Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1102 OF 2018
(CNR No. MHCC010035492018)
IN
LONG CAUSE SUIT NO. 270 OF 2018
Santosh Ramchandra Talekar ... Plaintiff
V/s.
Municipal Corporation of
Gr.Bombay ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI. RAJESH K. KHOMANE
CITY CIVIL COURT
GR. BOMBAY ( C.R.NO.06)
DATE : 31/10/2022
Adv. Anand Charanbir for the plaintiff.
Adv. Ms. Deepali Patil for the defendants/BMC.
ORAL ORDER
1. This Notice of Motion has been taken out by the plaintiff
under order XXXIX Rule 1 of the Code of Civil Procedure for restraining
the defendants/BMC from taking any coercive steps in pursuance of
notice issued by the defendants/BMC.
2. In brief, case of the plaintiff is that he is in use , occupation
and possession of shop premise situated at Sangam Galli, 90ft Road,
Shivshankar Nagar, Near Saibaba Temple, Dharavi,Mumbai400 017
( for the sake of convenience shop premise hereinafter referred to as
'suit premise'). The suit premise is admeasuring about 6ft X 10ft. He
carries out his business of selling Masala in the suit premise under the
name and style of ‘Rahul Enterprises’. The suit premise is in existence
since prior to year 1980. The suit premise is censused to the Municipal
record in the year 1990 and census survey slip bearing No. 0151135 is
issued in respect of the suit premise.
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3. One Chandrakat Ganpat Bhatkar was the original occupier
of the suit premise. The census survey slip bearing No. 0151135 in
order to issue photopass was issued in the name of Chandrakant
Bhatkar. In the year 1999 Chandrakat Ganpat Bhatkar had relinquished
his rights in respect of the suit premise in favour of the plaintiff by
executing Deed of Power of Attorney and affidavit. Since then the
plaintiff is in possession of the suit premise and he is carrying out
business of selling Masala in the suit premise. Necessary license for
running business in the suit premise has been issued in his name under
the Shops and Establishment Act. However, the defendants/BMC issued
notice bearing No.0636 dated 02.01.2018, thereby calling upon him to
demolish the suit premise within three days alleging therein that it is on
the footpath. He replied the impugned notice on 03.01.2018, but on
22.01.2018 the officer of the defendants/BMC passed speaking order
directing the plaintiff to demolish the suit premise. The said speaking
order has been passed illegally and arbitrary. The plaintiff had
challenged the impugned notice and speaking order. Hence, the plaintiff
prays for temporary injunction restraining the defendants/BMC from
enforcing the speaking order dated 22.01.2018.
4. The defendants/BMC has filed reply contending therein
that earlier there was a temple of Saibaba on the place of suit premise.
The said temple was on the footpath. So, in view of order of the
Honourable Supreme Court the said temple was demolished on
29.12.2016 by the defendants/BMC with the assistance of police. After
the said demolition action it was found that again some new
construction have been carried out and accordingly, officers of
defendants/BMC removed the said encroachment. Thereafter, the
plaintiff has exactly on the place of said Saibaba Temple, which has
been demolished by the defendants/BMC, constructed the suit premise.
According to the defendants/BMC, the suit premise is on footpath. The
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plaintiff made encroachment on the footpath and running business in
the suit premise. Therefore, impugned notice was issued to the plaintiff.
The reply filed by the plaintiff to the impugned notice was not
satisfactory and his documents were not related to the suit premise and
did not show his authorization in respect of the suit structure. So, the
Designated officer of the defendants/BMC passed speaking order on
22.01.2018. The impugned notice and speaking order are legal and
valid. Hence, defendants/BMC pray for dismissal of the notice of
motion.
5. From the contention of both the sides following points arise
for my determination and I recorded my findings thereon with reasons
are as under:
Sr.
No.
Points Findings
1 Whether the plaintiff has prima facie
case ?
No
2 Whether balance of convenience lies in
favour of plaintiff ?
No.
3 Whether plaintiff will suffer irreparable
loss if injunction is not granted ?
No
4 What order ? As per final
order
R E A S O N S
As to Point Nos.1 to 3
6. All the points are related with each other hence, they are
discussed altogether. Heard argument of both sides advocates. Mr.
Anand Charanbir advocate for the plaintiff submits that the suit premise
is in existence since year 1980. Mr. Chandrakant Bhatkar was the
original occupier of the suit premise and Survey slip in order to issue
photopass of the suit premise was issued in the name of Mr. Chandrakat
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Bhatkar. The plaintiff purchased the suit premise from its original
occupier Mr. Chandrakant Bhatkar in the year 1999. He is carrying on
business in the suit premise. The suit premise is in Dharavi area which
is declared as Difficult area. Thus, the suit premise is protected structure
within the meaning of section 3X(b)and (c)of chapter 1B of the
Maharastra Slum Area Act . Therefore, impugned notice issued by the
defendants/BMC is not legal and valid. The documents show that the
suit premise is protected structure therefore the burden is on the
defendants to show that as to how the structure has deviated from the
authorization. To support his argument he placed his reliance on
following authorities;
1. Vadilal Manganlal Trevadia V/s. Bombay Municipal
Corporation and Ors. in Writ Petition No.1447 of 1995,
therein it is observed by the Hon’ble High Court that in case
of unauthorized structure the initial burden is on the person
or the authority who alleges that the structure is
unauthorized Observation.
2. Kanilal vs. Ram Chandra decided on 23.08.2017 by the
Hon'ble Supreme Court, therein the on Hon'ble Supreme
Court has emphasis that the need for assigning reasons in
support of its conclusion.
7. On the other hand Mrs. Deepali Patil, advocate for
defendants submits that the suit premise is on public footpath. Earlier
there was Saibaba temple on that place and in view of direction of
Hon’ble Supreme Court it came to be demolished as it was on footpath.
But, after its demolition the plaintiff encroached upon that place and
erected the suit premise. Hence, it is illegal structure as it is on public
footpath.
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8. I have considered the arguments of both sides advocate and
also gone through the documents filed on record. It is the case of the
plaintiff that Chandrakat Ganpat Bhatkar was original occupier of the
suit premise. In this connection the plaintiff has relied on copy of
Census slip issued in the year 1990. From the copy of census slip what
it appears that on 12.12.1990 Mr. Chandrakat Ganpat Bhatkar moved
an application No. 0151135 to issue photopass in respect of the premise
which is in his possession. Deputy Collector Encroachment department
vide order bearing No. 1990/ Dharavi/101/1985, concerned authority
passed NA order. The area of the said premise mentioned as 6ft X 10ft.
9. Copy of Affidavit and General Power of Attorney dated
22.04.1999 are in respect of relinquishment of rights of Chandrakant
Bhatkar in favour of the plaintiff in respect of the premise which was in
his possession. The premise in possession of Mr.Chandrakant Bhatkar
mentioned as Shop No. 34, Shiv Shankar Nagar, 90 Feet Road,
Dharavi, Mumbai400 017.
10. It is the contention of the plaintiff the premise which has
been transferred in his favour by Mr. Chandrakant Bhatkar by
relinquishment of is rights in his favour and the suit premise is one and
the same. As,against this it is contention of the defendants that the suit
premise is on the place of Saibaba temple which is demolished and the
documents filed by the plaintiff not pertains to the suit premise. Hence,
in this backdrop the issue is that the suit premise is authorized structure
or not. In such circumstances, the most crucial document would be
original or initial authorization. No doubt from copy of survey slip it can
be seen that Mr.Chandrakant Bhatkar applied for issuance of photopass
but,from copy of NA order it appears that the said premise was for
residential purpose. The plaintiff is claiming that the suit premise is
commercial premise. Under such circumstances the burden is on the
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plaintiff to show that how residential premise converted into
commercial. But, surprisingly there is no explanation of the plaintiff in
this regard. Therefore, documents of survey slips and NA order filed by
the plaintiff appear to be different and not pertains to the suit premise.
11. The plaintiff has relied on the Aadhar Card and Ration card
therein his residential address shown as room No. 318, Sangam Galli,
90 feet Road, near Saibaba Temple, Dharavi, Mumbai. Therefore, these
documents are also not helpful to the plaintiff to prove that the suit
premise is authorized.
12. The officer of the defendants/BMC found the suit premise
is on public footpath and so he issued impugned notice calling upon the
plaintiff to show the authorization of the suit premise. On failure of the
plaintiff, speaking order passed thereon by the officer of the
defendants/BMC. The plaintiff has not shown authorization of the suit
premise. Thus, there is no sufficient material on record primafacie to
show the impugned notice and speaking order passed thereon are not
legal and valid. The suit premise primafacie appears to be on public
footpath. Therefore, the plaintiff has no primafacie case. No balance of
convenience lies in his favour. So, no irreparable loss would be caused
to the plaintiff if injunction is refused. Therefore, I have replied point
nos. 1 to 3 in the negative.
Point no. 4.
13. I have recorded finding on point nos. 1 to 3 in the negative.
So, this notice of motion deserves to be dismissed and as to point no.4 I
pass following order.
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ORDER
1. Notice of Motion No.1102/2018 is dismissed.
2. Notice of Motion No.1102/2018 is disposed off.
(Rajesh K. Khomane)
Date31/10/2022 AdhocJudge,City Civil Court,
Gr. Bombay .
Dictated on : 31/10/2022
Typed on : 31/10/2022
Signed on :
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04.11.2022 05.30 p.m. Mayuresh P. Tathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room No.) Shri. Rajesh K. Khomane
(CR.No.06)
Date of Pronouncement of JUDGEMENT/
ORDER
31.10.2022
JUDGEMENT/ORDER signed by P.O. on 04.11.2022
JUDGEMENT/ORDER uploaded on 04.11.2022
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