Final Order 1

Order Details: Copy of Judgment
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MHCC010040272019
Lodged on : 05.04.2019
Registered on : 15.07.2019
Decided on : 10.11.2023
Duration : 04Y 07M 05D
EXHIBIT-26
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 2051 OF 2019
MR. VISHWANATH ANANT PATIL ]
Age 55 years, Occupation: Business ]
Residing at Room No.712, Janata ]
Colony, Veer Nariman Bhat Road, ]
Young Star, Mitra Mandal, Worli, ]
Mumbai-400 030. ].. Plaintiff.
V/s.
1. DEPUTY COLLECTOR (ENC/DEM)]
AND COMPETENT AUTHORITY, ]
Colaba Division, Dharavi Division, ]
Old Cusom House 4th Floor, ]
D.D. Bldg. Shahid Bhagatsingh Road, ]
Fort, Mumbai – 400 001. ]
2. ADDITIONAL COLLECTOR ]
MUMBAI CITY, Old Custom House, ]
Shahid Bhagat Singh Marg, Fort, ]
Mumbai 400 001. ]
3. THE CHIEF EXECUTIVE OFFICER ]
S.R.A. A.K. Marg, Bandra (East), ]
Mumbai – 400 051. ]
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4. DEPUTY COLLECTOR ]
Mumbai City S.R.A. at Bandra, ]
A.K. Marg, Mumbai – 400 051. ]..Defendants.
The plaintiff in person.
Advocate Mr. Sachin Kadam for defendant Nos.1 and 2/State.
Advocate Mr. Trivedi for defendant Nos.3 and 4/SRA.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 10th NOVEMBER 2023.
JUDGMENT
The present suit has been filed by the plaintiff for
declaration.
The facts leading to the present suit can be summarized as
under:-
2. That the plaintiff is the owner and occupant in respect of
suit premises bearing Zopda No.38, Commercial inKalash Co-operative
Housing Society (Prop) bearing C.T.S. No.577 at T.P.S.-4 Mahim
Division, Kakasaheb Gadgil Marg, Dadar (West), Mumbai – 400 028
(hereinafter referred to as “the suit property). The plaintiff was running
a business of printing press in the name and style M/s. Shri Hind
Mudra, Shop No.5, Mithaiwala Chawl, K.G. Marg, Dadar (West),
Mumbai – 400 028 which is run in the area about 190 sq. feet. and
holding certain documents from Municipal Corporation Gumasta
Licence. The Respondent No.1, in making Annexure-II failed to
mention area of the Commercial Premises. Hence, the plaintiff had filed
Appeal before S.R.A. and the said Authority had passed order that
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plaintiff is eligible for commercial premises. The Secretary of S.R.A. vide
letter dated 08.02.2012 had requested to the Additional Collector
(ENC/DCM) and thereby stated that the area of plaintiff’s commercial
premises is not mentioned in Annexure-II which should be mentioned.
3. It is further contended that Kalash S.R.A. Co-operative
Housing Society (Prop) in collusion with Omkar Realtors and
Developers Pvt. Ltd. had given a letter to Deputy Collector defendant
No.1, wherein mentioned the area of suit premises as 14.42 sq.feet
which they were fully aware that the area of the suit premises is around
190 sq.feet. The plaintiff is running printing press business with
machines printer and employees and such type of business can not be
carried out in small area of 14.42 sq. feet.
4. It is further case of the plaintiff that since the area of suit
property is not shown in Annexure-II proposed by defendant No.1, the
Deputy Collector had written a letter dated 20.04.2012 after taking
affidavit about the area of suit property and in said letter addressed to
additional collector that since the suit premises is demolished by Omkar
Builder it is not possible for him to specify the area of the suit property.
The Kalash S.R.A. Co-operative Housing Society in collusion with
Deputy Collector (ENC/DEM) had also given a letter dated 27.02.2012
and thereby with
malafide intention and by joining hands with the M/s.
Omkar Builders and Developer Pvt. Ltd. had flatly shown area of
printing press is 14.42 sq. feet whereas they were fully aware that the
area of the suit premises is around 190 sq. feet. Hence, the plaintiff had
finally written a letter dated 19.10.2018 addressed to Chief Executive
S.R.A. and thereby made his grievance. The plaintiff therefore having
no alternative than to file present suit against the defendant for his
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lawful right for getting area of the suit premises equal to his original
area of 190 sq. feet from the M/s. Omkar Realtor Pvt. Ltd. The act of
defendant No.1 is unlawful and the defendant No.1 had joined hands
with M/s. Omkar Realtor and Developers Pvt. Ltd and without getting
signature of the plaintiff on approved plan the construction of
commercial premises at present kept reserved which is just 13.8 sq. feet
wherein business printing press of the plaintiff shall not be carried out
in the area reserved by M/s. Omkar Realtor and Developers Pvt. Ltd.
5. It is further case of the plaintiff that the plaintiff had made
complaint to the Additional Collector dated 11.07.2014 and Additional
Collector had written letter to Deputy Collector (ENC/DEM), Dharavi
Division, Old Custom House. Annexure-II prepared by defendant No.1 is
wrong and thus, the plaintiff has constrained to file present suit praying
for declaration that Annexure-II prepared by the defendant No.1 on the
basis of report of Assistant Engineer G/N, S.R.A. is to be declared as
null and void and that actual area of plaintiff’s suit premises as 190 sq.
feet be recorded and allotted to the plaintiff and also for declaration
that report given by the Executive Engineering Department defendant
No.1 is null and void.
6. The defendant Nos.1 to 4 failed to file written statement.
Hence, suit came to be proceeded without their written statement.
7. Perused plaint and documents produced on record. Heard
learned advocate for both the parties. The following points arise for my
determination and I have recorded my findings to each of them for the
reasons stated below.
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Sr.
No.
POINTS FINDINGS
1 Does the plaintiff prove that he is
entitled to the allotment of 190 sq. feet
area of the suit premises as claimed ?
In the
Negative
2 Whether the plaintiff is entitled for
declaration as prayed ?
In the
Negative
3 What order? As per the final order
R E A S O N S
AS TO POINT NO.1 :
8. In support of his claim, the plaintiff has filed his Affidavit
of Evidence in Examination-in-chief as PW-1 vide Exhibit-5 as his sole
witness. The defendants have not examined any witness. The plaintiff
has produced on record documentary evidence vide Exhibit-6 which is
as follow;
SR.NO. PARTICULARS EXHIBIT
1. Municipal Corporation Gumasta License 8
2. Copy of the order passed by Industrial Court
through Maharashtra Sanghatir Kamgar Union
9
3. Municipal Report for Printing Press 10
4. Copy of Annexure-II and letter dated 12.04.2018
by Dy. Collector.
11
5. Chief Promoter of Kalash CHS Letter dated
27.02.2012.
12
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6. City Survey Officer Letter dated 19.03.2012 13
7. Copy of Affidavit dated 16.03.2015. 14
AS TO POINT NO.1 :-
9. In his Affidavit in Examination-in-chief, the plaintiff has
reiterated all the facts as per his plaint. From the evidence of the
plaintiff as well as from the documentary evidence produced by him on
record, it transpired that the plaintiff is owner and occupant in respect
of suit premises bearing Zopda No.38 in Kalash Co-operative Housing
Society (Prop) bearing C.T.S. No.577 at T.P.S.-4 Mahim Division,
Kakasaheb Gadgil Marg, Dadar (West), Mumbai–400 028. The plaintiff
was running a business of printing press in the name and style M/s. Shri
Hind Mudra, Shop No.5, Mithaiwala Chawl, K.G. Marg, Dadar (West),
Mumbai – 400 028. According to the plaintiff, the said business of
printing press was running in the area about 190 sq. feet. The said
building has been gone for redevelopment. The defendant No.1, the
Deputy Collector had prepared Annexure-II wherein no area was
mentioned of his Zopada.
10. Thereafter, the plaintiff had filed Appeal before S.R.A. and
the said Authority had held that the plaintiff is eligible for commercial
premises. The Secretary of the S.R.A. vide letter dated 08.02.2012 to
the Additional Collector (ENC/DCM) intimated that the area of
plaintiff’s commercial premises is not mentioned in Annexure-II and
requested about intimating of area to SRA. Accordingly, the Additional
Collector, vide their letter dated 23.02.2012, called report from the
Deputy Collector. The Deputy Collector made inquiry into the matter.
Accordingly, The Kalash S.R.A. Co-operative Housing Society informed
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the Deputy Collector vide their letter dated 27.02.2012 that as per the
Survey conducted by the society and information available with their
office, the area of the plaintiff’s zopada No.38 is 14.42 sq. feet. The
City Survey Officer in the presence of Naiyab Tahsildar inspected the
suit property and submitted report to the Deputy Collector vide their
letter dated 05.03.2011. As per the said report when they visited the
spot, the hutments were already demolished by the developer and work
of redevelopment was going on. However, the statement of the plaintiff
who was present there was recorded and also the statements of
hutment dwellers were recorded and accordingly panchnama was
prepared.
11. It is submitted that since the huts were not in existence on
the spot the area could not be measured. However, as per the available
record in the office and as per the hand map of Zopada No.38,
approximately area is 2.3’ X6=13.8 sq. feet. Accordingly, the Deputy
Collector vide their letter dated 20.04.2012 submitted report to the
Additional Collector thereby informing the area of Zopada No.38 is 13.8
sq. feet as per the available record in the office.
12. It is argued by the learned advocate for defendant Nos.3
and 4 i.e. Chief Executive Officer, SRA and Deputy Collector of SRA
that the plaintiff is held eligible for area of 13.8 sq. feet and he is
claiming area of 190 sq. feet. Initially in Annexure-II, area of the
plaintiff’s Zopada No.38 was not mentioned. The plaintiff approached
to the Competent Authority who considered the plaintiff’s claim and
Annexure-II was corrected. Again representation was made in respect of
area of 13.8 sq. feet mentioned in Annexure-II and after considering the
report of the Deputy Collector and all other relevant documents, the
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order was passed by the Additional Collector and Appeal was dismissed.
It is further argued that as per the provisions of SRA Act, the plaintiff
had remedy to file Appeal against the said order to which he has not
availed, but has filed present suit, therefore suit is barred by section 42
of S.R.A. Act. Thus, from the record, it appears that the plaintiff’s
representation was considered by the Competent Authority.
Accordingly, the Deputy Collector has submitted report and modified
the Annexure-II. Now, the plaintiff is claiming that he is entitled to area
of 190 sq. feet as his business of printing press was running in the area
of about 190 sq. feet. Therefore, burden is upon the plaintiff to prove
that he was running business of printing press in the area about 190 sq.
feet. However, the plaintiff has not produced on record any documents
in support of his contention.
13. On the contrary, when the plaintiff approached to the
Competent Authority i.e. Deputy Collector, he forwarded the same to
the Additional Collector who directed the Deputy Collector to make
inquiry and submit report. The Deputy Collector called report from the
society who informed that as per their record, area of the plaintiff’s
Zopada No.38 is 14.42 sq. feet. Moreover, the Municipal Corporation of
Greater Mumbai gave finding that the area of the plaintiff’s Zopada
No.38 is admeasuring 5.60 sq.feet X 2.70 sq. feet. Moreover, the City
Survey Officer personally inspected the spot in the presence of Naiyab
Tahsildar and prepared panchnama of the plaintiff’s hut and other
hutment dwellers. He submitted report that as per the available record
with the office and hand made sketch prepared of the suit property
wherein the area of the suit property is shown as 2.3 X 6 = 13.8 sq.
feet. In the Annexure-II prepared by the Deputy Collector also the area
of the suit property is shown as 13.08 sq. feet which appears to be
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correct as per the report of City Survey Officer and other record.
Whereas the plaintiff has failed to bring on record any documents in
support of his contention that he was running printing press business in
the area of about 190 sq. feet. Hence, he is not entitled to the allotment
of 190 sq. feet area of the suit premises. Hence, I answer Point No.1 in
the negative.
AS TO POINT NO.2 :-
14. The plaintiff has sought declaration that Annexure-II
prepared by the defendant No.1 on the basis of report of Assistant
Engineer G/N, S.R.A. is null and void and that the report of Executive
Engineering Department is null and void and to record actual area of
the plaintiff’s suit premises as 190 sq. feet and to allot the same to the
plaintiff. However, as held in point No.1 that the plaintiff has failed to
prove that the area of the suit property is 190 sq. feet as claimed by
him. Therefore, he is not entitled to seek any declaration and other
reliefs as prayed. Hence, I answer Point No.2 in the negative.
AS TO ISSUE NO.3 :-
15. In view of findings to Point Nos. 1 and 2, I hold that the
suit is liable to dismissed with costs. In the result, I proceed to pass the
following order:-
ORDER
1. Suit No.2051 of 2019 is hereby dismissed with
costs.
2. Decree be drawn-up accordingly.
3. The original documents, if any be returned to
the plaintiff after the appeal period is over.
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4. Suit No.2051 of 2019 stands disposed of
accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 10.11.2023 Gr.Mumbai.
Dictated on : 10.11.2023
Typed on : 23.11.2023
Signed on : 28.11.2023.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
28/11/2023 At 04.00 P.M. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
10/11/2023
Judgment/Order signed by P.O. on 28/11/2023
Judgment/Order uploaded on 28/11/2023
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