Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM NO.1672019 IN SUIT NO.33042018
MHCC010004712019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.167 OF 2019
IN
S.C. SUIT NO.3304 OF 2018
Nitin Kisan Khawalia ] ...Plaintiff.
Versus
State of Maharashtra and Others]…Defendants.
Appearance:
Ld. Advocate P.M. Ansari @ Adv. Dharani Jain for Plaintiff.
Ld. Advocate Kudalkar for Defendant/State.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 25/04/2023
ORAL ORDER
1) Plaintiff has taken out present notice of motion for grant of
interim relief of temporary injunction restraining defendants from
removing iron frame work of suit structure Hut No.2 also
identified as hut No.154 admeasuring about 30 X 22 alongwith
WC admeasuring 5 X 5 situated at Byculla police station
compound, Hansraj Lane Byculla East, near Jamadar Quarters,
VJB Udyan S.O. Mumbai, Maharashtra (hereinafter above
premises is referred as suit premises) and from physically evicting
plaintiff from suit plot and premises and from obstructing,
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interfering with use, occupation and possession and from
obstructing ingress and egress of plaintiff to suit premises without
following due process of law and for temporary mandatory
injunction directing defendants to forthwith restore status of
entire suit structure as it existed prior to its part demolition or to
permit plaintiff to restore suit structure to its original state.
2) Perused notice of motion, affidavit in support of notice of motion,
affidavit in reply, written statement of defendants and record. Heard
arguments of Ld. Advocate for plaintiff and Ld. Advocate for
defendants.
3) Ld. Advocate for plaintiff argued that plaintiff and his family are
in continuous use, occupation and possession of suit premises since
prior to 1950. Prior to 1950 plaintiffs grandfather Mr. Laxman was
in possession of kaccha structure admeasuring about 30 X 22
situated inside compound of defendant No.2. Suit structure was
belonging to Mr. Laxman. Pitch holder card is issued to plaintiff in
respect of suit premises. In view of settled possession of plaintiff
over suit premises plaintiff cannot be dispossessed from suit
premises without following due process of law. However, on
02/04/18 constable Mr. Dande of defendant No.2 police station
visited suit premises alongwith 10 to 15 constables and they forcibly
partly demolished structure of suit premises. They removed plastic
sheet, bamboos and furniture from structure on suit premises.
However, plaintiff is still in possession of demolished structure on
suit premises. Above act of defendants is illegal. Some of articles of
plaintiff are still lying in suit premises. Plaintiff in night resides at
some other premises. Hence, Ld. Advocate for plaintiff prayed that
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notice of motion be made absolute.
4) On the other hand, Ld. Advocate for defendants argued that there
is no structure admeasuring 30 X 22 inside Byculla police station
compound, Hansraj lane as alleged by plaintiff in plaint. Plaintiff
had erected temporary structure of bamboo and plastic and
therefore, complaint was made by public on 28/9/17. The land in
compound of defendant No.2 police station belongs to Government
of Maharashtra. Plaintiff or his any relative is not in service of
government department or Byculla police station. Plaintiff had
illegally constructed temporary structure adjoining Byculla police
station compound and officer in charge of Byculla police station had
requested plaintiff to remove temporary shed. Structure on suit
premises was illegally erected by plaintiff. Plaintiff has no right or
interest in suit premises. From documents of plaintiff it appears that
plaintiff had temporary shed outside police station compound and
not inside of police station compound. Suit structure was not within
compound of defendant No.2. Documents filed by plaintiff are in
respect of some other premises and not in respect of temporary shed
erected by plaintiff adjoining to compound wall of said police
station. Plaintiff has not come before court with clean hands and
plaintiff is not having any right or interest in suit premises.
Therefore, Ld. Advocate for defendant submitted that notice of
motion be dismissed.
5) Following points arise for determination and court has recorded
its decision thereon for the reasons stated there under:
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Points Decision
(i) Whether prima facie case lies in favour of plaintiff ? No.
(ii) Whether balance of convenience lies in favour of
plaintiff ?
No.
(iii) Whether plaintiff will suffer irreparable loss if the
interim relief as prayed is not granted?
No.
(iv) What Order? As per final
order.
REASONS
AS TO POINT NOS.1 to 3:
6) As all these points are interconnected with each other they are
decided simultaneously in order to avoid repetition of facts.
7) Present suit is for declaration that defendants are not entitled to
dispossess plaintiff from suit premises unless they provide alternate
accommodation and defendants are not entitled to obstruct plaintiffs
occupation of suit premises and obstruct ingress or egress of plaintiff
to suit premises without following due process of law and for
mandatory injunction directing defendants to restore suit premises
to its original stage, etc.
8) From matter on record it appears that it is case of plaintiff that
suit premises is situated within Byculla police station.Document at
Exh.A Colly reveals address of police station compound, extract of
electoral roll reveals patra shed Hansraj Lane, Municipal House
No.2, death certificate reveals address of hutment No.154, pitch
holder card reveals address of Byculla police station compound,
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address in election card issued by Election Commission of suit
premises is inconsistent. Photograph at Exh.C reveals separate patra
shed and separate demolished structure of suit premises. Pitch
holder card does not bear any hutment number. Therefore, from
matter on record prima facie it is not clear whether documents filed
on record are in respect of suit premises and whether suit premises
is situated within compound of Byculla police station.
9) As per defendants, structure of suit premises was adjoining to
compound wall. Admittedly, structure on suit premises is already
partially demolished on 02/10/18. From photographs at Exh. C
Colly prima facie it appears that suit premises is not in habitable
condition. Admittedly, plaintiff is not residing in suit premises and it
is not in habitable condition. Therefore, prima facie it appears that
structure on suit premises is not in habitable condition and plaintiff
is not in use, occupation and possession after demolition of structure
on suit premises on 02/10/18. Admittedly, land of Byculla police
station compound belongs to State of Maharashtra. In view of
difference of hut number, address on documents produced by
plaintiff prima facie it cannot be said that documents produced by
plaintiff are pertaining to suit premises. Therefore, from matter on
record plaintiff prima facie failed to show that plaintiff was in
settled possession of suit premises for last several years or suit
premises is situated in Byculla police station compound and it was
having hut No.2 or hut No.154. Therefore, prima facie plaintiff does
not appear to have any legal right or interest in suit premises.
10) On the other hand, defendants have stated on solemn
affirmation that there is no premises admeasuring 30 X 22 inside
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Byculla police station compound. Temporary patra shed of
bamboo was erected by plaintiff adjoining to compound wall of
Byculla police station and defendant No.2 had lodged complaint
in respect of same in P.W.D. Therefore, prima faice plaintiff does
not have any right or interest in suit premises. Moreover, prima
facie plaintiff does not appear to be in use, occupation and
possession of suit premises. Therefore question of obstructing
ingress or egress to suit premises does not arise. As suit premises
is admittedly partly demolished and it is not in habitable
condition, question of obstructing ingress or egress of plaintiff
does not arise. Hence, plaintiff prima facie failed to prove
exceptional case of hardship for grant of equitable interim relief
of mandatory injunction. Question whether defendants partly
demolished suit premises without following due process of law
will have to be decided on merit. As the land over which suit
premises was situated is public land, more comparative hardship
is likely to be caused to public at large. Moreover, in case
plaintiffs succeeds to prove that he is having right or interest in
suit premises and he cannot be evicted without providing him
permanent alternate accommodation in lieu of suit premises, in
that case plaintiff's rights will be protected as per law and no
irreparable harm or prejudice is likely to be caused to plaintiff if
interim reliefs is prayed are not granted.
11) Considering matter on record and above discussion court
find that prima facie case and balance of convenience does not lie
in favour of plaintiff and no irreparable loss is likely to be caused
to plaintiff if interim reliefs as prayed are not granted. Therefore,
point No. 1 to 3 are answered in negative.
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As to point No.4:
12) In view of negative decision as to point Nos. 1 to 3 present notice
of motion is liable to be dismissed. Hence, court proceeds to pass the
following order :
ORDER
1) Notice of Motion No. 167 of 2019 is dismissed.
2) Notice of Motion No. 167 of 2019 is disposed off accordingly
Date : 25/4/2023. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :25/4/2023.
Typed on :25/4/2023.
Draft given on:28/4/2023.
Checked on :8/5/2023.
Corrected & signed on :8/5/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/5/2023 Mrs. S.A. Shekade
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
25/4/2023
JUDGMENT/ORDER signed by P.O.
on
8/5/2023
JUDGMENT/ORDER uploaded on 10/5/2023
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