Order 1

Order Details: Notice of Motion
Pdf Text: 1 Draft NM in SC Suit No.37019
IN THE CITY CIVIL COURT AT MUMBAI.
DRAFT NOTICE OF MOTION
IN
S.C.SUIT NO.370 OF 2019.
Dinesh Muddanna Shetty & Ors. }...PLAINTIFFS.
Versus
The State of Maharashtra & Anr. }...DEFENDANTS.
Shri.Thorat, learned advocate for the plaintiff.
Shri.Kadam, learned AGP for the defendants.
CORAM : HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 14/02/2019)
1. This draft Notice of Motion is taken out by the plaintiff
seeking relief to temporarily restrain the defendants from demolishing
the suit premises described in detailed in the plaint wherein, learned
advocate for the plaintiff prayed to grant adinterim relief. Heard
learned Shri.Thorat, advocate for the plaintiff & learned Shri.Kadam,
AGP for the defendants. Considering the urgent relief claimed by filing
the draft Notice of Motion, issuance of notice under Section 80 of CPC
to defendants is waived and permission to file the suit is granted under
Section 80(2) of CPC. Leave is granted to registered Notice of Motion.
2. Perusal of the copies of documents produced by the
plaintiffs prima facie support their contention that plaintiffs are running
businesses at the suit premises. The copy of order passed by learned
Deputy Collector (ENC) in appeal shows that order passed under Sec.50
of MLR Code by the Tahsildar directing the plaintiff No.1 for removing
the encroachment of shed admeasuring 100' x 15' is set aside. The copy
of Judgment dtd.16/05/2009 passed in L.C.Suit No.1355/2003 by City
Civil Court Mumbai shows that notice issued to present plaintiff No.1 by
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2 Draft NM in SC Suit No.37019
BMC under Section 351 of BMC Act in respect of said premises of Vijay
Lunch Home is declared to be illegal. Copies of License for running
Eating House show that licenses are issued for running Vijay Lunch
Home have been issued in name of plaintiff No.1. However, the
challenge to notice dt.04/02/2019 issued to plaintiffs by defendant
No.2 is mainly on the grounds that there is no compliance of the
provisions of Section 50 of MLR Code hence, notice is illegal & plaintiffs
are entitled for interim protection.
3. Learned advocate for the plaintiffs argued that plaintiffs are
in long standing possession of the suit premises & plaintiffs are running
their businesses in the suit premises lawfully yet, notice dt.04/02/2019
is issued by defendant No.2 to the plaintiffs thereby threatening the
plaintiffs to demolish the suit premises with the help of police if
plaintiffs themselves have not demolished it within 7 days. He argued
that notice issued by defendant No.2 is illegal & despite replying the
said notice by the plaintiffs, defendants are trying to demolish the suit
premises without giving any opportunity of hearing to the plaintiffs &
also without passing any order under Section 50 of MLR Code which act
of defendants is illegal & if the suit premises is demolished by the
defendants, it will cause an irreparable loss to the plaintiffs which will
not be compensated in terms of money due to which, it is necessary to
restrain the defendants by granting adinterim injunction in favour of
plaintiffs from demolishing the suit premises.
4. As against this, learned AGP argued that notice is issued
legally for demolishing the suit premises as defendants want to
construct a two lane service road for the public at large hence, plaintiffs
are not entitled for any adinterim injunction.
5. There is substance in the argument of learned advocate for
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3 Draft NM in SC Suit No.37019
the plaintiffs that defendant No.2 has not mentioned the provision of
law under which, notice dtd.04/02/2019 is issued to the plaintiffs. By
taking me through Section 50 of MLR Code, learned advocate for
plaintiffs argued that defendant No.2 has no authority to issue said
notice & it is essential for Collector to pass order under Section 50 by
issuing notice for removal of encroachment after which, there is remedy
of appeal for challenging said order. His argument so far as vesting of
powers under Section 50 of MLR Code in the Collector is acceptable but
it does not appear that said notice is issued under Section 50 of MLR
Code by defendant No.2. Perusal of copy of said notice shows that
though the construction of plaintiffs Vijay Lunch Home is referred to as
encroachment in the said notice, its other contents make it clear that
Vijay Lunch Home of the plaintiffs is directed to remove encroachment
made on the land of PWD adjacent to SionPanvel Highway as the work
of construction of two lane service road is being undertaken. On that
count, I could not find any force in the argument of learned advocate
for the plaintiffs, at least at this stage, that said notice is issued by
invoking the provisions of Section 50 Of MLR Code & in violation of the
said provision.
6. Section 20A of Specific Relief(Amendment)Act,2018
prescribes that the Courts are not permitted to grant an injunction in
respect of infrastructure projects listed in the Schedule to the
Amendment Act, if such injunction would cause an impediment or delay
in the progress or completion of the infrastructure project or interfere
with related facility or services that are a part of such project. It
appears from the contents of notice dtd.04/02/2019 that said notice is
issued for constructing the service lane adjacent to Highway & said
work cannot be allowed to be stopped by granting adinterim relief in
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4 Draft NM in SC Suit No.37019
favour of the plaintiffs as it appears that defendant No.2 is lawfully
acting for construction of the service road and not as per Section 50 of
MLR Code. For these reasons, holding that plaintiffs are not entitled for
any adinterim relief, I pass the following order.
O R D E R
Adinterim relief is refused.
Date: 14/02/2019. (P.P.RAJVAIDYA)
Dictated on : 14/02/2019. Judge, C.R.No.12,
Transcribed on : 14/02/2019. City Civil Court,
Checked on : 14/02/2019. Gr.Bombay.
Signed on : 14/02/2019.
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5 Draft NM in SC Suit No.37019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
15/02/2019 at 11.30 a.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 14/02/2019.
Order signed by P.O. on 14/02/2019.
Order uploaded on 15/02/2019.
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