Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM. : 1 : L.C.Suit .No.612/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C.SUIT NO. 612 OF 2018.
Shyam Ramchandra Salve.. } .. Plaintiff.
Versus.
Municipal Corporation of Gr. Mumbai... } .. Defendants.
Ld. Advocate Mr. Kudalkar for Plaintiff.
Ld. Advocate Mr. Kumawat for Defendant /BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 07 TH MARCH, 2018.
(Court Room No.06)
O R D E R
1. Plaintiff has taken out this draft notice of motion to restrain the
defendant/Municipal Corporation of Greater Mumbai from further
demolition of the suit premises and also to permit the plaintiff to
reinstate the suit premises.
2. Facts in brief are as under :
3. Plaintiff is in occupation of Room No. 307 admeasuring area 16
x 8 sq. ft. constructed with B.M.Wall and A.C.Sheet roof situate at Prem
Nagar Colony,B.G.Kher Road,Worli Naka, Mumbai 400018.
4. Plaintiff is in occupation of the suit premises since prior to 1990.
Defendant issued photo pass to the plaintiff. Plaintiff has obtained
Election Identity Card, Electricity Connection and Shops and
Establishment Certificate in the address of the suit premises. In the
year 2000, the concerned department had carried out survey and
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issued a receipt No.1040185 to the plaintiff.
5. Plaintiff contended that suit premises is situate in slum area.
During the year 2015 again survey was carried to ascertain the
eligibility of the occupants for redevelopment of the said colony.
When the officer visited, the suit premises was locked. Therefore,
plaintiffs name could not enter in AnnexureII. Thereafter made
application to the Municipal Corporation to include his name in
AnnexureII. The suit premises is old one. Therefore, plaintiff had
preferred an application to carry out the repairs. It was told to the
plaintiff that no such permission is necessary and accordingly, plaintiff
made tenantable repairs.
6. Plaintiff avers that on 09/02/2018 the officers of the defendant
came and threatened to remove the A.C. Sheet of the suit premises. On
10/02/2018 the officers of defendant again came and partly
demolished the suit premises. Thus, prior to the demolition, no notice
has been given to the plaintiff. The defendant/Corporation has not
followed due process of law. Therefore, prayed to grant adinterim
injunction as prayed.
7. Notice is served to defendant/ Corporation.
8. Defendant/Corporation filed affidavitinreply and also
documents.
9. According to defendant,the plaintiff has filed the documents of
altogether different property. The suit premises is situated on the
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footpath. The earlier three times, the defendant/Corporation
demolished the suit premises. However, plaintiff reconstructed the
same. Defendant/Corporation has given notice to the plaintiff
U/sec.314 of the MMC Act. Thus, the opportunity is given to the
plaintiff. The suit premises is situated on the footpath in front of Campa
Cola Company. Plaintiff has no right to erect structure on the footpath.
Thus, the action taken by defendant is legal. The suit premises is
demolished by the defendant. Therefore, prayed to dismiss the petition.
10. I have heard Shri. Kudalkar, advocate for plaintiff and Shri.
Kumawat, advocate for defendant/Corporation.
11. Shri. Kudalkar advocate for plaintiff has submitted that the
officers of the defendant acted high handedly. Defendant did not give
any prior notice to the plaintiff for demolition of the suit premises. The
suit premises is in slum area and the name of plaintiff is entered in the
AnnexureII. The documents i.e. election card, electricity bill etc. are on
the address of the suit premises. He further submitted that defendant
has not followed the due process of law. Therefore, it is necessary to
direct the defendant not to demolish further suit premises and also
permission to the plaintiff to reinstate the suit premises.
12. Shri. Kumawat advocate for defendant/Corporation has
submitted that prior to the demolition, notice U/sec.314 of the MMC
Act was given to the plaintiff. However, plaintiff could not produce any
document. Suit premises was situated on the footpath in front of
Campa Cola Company. The Corporation has taken action as per the
MMC Act. Therefore, he prayed to dismiss the petition.
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13. According to plaintiff, the suit premises is being Room No. 307
situate at Prem Nagar Colony, B.G. Kher Road, Worli Naka, Worli,
Mumbai. From the documents filed by plaintiff, it appears that plaintiff
has documents i.e. election identity card, electricity bill showing the
address of hut No.51A, Prem Nagar hutment, B.G. Kher road, Mumbai.
Defendant has seriously disputed as to the identity of the property. It is
to be noted that the name of plaintiff is entered in the AnnexureII and
he is declared as an eligible by the Competent Authority. However, the
said eligibility in respect of the hut in Indira SRAS Housing Society,
Worli. Plaintiff at this stage has not specifically produced the
documents to show any identity of the suit premises with the
documents filed along with plaint.
14. It is pertinent to note that the defendant Corporation on
07/06/2016 issued notice to owner/occupier of a structure owner
Campa Cola Gate, B.G.Kher Road, Worli, Mumbai U/sec.314 of MMC
Act. Plaintiff had produced documents to the defendant/Corporation.
However, the said documents were not in respect of that disputed
structure (suit premises). Therefore, the defendant/Corporation
demolished the suit premises. The photographs filed by defendant show
that the Corporation has taken action as per the notice issued to
plaintiff and demolished the suit premises.
15. Thus, plaintiff has suppressed the material facts that suit
structure is situate near Campa Cola, B.G. Kher road, Worli, Mumbai.
Plaintiff has also suppressed about the issuance of notice by
Corporation U/sec.314 of MMC Act and also giving him an opportunity
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to produce the documentary evidence in respect of the said notice.
16. From the above discussion, I find that the suit structure is already
demolished by the Corporation as per the notice. Plaintiff has not
proved at this prima facie stage that the officers of the Corporation
acted high handedly and in illegal manner. Therefore, I find that
plaintiff has no prima facie case. Balance of convenience does not lie in
favour of plaintiff. Therefore, plaintiff is not entitled for adinterim
relief. Hence, I pass the following order :
O r d e r
1. Adinterimrelief is hereby refused.
2. Draft Notice of Motion be registered.
Date : 07.03.2018 (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 07.03.2018
Typed on : 07.03.2018
Signed by HHJ. : 07.03.2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
07.03.2018 /4.30 p.m. Mr. S.D.Nalawade
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with
Court Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
07.03.2018
JUDGEMENT/ORDER signed
by P.O. on
07.03.2018
JUDGEMENT/ORDER
uploaded on
07.03.2018 .
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