Co. 99 Ray Road, Ghodepdev Temple,
Mumbai, Maharashtra 400 010, India.
3) Unauthorized excavation by digging ground adm 2m X
2.5m X 2m (ht) for septic tank on ground floor of Lachmandas & Co. 99
Reay Road, Ghodepdev Temple, Mumbai, Maharashtra 400 010 India.
4) Unauthorized construction of 12 nos of cabins each adm
8m X 6m X 2.8m (ht) by using MS angle and iron sheet partitions on
authorized mezzanine floor of Lachmandas & Co. 99 Reay Road,
Ghodepdev Temple, Mumbai, Maharashtra 400 010, India.
5. During arguments on adinterim relief, learned advocate
for plaintiff submitted that he will move proposal for regularization
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ORDER BELOW EXH.1 AND DRAFT NM 3 IN L.C SUIT (ST) NO.14113/2019
before MMC Act. Therefore, the matter was adjourned on 12.03.2021.
6. Thereafter, on 15.03.2021 when the matter was taken up
for orders learned advocate for defendant BMC raised objection that as
the structure is unauthorized, how plaintiff can ask for regularization.
Therefore, presence of learned advocate for plaintiff was required. As
learned advocate for plaintiff was not present at that time, matter was
adjourned. On 16.03.2021 learned advocate for plaintiff was absent
and therefore accordingly order was passed on 16.03.2021 in roznama.
7. Today, learned advocate for plaintiff is present and he
submitted that he has collected all the papers which are required for
filing the proposal of regularization. He also submitted that he has
learnt that MBPT is the planning authority. Learned advocate for
defendant BMC denied this fact. Learned advocate for plaintiff therefore
requested that they will move proposal of regularization first before
MCGM. If in any case, if officers of BMC says that they are not planning
authority, then plaintiffs may be permitted to move before the
concerned planning authority and accordingly protection of one week
be granted to them.
8. Learned advocate for defendant BMC had made submission
that in meantime plaintiff should maintain statusquo and that plaintiff
should be put to risk with respect to suit premises. Learned advocate for
plaintiff has acceded for same.
9. In light of submissions of both the sides and as officer of
BMC Shri. Amol B. Gawali, who is present before court has also
acceded for this proposal, and in light of the observations in the case of
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ORDER BELOW EXH.1 AND DRAFT NM 4 IN L.C SUIT (ST) NO.14113/2019
Kangana Raut through C.A. Neha Ansari V/s. The Municipal
Corporation of Greater Mumbai and another in Appeal From Order
(Stamp) No.2059 of 2021 decided on 10.02.2021, as plaintiff is
intending for regularization, it will be appropriate for the planning
authority to decide the same. The arguments of learned advocate for
plaintiff that if in case, officers of BMC say that they are not planning
authority then plaintiff be permitted to move before the appropriate
planning authority and plaintiff be protected for period of one week
also appears sound.
10. From the information provided by the officers of BMC, 20
to 30 percent demolition is carried out in the suit premises. Plaintiff has
acceded to maintain statusquo and under taken the risk &
responsibility in suit premises.
11. In light of aforesaid submissions, both the learned
advocates agreed for disposal of suit and notice of motion. Therefore,
the suit and notice of motion needs to be disposed of by giving time
frame for going for regularization before BMC and protection as asked
for. Accordingly, I proceed to pass following order
O R D E R
1. Draft Suit and Draft Notice of Motion are disposed of.
2. Plaintiff shall submit the proposal of regularization before the
defendant BMC within 8 days of this order.
3. The defendant BMC or any planning authority shall decide &
dispose of the regularization application of plaintiff as
expeditiously as possible in accordance with law.
4. In case of any adverse order against plaintiff, no coercive steps
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ORDER BELOW EXH.1 AND DRAFT NM 5 IN L.C SUIT (ST) NO.14113/2019
shall be taken thereafter for a period of 1 week.
5. Failing to move such proposal within aforesaid time frame by
plaintiff, he will not be entitled to protection order granted
today.
6. In case if defendant BMC informs plaintiff that they are not the
planning authority and that there is some other planning
authority, plaintiff is given liberty to move before appropriate
planning authority. In this case defendant BMC shall not take
action for period of 1 week from date of intimation to plaintiff
with respect to their want of jurisdiction.
7. In this entire period from date of today's order, plaintiff shall
maintain statusquo with respect to suit premises and same will
be solely at his risk
8. In view of the above directions, Draft Suit and Draft Notice of
Motion are disposed of.
9. Draft Suit and Draft Notice of Motion be registered for statistical
purposes.
(SMT C.P. Jain)
Adhoc Judge, (C.R.No.06)
Date : 19.03.2021 City Civil Court, Gr. Bombay
Directly dictated on computer :19.03.2021.
Checked on :20.03.2021.
Signed on :23.03.2021.
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ORDER BELOW EXH.1 AND DRAFT NM 6 IN L.C SUIT (ST) NO.14113/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 23.03.2021, 12.10 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
19.03.2021
JUDGMENT/ORDER signed by
P.O. on
20.03.2021
JUDGMENT/ORDER uploaded on 23.03.2021
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