Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 968-18 in L.C.SUIT no.606-18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 968 OF 2018
(CNR no. MHCC010032492018)
IN
LONG CAUSE SUIT NO. 606 OF 2018
(CNR no. MHCC010028772018)
Janardhan Shantaram More ]
Residing at Room No. 3, Shrikrupa Chawl, ]
Maroli Church, R. C. Marg, ]
Mahul Road, Chembur East, ]
Mumbai 400074. ]....Plaintiff
V/s
1. The Municipal Corporation of Gr. Mumbai ]
having their Head office at Mahapalika Bhavan, ]
Mahapalika Marg, Fort, Mumbai400 001. ]
2. Designated Officer1, ]
Assistant Engineer (B&F) ]
M/West Ward, S. Acharya Marg, ]
Near Natraj Cinema, Chembur, Mumbai400071. ]
3. Smt. Tunga Krishna Devadisa ]
Aged : 64 years, Occ.: Housewife ]
residing at Maitri Park, A 30/3, ]
Sion Trombay Road, Chembur, ]
Mumbai400077. ]....Defendants
Appearances:
Ld. Advocate Mr. S. S. Redekar for the Plaintiff.
Ld. Advocate Mr. Khandagale for Defendants No. 1 & 2/BMC.
Ld. Advocate Mr. Kini for Defendant No. 3.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room No. 8)
DATED : 19th September, 2019
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2 NM no. 968-18 in L.C.SUIT no.606-18
O R A L O R D E R
1. This is an application by Notice of Motion under O.XXXIX R.1 of
The Code of Civil Procedure, 1908.
2. The plaintiffs' contentions in brief are as under:
Plaintiff in use, occupation and possession of Room No. 3, Shree
Krupa Chawl, Maroli Church, R.C. Marg, Mahul Road, Chembur (East),
Mumbai 400 074. (hereinafter "Suit Premises"). The suit premises is
made up of brick masonry walls with A.C. Sheet Roof. The suit premises
is in possession of the plaintiff since his father's time. The plaintiff has
service record of his father at TATA Electric Company wherein his
residential address on 25.03.1965 is that of the suit premises. The suit
premises falls in slum area declared under Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter
referred to as "Slum Act" for brevity) and therefore, the suit premises is
protected by policy of Government of Maharashtra. Despite that the
defendant no. 2 issued Notice No. MW/DO1MW/144/351
MMCAct/MW245N01/27052017 dated 27.05.2017 (hereinafter "The
Notice") for alleged ‘unauthorized construction of ground floor structure
with brick masonry walls and A.C. Sheet roof in area admeasuring
9.14 m X 3.04 m with average height 2.43 m’. The plaintiff submitted
his reply on 05.06.2017. The defendant no. 2 did not give personal
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3 NM no. 968-18 in L.C.SUIT no.606-18
hearing to the plaintiff and passed order dated 08.11.2017 directing
demolition of the suit premises and therefore, the action of the
defendants is illegal and mala fide. Therefore, the plaintiff has prayed
for temporary injunction restraining defendants from demolishing the
suit premises till final disposal of the suit.
2. The Defendants No. 1 and 2 have filed affidavit in reply denying
all the allegations against them. They have categorically stated that they
have followed due process of law before passing speaking order dated
08.11.2017 and in absence of any documentary evidence showing that
the suit premises is either an authorized construction or tolerated
structure the order is valid and therefore, notice of motion be dismissed.
The defendant no. 3 has also filed affidavit in reply supporting other
defendants.
3. Considering rival contentions, following points arise for my
determination. Findings on those points for the reasons mentioned
thereunder are as follows:
Sr.
No. POINTS FINDINGS
1. Whether plaintiff proves that the suit
premises is either authorized or
tolerated structure?
In the negative.
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4 NM no. 968-18 in L.C.SUIT no.606-18
Sr.
No. POINTS FINDINGS
2. Whether plaintiff has made out three
ingredients required for grant of
temporary injunction in his favour?
In the negative.
3. What order ? Notice of Motion is
dismissed.
R E A S O N S
AS TO POINTS NOS. 1 & 2:
4. After going through the plaint allegations and documentary
evidence filed on record, it can be seen that the plaintiff is in possession
of suit premises for a long time since prior to 1995. It is case of the
plaintiff that in absence of any document showing authorization of the
suit premises, his structure is protected by policy of Government of
Maharashtra to protect the huts prior to 01.01.1995 which are falling in
slum area. In order to establish that the suit premises is located in slum
area, the plaintiff is relying upon notification of The Deputy Collector
(Encroachment) And Competent Authority, SubDivision, KurlaIII
whereby the City Survey No. 313, 313/1 to 5 are declared as slum areas
under the Slum Act. However, the defendants have filed on record letter
dated 11.09.2017 issued by Deputy Collector (Encroachment and
removal) and Designated Officer, Chembur1 showing that the
abovesaid City Survey Numbers from Village Maravali are not declared
as slum areas and the photo pass issued to the plaintiff was incorrect.
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5 NM no. 968-18 in L.C.SUIT no.606-18
Moreover, the plaintiff has not mentioned survey number in the entire
plaint to come to the conclusion that the suit premises is located in
particular slum area. For all the above reasons, the plaintiff's case falls
short to establish that the suit premises is located in slum area.
5. Once it is found that the suit premises is not in slum area, the
datum line of 17.04.1962 will be applicable. There are no documents
showing authorization for the suit structure under Section 337 of
Mumbai Municipal Corporation Act,1888 (hereinafter referred to as
"MMC Act" for brevity), or that the suit premises is in existence prior to
the datum line 17.04.1962 fixed by defendant no. 1 / MCGM.
Therefore, the plaintiff has failed to establish prima facie case in his
favour.
6. Ld. Advocate for the plaintiff has submitted judgment of The
Hon'ble Bombay High Court in Masood Ahmed Siddiqui Vs. Mumbai
Municipal Corporation & Ors. [A.O. No.57 of 2013] dated
23.01.2013 wherein The Hon'ble Bombay High Court was pleased to
caution the Trial Court judges not to uphold every conclusion of
Assistant Municipal Commissioner at the interlocutory stage itself and
to apply judicial mind independently and impartially. After going
through the facts of the said case the existence of the suit structure
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6 NM no. 968-18 in L.C.SUIT no.606-18
therein was prima facie established to be prior to 1960 and despite that
the Trial Court had upheld the decision of MCGM to demolish the suit
structure therein. In that backdrop the aforesaid observation was made
by The Hon'ble Bombay High Court. In the instant matter the plaintiff's
case hinges upon policy of Government of Maharashtra to protect huts
in slum area which are in existence prior to 01.01.1995. In earlier
paragraphs, it is concluded that the Slum Act notification is not
applicable to the suit premises and that the suit premises is not in
existence prior to the datum line 17.04.1962 fixed by defendant no. 1 /
MCGM. Therefore, the above ratio is not applicable to the facts of this
case. For all above reasons the plaintiff has failed to prove three
ingredients required for grant of temporary injunction. Hence, points
no. 1 and 2 are answered in the negative and following order :
ORDER
1. Notice of Motion No.968 of 2018 is dismissed.
2. Costs in cause.
sd/
(C. V. Marathe)
Judge,
Date : 19.09.2019 City Civil Court, Gr. Mumbai.
Dictated on : 19.09.2019
Transcribed on : 19.09.2019
Signed by HHJ on : 20.09.2019
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7 NM no. 968-18 in L.C.SUIT no.606-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 21.09.2019 at 4.42 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
19/09/2019
JUDGMENT/ORDER signed by
P.O. on
20/09/2019
JUDGMENT/ORDER uploaded
on
20/09/2019
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