Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 69719 in LC Suit 29219
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.697 OF 2019
(CNR No.MHCC010017992019)
IN
LONG CAUSE SUIT NO.292 of 2019.
(CNR No.MHCC010008062019)
Mohammed Rafik Abdul Rashid Shaikh }...PLAINTIFF.
Versus
1.State of Maharashtra, }
2.Municipal Corporation of Gr.Mumbai, }
3.Deputy Collector ENC & CA, Mumbai, }
4.M.M.R.D.A, Bandra, Mumbai, }
5.Asst. Conservator of Forest Mangroves Protection}
6.Eagle Security Agency, Andheri, Mumbai, }
7.Deputy Salt Commissioner, Mumbai. }...DEFENDANTS.
Shri.Anand, learned advocate for the plaintiff.
Shri.S.Kadam, learned AGP for defendant No.1 & 3.
Shri.Suryavanshi, learned advocate for defendant No.2.
Smt.Subhedar, learned advocate for defendant No.4.
Shri.S.Redij, learned advocate for defendant No.7.
CORAM: HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 12/04/2019)
1. By filing this Notice of Motion, plaintiff has prayed to
temporarily restrain defendant Nos.2 to 5 from demolishing the suit
premises or any part of it, pending final disposal of the suit. Relief is
also claimed to direct defendant Nos.2 to 5 to examine the documents
of the plaintiff as per Notifications dtd.16/05/2015 & 16/05/2018 so
also, to consider the plaintiff as eligible for residential premises in
Mumbai in Scheme of Rehabilitation as per those Notifications. Read
the affidavit filed in support of the Notice of Motion, reply filed by
defendant Nos.4 & 7 and rejoinder filed by the plaintiff. Heard learned
Shri.Anand, advocate for the plaintiff, learned Shri.Kadam, AGP for
defendant Nos.1 & 3, learned Smt.Subhedar, advocate for defendant
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No.4 & learned Shri.Redij, advocate for defendant No.7. 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
plaintiff? ...No.
ii)Whether balance of convenience lies in favour
of the plaintiff? ...No.
iii)Whether irreparable loss will cause to the
plaintiff if injunctions as prayed are not granted
in his favour? ...No.
iv)What order? ...As per final order.
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 plaintiff argued that suit premises is situated in slum
declared area, plaintiff is in possession of suit premises since prior to
year 2000 & Survey Slip for grant of Photopass has been issued in
favour of the plaintiff on 15/07/2000 by Competent Authority & hence,
plaintiff is eligible for permanent alternate accommodation in lieu of
suit premises as per the Notifications dtd.16/05/2013 & 16/05/2018
issued by State Government. He argued that defendant/BMC is claiming
that suit property belongs to BMC & defendant Nos.3 to 7 are also
claiming ownership over the suit property. He argued that defendant
Nos.2 to 7 are threatening the plaintiff that suit premises will be
demolished without following the due process of law. He argued that if
the suit premises is demolished by defendant Nos.2 to 7 illegally, it will
cause an irreparable loss to the plaintiff hence, it is necessary to grant
temporary injunctions in favour of the plaintiff.
4. As against this, learned advocate for defendant No.4
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vehemently opposed the prayer for grant of interim injunction by
submitting that suit premises is situated on suit land bearing CTS
No.83(Part), all structures including the structure of plaintiff on the suit
land were demolished by the office of Collector in October2010 &
thereafter, vacant possession of the suit land is handed over to
defendant No.4 on 20/10/2010 for protecting it. She argued that
plaintiff had constructed structure on the suit land thereafter which was
also demolished by defendant No.4 in year 2014. She argued that
plaintiff had again committed encroachment over suit land in the night
of 25/11/2018 & errected Kachcha construction with the help of
Bamboo, plastic sheets, Tadpatri etc. which has been demolished by the
Security Agency appointed by defendant No.4 but plaintiff has again
committed encroachment & erected temporary structure illegally during
night hours. She argued that plaintiff is not in possession of suit
premises since prior to year 2000 & plaintiff is not entitled for
protection as per the Notifications issued by State Government. She
argued that plaintiff is rank trespasser on the land of Government which
is given in possession of defendant No.4 for security purposes. She
argued that Writ Petition was filed by encroachers on CTS No.83(Part)
& it is dismissed by Hon'ble High Court by holding that encroachers on
public land are not entitled for any protection & in view of the
observations of Hon'ble High Court in Judgment dt.13/04/2016 in said
Writ Petition No.2159 of 2014 [Sehrunnisa Mohammed Harunkhan
& ors Vs. The Deputy Collector (Encroachment & Demolition) & ors.],
plaintiff is not entitled for interim injunction.
5. Learned advocate for defendant No.7, on the other hand,
argued that suit land is owned by defendant No.7 & State Government
cannot declare the land of Central Government as slum area due to
which, plaintiff is not entitled for any protection under the Slum Act. He
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argued that plaintiff is rank trespasser on the land of Central
Government & hence, plaintiff is not entitled for interim injunction.
6. At the first instance, it would be apposite to mention here
that it is not in dispute that suit premises is situated on land bearing
CTS No.83 (Part), Salt Pan Division, Vijay Nagar. Defendant No.4 has
contended that defendant No.4 is put in possession of vacant suit land
by the Collector in October2010 & defendant No.4 is in possession of
the suit land since then. Defendant No.7 has contended that suit land is
owned by Central Government through defendant No.7. Apparently,
there is issue of ownership of suit land between the State Government &
the Central Government.
7. Having gone through Judgment dt.13/4/2016 of Hon'ble
High Court in a case of Sehrunnisa Mohammed Harunkhan & ors Vs.
Deputy Collector (Encroachment & Demolition) & ors. in Writ
Petition No.2159 of 2014 cited above on which reliance is placed by
learned advocate for defendant No.4, I found substance in the argument
of learned advocate for defendant No.4 that the claim involved in the
said matter before Hon'ble Bombay High Court was in respect of the
structures on land CTS No.83 (Part). Learned advocate for plaintiff
submitted that plaintiff was not party to the said Writ Petition. Even if
his said submission is accepted, it would not be relevant for the reason
that claim in respect of the structures on land CTS No.83 (Part) was
involved in the said matter. In the said Judgment, Hon'ble High Court is
pleased to observe that who is the owner of the said land, namely,
either the Central Government or State Government will be the issue
that will be sorted out by the respective Governments. In view of said
observation, the fact that State Government & Central Government are
claiming ownerships over the suit land is not sufficient for holding the
plaintiff entitled for relief of interim injunction as, admittedly, plaintiff
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is not claiming himself to be owner of the suit land or any part thereof.
8. Plaintiff's contention is that he is in possession of the suit
premises since prior to year 2000 & hence, he is entitled for protection
under Slum Act as per the Notifications issued by the State Government.
Learned advocate for the plaintiff drew my attention to the copy of
Enumeration Form produced by the plaintiff with plaint & argued that it
is issued on 17/05/2000 due to which, plaintiff is entitled for protection
as per Notifications dtd.16/05/2013 & 16/05/2018 issued by the State
Government. Having gone through the copies of those Government
Notifications produced on record by the plaintiff, I found that protection
to hutment dwellers is given if hutment dweller shows any one of the
proof mentioned in the Schedule about existence of the hutment since
prior to year 2000.
9. Perusal of the copy of Enumeration Form produced by the
plaintiff shows that address of the suit premises is not mentioned
anywhere in it. Even the area in which the premises is situated is not
mentioned in the said Form. Learned advocate for the plaintiff argued
that area of CTS No.83(part) is more than 40 acres and hence, absence
of the address of suit premises in Enumeration Form is not sufficient for
disbelieving the contention of the plaintiff that it is issued in respect of
the suit premises. I could not find any force in his said argument. In
absence of room number or at least location, said Enumeration Form
cannot be regarded as a proof for accepting that it pertains to the
present suit premises.
10. Plaintiff has produced copies of Ration Card, Election I
Card, Birth Certificate of his son, Adhar card of his son, receipt of Gas
connection and letter addressed to him by PS Wadala on the address of
suit premises. It is true that the address of plaintiff in those copies is
mentioned to be of suit premises however, all those documents are
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issued after year 2012. None of those documents is of year 2000 or
prior to it due to which, those documents are not sufficient for
accepting that plaintiff is in possession of the suit premises since prior
to year 2000.
11. Having gone through the copy of Judgment in Writ Petition
No.2159/2014 mentioned above, I found that Hon'ble High Court is
pleased to observe that MMRDA (defendant No.4) has been handed
over the land of CTS No.83 (Part) as a public body and none can claim
a right to go and encroach upon it. Defendant No.4 has produced on
record the copies of panchnamas which show that the structures
standing on said CTS No.83 (Part) were demolished by the Collector in
October2010 and thereafter, possession of the vacant land was handed
over by the Collector to defendant No.4/MMRDA. Defendant No.4 has
also produced on record copy of panchnama dt.23/04/2014 wherein it
is mentioned that any structure was not found standing on land CTS
No.83(Part). Apparently, the material produced by defendant No.4 is
prima facie sufficient to show that the structures standing on said CTS
No.83(part) were demolished in year2010 due to which, contention of
the plaintiff that he is in possession of the suit premises since prior to
year 2000 is not acceptable.
12. The material produced on record by the plaintiff being not
sufficient to primafacie show that he is in possession of suit premises
since prior to year2000, plaintiff is not entitled for protection as per
Notifications dt.16/5/2013 & 16/5/2018 issued by State Government.
For these reasons, I hold that neither primafacie case nor balance of
convenience do lie in favour of the plaintiff. In the result, there is no
question of causing an irreparable loss to the plaintiff if interim
injunctions as prayed are not granted in his favour. For all the above
mentioned reasons, holding that plaintiff is not entitled for the reliefs
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claimed, I recorded my findings on Point Nos.(i) to (iii) accordingly &
pass the following order.
O R D E R
Notice of Motion No.697/2019 stands rejected.
Costs in the main cause.
Date: 12/04/2019. (P.P.RAJVAIDYA)
Direct dictated on : 12/04/2019. Judge, C.R.No.12,
Checked on : 16/04/2019. City Civil Court,
Signed on : 16/04/2019. Gr.Bombay.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
16/04/2019 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 12/04/2019
Order signed by P.O. on 16/04/2019
Order uploaded on 16/04/2019
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