Interim Order 2

Order Details: Notice of Motion
Pdf Text: Dr.NM. : 1 : SU.No.752018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
ORDER BELOW DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO. 75 OF 2018
Shri. Manojkumar Fulchand Vaishy .. Plaintiff.
V E R S U S
The Municipal Corporation of Greater Bombay. .. Defendant.
Ld. Advocate Mr. P.G. Parkar for the Plaintiff.
Ld. Advocate Mrs. Valvi for the Defendant.
CORAM : HIS HONOUR JUDGE
SHRI. V.C. BARDE
DATE : 11th January, 2018.
(Court Room No.06)
O R D E R
1. This draft notice of motion is taken out by the plaintiff to restrain
the defendantCorporation from acting upon the notice u/s. 314 r/w.
394 of MMC Act dated 18.09.2017. The plaintiff claims to be in
possession of hutment on N.M. Joshi Marg, Worli, Mumbai – 400 013.
It is contended that the suit structure is existing since long, and the
plaintiff is staying therein since before the year 1995. The plaintiff will
suffer irreparable loss, if he is thrown out of the suit premises.
2. The DefendantCorporation appeared and filed affidavit
alongwith compilation of documents relating to the bottleneck policy
to remove encroachments on the road/public way.
3. Heard the learned Advocate for the plaintiff and learned
Advocate for the defendant. Perused the record of the case.
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4. The learned Advocate for the plaintiff relied on Government
resolution dated 16.05.2015 relating to structure under Maharashtra
Slum Areas (I C & R) Act, 1971, relating to declaration on censused
huts. The learned Advocate for the DefendantCorporation relied on
policy of the defendantCorporation to remove the bottleneck at N.M.
Joshi Marg.
5. The plaintiff has relied on documents relating to his possession,
and identification alongwith impugned notice u/s. 314, r/w. 394 of
MMC Act dated 02.08.2017, which is challenged on 05.01.2018. A
stall of the plaintiff is stated to have been existing there which is
directed to be removed.
6. However, the name of the plaintiff is not appearing in Annexure
II, filed by the defendantCorporation which considers the documents
filed by the concerned occupants. It appears that the AnnexureII is not
challenged by the plaintiff. The MCGB has issued policy guidelines for
removal of bottlenecks dated 20.03.2017. However, it appears that
the structure of the plaintiff is not held eligible so as to consider for
alternate accommodation. The plaintiff is stated to have not proved the
existence of the structure on 01.04.1962.
7. According to the plaint averments it appears that the hutment is
on N.M.Joshi Marg being on public road/premises for which notice u/s.
314 r/w. 394 of MMC Act was issued. Section 314 relates to removal
of any stall or hawker's article on public land. Section 394 deals with
seizure of articles. In the instant case, the plaintiff being occupant of
the land on public way, is sought to be removed by the defendant
Corporation by preparing appropriate AnnexureII, wherein the
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documents of the plaintiff are stated to have been considered.
Therefore, the Designated Officer of the Corporation has adopted
proper legal recourse by considering the case of the plaintiff, keeping
the said aspects of the matter in view. The plaintiff being occupant of
the land on public way cannot be said to be entitled for ad interim
relief. Hence, the following order is passed.
O r d e r
1. Ad interim relief is hereby refused.
2. Leave is granted to register the draft Notice of Motion.
Date : 11.01.2018 (V. C. BARDE)
Judge
City Civil Court, Gr. Bombay.
Dictated on : 11.01.2018
Typed on : 18.01.2018
Signed by HHJ. : 18.01.2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
18.01.2018/12.56 p.m. Mrs. Pradnya S. Naik
UPLOAD DATE AND TIME NAME OF STENOGRAPHER (S.G.)
Name of the Judge (with Court
Room No.)
Shri. V.C. BARDE
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
11.01.2018
JUDGEMENT/ORDER signed by
P.O. on
18.1.2018
JUDGEMENT/ORDER uploaded on 18.1.2018
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