Allowed

Smt. Sahzadi Umar Pathan v. Municipal Corporation of Greater Mumbai and Another

Bombay HC12 Jul 2023AO/184/2023

Case brief

AI extract

What is this about?

The Court disposed of an appeal against an order declining ad-interim relief in a suit concerning alleged unauthorized construction. The appeal was allowed directing the City Civil Court to decide the Notice of Motion expeditiously.

What did the court decide?

A directs the Court below to dispose of the Notice of Motion as soon as possible; B to file reply within three weeks; interim protection to continue till disposal of the Notice of Motion.

Smt. Sahzadi Umar Pathan Vs Municipal Corporation… — Municipal and Town Planning | Bombay HC (2023)

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20-ao-184-2023.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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APPEAL FROM ORDER NO.184 OF 2023 WITH

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INTERIM APPLICATION NO.2262 OF 2023

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VISHAL SUBHASH PAREKAR

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Digitally signed by VISHAL SUBHASH PAREKAR Date: 2023.07.14 11:10:43 +0530

Sahzadi Umar Pathan

...Appellant

vs.

Municipal Corporation of Greater Mumbai and Another ...Respondents

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Mr. Pratap Singh a/w. Mr. Shailesh Pal, for the Appellant. Mr. Kaushik Mhatre, for the respondent-BMC. Ms. Bhagshree Somkuwar, Designated Officer, M/West Ward present.

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CORAM : N. J. JAMADAR, J. DATE : JULY 12, 2023

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P.C.:

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The learned counsel for the appellant seeks leave to tender an

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affidavit in rejoinder.

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Leave granted.

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Affidavit in rejoinder is taken on record.

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Heard the learned counsel for the parties.

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This appeal is directed against the order dated 20^th February,

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2023 in the Draft Notice of Motion in Suit No. 381 of 2023 whereby

Vishal Parekar

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20-ao-184-2023.doc

the learned Judge, City Civil Court declined to grant ad-interim relief to restrain the respondents-defendants from acting upon the notice dated 16^th January, 2023 issued under section 351 of the Mumbai Municipal Corporation Act, 1888 and the speaking order dated 13^th February, 2023 passed in respect of Room No. 3, Near Parekh Building, Behind Chembur Railway station, N.G. Acharya Marg, Chembur, Mumbai (the suit premises).

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The plaintiff approached the Court with a case that the suit premises is a protected structure. The photopass has been issued in favour of the plaintiff by the competent authority. The respondentCorporation issued a notice under section 351 of the Act, 1888 alleging that the plaintiff had un-authorizedly erected ground + 1 (part) structure of size 6.7 mtr. X 8 mtr. by using B.M. wall and Ladi coba slab/ G.I. sheet roof having height 2.9 mtr. at ground floor and 2.1 mtr. at first floor.

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By the impugned order, the learned Judge, City Civil Court was dissuaded from granting the ad-interim relief primarily on the ground that there was discrepancy in the area of the structure shown in the photopass and the notice structure. In the photopass the area was shown 616 sq.ft. However, the notice structure was

Vishal Parekar

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admeasuring 550 sq.ft with height of 16.14 ft. Since the plaintiff has not placed on record the permission from the planning authority and the notice structure did not appear to be a protected structure, the learned Judge declined to grant ad-interim relief.

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The learned counsel for the appellant invited the attention of the Court to the photopass which appears to have been issued in the year 2006 wherein the plaintiff is shown to be the holder of the said structure admeasuring 616 sq.ft. The learned counsel also invited the attention of the Court to the receipt evidencing the payment of a sum of Rs. 42,717/- by the plaintiff to the Municipal Corporation towards the ground rent. It was submitted that in the face of aforesaid record, the learned Judge could not have declined to grant ad-interim relief.

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In opposition, the learned counsel for the respondentCorporation submitted that, upon verification, the Competent Authority reported that the documents relied upon by the plaintiff were not traceable in the record of the Slum Rehabilitation Authority. The learned counsel for the respondent thus submitted that the claim of the plaintiff that the notice structure is a protected structure can not be countenanced. At any rate, there is substantial

Vishal Parekar

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20-ao-184-2023.doc

difference in the area shown in the photopass and the notice structure.

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Had the issue been restricted to the genuineness or otherwise of the photopass, different considerations would have come into play. The receipt (Exhibit D) indicates that the respondentCorporation has accepted a sum of Rs. 42,717/- from the plaintiff towards the ground rent. There is prima facie material to show that the photopass is issued in respect of suit premises. The discrepancy in the area of the structure shown in the photopass and the notice structure is not a matter which dis-entitled the plaintiff from adinterim relief, at this stage.

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In the circumstances of the case, the plaintiff deserves an opportunity to place the material to substantiate the claim that the notice structure is a protected structure during the course of hearing of the Notice of Motion finally.

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As the ad-interim protection is in operation, since the passing of the impugned order, it may be expedient that the Notice of Motion itself is finally decided after providing an opportunity to the respondent-Corporation.

Vishal Parekar

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20-ao-184-2023.doc

Hence, the appeal stands disposed by directing the City Civil

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Court to decide the Notice of Motion as expeditiously as possible.

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The respondent-Corporation shall file affidavit in reply to the Notice of Motion within a period of three weeks.

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Rejoinder, if any, be filed within one week of being served with the reply to be filed on behalf of the Corporation.

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In the meanwhile, the interim protection granted by the learned Judge, City Civil Court and continued by this Court by an order dated 13^th March, 2023 shall continue to operate till the disposal of Notice of Motion.

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In view of disposal of the Appeal, the Interim Application also

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stands disposed.

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No costs.

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(N. J. JAMADAR, J.)

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Vishal Parekar

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...5

Smt. Sahzadi Umar Pathan v. Municipal Corporation of Greater Mumbai and Another

Case brief

What is this about?

What did the court decide?

Smt. Sahzadi Umar Pathan v. Municipal Corporation of Greater Mumbai and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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