Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.62 OF 2017
IN
LONG CAUSE SUIT NO.609 OF 2015
Mr.Mohd.Ismail Mohd.Umar Chamgude
aged 36 years.Occ.Denting and penting
under Name and style of M/s.S.M.AUTO
WORKS, CONTAINER YEARD, SION,
SURVEY NO.419, C.T.S.NO.344,
OPP.BENZZOLA COMPLEX, SAMARTH
NAGAR, S.T.ROAD,CHEMBUR,
MUMBAI 400 071. ....Plaintiff
V/s.
MUNICIPAL CORPORATION OF
GREATER MUMBAI,
(A Body incorporated under the provisions of
BMC Act 1889) having its head office at
Annexe Building, Mahapalika Marg,
Mumbai CST, Mumbai400 001. ....Defendants
Appearances:
Ld. Advocate Mr.N.K.Dubey for the Plaintiff.
Ld. Advocate Mr.Atif Shaikh for defendant/BMC.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
C.R.No.8
DATED : 3rd December, 2018
ORAL ORDER
1. This is an application by Notice of Motion under O.XXXIX R.1 of
The Code of Civil Procedure, 1908.
The plaintiff's case in nutshell is as under:
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2. The plaintiff is in exclusive use, occupation and settled possession
of the garage premises admeasuring 15' x 15' situated at Survey No.419
C.T.S.No.344, Opp.Benzzola Complex Samarath Nagar, S.T.Road
Chembur, Mumbai400071 (hereinafter referred to as "suit premises"
for brevity). The plaintiff is doing auto repairing in the suit premises
since before 01/01/1995 in the name and style 'M/s.S.M.AUTO
WORKS'. The plaintiff purchased the suit premises from MR.HARILAL
KEDARNATH VISHWAKARMA under agreement for sale dated
22/12/1995. It is only source of livelihood of the plaintiff. Upon the
complaint of one Mr.Kiran Mulji Shah of victory container to
Asst.Municipal Commissioner M(W) Ward of defendant corporation,
the latter issued notice dated 25/7/2017 and, without considering
plaintiff's reply dated 27/7/2017, passed order on 16/12/2017 with
malafide intention. Therefore, the said notice and order are illegal.
The plaintiff never made any unauthorized construction. He did only
plastering and painting work to the existing walls as the same were
badly damaged. Therefore, the plaintiff has prayed for temporary
injunction restraining the defendant corporation from acting in
pursuance of notice dated 2/7/2017 and order dated 16/12/2017.
Defendant Corporation has filed affidavit in reply contending as
under:
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The suit premises is illegally claimed by the plaintiff. Defendant
Corporation is the owner of the land whereon the suit premises is
situated. The said land is reserved for 1) Transport Garage 2) 36.60
D.P.Road 3) 18.30 D.P.Road 4) 13.40 D.P.Road 5) BSES Receiving
Station 6) Municipal Primary School (M triangle P) 7) Play Ground
(PG) 8) Municipal Housing (M) as per SRDP 1991.
The notice under Section 314 of Mumbai Municipal Corporation
Act,1888 (hereinafter referred to as "MMC Act" for brevity) bearing no.
ACM/W/OD/577/Maint/dated 25/7/2017 is for illegal possession of
the plaintiff over the suit premises. The reply of the plaintiff is
considered and thereafter speaking order is passed. The plaintiff is
running garage on road creating encroachment, obstruction, nuisance
and danger to the public. Therefore, the Notice of Motion be dismissed.
3. Considering the rival contentions, following points arise for my
determination. Findings on those points for the reasons mentioned
thereunder are as follows:
Sr.No. POINTS FINDINGS
1. Whether notice under Section 314 of
MMC dated 25/7/2017 and order
dated 16/12/2017 are prima facie
illegal.?
In the affirmative
2. Whether plaintiff has made out In the affirmative
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ingredients required for grant of
temporary injunction in his favour ?
3. What order ? Temporary injunction
is granted in terms of
prayer clause(a) of the
Notice of Motion till
final disposal of the
suit.
R E A S O N S
AS TO POINTS NO.1 & 2:
4. In the plaint, the plaintiff has come up with the case that photo
pass was issued to his predecessor in title namely MR.HARILAL
KEDARNATH VISHWAKARMA for occupying the hut. In other words,
he claims that it is situated in 'slum' declared under Maharashtra Slum
Areas Improvement, Clearance and Redevelopment Act,1971. In the suit
it is nowhere averred that the suit premises is in slum area declared
under Section 4 of the said Act. But this is brought to the notice by
filing additional affidavit wherein notification dated 23/8/2016 and
gazette notification dated 18/9/1975 are brought on record. In the
latter gazette City Survey No.344 is declared as Slum area under the
Slum Act. The plaintiff is placing reliance upon the judgment of Hon'ble
Bombay High Court in Shri.Ramawatar Babulal Jajodia V/s MCGM
[2014(2) ALL MR 303] wherein it is observed that the provisions of
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Slum Act are applicable for all the necessary actions including
demolition and/or taking possession of the unauthorized premises from
the unauthorized occupier. In view of this observation of the Hon'ble
Bombay High Court the opportunity will have to be given to the plaintiff
to plead and prove that the suit premises is situated in slum area. The
plaintiff will suffer irreparable loss as he will loose his source of income
if the suit premises is demolished. As such the plaintiff is entitled for
interim order of temporary injunction in terms of prayer clause (a).
Points no.1 and 2 are answered in the affirmative and following order.
ORDER
Temporary injunction is granted in terms of prayer clause (a) of the
Notice of Motion till final disposal of the suit.
(C.V.MARATHE)
DATE: 03/12/2018 JUDGE
CITY CIVIL COURT
GRATER MUMBAI
Dictated on : 03.12.2018
Transcribed on : 04.12.2018
Signed on : 07.12.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
07.12.2018 at 5.35 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SHRI C.V.MARATHE
(C.R. NO.08)
Date of Pronouncement of
JUDGMENT/ ORDER
03.12.2018
JUDGMENT/ORDER signed by P.O.
on
07.12.2018
JUDGMENT/ORDER uploaded on 07.12.2018
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