Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1213 OF 2020
(CNR No. MHCC01-003361-2020)
IN
L. C. SUIT NO. 933 OF 2020
Smita Chandrakant Gawade …. Plaintiff.
V/s.
1. The Municipal Corporation of
Greater Mumbai and Anr. ....Defendants.
Appearances :
Adv. S.S. Redekar 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 she is in use, occupation and possession of
shop/stall No.3558 situated in Survey No.GS/37/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.
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3. The defendant No.1 is a Corporation and defendant No.2 is
an officer of Corporation. The plaintiff contended that earlier one
Alimuddin Hayat Mohammed was carrying Pan Shop Business in the
suit premises and BMC has issued Registration Certificate of
Establishment in the year 1968. The BMC has also issued license U/sec.
313, 313A and 313B of the BMC Act to said Alimuddin in the year
1990. The plaintiff acquired the suit premises from said Alimuddin on
19.08.1994 by agreement and said Allimuddin executed Power of
Attorney in favour of the plaintiff. The plaintiff has applied to the BMC
for issuance of Registration Certificate of Establishment in her name and
BMC issued it on 21.07.1995. The BMC has carried out inspection
report at the suit premises on 16.11.1994 and she has paid requisite
fees to the BMC. The plaintiff had obtained electricity connection at the
address of the suit premises and she is paying the electricity charges to
the BEST. 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
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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.
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 her.
The defendants have properly rejected her 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.
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Sr. No. POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case in her favour ?
In the Negative
2. Whether balance of convenience lies in
favour of plaintiff?
In the Negative.
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
As to point No.1.
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 she is having suit
property in Survey No. GS/37/SBM. B-Patra Chawl, B. M.Marg,
Senapati Bapat Marg, Elphinstone, Mumbai-13. The plaintiff contended
that earlier one Alimuddin Hayat Mohammed was carrying Pan Shop
Business from the suit premises and BMC has issued Registration
Certificate of Establishment in the year 1968. The BMC has also issued
license U/sec. 313, 313A and 313B of the BMC Act to said Alimuddin in
the year 1990. The plaintiff acquired the suit premises from said
Alimuddin on 19.08.1994 by agreement and said Allimuddin executed
Power of Attorney in favour of the plaintiff. 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
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accommodation is granted to her. She 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.
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 her.
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
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her claim is turned down. The plaintiff has pointed out the documents
i.e. Registration Certificate of Establishment in the year 1968, License
u/sec. 313, 313A and 313B of the BMC Act, Agreement dated
19.08.1994 etc. The above mentioned documents 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 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 been issued with the notice
U/sec. 314 of the MMC Act. The plaintiff is claiming the injunction on
the ground that she has not been granted with the alternate
accommodation. It is apparent that her claim regarding the alternate
accommodation has been turned down by the defendant No.1. The
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plaintiff cannot claim injunction on the ground that she 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 she is entitled to get the protection from the Court
because no alternate accommodation is granted to her. The primafacie
case is not in favour of plaintiff. Therefore, my answer to point no.1 is
in negative.
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 in her
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 her favour. She is
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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 relation with the alternate accommodation. Even if, the premises are
demolished then 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.1213 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 :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29/01/2025 11.35 a.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 28.01.2025
Judgment/Order uploaded on 29.01.2025
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