Interim Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM...2018. : 1 : L.C.Suit .No.270/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION No.....2018.
IN
L.C.SUIT NO. 270 OF 2018.
Santosh Ramchandra Talekar.. } .. Plaintiff.
Versus.
Municipal Corporation of Gr. Mumbai... } .. Defendants.
Ld. Advocate Mr. S.S.Kharat for Plaintiff.
Ld. Advocate Mr. Sutar for Defendant /BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 09 TH MARCH, 2018.
(Court Room No.06)
O R D E R
1. Plaintiff has taken out this draft notice of motion for grant of ad
interimrelief to restrain the defendant/Municipal Corporation of
Greater Mumbai from taking the action of demolition on the basis of
impugned notice and order.
2. According to plaintiff, plaintiff is in use, occupation and
possession of the shop premises i.e. Shop No. 318, Sangam Galli, 90 ft.
Road, Shivshankar Nagar, Near Sai Baba Temple, Dharavi, Mumbai
400 017 admeasuring 6 ft. x 10 ft. (hereinafter same is referred as the
suit premises.)
3. One Chandrakant Ganpat Bhatkar was in occupation of the suit
premises. Suit premises is censused by the Municipal Corporation in the
year 1990. Suit premises is in existence prior to 1980. The Census slip
bearing No. 0151135 is issued in respect of the suit premises. The
earlier owner has necessary documents i.e. Electoral Roll, electoral
extract etc. on the address of the suit premises. In the year 1994, the
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Dy. Collector has passed N.A. Order in respect of the suit premises. In
the year 1999 said Chandrakant Bhatkar executed affidavit and General
Power of Attorney in favour of plaintiff and relinquished his rights in
the suit premises. Since then, plaintiff is running his Masala Shop in the
suit premises. Plaintiff has obtained the license under Shops and
Establishment Act. Plaintiff has ration card, Adhar Card on the address
of the suit premises.
4. Plaintiff further contended that plaintiff had filed Suit No. 2794
of 2017 in this Court against the defendant/Corporation. The Court
directed the defendant/Corporation not to take any action without
following the due process of law. Thereafter suddenly on 02/01/2018
defendant/Corporation issued notice to the plaintiff. Plaintiff has given
reply to the said notice dated 03/01/2018. Defendant/Corporation did
not consider the reply of the notice and passed order dated
05/01/2018. Thus, defendant has not given any opportunity of
personal hearing to the plaintiff. The notice is bad and illegal and
therefore, prayed to grant adinterimrelief.
5. Notice is served to defendant.
6. Defendant filed affidavitinreply and written statement and
documents.
7. According to defendant, plaintiff has produced documents of
altogether different property. There was a Sai Baba Temple on the suit
premises. As per the order of Hon'ble Supreme Court,
defendant/Corporation issued notice U/sec.488 of the MMC Act on
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27/12/2016 and removed the said temple. Thereafter plaintiff made
encroachment on the space of the temple and started business. The
defendant has considered the documents produced by plaintiff. Hence,
prayed to dismiss the petition.
8. I have heard both the parties.
9. Plaintiff has come with a specific case that he entered in the
shoes of Chandrakant Bhatkar. The suit premises is in existence prior to
1980. From the perusal of documents filed by plaintiff, it appears that
said Chandrakant Bhatkar executed Power of Attorney and affidavit in
favour of plaintiff. Identity card was also issued in his name. Thereafter
the identity card is issued in favour of plaintiff. However, in the Adhar
Card, the address of the premises is shown Room No. 318, Sangam
Galli, 90 ft. Road, Near Sai Baba Temple, Dharavi, Mumbai400 017.
Thus, the address is different and it appears that the premises on the
said above address is residential premises.
10. The specific contention of the defendant is that defendant has no
objection about the other premises occupied by plaintiff. However,
after removal of the temple, plaintiff made encroachment and started
his business. The photographs do show that the temple which was on
footpath was demolished by the Corporation. In the speaking order
dated 22/01/2018 it has specifically mentioned that plaintiff made
encroachment upon the open space of Sai Baba Temple.
Defendant/Corporation has considered the documents produced by the
plaintiff. Therefore, it cannot be said that opportunity was not given to
the plaintiff. Plaintiff has not produced the documents to show that the
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suit premises wherein he is running the business is the same, in respect
of which, the earlier owner has executed an affidavit and General
Power of Attorney in favour of plaintiff.
11. On the contrary, from the contention of defendant it appears that
as per the order of Hon'ble Supreme Court, defendant/Corporation
removed the Sai Bba Temple which was on the footpath and there
plaintiff made encroachment and started his business. Thus, plaintiff
has no prima facie case. Balance of convenience does not lie in favour
of plaintiff. Hence, plaintiff is not entitled for adinterimrelief.
therefore, the following order:
O r d e r
1. Adinterimrelief is hereby refused.
2. Draft Notice of Motion be registered.
Date : 09.03.2018 (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 09.03.2018
Typed on : 09.03.2018
Signed by HHJ. : 09.03.2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
09.03.2018 /4.30 p.m. Mr. S.D.Nalawade
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with
Court Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
09.03.2018
JUDGEMENT/ORDER signed
by P.O. on
09.03.2018
JUDGEMENT/ORDER
uploaded on
09.03.2018 .
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