Order 1

Order Details: Notice of Motion
Pdf Text: :1: N/M No. 351/2018 in L.C. Suit No. 150/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 351 OF 2018
IN
L.C. SUIT NO. 150 OF 2018
Ajay Kumar Hariram Maroo and others ]...Plaintiffs.
V/s.
State of Maharashtra and others. ]...Respondents.
Appearance :
Advocate Mr. Damani for the Plaintiffs.
Advocate Mr. Dheeraj Kamble h/f Advocate Mr. Kudalkar for defendant
No.1/State.
Advocate Mr. Kandekar alongwith Advocate Mr. Lad for defendant Nos.
2 and 3.
Advocate Mrs. Vyavahare for M.M.C./Defendant No.4.
CORAM : HIS HONOUR JUDGE
SHRI NANDKISHOR L. MORE
(Court Room No.12)
DATED : 29th JANUARY, 2018.
O R D E R
Plaintiffs are the owner of suit premises, they have acquired
all rights, title and interest in respect of the property having new Survey
No. 1819, new survey No. 1693 and Cadestral Survey (C.S.) No. 876 of
Bhuleshwar Division and assessed the property under Ward C No. 1352
54 Street No. 5155 in Ward No.135558 and Street No. 5757 B in
ward No. 135254, new Hanuman lane (house) known as Shree Maroo
Bhavan, Babu Genu Road, Kalbadevi, Mumbai – 400 002 (hereinafter
referred as the suit premises for the sake of brevity).
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2. In the year, 2010, the Notices were issued by the defendant
No.2 and the office of defendant No. 4 for repairs/renovation and
threatanded for demolition to plaintiffs suit premises. Therefore, they
have filed the suit against said authorities being L.C. Suit No.1660/2010
and the same is pending before this Court. In the said earlier suit,
Notice of Motion moved by the plaintiff was rejected. Against said order
plaintiff has filed Appeal From Order No. 101/2011 which is still
pending before the Hon'ble Bombay High Court. In the present suit
plaintiffs have sought relief that the proposal of Land Acquisition Under
Section 93(1) of MHAD Act, 1976 submitted by defendant Nos. 2 and 3
to defendant No.1 be declared invalid, motivated, bad in law and for
further declaration that, defendant No.1 shall not consider said proposal
without issuing Notice to the plaintiff and for further mandatory
directions to defendant No.1 to not to act/proceed further pursuance to
the land acquisition proposal dated 21.08.2017 submitted by defendant
Nos. 2 and 3 to defendant No.1 without hearing the plaintiff and for an
order of permanent injunction and adinterim restraining the defendant
No.1 from proceeding further in pursuance of said proposal of land
acquisition of defendant Nos. 2 and 3.
3. Heard the Ld. Advocate Mr. Damani for the plaintiffs and
the Ld. Advocate Mr. Kandekar alongwith the Ld. Advocate Mr. Lad for
the defendant Nos. 2 and 3.
4. Perused plaint and documents annexed to it. Defendant
Nos. 2 and 3 have also filed some documents on record. It appears that,
in earlier Suit No. 1660/2010 the plaintiffs have sought to challenge the
notice dated 05.06.2010 issued under Section 354 of Mumbai Municipal
Corporation Act by defendant No.4 herein, and also sought declaration
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that the Notice issued by defendant Nos. 2 and 3 initiated by MHAD
Authority declaring suit building is in dangerous condition is invalid,
null and void. In the said suit, plaintiffs have moved an Appeal From
Order against the order passed below Notice of Motion by this Court.
In said Appeal from Order proceeding the Hon'ble Bombay High Court
has passed order in Civil Application No. 528 of 2016 taken out by M/s.
Raj Doshi Exports Pvt. Ltd as a Intervener, thereby granted permission
to MHADA and M.M.C. Authorities to take appropriate action of
demolition of the suit building namely 'Maroo Bhuvan' as per
requirement of the situation and also to undertake any urgent
precautionary measures as may be necessary in the interest of safety of
human lives and property.
It is clarified in the said order that the demolition at the
hands of MHADA would not affect any legal rights of the
appellant/owners who are otherwise entitled to their legal rights in
respect of the suit building. It is submitted on behalf of defendant Nos.
2 and 3 that subsequent to the order passed by the Hon'ble Bombay
High Court the building has been completely demolished and some of
the tenants have been accommodated in the transit accommodation
owned by MHADA.
5. It appears that, Defendant No.2 have undertaken the said
building for reconstruction, the tenants association of 'Maroo Bhuvan'
have declined to pay the excess amount for repairs of the building by
their letter dated 17th June, 2010.
6. The office of Mumbai Municipal Corporation, Greater
Mumbai issued letter to defendant No.2 dated 26.12.2017 and thereby,
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sanctioned the proposal submitted by defendant No.2 for propose
redevelopment of the suit property. Defendant Nos. 2 and 3 have
already submitted their proposal under Section 93(1) MHADA Act to
the Government on 21.08.2017. It is submitted on behalf of plaintiffs
that, the action of defendant Nos. 2 and 3 is not bonafide. They have
submitted their proposal for land acquisition without giving intimation
to the plaintiffs.
7. I have gone through the documents placed on record by
defendant Nos. 2 and 3, as the proposal under Section 92 of MHADA
Act for land acquisition is already been submitted to defendant No.1, it
is up to the State Government to accept the proposal of defendant Nos.
2 and 3 upon its satisfaction about the reasonableness of the proposal
and of the recourses available with the board for construction the new
building.
8. The Ld. Advocate appearing for defendants submitted that,
plaintiffs are not remediless, they can approach to the State
Government if they desire.
9. Plaintiff sought adinterim injunction order against the
defendant No.1 restraining it from proceeding further and in pursuance
of proposal of defendant Nos. 2 and3 for acquisition made under
Section 93(1) under MHAD Act dated 21.08.2017. Without going into
the merit of the case at this juncture, in my humble judgment, it is not
desirable to interfere into the administrative function of State
Government thereby to restrict it to consider reasonableness of the land
acquisition proposal submitted by defendant Nos. 2 and 3.
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10. It is to be noted that, the Mumbai Municipal Corporation,
Gr. Mumbai had issued notice under Section 354 of M.M.C. Act in the
year 2010, thereafter defendant Nos. 2 and 3 have declared Maroo
Bhuvan as ruinous building as 'A' category cess building but thereafter,
plaintiffs or occupants of said Maroo Bhuvan have not submitted their
proper proposal for redevelopment of the suit property. It is submitted
on behalf of plaintiff that, they have submitted their proposal on 30th
September 2016 with defendant Nos. 2 and 3 for redevelopment of the
suit property. However, defendant Nos. 2 and 3 did not pay heed to
consider their request and straightway submitted land acquisition
proposal without their consent.
11. The proposal of land acquisition is yet to be approved by
the State Government. Therefore, the bonafides of the proposal
submitted by the defendant Nos. 2 and 3 cannot be decided at this
interim stage. As I mentioned above, it is up to the State
Government/Defendant No.1 to consider reasonableness of the said
proposal. As such, I find no prima facie case made out by the plaintiff
to grant ad interim injunction order thereby to restrain defendant No.1
to act upon the land acquisition proposal submitted by defendant Nos. 2
and 3. With this, I pass the following order :
O R D E R
Adinterim is refused.
Date : 29.01.2018 [N.L. MORE]
Judge, City Civil Court,
(C.R. No.12), Gr. Mumbai.
Dictated on : 29.01.2018
Typed on : 03.02.2018
Signed by HHJ on : 09.02.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13.02.2018, 03:03 p.m. SUBHASH S. POUL
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SHRI NANDKISHOR L. MORE
(Court Room No.12)
Date of Pronouncement of
JUDGEMENT/ORDER
29.01.2018
JUDGEMENT/ORDER signed by
P.O. on
09.02.2018
JUDGEMENT/ORDER uploaded on 13.02.2018
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