Interim Order 1

Order Details: Notice of Motion
Pdf Text: Draft N/m in Suit No. 286/2020. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
DRAFT NOTICE OF MOTION
IN
L. C. SUIT NO. 286 OF 2020
(CNR NO. MHCC010008492020)
Mr. Riyaz Ahmed Abdul Rasid Shaikh ...Plaintiff
Versus
Mumbai Corporation of Greater Mumbai ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 29th JANUARY, 2020.
Mr. Kudalkar, Advocate for Plaintiff.
Mrs. Chavan, Advocate for Defendant / MCGM.
ORDER
This is a motion taken out by plaintiff to challenge notice
dated 31/01/2019, issued under Section 351 of MMC Act for
unauthorized erection of barrackeding admeasuring 15.24 x 0.00426 x
2.43 G.I. sheet barrackeding, more specifically explained in unscaled
map on Page No.15 of reply submitted by defendant vide Exh.3. The
tin shed barrackeding is situated towards Southern side of Madarsa
school.
2. Perused short reply of defendant vide Exh.3, alongwith
various documents.
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Draft N/m in Suit No. 286/2020. 2 Order.
3. Ld. advocate Kudalkar for plaintiff submits that since 1978
and prior to that plaintiff is enjoying peaceful possession over the suit
property, admeasuring 65 x 75 = 4875 open plot and structure
admeasuring 20 x 60 = 1200 sq.ft. over the aforesaid plot. The
compound wall barrackeding is 15.24 mtr. in length towards Southern
side of suit premises is in existence since long. It is added that original
complainant Vikas Mishra has submitted a report to MCGM to grab the
amount and to harass plaintiff. Plaintiff has relied on photopass
bearing No. 134667 and letter issued by Slum Controller dated
17/12/1980. It is added that the speaking order dated 13/02/2019 and
09/01/2020 are without application of mind, it is claimed for
temporary injunction to restrain MCGM from taking any action in
respect of notice dated 31/01/2019.
4. Ld. advocate Chavan for MCGM submits that area
mentioned in abovementioned photopass is 60 x 20 = 1200 sq.ft.,
ground floor. Notice is not issued to the extent of existing ground floor
admeasuring 60 x 20 = 1200 sq.ft. However, Eastern side wall is
constructed by MHADA to protect common public from going towards
ditch. The open space between suit premises 1200 sq.ft. and aforesaid
wall constructed by MHADA is an access for passing from South to
North. Plaintiff do not have any claim or right to enjoy the open space.
On the contrary, there appear to be intention of plaintiff to grab the
open space by erecting tin barrackeds as mentioned in notice. It is
claimed to reject the motion.
REASONS FOR ORDER
5. It is not disputed that there are various complaints
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Draft N/m in Suit No. 286/2020. 3 Order.
submitted by Mr. Vikas Mishra, resident at Tulshetpada, Bhandup dated
17/11/2018, 06/10/2017, 20/11/2018. It bear signature of numerous
adjacent residents that the open space in front of suit premises Madarsa
is a public road used by various students for going to Gayatri School.
The material allegations of Mr. Vikas Mishra are reproduced as follows :
^egksn;]
vki.kkal ojhy fo"k;kuqlkj fouarh vtZ lknj
djhr vkgs dh] Jh- fj;kt vUlkjh] odhy vUlkjh]
'kkSdr eqYyk ;k fru blekauh /kekZ ckjD;k pkG]
xkonsoh jksM] rqG'ksr ikMk] HkkaMqi ¼if'pe½] eqacbZ &
400078 ;sFks ekÖ;k ?kjkleksj fdR;sd o"kkZiklwu
vlysY;k tkxsoj i=k ykowu rks ekxZ can dsyk vkgs-
R;keqGs jfgok'khoxkZyk Qkj =kl lgu djkok ykxr
vkgs- egksn; ;kiwohZ lnj blekauh v'kkp fjrhus ekxZ
can dsyk gksrk- R;kosGh rdzkj fnY;kuarj ,l foHkkx
euik dk;kZy;krQsZ fu"dklukph dkjokbZ gksÅu ekxZ
eksdGk dsysyk gksrk- iqu'p lnj blekauh gk ekxZ can
dsyk vkgs- lnj ekxkZo:u 'kkGsrhy fo|kFkhZ tkr
gksrs- ijarq ekxZ caan vlY;kus R;kauk ykacP;k o dBh.k
ekxkZpk okij djkok ykxr vkgs- R;k ekxkZoj ik.kh
lkpysys vlY;kus 'kkGsrhy fo|kFkhZoxZ iMwu nq[kkirh
gksr vkgsr-*
6. On perusal of photopass no. 134667, census letter no.
303188 and letter issued by Controller of Slum Department dated
17/12/1980, the census structure No. TXC70 1/1 is admeasuring 20 x
60 = 1200 sq.ft.
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Draft N/m in Suit No. 286/2020. 4 Order.
7. However plaintiff has described suit premises admeasuring
65 x 75 = 4875 sq.ft. alongwith construction 20 x 60 = 1200 sq.ft. on
open plot. In aforesaid speaking order dated 13/02/2019 and
09/01/2020 it is clearly observed that barrackeding installed by
plaintiff is illegal. On perusal of unscaled plan submitted by plaintiff
vide Exh.4 and copy of complaint submitted by plaintiff against Mr.
Vikash Mishra on 23/01/2020, it bear signature of various persons with
single name like Nehal, Yasmin, Irfan, Kalim, Shahid, Shakil, Ram
Shinde, Nizam etc. alongwith their mobile number. The material
averred in impugned complaint dated 23/01/2020 against Mr. Vikas
Rajendraprasad reflect the real object of plaintiff behind G.I. sheet
barrackeding. It is reproduced as follows :
^egksn; efLtn ds vkxs dksbZ jkLrk ugha gS A efLtn ds
fruks cktw fnokj gS nks cktw flesaV dh fnokj gS vkSj tks
i=s dk fnokj gS og dkQh lkyksa ls gS A*
8. On the contrary, the object of Mr. Vikas Mishra appear to
keep the public road open. Therefore, it prima facie infer a false report
submitted by plaintiff with signature of various people with single name
seems to pressurize public machinery. It appear the object of plaintiff to
grab the open plot with initial stage to install G.I. sheet barrackeding .
9. There are no documents submitted by plaintiff to show title
or possession over open plot in front of aforesaid Madarsa at
Tulshetpada. It is material to note that impugned Madarsa is registered
as per certificate issued by C.E.O. of Wakf dated 05/03/2015.
Obviously, plaintiff would have annexed all documents in respect of
property of Madarsa namely 'Jamat Sunni Ittehadul Muslimeen' at
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Draft N/m in Suit No. 286/2020. 5 Order.
Tulsipada. Plaintiff is failed to annex property detail submitted by Wakf
Board. There is no prima facie case in favour of plaintiff.
10. Erection of G.I. sheet barrackeding will create hurdle to
public at large. There appear to be no personal benefit of original
complainant Mr. Vikas Mishra. On the other hand, it will cause
irreparable loss to public at large as mentioned in aforesaid paragraph
as referred from letter dated 17/11/2017.
11. Resultantly, balance of convenience lies in favour of
MCGM. The motion at draft level stands dismissed. Hence the order :
ORDER
1. Motion at draft level stands dismissed. It be registered for
statistical purpose.
2. MCGM is at liberty to clear the road; open and it for public
and passerby from South to North.
3. It is clarified that plaintiff do not have any right, title,
authority on open space, situated in front of
abovementioned Madrasa / Trust.
4. Notice of motion at draft level stands disposed off
accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 29/01/2020. Mumbai.
1. Dictated on : 29/01/2020.
2. Transcribed on : 29/01/2020.
3. Signed on : 30/01/2020.
4. Delivered to Certified :
Copy Section on
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Draft N/m in Suit No. 286/2020. 6 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01/02/2020. 11.42 a.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 29/01/2020.
Judgment/Order signed by P.O. on 30/01/2020.
Judgment/Order uploaded on 01/02/2020.
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