Final Order 1

Order Details: Notice of Motion
Pdf Text: (CNR No.: MHCC010037882018). 1 Notice of Motion No. 1183/2018.
in L.C. Suit No. 768/2018.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1183 OF 2018.
IN
L.C. SUIT NO. 768 OF 2018.
Sanjay Tukaram Sarmalkar………………………… …. PLAINTIFF.
V/s.
MCGM. ....………………………………………........ …. DEFENDANT.
CORAM : SHRI. S.H. SALUNKHE.
(Court Room No.11).
DATED : 14th February, 2025.
APPEARANCES :
Mr. B.P. Shukla, the Ld. Advocate for Plaintiff.
Mr. Suryakant Botlawar, the Ld. Advocate for Defendant/MCGM.
*****
01. This is the suit to challenge the notice U/s. 351 of the MMC
Act.The plaintiff has taken out the present NM for temporary injunction,
restraining defendant/BMC from demolishing the structure.
Facts of the plaintiff’s case can be summarized as below :-
02. The plaintiff is in use and possession of the suit structure,
situated at CTS No. 122 (part), described in para-1 of the plaint. The
structure is in existence since long. The plaintiff has acquired the said
structure from its earlier occupier Smt. Priya Ashok Pandit, pursuant to
Agreement to Sale dtd. 15.05.1997. The plaintiff is having Ration card,
Voters ID, Aadhar Card at the address of the suit structure. The suit
structure is situated on the land, which is declared as slum and the
competent authority has issued census receipt, during the survey carried
out in the year of 2000. However, on the basis of false complaint of
neighbour, the defendant has issued notice and the plaintiff has replied
it on 02.02.2018. However, without considering reply and documents,
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(CNR No.: MHCC010037882018). 2 Notice of Motion No. 1183/2018.
in L.C. Suit No. 768/2018.
the Designated Officer passed the demolition Order, holding that the
plaintiff failed to establish legality of the structure. The impugned Order
is illegal and bad in law. Hence, the plaintiff is liable for the equitable
injunction.
03. The defendant/BMC appeared but inspite of sufficient
opportunity didn’ t file any reply, hence the NM was heard without reply
of the BMC.
04. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has made out prima
facie case ? …..........…................... …In the negative.
(ii). Whether balance of convenience lies in
favour of the plaintiff? ….…..…............….…In the negative.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim reliefs, as
prayed for, are not granted?.….................. …In the negative.
(iv). What Order? …..........….…....................... …As per final Order .
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
05. Ld. Advocate for the plaintiff filed written submissions and
re-iterated contentions of the plaint. It is stated that the notice structure
is in existence since prior to 1994. The suit structure is situated on the
land, which is declared as the slum. In the year 2000, the competent
authority has surveyed the land and issued survey receipt at the address
of the suit structure. The plaintiff has replied show cause notice along-
with documents, but the Designated Officer has not considered the said
documents and he overlooked the fact that the suit structure is situated
on slum declared area and is in existence since 01.01.2000 and it is
protected under the Slum Act.
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in L.C. Suit No. 768/2018.
06. On the other hand, Ld. Advocate for defendant/BMC submitted
that the plaintiff has not produced the photo-pass or certificate issued
by the competent authority. In his submission, the structure having
photo-pass is protected under the Slum Act and not each and every
structure in slum area is protected. He further submitted that
Designated Officer has considered each and every document submitted
by the plaintiff and passed the reasoned Order. He submitted that none
of the document relied by the plaintiff prove that the notice structure is
protected under the Slum Act.
07. The plaintiff came with the case that the notice structure is
situated on CTS No.122 (pt.)of village Kurla and said plot is declared as
slum. The plaintiff has produced photocopy of Gazette published by
Govt. of Maharashtra vide Exhibit-H to the plaint, in support of his
contention that CTS No. 122 (pt.) has been declared as slum. There is
no dispute as to the declaration of CTS No.122 (pt.) as slum area. The
plaintiff came with case that the notice structure is protected under the
Slums Act and relied upon the census receipt. As per the provisions of
section 3X(c) of the Maharashtra Slums Area, (improvement, clearance
and redevelopment), 1971, the protected occupier means who hold
photo-pass i.e. identity card cum certificate issued by Govt. As per
section 3(z) the structure, to whom photo-pass has been issued i.e.
which protected structure, can’t be evicted from the dwelling structure,
unless, it is necessary for larger public interest and subject to the
relocation and re-habitation according to the scheme prepared by the
state Govt. Thus, the structure, having photo-pass is protected under the
Slum Act. However, the plaintiff has not produced photo-pass. As earlier
stated the structure to whom the photo-pass has been issued is
protected under the Slum Act and not each and every structure,
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(CNR No.: MHCC010037882018). 4 Notice of Motion No. 1183/2018.
in L.C. Suit No. 768/2018.
situated in slum area. This plaintiff failed to establish that the notice
structure is protected under the Slums Act. Thus, I hold that the
plaintiff has failed to make
prima-facie case.The balance of convenience
also does not tilts in his favour. Accordingly, I answer point Nos. 1 to 3
in the negative and in answer to point No. 4, I pass the following
Order :
-: ORDER :-
(i). Notice of Motion No. 1183/2018 stands dismissed.
(ii). Notice of Motion No. 1183/2018 is, accordingly,
disposed of.
(S.H. Salunkhe)
Mumbai. Judge,
Dated : 14.02.2025. City Civil Court, Mumbai.
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(CNR No.: MHCC010037882018). 5 Notice of Motion No. 1183/2018.
in L.C. Suit No. 768/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
18.02.2025 at 1.21 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri Salunkhe
(Court Room No.11).
Date of Pronouncement of Judgment/Order 14.02.2025.
Judgment/Order signed by P.O. on 18.02.2025.
Judgment/Order uploaded on 18.02.2025.
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