Mr. Jugraj Rajmal Rathod vs Mumbai Municipal Corporation Of ...
2022 Latest Caselaw 9604 Bom

                                                                                       939. ao 798.22.doc

                Urmila Ingale

                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         Digitally signed
         by URMILA
                                            CIVIL APPELLATE JURISDICTION
URMILA   PRAMOD
         INGALE
PRAMOD   Date:
INGALE   2022.09.21

                                           APPEAL FROM ORDER NO. 798 OF 2022
         18:58:59
         +0530




                                                         WITH
                                         INTERIM APPLICATION NO. 17283 OF 2022

                                Mr. Jugraj Rajmal Rathod                         ..Appellant
                                      vs.
                                Mumbai Municipal Corporation and anr.            ..Respondents

                                Mr. Karan Bhosle i/b Mr. Aamir Koradia i/b Mr. Rajendra
                                Rathod, for Appellant.
                                Mr. R.Y. Sirsikar, for Respondent -MCGM.

                                                         CORAM : M. S. KARNIK, J.

                                                         DATE     : SEPTEMBER 21, 2022
                                P.C. :

1. Heard learned counsel for the appellant and learned

counsel for the Corporation. In respect of offending

structure, notice under section 351 of Mumbai Municipal

Corporation Act, 1988 (for short 'MMC Act') came to be

issued. In a shop belonging to the appellant, it is alleged

that unauthorisedly the appellant has constructed a loft

admeasuring 10.0 x3.00 meters by using wooden planks

plywood sheets and MS angles; the appellant has

unauthorisedly constructed WC admeasuring 1.55 x 1.55

meters by using BM walls and ladi coba; the appellant has

939. ao 798.22.doc

unauthorisedly raised horizontal extension admeasuring

3.00 x 1.00 meter in front side of shop structure.

2. The appellant filed the suit before the City Civil Court

for various reliefs. Notice of Motion was filed for interim

reliefs. By the impugned order dated 02/08/2022, the trial

Court rejected the request of ad-interim relief. While doing

so, the trial Court made reference to the judgment in RAD

suit no. 1378 of 1983. The reference is also made to the

RAD suit no. 3165 of 1952.

3. It is the contention of the learned counsel for the

appellant that the offending constructions are made prior to

the datum line i.e. 01/04/1962. Learned counsel for the

appellant invited my attention to the judgment and order

dated 30/11/1999 passed by the Small Causes Court in Suit

No. 1378 of 1983. In answer to issue no. 3, the Small

Causes Court has made reference to the fact that the

plaintiffs were allowed to put the MS grill in front of the otla

replacing the worned out structure, on the basis of which it

appears that the plaintiffs had put the structure over the

otla. The claim regarding the plaintiffs in respect of otla is

939. ao 798.22.doc

accepted by the trial Court. Furthermore, the Small Causes

Court has referred to RAE suit no. 3165 of 1952. Reference

is made to the evidence of the plaintiffs where it was stated

that the tenant was in possession of the open space as a

result of which rent was increased for the additional space

occupied by the tenant comprising otla. My attention is

invited to the consent terms in RAE suit no. 2233 of 1974

wherein there is reference of mori in shop in question with

water tap having connection either from the municipal line

or from over-head storage tank in the shop. Prima facie, it

appears from the materials that the otla, mori and the loft

were in existence since long. Learned counsel for the

Corporation supported the impugned order.

4. Arguable questions are raised. Admit.

5. The notice under section 351 of MMC Act impugned

before the trial Court shall remained stayed till the disposal

of the notice of motion before the trial Court.

6. The trial Court shall proceed with the hearing of the

notice of motion uninfluenced by the observations made by

me in this order which is limited for the purpose of granting

939. ao 798.22.doc

this ad-interim order.

7. Learned counsel Mr. Sirsikar waives service on behalf

of respondents.

(M. S. KARNIK, J.)