Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO : MHCC010039822018. 1 Notice of Motion No.1245/2018
in L.C. Suit No. 1551/2018.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO.1245 OF 2018.
IN
L.C. SUIT NO. 1551 OF 2018.
Ramashankar Ramlawan Dube. .............……….. ….. PLAINTIFF.
V/s.
MCGM+1. ..……………………………………….. …. DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 03rd July, 2024.
APPEARANCES :
Mr. Anil Kharatmol, Ld. Advocate for the Plaintiff.
Mr. Arvind Rathod, Ld. Advocate for the Defendants/MCGM.
*****
01. The plaintiff has taken out this Notice of Motion - ‘the NM’,
to restrain the defendants from demolishing, removing or pulling down
the suit premises or any part thereof or from dispossessing or disturbing
his possession in respect of the suit premises, in pursuance of the notice
dtd. 18.09.2017, issued U/s. 351 of the MMC Act, and the Order of dtd.
01.03.2018. Perused the NM, supporting affidavit and the defendants,
reply. Also gone through the plaintiff’s written notes, on this NM, along
- with Circular of dtd. 25.05.2023 as regards rehabilitation of the Slums
and the documents relied by the parties. Heard.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(1). Whether the plaintiff has a prima facie
case in his favour? …..........…................... …No.
(2). Whether balance of convenience lies in
favour of the plaintiff? ….…..…............…. …No.
(3). Whether the plaintiff would suffer an
irreparable loss, if the interim reliefs, as
prayed for, are not granted?.….................. …No.
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CNR NO : MHCC010039822018. 2 Notice of Motion No.1245/2018
in L.C. Suit No. 1551/2018.
(4). What Order? …..........….…....................... …As per the Final
Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are interconnected, to maintain the brevity,
I am taking the same for a joint discussion. Since inception, the plaintiff
came with a specific case that he is in possession of one room at Survey
No. 22, Swaminarayan Nagar, Vikhroli, Opp. IIT Main Gate, Mumbai 76
(the suit premises). He is having Voter ID, Aadhar Card, Electricity bills,
Ration Card, etc. pertaining to the suit premises. Since 2009, he started
running Pan shop from the suit premises and later, Tea shop with snacks
and as such, he also has the Shops and Establishment Licenses therefor.
By issuing the notice dtd. 07.03.2018, Officer of the defendants visited
the suit premises and directed the plaintiff to submit the documents of
his eligibility. Accordingly, in view of the letter dtd. 12.03.2018, he filed
the same to decide his eligibility for a permanent accommodation in his
favour. Still, on 01.03.2018, the defendants passed the Speaking Order,
in view of the notice dtd. 18.09.2017, which he never received. Further,
on 12.03.2018, they threatened his to vacate the suit premises, within
seven days. They are not ready to listen his grievance and hence, he had
to file this suit for declaration that this notice and the Speaking Order
are bad in law, along-with an injunction, restraining the defendants to
act upon the same. To support this NM, he filed the copies of his Voter
ID. Card, PAN Card, Adhar Card, the Shops and Establishment License,
Electricity bills, etc.. In reply, the defendants resisted this NM as the suit
is bad for want of the notice U/s. 527 of the MMC Act and the plaintiff
had no cause of action to file the same. On facts, they contended that in
view of the routine inspection, they revealed this illegal structure of the
suit premises and as its owner/occupier could not furnish a permission
thereof, they issued the notice U/sec. 351 of the MMC Act. Such owner/
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CNR NO : MHCC010039822018. 3 Notice of Motion No.1245/2018
in L.C. Suit No. 1551/2018.
occupier did not reply the notice and hence, on 01.03.2018, the Order
followed. The plaintiff failed to show legality of the notice structure and
the fact that it existed prior to the datum line. Therefore, the defendants
also demolished the said structure, by following the due process of law.
As such, they prayed for dismissal of this NM. In support of their stand,
they relied upon the inspection report, the notice, the Speaking Order,
the Demolition Order, photographs, carrying the said Demolition, etc..
In his written submissions on this NM, the plaintiff reiterated his claim.
04. Considering this record, at the outset, it is notable that it is
nowhere the plaintiff’s stand that the notice structure was brought into
existence only after securing due permission from the defendants or say
in the light of a sanctioned plan. That is why, even the plaint averments
are silent on this aspect of the matter. Contrarily, justifying his claim, he
contended that he is in use of the suit premises since last 30 years and
accordingly, he had filed the documents like Voter ID, PAN Card, Aadhar
Card, the Shops and Establishment License, etc.. However, even if these
documents are taken as they stand, they are falling short to substantiate
authenticity of this notice structure. By no stretch of imagination, any of
the said documents would legalize or regularize the notice structure. As
the plaintiff assailed the notice, issued U/s.351 of the MMC Act, he was
required to plead on the aspects of legality of this notice structure or the
facts, recognizing this structure as tolerated/ protected one, but in vain.
Simultaneously, the record is silent even to infer existence of this notice
structure prior to the datum line and his alleged possession since last 30
years. Nor, he could not show non-receipt of the notice.
05. The record further goes to show that in view of the notice
dtd. 07.03.2018, filed at Exhibit F of the plaint compilation, the plaintiff
was called upon to file documents to ascertain his eligibility for granting
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CNR NO : MHCC010039822018. 4 Notice of Motion No.1245/2018
in L.C. Suit No. 1551/2018.
of permanent accommodation. In response thereto, he submitted copies
of his Voter ID, Ration Card, Adhar Card, Electricity Bill, PAN Card, etc..
Certainly, these documents would be of no avail to hold the authenticity
of this structure and consequently, his eligibility for grant of permanent
accommodation. That apart, the demolition report and the photographs,
relied by the defendants, leave no doubt to prima-facie conclude that in
the light of the Speaking Order dtd. 01.03.2018, this notice structure is
already demolished. On this backdrop, there is nothing to be considered
in this NM. It is in addition of the fact that nowhere the plaintiff could
prove his contentions. In the circumstances, I am of the opinion that he
could not present any prima-facie and balance of convenience also does
not tilt in his favour. More so, as he could not show authenticity of this
notice structure, I feel that he would not suffer any irreparable loss even
if the interim reliefs, as is asked for, are not granted. Hence, I answered
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. 1245/2018 stands dismissed.
(ii). Notice of Motion No. 1245/2018 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 03.07.2024. City Civil Court, Mumbai.
Dictated on : 03.07.2024.
Transcribed on : 12.07.2024.
Checked and Signed on : 16.07.2024.
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CNR NO : MHCC010039822018. 5 Notice of Motion No.1245/2018
in L.C. Suit No. 1551/2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
18.07.2024 at 11.48 a.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 03.07.2024.
Judgment/Order signed by P.O. on 16.07.2024.
Judgment/Order uploaded on 18.07.2024.
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