Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1262/2020
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1262 OF 2020
IN
SUIT (ST. NO. 3977 OF 2020)
Mahamumbai Chhatri Utpadak Sahakari
Kendra Ltd, Mumbai
…...Plaintiff/s
Versus
Municipal Corporation of Gr Mumbai
& Another
...... Defendant/s
Coram : S.C. Pathare, Judge
(Court Room no. 05)
Date : 24th July, 2020
Appearance:
Ld. Adv.Priyanka Chavan alonwith Abhaysingh Shinde for the
plaintiff/s.
Ld. Adv. Smt. Chandramore for defendant/MCGM.
AD-INTERIM ORDER
1. The plaintiff/s by this notice of motion seeks ad-
interim injunction (or status quo) restraining the defendant
corporation from acting upon the notice dated 7/7/2020. On behalf
of defendant by submitting affidavit in reply the notice of motion is
strongly opposed.
2. Heard Learned Advocate for the plaintiff/s and
Learned Advocate for the defendant.
3. The Schedule of the notice reads as under:-
''Suit building viz-VLT Gala of flyover bridge at Marine
Drive, Mumbai, particularly where plaintiff/s are conducting the
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business, more particularly E Netaji Subhash Road, ground floor,
below flyover bridge, Marine Lines, Mumbai, admesuring 66 sq.
mtrs.”
4. On behalf of plaintiff/s, it is argued that plaintiff/s had
made application in BMC on 19/8/1982 for allotment of space for
carrying out business. Thereafter, on 13/7/1983 corporation
informed about above said space availability and allotted said space
to plaintiff/s society. Thereafter, on 11/4/1986 there was
agreement between both the parties in that regard. Said premises is
given to plaintiff/s society at the rent/fees of Rs. 803/- monthly.
According to plaintiff/s they got actual and physical possession of
said premises in the year 1989, on the basis of Leave and License.
5. The Ld Counsel of behalf of plaintiff/s argued that
since long plaintiff/s are carrying business at suit premises.
Thereafter all of a sudden the corporation authority issued letter
dated 7/7/2020 and asked plaintiff/s to vacate notice premises
withing 14 days. Said notice is received to plaintiff/s via Whatsapp
on 8/7/2020. According to plaintiff/s said action of BMC is
unlawful/illegal. Plaintiff/s are praying that first BMC should give
them alternative premises for their commercial activities.
6. On behalf plaintiff/s various documents are placed on
record as following:-
1) Copy of certificate of the Registration No.BOM/PRD-
E(1)129 dated 1964,
2) Copy of allotment letter dated 13/07/1983 thereby
allotting the present suit premises to the plaintiff
society,
3) Copy of the letter dated 17/01/1986,
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4) Copy of the letter No. WOC/43060/Estates dated
04/04/1986 with pre-requisite conditions for actual
physical possession,
5) Copy of the agreement dated 11/04/1986 executed
between plaintiff and defendant,
6) Copy of the map prepared by the Ward Officer,
Estate Department bearing No. C-4 dated 09/06/
1986,
7) Copy of the letter dated 31/08/1987 given by the
plaintiff to the defendant herein for handling over
the actual possession of the suit premises,
8) Copies of the notice dated 10/08/1989 with the
copy of letter given by the plaintiff to the defendant
vide its letter dated 21/08/1989.
7. Perusal of above said documents and suit contents it is
clear that plaintiff/s got possession of suit premises long back on
the basis of Leave and License and accordingly plaintiff/s are
carrying out their commercial activities at the said space.
8. Perusal of letter dated 7/7/2020 at pg. No.36 goes to
show that defendant wants to carryout repairing work of the said
bridge. According to defendant the nature of said repair work is
very severe and having nature of major repairs to the ROB. Hence,
plaintiff/s are asked to vacate said premises for above said public
utility work within 14 days.
9. Perusal of agreement dated 11/4/86 at pg No.24
reveals that said space is given to plaintiff/s society for commercial
use on Leave and License and now for the purpose of repairing
works defendant/corporation wants to recover possession of the
same from the plaintiff/s.
10. On behalf of defendant, Ld Counsel submitted reply
and list of documents. Ld Counsel of defendant strongly argued
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that the Notice of Motion is filed without merits. On behalf of
defendant it is argued that in view of urgency of repairing work
plaintiff/s are bound to vacate said premises. According to
defendant action taken by corporation is just and proper.
11. Defendant produced Articles of Agreement,
Undertaking given by plaintiff/s society to MMC, letter dated
11/11/2019 issued by Dy. Chief Engineer (Bridges) City stating that
walls and various structures beneath Princess Street ROBs adjacent
to railway track are in a dangerous condition. It is further asked in
that letter to instruct the concern in order to shift the existing
offices/chowkys beneath Princess Street ROBs adjacent to railway
track and demolish the walls which are in dilapidated condition so
as to avoid mishap. MMC produced letter dated 7/7/2020 issued by
Chief Engineer (Bridges) regarding the same purpose. MMC
produced copy of reminder dated 18/6/2020 regarding the work of
major repairs to the existing bridges in City-I Division. MMC
produced copy of letter dated 7/7/2020 issued to plaintiff/s and
reminder dated 21/7/2020.
12. During the course of arguments my attention is invited
at the Undertaking issued by plaintiff/s society in favour of the
corporation in the year 1986 wherein it is undertaken that the
occupants will handover peaceful vacant possession of the land and
will not claim any alternate accommodation in case the land is
required for any municipal development or public purpose.
Therefore it is clear that when BMC now need said land for above
said repairs in that event plaintiff/s are now duty bound to vacate
said land within the period asked by defendant/provided by Law.
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13. Admittedly now rainy season is going on therefore it is
necessary to carryout repair works of bridges those are not in good
condition. If repairs are not carried out for one or the other reason
then there are chances of mishap/accidents etc. In view of above
various documents it is clear that user of plaintiff/s is permissive
and they are not owner of said premises. In view of agreement/
Undertaking plaintiff/s are having no any option than to vacate
said premises.
14. On behalf of plaintiff/s it is argued that they do not
have any objection for carrying out above repairs as the same are in
the interest of public at large. However, they are praying for
alternative accommodation which is refused by the defendant
corporation. However, it is right and descretion of the corporation
whether to provide alternative accommodation or not. However, on
the basis of humanitarian grounds their prayer about alternative
premises can be considered by BMC after completion of said repairs
or BMC may consider whether to reallot said premises to
plaintiff/s. However, at this stage this court cannot compel
defendant in that regard.
15. On behalf of plaintiff/s it is argued that as per Section
105 A & B of MMC Act defendant ought to have given one month
notice for vacating said premises. On behalf of defendant no any
provision is shown as to why only 14 days notice is given to
plaintiff/s. Therefore, it is clear that MMC can take action of
recovering possession for said public purpose only after completion
of one month period from the service of notice.
16. Thus, in my humble view plaintiff/s have failed to
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makeout a prima facie case or to demonstrate balance of
convenience in their favour. It means plaintiff/s are not going to
suffer any irreparable loss which cannot be compensated in terms
of money.
17. In view of above peculiar facts, circumstances,
documents and discussion, I proceed to pass following order in the
interest of justice:-
ORDER
1 The Notice of Motion No.1262/2020 is hereby
dismissed.
2 The notice is served on plaintiff/s on 8/7/2020.
Therefore, as per Section 105 A & B of MMC Act
period of 30 days will complete on 08/08/2020.
Thereafter, defendant/corporation can take
possession of said premises from plaintiff/s.
3 The above Notice of Motion stands disposed off.
4 After completion of said repairs plaintiff/s will
be at liberty to apply to BMC afresh for
reoccupation, subject to provisions of Law, if so
desire.
5 Authenticated copy of this order be given to the
parties.
(S.C. Pathare)
Judge,
Date : 24/7/2020 City Civil Court,
Mumbai.
Dictated on : 24/7/2020
Transcribed on : 24/7/2020
Signed by HHJ on : 24/7/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 31/07/2020 & 11.42 a.m.
NAME OF STENOGRAPHER : Mrs. S.A. Shekade
Name of the Judge (With Court
Room no.)
HHJ Shri. S.C. Pathare
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
24/07/2020
JUDGMENT/ORDER signed by
P.O. on
24/07/2020
JUDGMENT/ORDER uploaded on 31/07/2020
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