Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1205 OF 2020
(CNR No. MHCC01-003355-2020)
IN
L. C. SUIT NO. 929 OF 2020
Mehboob Hussain Shaikh …. Plaintiff.
V/s.
1. The Municipal Corporation of
Greater Mumbai and Anr. ....Defendants.
Appearances :
Adv. S.S. Redekar Singh for the plaintiff.
Adv. Amar Patil for defendants/BMC.
CORAM : HIS HONOUR JUDGE
SHRI. V. S. KHOT
(C.R.NO.06)
DATE : 16th January, 2025.
ORAL ORDER
1. The plaintiff has taken this notice of motion for restraining
the defendants, their agents, servants, officers by the order of injunction
from taking any action pursuant to the notice dated 06.04.2018 and
order dated 25.02.2020 passed by the Assistant Engineer of BMC.
2. The facts of the notice of motion can be stated as under:-
The plaintiff has taken this notice of motion for injunction.
The plaintiff submitted that he is in use, occupation and possession of
the shop premises situated in Survey No.GS/32/SBM, B-Patra Chawl,
B.M.Marg, Senapati Bapat Marg, Elphinstone,Mumbai-13. The premises
shall be referred as ‘suit premises’ hereinafter for the sake of brevity and
convenience.
-- 1 of 9 --
2
3. The defendant No.1 is a Corporation and defendant No.2 is
an officer of Corporation. The suit premises were allotted by the
Municipal Council to Anwari Begum and Mahfuz Hussain on the leave
and license basis. They were original tenants. The said Anwari Begum
was carrying out commercial activity in the suit premises. She was
running the Restaurant in it. The said Anwari Begum and Mahfuz
Hussain came to be issued with various letters by the defendants/BMC.
They constructed the suit property. The BMC approved the plan and
also issued the completion certificate. The said Anwari Begum died on
16.08.2011 and Mahfuz Hussain died on 06.11.1994. The plaintiff is a
legal heir of Anwari Begum and Mahfuz Hussain. The suit premises is in
existence prior to 01.01.1995 and as per the Government Policy the
structure existing prior to 01.01.1995 are protected. The suit premises
are required for road widening process. The BMC issued the notice
dated 06.04.2018 U/sec. 314 of the MMC Act for removal of structure.
The plaintiff received the said notice and submitted all the relevant
documents to the BMC. As the suit property is in existence prior to
01.01.1995 therefore, the plaintiff is entitled to the alternate
accommodation. The suit premises is protected under the policy of the
Government.
4. The defendants have issued the notice as stated earlier and
directed the removal of the structure. The plaintiff received the said
notice on 28.02.2020. The notice issued by the BMC is invalid and
illegal. They cannot demolish the suit property. The plaintiff is entitled
for the alternate accommodation and without granting the alternate
accommodation the suit property cannot be demolished. Therefore, the
plaintiff has instituted this suit and by the way of this notice of motion
prayed for the interim injunction.
-- 2 of 9 --
3
5. Say of the other side came to be invited. The defendants
filed the reply and submitted that the plaintiff has not given the
statutory notice U/sec. 527 of the MMC Act. Without the notice, suit is
liable to be dismissed with the compensatory costs. The suit is not
maintainable. The suit is not properly valued and on that count, it is
liable to be dismissed. The defendants have properly issued the notice
under section 314 of the MMC Act. The suit of the plaintiff is liable to
be dismissed with heavy compensatory costs. The defendants have
decided to widen the Senapati Marg and the suit property is required
for road widening process. The BMC have issued notices to several
persons for removal of the structure. The Municipal Corporation has
decided the eligibility. The plaintiff is not eligible for the alternate
accommodation. There is no force in the statement of the plaintiff that
the suit premises/property is liable to be protected because the
defendant/BMC has not provided any alternate accommodation to him.
The defendants have properly rejected his claim regarding alternate
accommodation. The notice of motion is not tenable and liable to be
rejected.
6. In view of contentions and counter contentions of the
parties, the following points arise for my determination and the same
are replied subject to the reasons mentioned hereinafter.
Sr. No. POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case in his favour ?
In the Negative
2. Whether balance of convenience lies in
favour of plaintiff?
In the Negative.
-- 3 of 9 --
4
3. Whether irreparable loss will be caused
to the plaintiff, if present Notice of
Motion is not allowed ?
In the Negative.
4. What order? As per the final order
R E A S O N S
7. The plaintiff has instituted this suit for injunction naturally,
the burden of proof under Section 101 of the Indian Evidence Act lies
upon him. The plaintiff came with the case that he is having suit
property in Survey No. GS/32/SBM. B-Patra Chawl, B. M.Marg,
Senapati Bapat Marg, Elphinstone, Mumbai-13. The predecessors were
granted with the suit property on the basis of Leave and License
Agreement. They developed the suit property. After the death of
predecessors, the plaintiff is in possession of the suit property and
carrying out the business activity there. The suit property is required in
road widening process. The suit property is in existence prior to
01.01.1995 and year-2000. The BMC has issued the notice U/sec. 314
of the MMC Act and directed the removal of the structure without
deciding the eligibility in proper manner. The plaintiff is entitled to the
protection of the suit property unless and until alternate
accommodation is granted to him. He prayed for the issuance of
injunction. On the contrary, the defendants vehemently came with the
case that the plaintiff is declared ineligible to get the alternate
accommodation. The notice issued is proper. The plaintiff is not entitled
to any injunction. The notice of motion is liable to be dismissed. The
suit is barred by the jurisdiction and limitation aspects. No notice U/sec.
527 of the MMC Act is issued.
-- 4 of 9 --
5
8. The plaintiff has prayed for the injunction. It is the
contention of the plaintiff that the BMC has issued notice U/sec. 314 of
the MMC Act and directed the removal of the suit structure located on
the suit property. The suit property is required for road widening
process. The BMC has not allotted any alternate accommodation to him.
The suit property existed prior to year-2000 and the plaintiff is entitled
for the alternate accommodation. Without granting alternate
accommodation to the plaintiff, the defendant cannot demolish the suit
property or take any action against the plaintiff. The defendant during
the course of arguments submitted that the plaintiff has been declared
ineligible. The decision taken by the Municipal corporation came to be
communicated to the plaintiff. Therefore, the plaintiff is not entitled for
any protection of the Court.
9. The plaintiff has filed this notice of motion against the
Municipal Corporation and claimed injunction against the action
pursuant to the notice U/sec. 314 of the MMC Act solely on the ground
that the plaintiff has not been granted with the alternate
accommodation. The pursis filed by the defendants side shows that the
plaintiff is declared not eligible for the alternate accommodation and his
claim is turned down. The plaintiff has pointed out the documents i.e.
one letter issued by the BMC to Shri Vaidya and Associates, letter issued
to predecessor of the plaintiff by BMC, the letter issued to Mahfuz
Hussain by the Municipal Corporation. The above mentioned letters
clearly show that the suit property was in existence prior to year 2000
but the claim of the plaintiff has been rejected by the defendants. This
Court is not the appellate authority as far as the eligibility claim is
concerned. The plaintiff has to approach to the Appellate Authority for
-- 5 of 9 --
6
the relief. It is apparent that the plaintiff has not knocked the doors of
the Appellate Authority, which is fault of the plaintiff.
10. Learned counsel for the plaintiff during the course of
argument submitted that the plaintiff is entitled to the protection of the
Court until he approached to the Appellate Authority. He is ready to
approach the Appellate Authority till then the protection be granted to
the suit property. He also relied the citation of Manali vs. Assistant
Engineer, Appeal From Order No. 774 of 2024, wherein the Hon’ble
Bombay High Court granted interim protection till preparation of the
supplementary annextures. The ratio of the citation is altogether
different and it is not helpful to the plaintiff because the facts of the
case in hand shows that the eligibility has been decided by the
Municipal Corporation and the plaintiff is declared ineligible. So, the
citation is not helpful to the plaintiff side.
11. In this case, the plaintiff has issued with the notice U/sec.
314 of the MMC Act. The plaintiff is claiming the injunction on the
ground that he has not been granted with the alternate accommodation.
It is apparent that his claim regarding the alternate accommodation has
been turned down by the defendant No.1. The plaintiff cannot claim
injunction on the ground that he is declared not eligible and the BMC
has committed error in the proceeding. Even otherwise, the notice
U/sec.314 of the MMC Act cannot be resisted on the ground that the
alternate accommodation is not provided to the plaintiff. The plaintiff is
not entitled for the protection. The plaintiff has failed to show that he is
entitled to get the protection from the Court because no alternate
accommodation is granted to him. The primafacie case is not in favour
of plaintiff. Therefore, my answer to point no.1 is in negative.
-- 6 of 9 --
7
As to point Nos.2 and 3.
12. As discussed earlier, the plaintiff is having no primafacie
case, the balance of convenience and irreparable loss do not arise in
favour of plaintiff. The BMC has issued the notice U/sec. 314 of the
MMC Act. If the injunction is granted then the road widening process
would be stalled. The several citizens would face hardship if the
injunction is granted. The balance of convenience does not lie in favour
of the plaintiff’s side. As far as the irreparable loss is concerned, the
plaintiff would have no irreparable loss if the injunction is refused
because he would have an alternative remedy to claim the relief before
the Appellate Authority. He can take the proceeding before the
Appellate Authority for alternative accommodation. No irreparable loss
would be the outcome if the injunction is refused. The plaintiff is having
no primafacie case, balance of convenience and irreparable loss is in
favour. Therefore, my answer to point nos. 2 and 3 are in negative.
13. As discussed earlier the plaintiff is having no primafacie
case, balance of convenience and irreparable loss in his favour. He is not
entitled for any injunction. During the course of arguments Adv. Shri.
Redekar submitted that he is ready to file appeal before the Appellate
Authority and till then protection be granted. It is apparent that the
BMC has taken the decision and declared the plaintiff not eligible for
alternate accommodation. Final annexure was prepared on January-
2022 and accordingly the plaintiff was informed. The pursis filed by the
defendant make it clear that the plaintiff has committed three years
delay. Moreover, there is no legal foundation or backing that the
plaintiff is entitled to the interim protection till he filed the appeal for
alternate accommodation. The section 314 of the MMC Act is having no
-- 7 of 9 --
8
relation to the alternate accommodation. Even if, the premises are
demolished the plaintiff can fight for the alternate accommodation by
taking appropriate proceeding. Therefore, the plaintiff is not entitled for
any protection. Hence, I am inclined to pass the following order.
ORDER
1. The Notice of Motion No.1205 of 2020 stands rejected and is
hereby disposed of.
2. No any order as to costs.
(V. S. KHOT)
Judge,
City Civil Court,
Date: 16.01.2025 Gr. Bombay.
Dictated on : 16.01.2025
Transcribed on : 16.01.2025
Signed on :
-- 8 of 9 --
9
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24/01/2025 05.55 p.m. Mayuresh P. Tathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ SHRI. V. S. KHOT
(C.R.NO.06)
Date of pronouncement of Judgment/
Order
16.01.2025
Judgment/Order signed by P.O. on 22.01.2025
Judgment/Order uploaded on 24.01.2025
-- 9 of 9 --