Final Order 1

Order Details: Notice of Motion
Pdf Text: (CNR No.:MHCC010038502019) 1 Notice of Motion No.1475/2019
in L.C. Suit No. 571/2019.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1475 OF 2019.
IN
L.C. SUIT NO. 571 OF 2019.
Mohd. Shafique Mohd. Razzaque Shaikh…………. …. PLAINTIFF.
V/s.
MCGM and another. ....…………………………….. …. DEFENDANTS.
CORAM : SHRI. S.H. SALUNKHE.
(Court Room No.11).
DATED : 3rd February, 2025.
APPEARANCES :
Mr. Pratap F. Singh, the Ld. Advocate for Plaintiff.
Mr. Suryakant Botlawar, the Ld. Advocate for Defendants/ MCGM.
*****
01. The plaintiff has taken out this Notice of Motion (‘the NM’),
under Order XXXIX of the Civil Procedure Code, 1908 (‘the CPC’) for
temporary injunction, restraining the defendant from implementing the
notice u/s. 351 of the MMC Act, in respect of the suit structure i.e. Gala
No. 2, at Nasibulla Compound, CTS No. 404, Kurla (West), Mumbai-70.
02. The plaintiff is in possession of the suit structure and same
is in existence prior to 1965. The suit structure is situated on ‘slum’ area
and as per the policy of BMC and the State Govt., the plaintiff is entitled
for permanent alternate accommodation. The plaintiff is having various
documents to show existence of the structure prior to the datum line.
However, the defendant/BMC issued impugned notice alleging that the
plaintiff has carried out unauthorized construction of suit structure. The
plaintiff has replied the said notice. However, the Designated Officer did
not consider the documents and passed the demolition Order. The
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plaintiff is having
prima-facie case. Therefore, the interim protection
may be granted in his favour.
03. The defendant/BMC failed to file his reply and hence, the
suit proceeded without its reply.The plaintiff’s advocate filed the written
notes of arguments.
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 a prima facie
case in her favour? …..........…...................…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. The plaintiff has challenged notice u/s.351 of the MMC Act.
Ld. Advocate for the plaintiff submitted that the plaintiff is in possession
of the structure since long. The structure was acquired by Mr. Mumtaz
Ali Mohd. Yakub and land belongs to M/s.Vatanmal Boolchand. The said
land has been encroached by the various persons, including predecessor
in title of the plaintiff prior to 1975. Moreover, the plaintiff is in lawful
possession of the structure since prior to 1965.
06. It is further submitted that in survey of slum carried in the
year of 2000 and survey slip has been issued in respect of the suit
structure.Moreover, the land has been used for non agriculture purpose,
and therefore, the Tahsildrar has imposed penalty for use of land for
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non agriculture purpose. The plaintiff is having various documents.
However, the designated Officer has not considered the documents and
the Speaking Order has been passed without application of mind. The
documents relied by the plaintiff requires adjudication during trial and
till then, the structure may be protected.
07. On the other hand, Ld. advocate for the defendant/BMC
submitted that the plaintiff has not produced single document on record
to show existence of the structure prior to 1964. Further, Ld. Advocate
submitted that designated Officer considered each and every document
and passed the detail Order. He submitted that none of the documents
supports the plaintiff’s contention that notice structure is in existence
prior to datum line. There is no photo-pass to the said structure. Thus,
the notice structure is not protected as per policy of the State Govt. The
defendant/BMC has followed the due process of law. Hence, the NM
deserves to be dismissed.
08. The plaintiff has challenged the notice under section 351 of
the MMC Act. As per explanation of Sec. 351, the burden lies upon the
noticee to show satisfaction of designated Officer that notice structure
has been constructed as per the provisions of 337 and 342 or 347 of the
MMC Act. In the present case, the plaintiff pleaded that notice structure
is in existence since year 1965 i.e. the notice structure is protected as
per the policy of BMC. For that purpose, the plaintiff relied upon the
Property Card, Payment Receipt, Electricity bill, copy of panchnama,
photocopy of station diary of Kurla police station. However, all these
documents are subsequent to 1994 and thus, the documents falls short
to prove existence of the notice structure prior to 1964.
09. It is the next contention of the plaintiff that notice structure
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is situated at slum and the same is in existence prior to 01.01.1995 or
01.01.2000. As per sec.3(z)(c) of the Mah. Slums Areas (Improvement,
Clearance and Redevelopment) Act,1971, the structure, to whom photo-
pass has been issued by the competent authority, is protected and not
every structure situated in Slum Area. Apart from that the plaintiff has
not produced notification of the State Govt., declaring land beneath the
suit structure as slum. In absence of photo-pass, it is difficult to hold
that the notice structure is protected as per the Slum Act.
10. The documents relied by the plaintiff falls short to prove
existence of structure prior to datum line.The plaintiff has not produced
sanctioned plan or photo-pass issued by the competent authority. The
Speaking Order reflects that the designated Officer dealt with each and
every document, submitted by the plaintiff and came to the conclusion
that none of the document establishes existence of the structure prior to
1962. No fault could be found in the procedure to be followed before
taking action of demolition. In the circumstances, I am of the opinion
that the plaintiff has not made out present a
prima-facie nor balance of
convenience 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 :
-: O R D E R :-
(i). Notice of Motion No. 1475/2019 is dismissed.
(ii). Notice of Motion No. 1475/2019 is, accordingly,
disposed of.
(S.H. Salunkhe)
Mumbai. Ad-hoc Judge,
Dated : 03.02.2025. City Civil Court, Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
15.02.2025 at 3.01 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 03.02.2025.
Judgment/Order signed by P.O. on 15.02.2025.
Judgment/Order uploaded on 15.02.2025.
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