Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM 65619 in Suit No.37019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION No.656 of 2019
(CNR No.MHCC010017202019)
IN
S.C.SUIT NO.370 OF 2019
(CNR No.MHCC010016192019)
Dinesh Mudanna Shetty & ors. }...PLAINTIFFS.
Versus
State of Maharashtra and anr. }...DEFENDANTS.
Shri.Thorat, learned advocate for the plaintiffs.
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 08/03/2019)
1. This Notice of Motion is taken out by the plaintiffs for
seeking relief of temporary injunction to restrain the defendants from
demolishing the suit premises (three structures) described in detailed in
the plaint in pursuance of notice dt.04/02/2019 issued by defendant
No.2. Read the affidavit filed in support of Notice of Motion & reply
filed by the defendants. Heard learned Shri.Thorat, advocate for the
plaintiffs & learned Shri.Sachin Kadam, AGP for the defendants.
Perused the entire record.
2. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i)Whether primafacie case lies in favour of the
plaintiffs? ...Yes.
ii)Whether balance of convenience lies in favour
of the plaintiffs? ...Yes.
iii)Whether irreparable loss will cause to the
plaintiffs if injunction as prayed is not granted? ...Yes.
iv)What order? ...As per final order.
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R E A S O N S
AS TO POINT Nos.(i) TO (iii):
3. All the points are taken together for consideration. Learned
advocate for the plaintiffs argued that plaintiffs are in long standing
possession of the three structures described in plaint as suit premises,
possession of the plaintiff No.1 over the suit premises at Sr.No.1 in
plaint is recognized in the appeal which was filed by the plaintiff No.1
before the Deputy Collector (Encroachment) against the order passed
under Section 50 of MLR Code by Tahsildar & in the suit filed in City
Civil Court against BMC. He argued that plaintiffs are lawfully running
their businesses from the suit premises since last many years yet,
defendant No.2 has issued notice dt.4/02/2019 to the plaintiffs thereby
directing the plaintiffs to demolish the suit premises by referring it as
encroachment made by the plaintiffs over the land of PWD. He argued
that defendant No.2 has mentioned in the said notice that if plaintiffs
have not removed the constructions within 7 days, suit premises will be
demolished. He argued that defendant No.2 has not clarified the
provision of Law under which, said notice is issued & despite replying
the said notice by the plaintiffs, defendants are trying to demolish the
suit premises forcibly without giving any opportunity of hearing to the
plaintiffs. He further argued that Pitchholders Cards are issued in
respect of the suit premises in favour of plaintiffs despite it, defendants
are trying to forcibly demolish the suit premises without providing
alternate permanent accommodation to the plaintiffs. He argued that if
action for demolition of the suit premises is taken by defendants in
pursuance of said notice, it will cause an irreparable loss to the
plaintiffs due to which, it is necessary to restrain the defendants from
demolishing the suit premises by granting temporary injunction in
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favour of plaintiffs, pending final disposal of the suit.
4. As against this, learned AGP argued that notice is issued to
the plaintiffs under provisions of Maharashtra Highways Act for removal
of encroachment made by the plaintiffs as defendants want to construct
a two lane service road for the public at large & this court has no
jurisdiction to try & entertain the suit as per provisions of Section 68 of
said Act. He argued that the work of construction of service road cannot
be stopped at the instance of plaintiffs as plaintiffs are encroacher in
respect of the suit premises. He argued that the entitlement of plaintiffs,
if any, for permanent alternate accommodation can be considered
afterwards & hence, plaintiffs are not entitled for interim injunction.
5. At the first instance, it would be apposite to mention here
that plaintiffs have described three structures in the plaint as suit
premises by claiming that plaintiff Nos.1 to 3 are in respective
possession of those three structures mentioned at Sr.Nos.1 to 3. It is not
in dispute that defendant No.2 has issued notice dt.04/02/2019 to Vijay
Lunch Home & plaintiffs are claiming that said notice is issued in
respect of all three structures mentioned in the plaint as suit premises.
Defendants have not disputed the contention of the plaintiffs that notice
dt.04/02/2019 is issued by defendant No.2 in respect of all three
structures which are described in the plaint as suit premises.
6. It would also be apposite to mention here that plaintiffs
have raised various grounds in the plaint for challenging notice
dt.04/02/2019 by making reference to Section 50 of MLR Code
however, it is not the contention of either plaintiffs or defendants that
defendant No.2 is Revenue Officer. His designition is mentioned in the
notice as Assistant Engineer (GradeI). Apparently, defendant No.2 is
not at all authorized to issue notice under the provisions of MLR Code
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hence, the grounds raised in the plaint for challenging the legality of
said notice by making reference to the provisions of MLR Code are not
necessary to be considered.
7. Defendants have contended in their reply & written
statement that notice dt.04/02/2019 is issued under provisions of
Maharashtra Highways Act. Learned AGP argued that this Court has no
jurisdiction to grant injunction in respect of the action taken under the
provisions of said Act as the jurisdiction of Civil Court is barred by
Section 68 of the said Act. He further argued that plaintiffs have
committed encroachment on the land of Government and it is necessary
to be removed for constructing service road of two lanes for public at
large due to which, notice given to the plaintiffs by defendant No.2
cannot be said to be illegal.
8. Recitals of the notice dt.04/02/2019 show that defendant
No.2 has referred the structure of Vijay Lunch Home as encroachment
on land of PWD. The term “encroachment” is defined in Section 2(6) of
Bombay Highways Act, 1955 as;
2(6). Encroachment means any unauthorized occupation of
any highway or part thereof, and includes an unauthorized
(a) erection of a building or any other structure, balconies ,
porches, projections on or over or overhanging the highway;
(b) occupation of a highway beyond the prescribed period,
if any, for stacking building materials or goods of any other
description, for exhibiting articles for sale, for erecting poles,
owning, tents, pandals, hoardings & other similar erections or for
parking vehicles or stabling animals or for any other purpose; and
(c) excavations or dumps of any sort made or extended on
any highway or underneath such highway.
9. Section 7 of said Act empowers to the Highway Authorities
to fix boundary, building and control lines of highway. Section 10 of
said Act has provided remedy of appeal against decision given under
Section 9 by Highway Authority. Section 20 of the said Act prescribes
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that the lands forming part of highway are deemed to be Government
property & there is prohibition for occupying or encroaching on any
highway within highway boundaries without obtaining prior permission
in writing of Highway Authority. Section 23 of the said Act authorizes
the Highway Authority to serve a notice on a person responsible for the
encroachment for removal of such encroachment and to restore the land
to its original condition within the period specified in the notice.
10. Section23(b) of the said Act prescribes that the notice
issued for removal of encroachment shall specify the land encroached
upon & the time limit within which such encroachment shall be
removed and shall also state that failure to comply within the specified
period shall render said person liable to prosecution and also for
summary eviction. Remedy of filing appeal against issuance of notice
under Section 23 is given to the noticee before Collector under
intimation to Highway Authority within the time limit prescribed in the
notice. It is on the basis of the provisions of Section 23 & 24, learned
AGP argued that this court has no jurisdiction to entertain the suit in
view of the bar created by Section 68 of said Act.
11. Section 68 of the said Act prescribes that Civil Court has no
jurisdiction to settle or deal with any question which is by or under this
Act required to be settled, decided or dealt with by the Highway
Authority, the Collector, an Officer or person authorized under the said
Act, any authority under Section 33 or Section 44 or the State
Government. Thus, for invoking the provisions of Section 68 of the said
Act, it has to be shown that the acts performed or sought to be
performed under the provisions of the said Act are challenged before
the Civil Court by filing a suit. Now, it will have to be seen whether the
recitals of notice dtd.04/02/2019 are sufficient at this stage for
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accepting that jurisdiction of this court is barred under Section 68 of the
said Act, as is argued by learned AGP for defendants?
12. It would not be out of place to reproduce here the contents
of notice dtd.04/02/2019 for deciding the said aspect properly. The
notice reads as;
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lk;u&iuosy egkekxk±ojhy eku[kqnZ tdkr ukdk lk-Ø-136@900 ;sFks lk-cka-
foHkkxkP;k tkxsoj vufèkd`rfjR;k vfrØe.k dsysys vkgs- lnj fBdk.kh lfoZl
jksMps ¼2 lane½ ps dke lq: gks.kkj vlY;kus ;k tkxsrhy vfrØe.k rkRdkG
gVfo.;kr ;kos-
rfj vki.kkl lwfpr dj.;kr ;sr vkgs fd] ;sR;k 7 fnolkP;k vkr
rkRdkG vfrØe.k gVfo.;kr ;kos vU;Fkk lk-cka-foHkkxkekQZr vfrØe.k
gVfo.;kr ;sÃy ;kph uksan ?;koh-
13. Said notice is issued under signature of defendant No.2
who is Assistant Engineer (GradeI) having his office at Multistoried
Building Construction, SubDivision No.1, Turbhe. It is not clarified in
the notice whether defendant No.2 is Assistant Engineer of PWD or
Highway Authority. There is nothing in the notice to show that
defendant No.2 is appointed by Government for performing the duties
under the said Act on SionPanvel Highway either under Section 4 or
Section 6 of the said Act & nothing in that regard is mentioned either in
the reply or written statement filed by the defendants due to which, it
prima facie appears at this stage that notice dt.04/02/2019 suffers from
requisite details hence, I would say that there appears no substance in
the contention of defendants, at least at this stage of the proceeding,
that defendant No.2 has issued notice dt.4/02/2019 under the
provisions of Bombay Highways Act.
14. Again, it is nowhere mentioned in the said notice that
structures of the plaintiffs are encroachment on SionPanvel Highway.
On the other hand, recitals of said notice show that structure of Vijay
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Lunch Home is encroachment on the land of PWD. Even if it is accepted
that construction of Vijay Lunch Home is encroachment of land of PWD,
it is not mentioned in the notice that said land is part of SionPanvel
Highway hence, it appears that the construction of Vijay Lunch Home
does not fall within the definition of encroachment given in Bombay
Highways Act hence, it cannot be accepted that said notice is issued
under the provisions of Bombay Highways Act due to which, argument
of learned AGP is not acceptable that this court has no jurisdiction to try
and entertain the suit in view of the bar created by Sec.68 of said Act.
15. As mentioned earlier, recitals of notice show that defendant
No.2 has claimed that structure of Vijay Lunch Home is unauthorized
encroachment on the land of PWD. Plaintiffs have claimed that suit
premises are lawfully possessed by them since last many years as
owners thereof. Since it is mentioned in said notice that Vijay Lunch
Home is encroachment on the land of PWD, it would be just to consider
the material produced in that regard by the plaintiffs.
16. It is not in dispute that suit premises are on land Survey
No.80(Part). Plaintiffs have produced copy of order passed in appeal by
Deputy Collector (ENC) which is prima facie sufficient at this stage for
accepting the contention of the plaintiffs that order passed under
Section 50 of MLR Code by Tahsildar for summary eviction of plaintiff
No.1 from suit premises No.1 (which is described in the plaint as a
structure admeasuring 100' x 15') is set aside in appeal by Deputy
Collector (ENC) by observing that detailed enquiry is necessary to be
held as to whom the land actually belongs as it was found that different
agencies viz. plaintiff No.1, BMC, Highway Authority & Tahsildar are
claiming ownership over the land on which, said premises is standing.
Copy of said order shows that direction was given to Tahsildar to take
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further action by holding detailed enquiry about ownership over the
said land by effecting joint measurement with BMC, PWD & DILR
Authorities. Defendants have not produced any material to show that
enquiry was held as per said order & it is found that said land is owned
by PWD. No doubt, defendants have produced copy of 7/12 extract
which shows that Government is owner of said Survey No.80(Part)
however, said 7/12 extract does not make it clear that said land is
vested in PWD by the Government as is claimed in the notice by
defendant No.2. Those circumstances have made me to hold that 7/12
extract produced by defendants is not appearing sufficient at this stage
for accepting the contention raised by defendant No.2 in the notice that
land is owned by PWD.
17. Plaintiffs have also produced copy of Judgment of City Civil
Court Mumbai in L.C.Suit No.1355/2003 which shows that notice
issued under Section 351 of BMC Act by BMC to plaintiff No.1 in
respect of suit premises described in said suit as Vijay Lunch Home ad
measuring 100' x 15' situated on S.No.80(Part) owned by State
Government is declared as illegal.
18. Perusal of copy of License produced by the plaintiffs shows
that License is issued in favour of plaintiff No.1 in year 1990 for
running Eating House under name Vijay Lunch Home which means that
plaintiff No.1 is running his business from suit premises No.1 at least
since year1990. Copies of Pitchholders Cards produced by pl aintiffs
show that Pitchholders Card is issued in names of plaintiff Nos.2 & 3
way back in year 1980 in respect of suit premises Nos.2 & 3 mentioned
in the plaint. Defendants have not specifically disputed issuance of
those Cards due to which, those copies appear prima facie sufficient at
this stage for accepting that plaintiff Nos.2 & 3 are in possession of
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those premises at least since year1980.
19. Learned advocate for the plaintiffs argued that possession
of plaintiffs cannot be disturbed by defendants without providing
alternate permanent accommodation to the plaintiffs as Pitchholders
cards are issued in favour of plaintiffs & as plaintiffs are in possession of
the suit premises since prior to year2000. I have mentioned earlier that
the copies of documents produced by the plaintiffs are primafacie
sufficient at this stage for accepting their contention that they are in
possession of the suit premises since prior to year 1990 or so. Learned
AGP submitted that the aspect of plaintiffs' entitlement for alternate
permanent accommodation is not necessary to be considered at this
stage and it will be taken care of by defendants at later stage.
20. As mentioned earlier, it does not appear from the contents
of reply & Written Statement filed by defendants that defendants have
specifically disputed the contention of the plaintiffs about issuance of
Pitchholders Cards in the names of the plaintiffs. I could not find any
force in the argument of learned AGP that it is not necessary to consider
at this stage the aspect of providing alternate accommodation to the
plaintiffs by the defendants in lieu of suit premises. Admittedly, nothing
is mentioned in notice dtd.04/02/2019 that plaintiffs will be provided
with alternate permanent accommodation in lieu of the suit premises.
To my mind, it was essential for defendants to consider said aspect
before issuance of notice dt.04/02/2019 by giving opportunity of
hearing to the plaintiffs. Even though, the construction of service road is
for the benefit of public at large, defendants are supposed to follow the
due process of law however, it appears that defendants have not
followed the due process of law before serving notice dtd.04/02/2019
on the plaintiffs. Again, admittedly, defendant No.2 has not quoted the
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provision of law under which, said notice is issued by him to plaintiffs.
21. All the above mentioned circumstances have made me to
hold that even though the work of construction of service road is for the
public at large, it appears that defendants have not followed the due
process of law for issuing notice dt.04/02/2019 to the plaintiffs for
undertaking the said construction work. Defendants can still take steps
as permissible in law for undertaking the work of construction of service
road. At this stage, suffice it to say that due process of does not appear
to have followed by defendant No.2 while issuing notice dt.04/02/2019
to the plaintiffs. Thus, I hold that prima facie case & balance of
convenience do lie in favour of the plaintiffs. I am satisfied that if
defendants are not restrained from demolishing the suit premises in
pursuance of notice dt.04/02/2019 without following the due process
of law, it will cause an irreparable loss to the plaintiffs & the very
purpose of filing the suit may get frustrated. However, since defendants
can resort to due process of law for effecting construction of service
road, instead of granting blanket injunction in favour of the plaintiffs, it
would be just to restrain the defendants from demolishing suit premises
without following the due process of law, pending final decision of suit.
22. Before passing the final order, it would be just to mention
here that while passing order dt.14/02/2019, this court has considered
the provisions of Sec.20(A) of Specific Relief (Amendment) Act, 2018.
Said Section prescribes that court is not permitted to grant injunction in
respect of infrastructure projects where granting of injunction would
cause impediment or delay in progress of completion of such
infrastructure work. Learned advocate for the plaintiffs argued that said
provision is not applicable in this matter as, according to him, said
Section prescribes that no injunction shall be granted involving contract
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relating to infrastructure projects but plaintiffs are not concerned with
any such contract & they are not claiming any injunction in connection
with any such contract. I gave a thoughtful consideration to his said
argument & found it to be acceptable. Even otherwise also, it does not
appear from the documents produced by the defendants that contract is
actually given to anybody till date for execution of said work & only
Tenders are invited. Furthermore, as mentioned earlier, there is no
material on record at this stage for accepting that defendant No.2 has
issued notice dt.04/02/2019 is issued under the provisions of Highways
Act. Considering those aspects of the matter, I am satisfied that
Sect.20(A) of Specific Relief (Amendment) Act, 2018 will not come in
the way of granting injunction in favour of the plaintiffs.
For all the above mentioned reasons, holding that plaintiffs
are entitled for interim relief as above, I answered Point Nos.(i) to (iii)
accordingly and pass the following order.
O R D E R
Notice of Motion No.656 of 2019 is allowed as under:
Pending final disposal of the suit, defendants or anybody
claiming through them are temporarily restrained from
demolishing or pulling down the suit premises described in
detailed in plaint or any part thereof, without following due
process of law.
Costs in the main cause.
Date: 08/03/2019. (P.P.RAJVAIDYA)
Direct dictated on : 08/03/2019. Judge, C.R.No.12,
Transcribed on : 08/03/2019. City Civil Court,
Checked on : 08/03/2019. Gr.Bombay.
Signed on : 08/03/2019.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
11.03.2019 at 12.45 p.m. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI.P.P.RAJVAIDYA (CR No.12)
Date of pronouncement of Order 08/03/2019
Order signed by P.O. on 08/03/2019
Order uploaded on 11/03/2019
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