Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010035862019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO 1391 OF 2019
IN
LONG CAUSE SUIT NO.766 OF 2019
Jairaj Lakhiram Jaiswar ... Plaintiff
(Since Deceased Deleted)
1 (a). Smt. Sita Jairaj Jaiswar and Ors. … Plaintiffs.
V/s.
Municipal Corporation of Greater Mumbai ...Defendants
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH
CITY CIVIL COURT
GR.MUMBAI
DATE : 02/03/2022
Appearance
Adv. Mr. D. A. Thorat for the plaintiff.
Adv. Mr. Dharmesh Vyas alongwith Adv.Ms. Deepali Patil for the
Defendant/BMC.
ORAL ORDER
1. This Notice of Motion is taken out by the plaintiffs for
temporary/interim injunction for restraining defendant corporation
from demolishing or pulling down or removing the suit premises or any
portion thereof i.e. commercial premises admeasuring 1.35 meters x
0.75 meters i.e. 1.01 sq.meters equivalent to 10.89 sq.feet known as
Pan Bidi shop being Gala No.10 on G6260 at Naik Nagar, L. B. S. Marg,
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Opp. Sion Railway Station, Dharavi, Sion, Mumbai 400 017; in
pursuance of Notice No. 453 dated 11.12.2017 and order bearing No.
511 dated 27.11.2018 passed by Assistant Engineer (Zone1), G/North
Ward of the defendants being contrary to Policy Circular dated
25.02.2004.
2. This application is contested by the defendant by filing
reply and documents on record.
3. In all there are 10 suits pending in this Court which have
been argued simultaneously, based on same set of facts. Therefore, in
order to have broader picture, the facts are re produced though those
are already there in these notice of motions.
4. This cause of action arose out of the road widening of
Lalbahadur Shastri Road (L.B.S.Road). The defendant corporation
conducted a survey for identifying the structures which are to be
affected by such project. These structures are situated near on the
footpath of L.B.S. road. These 10 suits i.e. 764/2019, 765/2019,
766/2019,1569/2019, 1570/2019, 1571/2019, 1572/2019,1573/2019,
1574/2019 and 1575/2019 filed by the occupants of the said shops,
who have moved this notice of motion for temporary injunction. The
prayer in the notice of motion is that till decision of the suit, the
defendant corporation shall be restrained from demolishing these suit
structures.
5. Heard the learned Advocates for the plaintiff and defendant
corporation at the length. Perused the documents filed by the plaintiff
on record.
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6. Points for determination alongwith my findings are as
under:
Sr.
No.
Points Findings
1 Whether the plaintiffs have made out
prima facie case?
….No.
2. Whether balance of convenience lies in
favour of the plaintiff?
….No.
3. Whether plaintiff would suffer
irreparable loss if order of temporary
injunction is not granted in his favour?
….No.
4. What order ? As per final order
REASONS
As to Point Nos.1:
7. Primafacie the case is principally an arguable case on
plaintiff chance to success in the suit. The vary object of the enactment
of provision of temporary injunction under Order 39 Rule 1 of the Code
of Civil Procedure,1908 is that the status of the property should be
maintained to enable the successful litigants to enjoy the fruits of
decree. Therefore, when the party pleads his case for temporary
injunction the plaintiff should establish a primafacie case to justify why
the Court should pass restrain order to protect the structure.
8. The relevant provisions of law governing temporary
injunction are Section 20A and 41(ha) of the Specific Relief Act,1963.
The relevant provisions of law is reproduced for quick perusal.
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Section 20A of the Specific Relief Act, 1963 reads as under:
Special provisions for contract relating
to infrastructure project (10No injunction shall be
granted by a Court in a suit under this Act, involving
a contract relating to an infrastructure project
specific in the Schedule, where granting injunction
would cause impediment or delay in the progress or
completion of such infrastructure project. Injunction
when refused an injunction cannot be granted if it
would impede or delay the progress or completion of
any infrastructure project or interfere with continued
provision of relevant facility related thereto or
services being the subject matter of such project;
Section 41(ha) of the Specific Relief Act, 1963 reads as under:
Injunction when refused an injunction
cannot be granted if it would impede or delay the
progress or completion of any infrastructure project
or interfere with continued provision of relevant
facility related thereto or services being the subject
matter of such project;
9. Now coming back to the facts of this case, the law is settled
under section 20A and 41(h) of the Specific Relief Act, 1963, where the
Court has no discretion to issue injunction restraining the Public
Infrastructure Project. The legal position is so clear that irrespective
interest of the each of the occupants the structure has to be demolished
to give a way to a infrastructure project. It is an infrastructure project of
a way in Mumbai. It is removing a Bottle Neck of traffic jam and it is
need of time that road widening shall proceed to its logical end.
10. Now the small point for consideration is, where the
structure will be demolished any way, in that event , there will be no
purpose in granting temporary injunction to protect the structure. It is
logical proposition that in such a case there is no purpose to be served
by protecting the suit structures. This proves that there is no primafacie
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case in favour of the suit structures, which are coming in the way of
public infrastructure project of road widening in view of provision of
section 20A and 41(h) of the Specific Relief Act, 1963.
11. On the point of primafacie case it is argument of each of
the occupant of the respective suit structures that they have right of
rehabilitation. Undisputedly the land on which suit premises are
situated is owned by defendant corporation. Rehabilitation of
encroacher is recognized as a right but in fact it is not a matter of right
but statutory courtesy in the welfare State where right to livelihood is
recognized, but such right cannot be enforced as ransom seeking
injunction to withhold essential infrastructure project where a single
day delay increases the costs of project which is again paid out of the
public funds. This vicious cycle should be stopped at one end and left
the infrastructure project to be started and completed.
12. On considering the case of each of the occupant (respective
plaintiff), primafacie each of the shop Gala has extended its original
site by encroaching over the open land and now to all three people have
come up to raise an independent claim for rehabilitation. This appears
exfacie encroachment as there is one electricity connection for two or
three alleged claim. However, this Court desire not adjudicate upon it
unless evidence is adduced at relevant stage.
13. If shops (suit structures) are categorized as eligible and or
ineligible for rehabilitation, the defendant corporation has stated which
of the occupier is eligible for rehabilitation and who is not eligible. The
defendant corporation has given consolidated information which is part
of record and it is reproduced in the chart format as follows:
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Sr.
No
Suit No. Name of the
plaintiff
Alleged
Gala
No.
Name of the
business in
the suit
structure
Structure
eligibility
/
ineligibilit
y
1 1574/2019 Pinkesh Soni 1 MB
Industries
Eligible
2 1575/2019 Pinkesh Soni 2 MB
Industries
Ineligible
3 1571/2019 Abdula R Ali
(Murtza Sailawala)
3 Rco
Industries
Ineligible
4 1572/2019 Arvind Ayya 4 Saroj
Furnishing
and Carpet
Ineligible
5 1573/2019 Arvind Ayya 5 Saroj
Furnishing
and Carpet
Ineligible
6 1569/2019 Ajay Shah 6 R. K.
Industries
Eligible
7 1570/2019 Ajay Shah 7 R.K.
Industries
Ineligible
8 765/2019 Jayraj Jaiswar 8 Jaykumar T.
R.
Corporation
Eligible
9 764/2019 Jayraj Jaiswar 9 Asha Hotel Ineligible
10 766/2019 Jayraj Jaiswar 10 PanBidi
Stall
Ineligible
14. One category is of those which defendants corporation
categorized as eligible for rehabilitation. Where defendant corporation
has expressed willingness to rehabilitate, in that case such a plaintiff do
not have a cause to pursue in the Court at least for injunction.
15. Other category is of those suit properties i.e. suit structures
which are held ineligible for rehabilitation by the defendant
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corporation. Those structures are mere encroachment or extension to
the original structure and therefore, they do not deserve any protection.
This case falls under this second category.
16. The defendant corporation had initiated enquiry
proceeding under section 105B of the Mumbai Municipal Corporation
Act. In the said enquiry , enquiry officer has held that the plaintiff is
unauthorised occupant in respect of the suit structure within the
meaning of MMC Act. It was further held that the suit structure i.e. suit
premises is required for widening of the public street.
17. It is held by defendant corporation on scrutiny after
considering all the documents filed by the plaintiff that the suit
premises is ineligible for alternate accommodation at Nehru Nagar
Kurla (E), Mumbai.
18. There is establish procedure laid down under Bottleneck
Policy Guidelines dated 20.03.2017 and it is also held by the
Honourable High Court in the case of Sadashiv Shetty v/s. Municipal
Corporation of Greater Mumbai (AO(St) No. 37367/2018) that
where such a person who is held not eligible for rehabilitation.
Occupant of such premises / structures has legal remedy to approach
Deputy Municipal Commissioner by way of appeal, which is appropriate
forum for raising his grievances. If such a occupant, who is held
ineligible succeeds in such a appeal, he will be rehabilitated and if he
fails will not be rehabilitated. In any case such a plaintiff has no reason
to come to the Court to hault road widening for no purpose.
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19. From the above discussions, it is held that this plaintiff do
not have a primafacie case for temporary injunction against the
defendant corporation from demolishing suit premises which is essential
for road widening project. Therefore, notice issued by the defendant
corporation under section 314 of the Mumbai Municipal Corporation
Act dated 11.12.2017 and order dated 27.11.2018 is absolute following
of due process of law. Therefore, it is held that the plaintiff failed to
prove primafacie case for seeking temporary injunction as prayed for.
Hence, Point No.1 answered in the Negative.
As to Point No.2
20. Balance of convenience is a principle of equity which is a
cardinal principle in deciding temporary injunction . There are two
possibilities for plaintiff i.e. either the suit structure will be protected
by temporary injunction or it will be demolished on refusal of
temporary injunction. There are two possibilities for defendant
corporation if temporary injunction is granted against it, the road
widening would stop for undetermined period till the final decision of
the suit and if the injunction is refused road widening project will be
completed to its logical end.
21. Balance of convenience is striking balance between
convenience of the plaintiff on grant of temporary injunction with the
inconvenience of defendant corporation likely to be caused on passing
of the order of injunction. The plaintiffs are not having any right except
alleged claim of right to rehabilitate. It is independent of fact whether
structures remain or it is demolished. The plaintiff cannot be permitted
to misuse the process of law to seek injunction as tool to pressurise the
defendant corporation by putting road widening project at hault and
thereby settle the terms.
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22. The inconvenience of the defendant corporation is
inconvenience of the public at large and the inconvenience alleged by
the plaintiff is insignificant before the public cause.
23. In this background it is held that balance of convenience is
not in favour of the plaintiff. Hence, Point No.2 is answered in the
Negative.
As to Point No.3
24. The third cardinal principle governing temporary injunction
is probability of suffering and irreparable loss which cannot be
compensated in terms of money. In the case in hand, the plaintiff has no
right other than possibility of rehabilitation. There is established
procedure of law to determine such entitlement . In any case, the suit
structure will be demolished to give way to public cause of
infrastructure project of road widening. Therefore it is held that plaintiff
has failed to make out a case for irreparable loss which cannot be
compensated in terms of money. Hence, Point No.3 is answered in the
Negative.
As to Point No.4
25. In these backgrounds, it is held that plaintiff is not entitled
for any order of temporary injunction as prayed for protecting the suit
structure in view of 20A and 41(h) of the Specific Relief Act, 1963 and
in view of Bottle Neck Policy Guidelines. In consequence this Notice of
Motion is liable to be dismissed and following order is passed.
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ORDER
1. Interim relief prayed in Notice of Motion No.1391/2019 in L.C.
Suit No.766/2019 in terms of prayer clause (a) is dismissed.
2. Notice of Motion No.1391/2019 is disposed off.
(Smt. S.G.Shaikh)
Date02/03/2022 Judge,City Civil Court,
Gr. Bombay.
Dictated on : 02/03/2022
Typed on : 02/03/2022
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
02/03/2022 04.00 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
02/03/2022
JUDGMENT/ORDER signed by
P.O.on
02/03/2022
JUDGMENT/ORDER uploaded on 02/03/2022
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