Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1270/2020 .. 1 .. L.C. Suit (St) No.4001/2020
CNR NO.MHCC01-003642-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1270 OF 2020
IN
L.C. SUIT (ST) NO. 4001 OF 2020
Rawali Camp Nagrik Seva Samiti )
through their Mr. Rakesh Pawar )
Chairman and authorised person an adult )
Indian Inhabitant of Mumbai having office )
at Rawali Camp, Mukundrao Ambedkar )
Marg, Near GTB Railway Station, Sion, )
Koliwada, Mumbai – 400 037. )….Plaintiff
Vs.
1. Mumbai Municipal Corporation of )
Greater Mumbai through its Assistant )
Engineer (SWM) F/North Ward, Municipal )
Office, 96, Bhau Daji Marg, Matunga (E), )
Mumbai – 400 019 )
2. Sub-Engineer (SWM) )
F/North Ward, Municipal Office, 96, )
Bhau Daji Marg, Matunga (E), )
Mumbai – 400 019. )
3. Assistant Chief Supervisor (SWM) )
F/North Ward, Municipal Office, 96, )
Bhau Daji Road, Matunga (E), )
Mumbai – 400 019. )….Defendants
APPEARANCE:-
Ld. Adv. Mr. Suraj Kudalkar for the plaintiff.
Ld. Adv. Mr. Vilas Gavai for the defendants/MCGM.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 02nd DECEMBER, 2020.
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O R D E R
This Notice of Motion is moved by plaintiff praying to
restrain defendants from dispossessing or removing the suit premises in
pursuance to notice dated 16.07.2020.
Description of suit premises -
P.S.C. toilet block, opp. Shanti Udyan, Near Hotel Shukla
Mukund Rao, Ambedkar Road, Rawli Camp, Sion Koliwada, Mumbai –
400 037.
Case of plaintiff in brief is as follows -
2. According to plaintiff, his application with respect to
construction of pay and use toilet block was allowed vide letter of
defendants dated 27.12.2000. In pursuance of the permission granted
by defendants and the plan approved by defendants, plaintiff expended
Rs.30 lakhs and constructed PSC toilet block. Plaintiff has paid all the
necessary charges, ground rent etc. Plaintiff has also taken water
connection, electricity connection in the suit premises to run the toilet
block. The aforesaid toilet block was in use and in operation till today.
Plaintiff has employed persons for looking after maintenance of the
aforesaid toilet block. There is no complaint in respect of cleanliness
and maintenance of the suit premises. On 16.07.2020, the officers of
defendants came in suit premises and threatened to hand over the PSC
toilet block to defendants. Plaintiff has addressed defendants by reply
through his advocate dated 20.07.2020. Despite permission granted to
plaintiff for construction and running of PSC block, defendants are
giving threats of eviction from suit premises. Therefore, plaintiff has
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filed this suit and present notice of motion.
3. Defendants corporation has resisted the aforesaid notice of
motion by filing their reply at Exh.02. They have denied all the
averments in notice of motion except those which are specifically
admitted by them. It is contended that suit and notice of motion is bad
for want of notice under section 527 of the MMC Act. The plaint
discloses no cause of action. Therefore, suit is not tenable and
maintainable. According to them, the office of Executive Engineer
(Bridges) City (N) has issued a letter dated 27.11.2019 to the officer of
these defendants and recommended to remove the public toilet
constructed on west side approach of ROB on the basis of the structural
audit report of GTB ROB. The structural audit report of GTB ROB has
mention about removal of the dead load of shanties, furniture with
other household belongings, shops & toilet blocks near the footpath
and from both approaches to avoid any mishap. The structural
consultant has recommended to remove the public toilet constructed on
west side approach of ROB. The aforesaid letter dated 27.11.2019 was
forwarded to office of Assistant Engineer (Maintenance) F/North Ward
of these defendants. The office of Assistant Engineer (Maintenance)
F/North Ward informed Assistant Engineer (SWM) F/North Ward by
letter dated 01.01.2020 to vacate the aforesaid toilet at the earliest.
Thereafter, defendants have issued notice dated 12.02.2020 to plaintiff
to vacate the aforesaid toilet and hand over possession to defendants.
Thereafter, the office of Assistant Engineer (Maintenance) F North/
Ward vide letters dated 20.02.2020 & 02.07.2020 informed Assistant
Engineer (SWM) F/North Ward to vacate the aforesaid toilet.
Thereafter, the final notice dated 16.07.2020 was also given by
Assistant Engineer (SWM) F/North ward to plaintiff to vacate the said
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toilet. Therefore, defendants have followed due process of law. For
aforesaid reasons, no interim relief as prayed can be given in favour of
plaintiff. They prayed for dismissal of notice of motion.
4. Heard, Ld. Advocate Mr. Suraj Kudalkar for Plaintiff,
Ld. Advocate Mr. Vilas Gavai for defendants corporation. On hearing
the parties and on going through entire record of the case, following
points arise for my determination with its findings and for reasons to
follow :
S.N. POINTS FINDINGS
1 Whether plaintiff proves that prima facie
case lies in his favour ? In Affirmative.
2 Whether plaintiff proves that balance of
convenience lies in his favour ? In Affirmative.
3 Whether plaintiff proves that irreparable
loss will be caused to him, if the
application is not allowed ?
In Affirmative.
4 What order ? As per final order.
R E A S O N S
AS TO POINTS NO.1 TO 3
As all the points are interlinked with each other, they are
discussed together.
5. Learned advocate for plaintiff have argued in lines of
pleadings in notice of motion. Besides that he also submitted that
plaintiff had not received the letters under reference in the impugned
notice dated 16.07.2020. Directly impugned notice was served upon
plaintiff which was replied by him vide reply dated 20.07.2020. There
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is no speaking order passed. He also argued that the PSC block is not
on the bridge but near footpath which recitals can be found in the
structural report. Furthermore, the letter of Assistant Engineer (SWM)
F/North Ward dated 06.03.2020 has recitals to demarcate the
boundary of GTB ROB for the finalization of alternate location at the
vicinity for the new toilet. Accordingly, the boundary of GTB ROB is
marked along with drawing. Despite aforesaid position, plaintiff is
threatened to vacate the suit premises without being provided with
alternate premises for PSC toilet. He has also relied upon all the
documents annexed along with the plaint and his rejoinder to
substantiate his argument. He therefore, submits that plaintiff has
prima-facie case. The period of agreement is 30 years. Plaintiff has
invested huge amount in construction of PSC toilet. Therefore, plaintiff
will suffer irreparable loss. He prayed for allowing his notice of motion.
6. Per contra, learned advocate for defendants corporation
has vehemently submitted that in hundred meters in vicinity of suit
premises there are two PSC blocks. The structure report is supporting
the defence of defendants. Notices were issued to plaintiff. It is not
mandatory on defendants to give personal hearing. Defendants are
following the directions in pursuance of letter dated 27.11.2019. The
work is in progress. Therefore, it will defendants who will be suffering
irreparable loss if prayer of plaintiff is allowed. Therefore, he prayed
for dismissal of notice of motion.
7. I have given anxious consideration to arguments of both
the learned advocates. Perused the documents of both the sides. It is
not in dispute that plaintiff was given suit premises for construction of
PSC toilet block for period of 30 years i.e. from 26.04.2000 to
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25.04.2032. Accordingly, plaintiff has constructed PSC toilet block and
same is in operation and use of public till today. It is also not in dispute
that plaintiff has paid all the legal charges and has also obtained the
electricity as well as water connection in the suit premises. The
documents annexed along with the plaint i.e. the permission letter, the
sanction plan, the deposit and payment receipts, the energy bill and the
water bill all support the aforesaid undisputed facts. Therefore, there is
no reason to disbelieve the aforesaid facts that the permission was
given to plaintiff to run the PSC toilet block for the period of 30 years,
that same is not yet expired and that the PSC toilet block is in operation
till today. Further, there is nothing on record that there is any complaint
with respect to PSC toilet block with respect to its maintenance.
8. The office of Executive Engineer (Bridges) City (N) has
issued a letter dated 27.11.2019 to the officer of these defendants and
recommended to remove the public toilet constructed on west side
approach of ROB on the basis of the structural audit report of GTB
ROB. The structural audit report of GTB ROB has mention about
removal of the dead load of shanties, furniture with other household
belongings, shops & toilet blocks near the footpath and from both
approaches to avoid any mishap. The structural consultant has
recommended to remove the public toilet constructed on west side
approach of ROB. The aforesaid letter dated 27.11.2019 was forwarded
to office of Assistant Engineer (Maintenance) F/North Ward of these
defendants. The office of Assistant Engineer (Maintenance) F/North
Ward informed Assistant Engineer (SWM) F/North Ward by letter
dated 01.01.2020 to vacate the aforesaid toilet at the earliest. The
aforesaid contentions are substantiated by the documents tendered on
record by defendants.
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9. There is no document on record to show that the notice
dated 12.02.2020 is served upon plaintiff. Because plaintiff has
disputed service of this notice, there should be some document on
record to prima-facie show that such notice was received by plaintiff. It
is further on record that impugned notice dated 16.07.2020 was replied
by plaintiff on 20.07.2020. In this reply plaintiff had clarified all his
case as is put in this case so also asked for personal hearing. But there
is nothing on record that plaintiff was given opportunity of personal
hearing nor there is any speaking order. Therefore, prima-facie it
appears that rules of natural justice are not followed.
10. Plaintiff has expended amount on construction of PSC
toilet block cannot be disbelieved. The permission granted to plaintiff
for period of 30 years is also not expired as discussed above.
Furthermore, the letter of Assistant Engineer (SWM) F/North Ward
dated 06.03.2020 of defendants corporation with respect to the subject
matter of letter dated 27.11.2019 of Executive Engineer (Bridges) City
(N) has clear mention about directions given to Executive Engineer
(Bridges) City (N) to demarcate the boundary of GTB ROB for
finalization of alternate location in the vicinity of the suit premises for
new toilet. It further appears from letter dated 11.03.2020 of Executive
Engineer (Bridges) City (N) that the boundary of GTB ROB is marked
and the drawing is attached to this letter.
11. The aforesaid letters dated 06.03.2020 and 11.03.2020 are
of defendants corporation. There is no explanation to both the
aforesaid letters from defendants during their arguments. Both the
aforesaid letters prima-facie reflect that defendants had given
directions for demarcating the boundary of GTB ROB for finalization of
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alternate location to be given to plaintiff. When the term for which
plaintiff was given the PSC toilet block has not expired and when
defendants had in their mind to give alternate premises to plaintiff,
defendants without considering reply of plaintiff dated 20.07.2020,
without giving opportunity of personal hearing and without passing
speaking order has abruptly given the impugned notice dated
16.07.2020. Though defendants are following the directions as per the
letter dated issued by Executive Engineer (Bridges) City (N), it is not
expected that defendants shall not follow due process of law. The
aforesaid facts prima-facie reveal that there is violation of rules of
natural justice.
12. Further the drawing attached to the aforesaid letters dated
06.03.2020 and 11.03.2020 together with the photographs which are
tendered on record by defendants prima-facie show that the suit
premises is near footpath and after the boundary of railway over
bridge. Therefore, as is argued by learned advocate for plaintiff the PSC
toilet block in suit premises do not appear on the bridge but appears to
be near footpath corroborating the recitals in the structural report
relied upon by defendants.
13. When plaintiff is running the PSC toilet block as per the
terms and conditions granted by defendants and when the term for use
of suit premises is not expired and when defendants had in their mind
to give alternate location to plaintiff in lieu of suit premises, defendants
without applying mind to the reply of plaintiff and without giving
personal hearing has passed impugned speaking order. Therefore,
arguments of learned advocate for plaintiff carries substance that
plaintiff has made out prima-facie case.
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14. If plaintiff is not protected, his suit premises will be
demolished without getting protection of alternate premises. Therefore,
it will be plaintiff who will be suffering irreparable loss. There is breach
on part of defendants in following the rules of natural justice.
Therefore, balance of convenience lies in favour of plaintiff rather than
defendants. Therefore, I accede with arguments of learned advocate for
plaintiff as against the arguments of learned advocate for defendants.
Accordingly, I answer point No.1 to 3 in affirmative.
15. Having arrived at aforesaid findings, the notice of motion
of plaintiff deserves to be allowed. Accordingly, I proceed to answer
point No.4 by following order
ORDER
1. Notice of Motion No.1270/2020 is hereby allowed.
2. Defendants their servants, agents or any other person claiming
through them are hereby restrained by order of temporary
injunction from taking any action of dispossession in pursuance
of impugned notice dated 16.07.2020 with respect to suit
premises till final decision of suit.
3. Costs in cause.
4. Notice of Motion No.1270/2020 is accordingly disposed of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 02.12.2020 City Civil Court, Gr. Bombay
Directly Dictated on Com :02.12.2020.
Checked on :04.12.2020.
Signed on :05.12.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.12.2020, 04.34 pm.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
02.12.2020
JUDGMENT/ORDER signed by P.O.
on
05.12.2020
JUDGMENT/ORDER uploaded on 05.12.2020.
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