Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.56/19 (L.C.S. No.3288/18)
MHCC010001522019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.56 OF 2019
IN
LONG CAUSE SUIT No.3288/2018
Mrs. Manisha Suresh Jawale … Plaintiff
- Versus -
The Municipal Corporation
of Greater Mumbai ... Defendant
Appearance :-
Mr. P. M. Barge, Advocate for plaintiff.
Mr. Om Suryavanshi, Advocate for defendant/M. C. G. M.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 03/02/2024.
O R D E R
. This is suit for injunction restraining defendant B. M. C.
from taking action against residential structure admeasuring 10’ X 15’
square feet made up of G/I sheet wall and G/I sheet roof at Chawl
No.10, near Hanuman Nagar, P. L. Lokhande Marg (in short suit
structure) without following due process of law and the plaintiff has
taken out present Notice of Motion under Order-XXXIX Rule-1 of The
Code of Civil Procedure (in short the C. P. C.) for temporary injunction
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restraining defendant B. M. C. from demolishing notice structure
without following due process of law.
2] In short, facts of the plaintiff's case are that :-
Suit structure was in use and possession of one Mr. Imran
Shaikh since prior to 1990. The plaintiff acquired suit structure on the
basis of affidavit dated 11/3/1999 executed by the earlier occupier and
since then the plaintiff is in its use and possession. The plaintiff is
having acknowledgment of application for survey bearing receipt No.
0658381. The plaintiff is also having ration card, electricity connection,
Aadhaar card at the address of suit structure. However, somewhere on
28 to 30/8/2018 demolition squad of M/West ward of the B. M. C.
came and demolished some structures standing on salt pan and at the
time of leaving from there the officers threatened that they will
demolish suit structure without issuing notice. The plaintiff is in
possession of suit structure since 1994 however, the officers of
defendant B. M. C. threatened to demolish structure without issuing
notice or without following due process of law.
3] It is further stated that on 28/9/2018 the Assistant
Engineer alongwith sub-engineer attached to M/East ward came to suit
structure and threatened to demolish structure without following due
process of law in violation of the guidelines of the Hon'ble High Court in
Sopan Maruti Thopte vs. Pune Municipal Corporation's case. Therefore,
the threats of demolition are illegal and against the principles of natural
justice. Therefore, the plaintiff constrained to file suit and taken out
present Notice of Motion for temporary injunction.
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4] Defendant B. M. C. opposed Notice of Motion by filing
reply-cum-Written Statement below exhibit-3. It is stated that suit
structure is situated on the land bearing survey No.320 (part), Chedda
Nagar under erstwhile Pastom Sagar Salt Work, Trombay Salt Factory
belongs to the Salt Commissioner, Government of India. The plaintiff is
having knowledge that the land belongs to the Salt Commissioner but
the plaintiff has not made the Union of India party to suit hence suit is
not maintainable. The land belongs to the Salt Commissioner and,
therefore, the Salt Commissioner has authority and jurisdiction to take
action of removal of encroachment and demolition. Defendant B. M. C.
is not concerned with the said land and defendant B. M. C. only
supplies manpower and machinery required by the concerned
Department. Defendant B. M. C. neither issued any notice nor initiated
any action. Defendant B. M. C. is not concerned with the land and
structure standing thereon. Thus, suit is filed against a wrong
defendant.
5] It is further stated that Deputy Superintendent of Salt,
Trombay by letter bearing No.C.No.4/2/PS/VII/2017/Pt-II/488-491
dated 28/12/2020 and C.No.4/2/PS/VII/2017/Pt-II/547-549 dated
22/1/2021 informed to the Commissioner of the M. C. G. M. about
proposed demolition action against re-erected structure and
encroachment on the land of the Central Government, survey No.320
Pt., Chheda Nagar and requested to provide cooperation. Therefore, the
Municipal Commissioner directed the Assistant Commissioner to
provide cooperation and, accordingly, manpower and machinery was
provided for demolition process. So also the Forest Officer, Mangrove
Preservation, Central Mumbai by letter dated 27/1/2021 also requested
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to provide man and machinery for mass demolition. Accordingly,
manpower and machinery was provided to the Forest Department.
6] It is further stated that the plaintiff has suppressed this fact
and obtained ad-interim relief and, therefore, the plaintiff is not entitled
for the equitable relief of injunction. On these grounds, defendant
B.M.C. prayed for dismissal of Notice of Motion.
7] Points for determination alongwith findings thereon for the
reasons are as under :-
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out
prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
8] Heard learned advocates for the parties.
9] Learned advocate for the plaintiff submitted that the
plaintiff has acquired suit structure from the previous occupier Mr.
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Imran Shaikh by virtue of an affidavit. The plaintiff is having
acknowledgment of application for census. So also the plaintiff is having
ration card, Aadhaar Card, electricity bill etc. at the address of suit
structure. It is further submitted that the plaintiff has established the
existence of structure however, the officer of the B. M. C. threatened to
demolish structure without issuing notice and without following due
process of law in violation of the principles of natural justice and the
guidelines of the Hon'ble High Court in the case of Sopan Maruti Thopte
Versus Pune Municipal Corporation's case. It is further submitted that
once it is established that structure is in existence and the plaintiff is in
settled possession of said structure, eventhough it is unauthorized,
cannot be demolished without following due process of law. On the
basis of these submissions he prayed for temporary injunction as
prayed.
10]
Per contra, learned advocate for defendant B. M. C.
submitted that present suit filed by the plaintiff against the B. M. C. is
not tenable. He further submitted that the land on which structure is
situated is owned by the Salt Commissioner, Union of India and
defendant B. M. C. has no concern or authority to take action against
structure situated on the said land. It is further submitted that on the
request of the Salt Department and Forest Department the Corporation
has provided manpower and machinery. The Corporation has nothing to
do with the action of demolition. He further submitted that the plaintiff
has suppressed that suit structure is situated on the land owned by the
Salt Commissioner and obtained ad-interim relief. He further submitted
that the plaintiff has not produced latest photographs showing all the
dimensions of suit premises and plan thereof to be certified by licenced
architect as per the order of this Court dated 18/12/2018 and,
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therefore, the plaintiff is not entitled for the relief of temporary
injunction.
11] The plaintiff has taken out this Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 of the C. P. C. Plaintiff
is seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a
prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
12] The plaintiff contended that she acquired suit structure
from the previous occupier and in possession of suit structure since
1994. The plaintiff has produced on record photocopy of affidavit,
census certificate, ration card, electricity bill etc. In paragraph No.1 of
the plaint it is stated that suit structure is situated in Chawl No.10 in
Hanuman Nagar, Nagwadi having area admeasuring 10 X 15 square feet
made up of G/I sheet wall and roof. However, the documents filed by
the plaintiff are in respect of structure situated in Chawl No.9 having
area admeasuring 13 X 20 square feet. Thus, none of the documents
relied by the plaintiff show that structure is situated in Chawl No.10.
Apart from that the plaintiff has not mentioned city survey number of
land on which suit structure is situated.
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13] Defendant B. M. C. contended that suit structure is situated
on the land bearing C. T. S. No.320 (part) and it is owned by the Salt
Commissioner. The plaintiff in rejoinder affidavit denied the contentions
in the reply and denied that suit premises is situated on the land
belongs to the Salt Commissioner. However, the plaintiff has not
produced a single document on record to show that the suit structure is
not situated on C. T. S. No.320 and it is situated on a different city
survey number.
14] The Corporation came with a case that it has no authority
to take action against suit structure as same is situated on the land
owned by the Salt Commissioner. In such circumstances, there is no
question of granting temporary injunction. The relief of injunction is an
equitable relief and the Court may grant injunction to prevent breach of
an obligation existing in favour of the plaintiff and protecting the
possession of the plaintiff from the stranger. However, in the case on
hand, the Corporation came with case that it has no concerned with the
land on which structure is situated and not issued any notice to the
plaintiff and has no authority to take action against structure. The
temporary injunction may be granted under Order-XXXIX Rule-1 of the
C. P. C. when it is proved that defendant threatens to dispossess the
plaintiff. In the case on hand, defendant B. M. C. contended that it has
no concern with the structure and also no authority to take action as the
land on which structure is situated is owned by the Salt Commissioner.
The relief of temporary injunction is discretionary and an equitable
relief and it is not mandatory that on mere asking such relief should be
given. In such circumstances, I hold that the plaintiff has not made out
case for grant of temporary injunction. The balance of convenience does
not tilt in her favour hence there is no question of causing irreparable
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loss to her in case of refusal of temporary injunction. Accordingly, I
answer points No.1 to 3 in the negative and in answer to point No.4
pass following order :-
O R D E R
Notice of Motion is dismissed.
Date : 03/02/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
12/02/2024 05:10 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 03/02/2024
ORDER Typed on 08/02/2024
ORDER signed by P. O. on 09/02/2024
ORDER uploaded on 12/02/2024
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