Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No. 763 of 2019.
in L.C. Suit No. 274 of 2019.
MHCC010020092019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 763 OF 2019.
IN
L.C. SUIT NO.274 OF 2019
Mr. Vinod Kumar Prajapati and others. …. PLAINTIFFS.
V/s.
Municipal Corporation of Gr. Bombay and
others. …. DEFENDANTS.
CORAM : SHRI. V. R. JAGDALE
(Court Room No.11).
DATED : 29th November, 2025
APPEARANCE :
Mr. Pathak h/f Mr. O.P. Singh, Ld. Advocates for the plaintiffs.
Mr. V.G. Shinde, Ld. Advocate for the defendant/ BMC.
Adv. Mr. Janvalkar, Ld. Advocate for the defendant No. 2 and 3.
*****
ORDER
01. The plaintiffs have taken out the Notice of Motion (for
brevity ‘the NM’), for temporarily restraining the defendant no.2 and 3
from carrying out construction work or encroachment over demolish
portion of suit premises and restraining the defendant no.1 from
granting any permission to carry out construction over demolish portion
of suit premises and appointment of Court Commissioner.
02. Perused the NM, supporting affidavit and reply of the
defendant no.2 and 3.
03. Perused written argument filed by the plaintiffs and
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in L.C. Suit No. 274 of 2019.
defendant no.2 and 3. Heard Ld. Advocate for the defendant no.1.
04. Considering the record, the point for determination, along -
with my finding and the reasons therefore, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiffs have a prima facie
case in their favour? … No.
(ii). Whether balance of convenience lies in
their favour? … No.
(iii). Whether the plaintiffs will suffer an
irreparable loss, if the interim relief, as
prayed for, is refused ? … No.
(iv). What Order? …As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
05. As these points are interlinked, therefore, they are
discussed together for the sake of brevity.
06. By virtue of this NM plaintiffs have come with a specific
case that prior to demolition on 21.08.2018, the plaintiffs were in
possession of their respective premises each admeasuring about 8’ x 12’
situated at CTS No.61, Survey No.23, Hissa No. 3, Karuna Nagar,
Tungwa Village, Sakivihar Road, Sakinaka, Mumbai 400 072,
(hereinafter referred as ‘suit premises’ for the sake of brevity ).
07. The defendant no.1 has demolished the suit premises at the
instance of defendant no.2 and 3 as they want to grab the property.
08. The plaintiffs have been residing in their respective
premises prior to 1980 and have documents which includes Ration
Card, Electricity Bill, Election Identity Card, Survey Receipt and Aadhar
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in L.C. Suit No. 274 of 2019.
Card which shows that suit premises is a protected structure.
09. The suit premises was beyond 10 meters of Tansa pipe line
as the defendant no.1 has demolished premises 30 ft. beyond Tansa
Pipeline and erected wall in order to stop encroachment.
10. The plaintiffs have gradually acquired other premises and
connected both the premises and the original premises were demolished
of area 8 x 30 by defendant no.1. However, suit premises were not
demolished since it was not forming part of project affected which was
demolished. But as plaintiffs have large family all of them were adjusted
in bigger portion of the premises, however after demolition they have
been allotted premises at Mahulgaon and have shifted. The plaintiffs
have obtained photographs which shown existence of suit premises.
However, defendant no.1 issued notice dtd.26.06.2018 under section
351 calling upon them to submit documentary proof. The defendant
no.1 has passed order on 17.07.2018 alleging that reply has not been
submitted and directed to remove the suit premises.
11. The plaintiffs being aggrieved had filed a suit in which
defendant no.1 has given undertaking to follow due course of law and
not to take coercive action for 15 days. But defendant no.2 filed writ
petition and sought direction of demolition of suit premises and also
TDR. But as suit premises is existing on slum notified area action cannot
be initiated by defendant no.1.
12. The defendant no.1 is acting at the instance of defendant
no.2 and 3 who have demolished the suit premises without following
due process of law. Hence, plaintiff has prayed notice of motion be
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made absolute.
13. On the contrary, it is contended by the defendant no.2 and
3 that there is order of demolition passed by Honourable High Court in
Writ Petition No.1307 of 2018. The land mentioned in Exh.B belongs to
the defendant no.2 and 3 and they have filed on record 7/12 extract,
mutation entry, BMC property tax invoice and CT Survey Record.
14. The structure in question where falling within 10 meters of
Tansa Pipe Line and Honourable High Court had directed to demolish
the structure abutting Tansa Pipe Line and directed project affected
people to be given alternate accommodation and order of demolition is
confirmed by Supreme Court.
15. The plaintiffs have been granted alternate accommodation
at Mahul and they have suppressed the above fact. But defendants have
produced letter of allotment and Indemnity Bond in respect of
acceptance of alternate accommodation.
16. The defendant no.2 and 3 are running school in the name
of Asmira Academy English Pvt. School in their own peice of land by
obtaining permission of Education Department and prayed notice of
motion be dismissed with costs.
17. The plaintiff no.1 and others who are claiming to be
possession of their respective premises had filed on record various
documents to substantiate the above fact. On perusal of the above
documents and notice dtd.26.06.2018 issued under section 351 of the
MMC Act, it appears that plaintiff no.1 and others were occupying the
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notice structure. But it was constructed in contravention to the
provision of section 342 and 347 of the MMC Act. Accordingly they
were called upon to submit documents in respect of authenticity of the
notice structure. It also appears from the notice that notice structure
was abutting road.
18. It appears that plaintiff no.1 and others had tendered reply
on 16.07.2018 denying the contents of impugned notice and had also
requested to grant opportunity of hearing. But it appears that as
plaintiff no.1 and others had not submitted any documents in respect of
authenticity of the structure. Accordingly speaking order was passed on
17.07.2018 calling upon them to remove the notice structure or it will
be liable to be removed.
19. On the contrary, on perusal of documents filed on record by
defendant no.1 and 2 it appears that in pursuant to demolition of notice
structure, the person who structure were demolished were allotted
alternate accommodation. But inspite of above fact they had indulged in
reconstruction of the demolished structures without permission of the
Municipal Corporation. Accordingly Corporation was directed to initiate
immediate action of demolition in relation to the said structure and
further directed to cancel allotment if the concerned person have being
already granted alternate accommodation. Therefore, on perusal of
copy of status report it appears that all the plaintiffs who structure was
affected in view of notice under section 351 of the MMC Act, have been
granted alternate accommodation and it appears that plaintiff no.1 has
already furnished indemnity bond to that effect.
20. On perusal of property extract 7/12 extract and mutation
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entry it appears that land mentioned in Exh.B belongs to the defendant
no.2 and 3. It further appears that Corporation had issued permission to
the defendant no.2 and 3 to run a school in the name Asmira Academy
English Pvt. School and accordingly they are running a school over the
above property.
21. Therefore, it appears that defendant no.2 and 3 have no
concern with the demolition of notice structure which is demolished
after following due process of law as it was falling within the set back
area of Tansa Pipe Line. The plaintiff and others who were affected by
action of demolition have already been provided with alternate
accommodation which is not disclosed by them.
22. Therefore, it is clear that plaintiffs have make out prima
facie case and balance of convenience does not tilt in their favour. If it is
so, no irreparable loss will be caused to the plaintiffs. Hence, I answered
point Nos.1 to 3 in the negative and in the answer to point No. 4, I pass
the following Order :
-: O R D E R :-
(i). Notice of Motion No. 763 of 2019 stands dismissed.
(ii). Notice of Motion No. 763 of 2019 is, accordingly, disposed
of.
(V.R. Jagdale)
Mumbai. Judge,
Dated : 29.11.2025. City Civil Court, Mumbai.
Directly typed on computer on :29.11.2025
Checked and Signed on :02.12.2025
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in L.C. Suit No. 274 of 2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
02.12.2025 at 5.20 p.m.
Name of the Stenographer
Mrs. V.N.Rajgole.
Name of the Judge (with Court Room No.) HHJ Shri V.R. Jagdale
(Court Room No.11).
Date of Pronouncement of Judgment/Order 29.11.2025
Judgment/Order signed by P.O. on 02.12.2025
Judgment/Order uploaded on 02.12.2025
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