Court made notice of motion absolute for first instance of filing same
Sadanand B. Panchal
(Querist) 11 December 2016
This query is : Resolved
Respected experts,
In pending suit instituted by me against MCGM, I have taken out notice of motion for cancellation of Occupation Certificate granted by MCGM to the Defendants: MCGM, Developer and Society and that same is pending. In the pendency Defendant BMC issued Notice under section 488 of MMC Act, to enter upon premises of X CHS Society for inspection of illegal construction raised by the XCHS Society. The X CHS Society then on 17.12.2016 collusively instituted Suit against MCGM without notice to me and taken out Draft Notice of Motion praying before Court to restrain action of said Notice under section 488 of MMC Act. Surprisingly Court directed the Plaintiff Society to register said Notice of Motion and on same day passed Order making Notice of Motion absolute on the ground that the XCHS Society obtained Occupation Certificate and also obtained Water Connection. Further the Order passed against MCGM stating that it’s concerned Advocate has not filed any Reply. On the other hand my challenge to the Occupation Certificate is pending in my Suit before same Court.
The Assistant Law officer of MCGM has not opposed notice of motion where he was fully aware of the fact that unauthorized construction on the new building was raised after date of granting Occupation Certificate. At first as per MCGM Circular No. DMC/RE/6418A Dated18.02.2015 the Assistant Law officer has to oppose ad-interim reliefs prayed by Plaintiff and if such ad-interim relief granted, it is mandatory to him to vacate the temporary stay within two months from date of such order. As per clause 11 and 12 of said circular if Assistant Law officer failed to vacate the stay as such will be punished. Punishment is red ink mark on his service book and Rupees two Thousand per month penalty both concerned Designated officer and ALO.
Thus the Advocate from Legal Department of MCGM has committed mischief and allowed the Hon'ble Judge to pass Order allowing N/M on same day of filing N/M. This will affect my pending Suit where I have taken out N/M for cancellation of the Occupation Certificate. I am not party to the Suit where said N/M was made absolute. I can’t decide what to do in this Case therefore I approach to you experts. Please inform me how to get set aside the said Order of Court in directly making absolute N/M on the day of same Notice of Motion was registered and tendered before Court. Whether any error of the Hon'ble Court. What are Rules to pass Order in Notice of Motion kindly be inform to me.
Thanking You
adv.bharat @ PUNE
(Expert) 15 December 2016
Sir please put precise fact of case only to know solution for it.
Sadanand B. Panchal
(Querist) 16 December 2016
Respected Sir,
Here is precise fact please refer:
Society is not owner of plot where I am residing, but fraudulently got sanctioned plan with the help of developer. When there was construction of new building by encroachment of my right of way so also theft of FSI and TDR over my premises, I filed a Suit before Hon'ble Civil Court against Society, developer and Municipal Corporation and lodged separate complaints before Municipal Corporation. Municipal Corporation issued Notices U/s. 351 of the MMC Act and 53(1) of MRTP Act against developer but on the contrary granted Occupation Certificate in favour of the developer to occupy members of Society in new building. Being aggrieved therefore, in the year 2014 I taken out notice of Motion in my pending Suit for getting cancelled said Occupation Certificate. The matter was delayed due to no judge was sitting continuously and that there was always gap of three months as such during this period three judges transferred.
Behind back of me, the society filed collusive Suit and taken out Notice of Motion in same court against the Mumbai Municipal Corporation praying reliefs of injunction alleging that the Designated Office (Assistant Engineer) had on 11/12/2016 issued Notice under section 488 of the MMC Act stating that he and his workmen will enter into premises of the Society on 17/12/2016. It is pertinent to note that Society filed Suit on 16/12/2016, draft Notice of Motion was heard by the Hon'ble Court on 17/12/2016 and that on the same day Advocate for the Society Registered Notice of Motion and also that the Hon'ble Court made absolute the Notice of Motion on the ground that Municipal Corporation who granted Occupation Certificate cannot enter into premises for inspection of the unauthorized construction. Advocate for Municipal Corporation remained silent without any Reply.
Regards,
Sadanand Panchal
Sadanand B. Panchal
(Querist) 16 December 2016
Kindly inform me the solution as I have filed my suit in person.
Thanks!
