Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.472/19
in Suit No.54/2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No. 472 of 2019
(CNR NO. MH CC010011762019)
In
SUIT No. 54 OF 2019
Mr. Bikshapati Mallana Raskonda ....Plaintiff
V/s.
The Chief Promoter & Ors. ....Defendants
Appearance:
Mr. Kamruddin Ansari, Advocate for the plaintiff.
Mr. Hamid, Advocate for the defendant No.2
Mrs. Chandramore, Advocate for the defendant No.3.
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 18 th November, 2019.
ORDER
1. By this Notice of Motion plaintiff has prayed for restraining
the defendants, their office bearers, agents, servants or any persons
claiming through them, from illegally claiming or dispossessing the
plaintiff from drying ground and rope (Rassi) of the plaintiff and the suit
property i.e. Room No. Annexure 1572, Saibaba Nagar, J.B. Boricha
Marg, Dhobi Ghat, Saat Rasta, Mumbai400 011 admeasuring of 7724 sq.
mtrs. Or any part thereof without following due process of law.
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2. In support of the notice of motion, plaintiff has filed affidavit
and has relied on the contentions raised in the plaint. It is submitted that
if the interim relief as prayed not granted, the plaintiff will suffer
irreparable loss and hardship.
3. Defendant No.2 has filed affidavit in reply of Mr. Vijay
Kunder, Constituted Attorney of the Director of defendant No.2. It is
submitted that pursuant to the letter of intent (LOI) bearing
No.SRA/ENG/2800/GS/ML/LOI dated 21.04.2015 issued by the
defendant No.3 i.e. Slum Rehabilitation Authority (SRA), defendant
No.2 is implementing a slum rehabilitation scheme (“said scheme”) in
accordance with Regulation 33(10) and Appendix IV to the Development
Control Regulation 1991 (DCR) read with Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971, (“Slum Act”)
on the land admeasuring 28,455.17 Sq. Mtrs which includes the drying
plot bearing CS No1(Part) & 2(Part) of Lower Parel Division GSouth
Ward of G.B. Sakpal Marg, Dhobighat, Saat Rasta, Mumbai400 011
(“Slum Plot”) for the defendant No.1 society which includes the drying
area where alleged suit premises are situated, after obtaining due
permission from the Competent Authority.
4. It is further submitted that the plaintiff has executed letter of
consent for implementation of slum rehabilitation scheme implemented
by defendant No.2 on Slum Plot which is owned by the MCGM. In the
said letter of consent, the plaintiff has agreed for removal of Rassi from
drying plot and for handing over of quite, vacant and peaceful possession
of drying plot to the defendant No.2 for implementation of the scheme.
5. It is further contended by defendant No.2 that prior to filing
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in Suit No.54/2019
of the present suit, plaintiff has filed Suit bearing No.1437/2018 for the
same relief and it was dismissed for non prosecution on 06.08.2018.
Therefore, the present suit is not maintainable. According to defendant
No.2 there is no AnnexureII Room No.1572 in the AnnexureII issued by
the Competent Authority. Therefore, the suit structure is not eligible for
rehabilitation under the said scheme. Defendant No.2 has further relied
on the observation in the order passed in Writ Petition No.422 of 2018
clubbed with Writ Petition No.1654 of 2018 and Writ Petition (L)
No.760/2018 dated 05.10.2018.
6. It is the contention of defendant No.2 that the structure i.e.
Room No.1572 has been demolished by the Competent Authority on
10.11.2017, pursuant to the order passed in proceedings under section
3(Z) (1) of Slum Act. The defendant No.3 after following due process of
law has passed an eviction/demolition order under section 3 (Z) of the
Slum Act against plaintiff on 22.06.2017. The appeal filed against said
order was withdrawn by plaintiff and the appeal against the said order
before Grievance Redressal Committee, Bandra was rejected on
09.11.2017 on the ground that the plaintiff's name is already included in
AnnexureII and the plaintiff has himself withdrawn the appeal. Thus, it
is prayed that the notice of motion be dismissed with cost.
7. Defendant Nos.1 and 3 have failed to file reply to said
notice of motion. In affidavit of rejoinder, it is submitted by plaintiff that
the office bearer of defendant No.1 and Mrs. Vijaya Mahajan of
defendant No.2 visited the suit property and informed the plaintiff to
demolish the suit property. It is the apprehension of plaintiff that the
defendants will demolish the suit property.
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8. Heard learned Advocate of plaintiff, Advocate of defendant
Nos.2 and 3. Considering the rival pleadings, following points arise for
determination and I have recorded findings against each of them for the
reasons as stated below.
SR. NOS. POINTS FINDINGS
1. Whether the plaintiff has
established prima facie case ?
No
2. Whether balance of convenience
tilt in favour of plaintiff ?
No
3. Who would suffer irreparable loss
if relief of injunction is granted ?
To the defendant
No.2
4. What Order ? As per final order
As to point No.1
9. It is not disputed that as per LOI dated 21.04.2015 issued by
the defendant No.3, defendant No.2 is implementing the slum
rehabilitation scheme in accordance with the Regulation 33(10) and
AppendixIV to the DCR 1991 read with Slum Act1971 on the land
admeasuring 28,455.17 Sq. Mtrs which includes the drying plot bearing
CS No1 (Part) & 2 (Part) of Lower Parel Division, GSouth Ward of G.B.
Sakpal Marg, Dhobighat, Saat Rasta, Mumbai400 011. In this respect
copy of the said LOI dated 21.04.2015 is filed on record by defendant
No.2. Pursuant to this LOI as observed in Writ Petition No.1654/2018
dated 05.10.2018, out of 1530 slum dwellers already 1502 have been
shifted and are being provided with rent in lieu of temporary
accommodation. It is further observed that in so far as license Rassi
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holders are concerned, they are being provided with temporary location
to carry their activities of drying clothes. It is pertinent to note that
Room No.1572 is not mentioned in AnnexureII issued by Competent
Autority. According to defendant No.2, the said structure was not in
existence from the date of issuance of AnnexureII which was issued on
16.05.2010 and therefore it is not eligible for rehabilitation in the said
scheme. In this respect, the plaintiff has not submitted any documents
to show that Room No.1572 is eligible for rehabilitation under the
scheme.
10. The letter of consent which is filed on record by defendant
No.2 specifically shows that the plaintiff is holding Municipal License
No.90, washing stone on the drying plot. It is also mentioned that
plaintiff is using the Rassi on the said plot since several years and by the
said letter of consent, plaintiff has granted his irrevocable consent for the
implementation of slum rehabilitation scheme by defendant No.2 on the
land admeasuring 28,455.17 Sq. Mtrs. The recitals of the said letter of
consent further reflects that plaintiff has no objection as required by
developer/defendant No.2 for submission to the Slum Rehabilitation
Authority (SRA). Further more, it is not disputed by plaintiff that
earlier, Suit No.1473/2017 was filed by the him and other washermen,
against defendant No.2, defendant No.3, MCGM and against the
Assistance Municipal Commissioner for restraining the defendants, their
persons, agents and servants from interfering and obstructing the
plaintiff in the peaceful use and occupation of Rassi on the drying plot
near Chota Dhobhighat, Saat Rasta, Mumbai, on the plot of land bearing
CS No1(Part) & 2 (Part) of Lower Parel Division, Mumbai. The certified
copies on which defendant No.2 has placed reliance, further reflects that
the said suit is dismissed for want of prosecution. Therefore, the record
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shows that by filing the present suit, plaintiff alone has again sought the
same relief against defendants.
11. The order of eviction dated 22.06.2017 under section 3(Z)
of Slum Act passed against plaintiff shows that he was directed to evict
the suit premises within 24 hours. The appeal filed against the said
order by plaintiff has been withdrawn and appeal against the said
withdrawal order is also dismissed on the ground that plaintiff's name is
already included in temporary AnnexureII and that the plaintiff has
himself withdrawn the appeal. The certified copies of the said orders
are filed on record by defendant No.2. Considering all these documents
alongwith P.R. Card of CS No.1(Part) & 2 (Part), it has came on record
that MCGM is owner of CS No.1(Part) & 2 (Part). LOI has been issued
for rehabilitation of the suit premises. Therefore, plaintiff has not
proved any prima facie case in order to grant temporary injunction in his
favour. Accordingly, answer of point No.1 is negative.
As to Point Nos. 2 and 3.
12. So far as balance of convenience is considered, it tilts in
favour of defendant No.2 as LOI is issued in favour of defendant No.2 for
Slum Rehabilitation Scheme. Therefore, if relief of temporary injunction
is granted, the defendant No.2 will suffer irreparable loss and also the
slum dwellers who are expecting for rehabilitation scheme and vacated
the premises. Thus, point Nos.2 and 3 are answered accordingly.
As to Point No. 4.
13. In view of forgoing discussion, I am of the opinion that since
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plaintiff has not proved prima facie case and irreparable loss will cause to
defendant No.2, if the relief of temporary injunction is granted, the
order of temporary injunction can not be passed against the defendants.
Resultantly, I pass following order.
ORDER
1) Notice of Motion No.472/2019 is dismissed.
2) Notice of Motion No.472/2019 is disposed off accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 18/11/2019
Dictated on : 18.11.2019
Transcribed on : 19.11.2019
Signed on : 20.11.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
21.11.2019 1.30 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 18.11.2019
Order signed by P.O. on 20.11.2019
Order uploaded on 21.11.2019
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