Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM NO.9262020 IN SU 9012020
MHCC010025052020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.926 OF 2020
IN
SUIT NO. 901 OF 2020
Ramkishor Shardaprasad Jaiswal ] ...Plaintiff.
Versus
MCGM & Other ]…Defendants.
Appearance:
Ld Advocate Sandeep Bane for the plaintiff.
Ld Advocate Chandramore for Defendant/MCGM.
Ld Advocate Kandekar for defendant/MHADA.
CORAM : SHRI. K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 14/03/2023
ORAL ORDER
1. Plaintiff has taken out this Notice of Motion for grant of interim
relief of temporary injunction restraining defendants from executing
the notice bearing No.ACS/notice/1098/AENS dtd. 29/1/2020 issued
to plaintiff by defendant No.1 u/s.314 of Mumbai Municipal
Corporation Act (hereinafter referred as MMC Act) till disposal of the
suit.
2. Perused notice of motion, affidavit in support of notice of motion,
affidavit in reply of defendant No.1, written statement of defendant
-- 1 of 10 --
2 NM NO.9262020 IN SU 9012020
No.2, documents produced by plaintiff and record. Heard arguments
advanced by Ld. Advocate for plaintiff and Ld. Advocate for defendant
No.1 and 2.
3. Ld. Advocate for plaintiff argued that plaintiff is owner and
occupant of shop No.1611/1 Janata Market, Kannamwar Nagar No.2,
Vikhroli East, Mumbai400 083 (For sake of brevity and convenience
above premises is hereinafter referred as suit shop premises and above
notice is referred as impugned notice.)
4. Suit shop premises is in existence prior to 1976. Plaintiff had
purchased the suit shop premises from Smt. Gulshanbai Abubhai
Maniar in the year 1980. Since then plaintiff is in exclusive use,
occupation and lawful possession of the suit shop premises. Suit shop
premises was transferred in the name of plaintiff. License of the suit
shop premises is in the name of plaintiff. Prior to 1981 the land of suit
shop premises was owned by MHADA and defendant No.2 had issued
the compensation receipts. Defendant No.2 had surveyed all the shops
and huts which were in their own land and for which they were
accepting compensation. Plaintiff has not carried out any
unauthorized work or extension in the suit shop premises. However,
inspite of same defendant No.1 issued impugned notice to the
plaintiff. Therefore, impugned notice is illegal and void. It is issued
only with intent to harass the plaintiff. Defendant No.1 is trying to
demolish suit shop premises. Defendant No.1 wants to demolish suit
shop premises for widening of the road. Suit shop premises is
protected structure as per policy under Slum Act. Therefore, plaintiff is
entitled for alternate accommodation in lieu of the suit premises.
However, till date defendant No.1 did not provide any alternate
accommodation to the plaintiff in lieu of suit premises. Therefore, for
-- 2 of 10 --
3 NM NO.9262020 IN SU 9012020
protecting rights of plaintiff it is necessary to grant temporary
injunction staying the impugned notice till disposal of suit. Hence, Ld.
Advocate for plaintiff prayed that notice of motion be made absolute.
Ld. Advocate for plaintiff kept his reliance on the following
citations:
1) Tulsiwadi Navnirman Cooperative Housing Society Ltd & Anr. vs
State of Maharashtra & Ors, 2009 (2) Mh.L.J. 433;
2) Ravinder Kaur Grewal & Ors vs. Manjit Kaur & Ors, 2019 AIR (SC)
3827;
3) Krishnamurthy S. Setlur (D) through Lrs vs. O.V. Narasimha Setty
(D) by Lrs & Ors, 2020 (12) SCC 244.
4) Pani Haq Samiti & Ors vs. BMC & Ors, 2014 GoJuris (BOMBAY) HC
3617.
Court has gone through the observations made therein.
5. On the other hand, Ld. Advocate for defendant No.1 MCGM
argued that suit shop premises structure is situated on footpath.
Moreover, suit shop premises structure is within 100 mtrs.from Asmita
Girl's College. As per the circular in respect of no hawking zone, suit
shop premises comes within no hawking zone. Defendant No.1 has
undertaken improvement work of road and footpath at said location.
Deputy engineer of MHADA had also requested defendant No.1 to
clear footpath from encroachment. Hon'ble Bombay High Court also
directed to remove encroachments on the roads and footpath. Plaintiff
is not having any valid license issued by MCGM u/s.313 of MMC Act.
Moreover, suit shop premises is also not situated in the slum area.
MCGM has followed due procedure and issued the impugned notice as
-- 3 of 10 --
4 NM NO.9262020 IN SU 9012020
per section 314 of MMC Act. The impugned notice issued by
defendant No.1 is valid and reasonable. Encroachment on the footpath
is causing obstruction to the public at large. Therefore, Ld. Advocate
for defendant No.1 submitted that notice of motion be dismissed.
6. On the other hand, Ld. Advocate for defendant No.2 MHADA
argued that as per the pitch card and the order of transfer of suit shop
premises of Deputy Collector (Encroachment) the area of the suit shop
is 56 sq.ft. only. As per plaintiff suit shop premises is admeasuring 96
sq.ft. It shows that plaintiff has carried out unauthorized extension to
suit shop premises. Suit shop premises is constructed on footpath
which are meant for public at large. Plaintiff is an encroacher on the
footpath. Therefore, impugned notice issued by defendant No.1 is
legal and valid. Encroachment on the footpath is causing obstruction
to the public at large. The action taken by the defendant No.1 is legal
and valid. Trespasser is not entitled for any injunction. Therefore, Ld.
Advocate for defendant No.1 submitted that notice of motion be
dismissed.
7. Following points arise for determination and court has recorded
its decision thereon for the reasons stated there under:
Points Decision
(i) Whether prima facie case lies in favour of
plaintiff ?
No
(ii) Whether balance of convenience lies in
favour of plaintiff ?
No
(iii) Whether plaintiff will suffer irreparable loss
if the interim relief as prayed is not granted?
No
-- 4 of 10 --
5 NM NO.9262020 IN SU 9012020
(iv) What Order ? As per final
order.
REASONS
As to Point Nos.1 to 3:
8. As all these points are interconnected with each other they are
decided simultaneously in order to avoid repetition of facts.
9. Plaintiff has filed the present suit for declaration that impugned
notice issued u/s. 314 of MMC Act is illegal and void and it cannot be
acted upon and for permanent injunction restraining defendant No.1
from acting upon the impugned notice, for mandatory injunction
directing defendant to provide alternate accommodation, etc. By the
present notice of motion plaintiff has sought interim relief of
temporary injunction restraining defendant No.1 from implementing
impugned notice u/s.314 of MMC Act.
10. In order to seek protection of equitable interim relief as sought it
is necessary for the plaintiff to prima facie prove/show that suit shop
premises is on private land and it is not on the road or footpath or he
is having valid permission or license issued by defendant corporation
u/s. 313 of the MMC Act. Moreover, as it is argued that the suit shop
premises is protected structure as per policy under Slum Act, it is
necessary for the plaintiff to prima facie show that suit shop premises
is situated in the area which is notified as slum and it is protected
structure.
11. From the perusal of the pitch card at Exh.A and the order at
Exh.H to the plaint it appears that the original area of the suit shop
premises was 56 sq.ft. with height of 9.6 sq.ft. and as per the order at
Exh. H plaintiff was directed that in case of change in measurement of
-- 5 of 10 --
6 NM NO.9262020 IN SU 9012020
the suit premises the order will be cancelled. As per plaintiff the
measurement of suit shop premises is 96 sq.ft. Therefore, prima facie
there appear no substance in the contention of plaintiff that he has not
carried any unuthorized work or extension in the suit shop premises.
On the other hand prima facie it appears that the area of suit shop
premises is extended.
12. As per the defendants the suit shop premises is situated on
footpath. It is not the case of defendant No.2 that the suit shop
structure is situated on its land. Photographs produced by plaintiff and
the defendant No.1 prima facie reveals that the suit shop structure is
within 100 mtrs from the college and it is on the footpath. As such as
per circular of no hawking zone prima facie suit shop premises is
situated within non hawking zone. None of the documents produced
by the plaintiff prima facie show that the suit shop premises is on
private land or is not situated on the footpath or it is situated in the
area which is notified as a slum. It is also not the case of plaintiff that
plaintiff is having any valid license issued by MCGM u/s. 313 of MMC
Act in respect of suit shop premises. Therefore, in the absence of any
documentary evidence on record to show that the suit shop premises
is situated on private land or it is not situated on footpath or
documents as to evidence of valid license issued by MMC u/s.313 of
MMC Act and any documentary evidence showing that the suit shop
premises is situated in the area notified as slum, prima facie there
appear no substance in the contention of plaintiff that structure of suit
shop premises is protected structure, as per government notification in
respect of guidelines pertaining to slum rehabilitation scheme for
determining the eligibility of the slum holder and government
resolution regarding protection of the hutments existing before
-- 6 of 10 --
7 NM NO.9262020 IN SU 9012020
1/2/2000 issued under Maharashtra Slum Areas, Improvement,
Clearance & Redevelopment Act 1971.
13. Judgment in the case of Tulsiwadi Navnirman Cooperative
Housing Society Ltd & Anr. vs State of Maharashtra & Ors relied by
the plaintiff is concerning slum rehabilitation scheme under
Maharashtra Slum Area Improvement, clearance and Redevelopment
Act 1971. It is not concerning to section 314 of MMC Act and facts of
present case and above case are different. Therefore, in the humble
opinion of this court observations made therein are not helpful to the
plaintiff. Judgment in the case of Ravinder Kaur Grewal & Ors vs.
Manjit Kaur & Ors and Krishnamurthy S. Setlur (D) through Lrs vs.
O.V. Narasimha Setty (D) by Lrs & Ors cited supra relied by plaintiff
are pertaining to adverse possession. It is not the case of plaintiff that
plaintiff is claiming any right on the basis of possession. Therefore, in
the humble opinion of this court facts of present case are different
than facts in above case and so observations in the above judgments
are not of any help to the plaintiff.
14. From the matter on record and above discussion prima faice it
appears that structure of suit shop premises of plaintiff is on the
footpath and plaintiff is not having any license issued by defendant
No.1 u/s. 313 of MMC Act. It follows that it is unauthorized.
Therefore, prima facie it appears that impugned notice is not
unreasonable and the decision of the defendant No.1 to issue
impugned notice does not appear to be perverse or illegal or in excess
of authority. As such prima facie it appears that defendant No.1 acted
within authority and followed due process of law and followed
principles of natural justice.
15. From the matter on record and above discussion prima facie it
-- 7 of 10 --
8 NM NO.9262020 IN SU 9012020
appears that structure of the suit shop premises is unauthorized. Rule
of law also envisages that structures which are constructed in violation
of law must be demolished and no sympathy can be shown towards
those who violated the law. Moreover, the footpath or public road are
meant for the user by the public at large. As such prima facie plaintiff
does not have any right or interest. Moreover, naturally obstruction of
footpath will cause prejudice to the interest of public at large. As such
more comparative hardship is likely to be caused to the defendant
No.1 and public at large if the suit shop premises is not removed from
the footpath. Moreover, if plaintiff succeeds to prove that he is entitled
for any alternate accommodation in lieu of suit shop premises in that
case defendant No.1 will have to provide alternate accommodation in
lieu of the suit premises as sought. Therefore, no irreparable loss will
be caused to the plaintiff, if the interim relief prayed in the notice of
motion is not granted.
16. From the matter on record and above discussion, court find that
there is no serious bonafide question which requires adjudication in
the present matter. Moreover, plaintiff failed to prove that prima facie
case and balance of convenience lies in his favour and he will suffer
irreparable loss if the interim relief as prayed is not granted. The
conduct of the plaintiff prima facie does not appear to be equitable.
Equity seeks equity. Therefore, considering the matter on record and
above discussion, court hold that plaintiff failed to prove that prima
facie case and balance of convenience lies in his favour and he will
suffer irreparable loss if the ad interim relief prayed is not granted.
Therefore, point Nos. 1 to 3 are answered in negative.
As to point No.4:
17. In view of negative findings as to point Nos. 1 to 3 present notice
-- 8 of 10 --
9 NM NO.9262020 IN SU 9012020
of motion is liable to be dismissed. Hence, court proceeds to pass
following order:
ORDER
1) Notice of Motion No.926 of 2020 is dismissed.
2) Notice of Motion No.926 of 2020 is disposed off accordingly.
Date : 14/03/2023. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :14/3/2023.
Typed on : 14/3/2023.
Draft received on:15/3/2023.
Checked on:17/3/2023.
Corrected & signed on :18/3/2023.
-- 9 of 10 --
10 NM NO.9262020 IN SU 9012020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20/3/2023. Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
14/3/2023.
JUDGMENT/ORDER signed by P.O.
on
18/3/2023.
JUDGMENT/ORDER uploaded on 20/3/2023.
-- 10 of 10 --