Final Order 1

Order Details: Notice of Motion
Pdf Text: - 1 - n/m 1281/18 in 564/18
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 1281 OF 2018
IN
L.C. SUIT NO. 564 OF 2018
Koteshwar Deep Cooperative Housing
Society Ltd. .. Plaintiffs
Versus
The Municipal Corporation of Gr. Mumbai
and Anr. .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 11th October, 2018
Mr. Harish Pawar, Ld. adv. for the plaintiff.
Mr. Mangade Ld. adv. for defendant/BMC
O R D E R
1. This N/m is moved by plaintiff for temporary injunction
restraining defendants, their servants, agents, officers or employees or
any person claiming through them from acting upon and implementing
impugned notice dated 27.11.2017 bearing reference No.
ACS/30271/F/AEMS issued by defendant. Further plaintiffs have
sought temporary injunction restraining defendant/MMC from taking
possession of the suit plot i.e. land forming part of plaintiffs property
bearing CTS No. 623 together with its enclosing wall, hedge or fence, if
any and any platform, verandah, steps or other structure extended to a
building or any portion of platform, verandah, steps or other such
structure which may be found upon said land and for temporary
injunction restraining defendant from demolishing any structure from
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said land pursuant to the impugned notice. Plaintiff’s secretary has filed
his affidavit in support to N/m and contended that plaintiff is intending
to rely upon contentions raised in the plaint. As contended in the plaint
plaintiff is Cooperative society registered under MCS Act 1960 and it is
known as Bhandup Amber Cooperative Housing Society Ltd situated at
MVR Shinde Road, Opposite L.B.S. Marg, Bhandup Mumbai. According
to plaintiff the plaintiff’s building is constructed as per the plan
sanctioned by defendant under MMC Act and MRTP Act. Said building
consist boundary wall and land in CTS no. 623 and 623A to 623/9 and
it is admeasuring 1081 sq yds. i.e. 1283.30 sq. mtrs. Said building is
constructed in the year about 198384. Said building is consisting 26
flats having ground plus 6 floors. Pursuant to the order dated
30.10.2013 passed by Deputy Registrar Cooperative Societies Mumbai
Certificate of due Conveyance has been granted in favour of plaintiff
and as such plaintiff’s society is absolutely owner of the property. Said
building is surrounded by Bhandup Ambar Cooperative society on west
side, on north side by IDUBS Hindi High School and on east side by
Jaishree Engineering Co. Pvt. Ltd.
2. It is alleged that without following due process of law
officers of defendant no. 1 Mr. Pagare and Mr. Thakare with their staffs
visited plaintiff building on 08.11.2016 and 09.11.2016. These officers
tried to make survey of premises including boundary wall. However no
notice was given to plaintiff. It is alleged that without giving any notice
those officers of defendants with the help of JCB encroached upon the
property of plaintiff forcibly and tried to demolish boundary wall of
plaintiff’s society. That time members of plaintiff’s society tried to
restrain defendant no. 1 and its staff but officers of defendant
threatened member of plaintiff saying that they have pressure from
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members of parliament and local politicians therefore plaintiff had filed
L.C. Suit No. 2852/16 against defendant. This Court has passed order
dated 15.12.2016 on N/m filed in said suit and directed defendant not
to take any action without following due process of law.
3. It is contended that on 17.02.2018 plaintiff received notice
dated 27.11.2017 i.e. impugned notice under sec. 299 of MMC Act
issued by defendant no. 2. By said notice it was informed to the
plaintiff that after 7 days of expiration, defendant no. 1 was intending
to take possession of certain land from plaintiff’s property. It is alleged
that said notice is absolutely vague on the point of exact area,
measurement and boundary of suit plot. If defendants will succeed in
taking possession certain land from plaintiff’s property, it will affect
main entrance of plaintiff’s ingress and egress. If defendant’s will
demolish compound wall, the proposed road will be forming part of
plaintiff’s property and members of plaintiff society will not have any
safety in their lives. Adjoining plot holders have also received same
kind of notices. Hence all the persons from respective properties
formed MVR Shinde Marg Residence Committee. Bhandup CHS Ambar
Ltd and plaintiff have made representation dated 11.12.2017 to
Municipal Commissioner and raised their objection for taking
possession of land intending by defendants. Again similar kind of
representation dated 29.01.2018 was placed before Chief Minister of
Maharashtra. In those representations plaintiffs society pointed out that
alternate road is already existing and proposed in DP plan between
GVK and Jai Hind Oil Mill. Plaintiffs requested above authorities for
giving plaintiff opportunity of hearing before taking final decision. But
those authorities have not considered objection/ suggestion given by
plaintiff in the representations and without following procedure in
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collusion defendants are acting highhandedly under political pressure.
Therefore they had issued impugned notice. Hence according to
plaintiff said notice is bad in law. It is contention of plaintiff that Sec.
299 of MMC Act applies for widening of existing road and it does not
apply for creating new road. It is alleged that impugned notice is issued
under political pressure, even though DP road leading to Bhandup
station is existing and said DP road is required to be widened. It is
alleged that defendant’s conveniently avoided making road through
GVK company where already one road is existing and when said
company is not working since so many years.
4. Defendant/BMC has field written statement cum reply of
N/m at Exh. 4 and all allegations made by plaintiffs are denied. It is
contended that impugned notice is issued for obtaining administrative
approval of Competent authority for proposal of prescribing 13.40 mtr
wide Road line to the existing MVR Shinde Marg from LBS Marg to
Bhandup station through M/s Jaishree Engineering Corporation Pvt.
Ltd. Said approval is obtained under sec. 297 of MMC Act and new
road line is proposed under sec. 291 of MMC Act. The public notice is
published in newspaper on 29.09.2015 as provided by sec. 297(1) (b)
of MMC Act. It is also published in the government gazette on
24.09.2015. Under sec. 297(1) of MMC Act hearing was arranged on
27.01.2016 at the office of Assistant Municipal Commissioner. On
receipt of suggestion/objection from plaintiff proposal was submitted
to work committee on 27.04.2016. Thereafter work committee of
defendant vide resolution no. 61 dated 27.04.2016 and Corporation
resolution no. 619 dated 12.07.2016 has authorised Municipal
Commissioner to prescribe 13.40 wide road line to MVR Shinde Marg.
It is contended that meantime widening of road line of road within
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Jaishree Engineering Company to Bhandup Railway Station was under
process and was sanctioned vide resolution no. 1285 dated 18.01.2018.
Plaintiff’s society is situated at the junction of MVR Shinde Marg
towards Bhandup Railway station and hence to work out exact affected
area of plaintiff in road line, it was essential to take cognizance of both
resolutions and plans. It is contended that defendant’s have followed
due process of law while initiating action against plaintiff. It is
contended that all allegations made by plaintiff in plaint are false and
according to defendant plaintiffs are not entitled to the relief of
injunction as prayed for.
5. In support of written statement cum reply of N/m
defendant has filed copy of correspondence dated 19.11.2015 and
copies of letter dated 13.07.2016, minutes of hearing dated 27.01.2016,
copy of resolution no. 61 dated 27.04.2016 and copy of letter dated
16.04.2018. Defendant has also filed copies of public notice issued in
local newspaper.
6. I have heard plaintiff’s adv. Mr. Harish Pawar and
defendant’s adv. Mr. Mangade at length. I have carefully perused
photographs of plaintiffs society and DP road referred by plaintiff in the
plaint. Those photographs are filed by plaintiff on record. I have also
perused documents annexed to the plaint. Plaintiff’s adv. Mr. Pawar
raised threefold arguments. According to Mr. Pawar even though
alternate DP Road is available for development with malafide intention
defendant’s officers are intending to take land of plaintiff's society
under impugned notice. Secondly as argued by adv. Mr. Pawar
representations made by plaintiff with BMC and Chief Minister are not
considered by defendant while issuing impugned notice. Thirdly
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according to Adv. Mr. Pawar if plaintiff’s land will be taken by
defendant for widening of the road safety of members of plaintiff’s
society will come into danger and further due to widening of the road
various species of birds coming to Bhandup area in particular season
will get disturbed and destroyed. It is also argued that in road widening
various trees coming in said area will be damaged and on that count
also to protect environment particularly trees and birds, according to
adv. Mr. Pawar injunction is necessary to be granted. Last point raised
by Mr. Pawar in his argument was that defendant’s officers have issued
impugned notice and officers of defendants are intending to take land
of plaintiff due to political pressure created by member of parliament
and due to political pressure created by local politicians.
7. Adv. Mr. Pawar has referred order dated 17.07.2018
passed by Hon'ble Lordships Justice Mr. A.S. Oka and Mr. Riyaz I.
Chagla in Public Interest Litigation (LDG.) No. 70 of 2018. While
referring the said Order adv. Mr. Pawar pointed out that Sr. Counsel of
BMC has submitted before Hon’ble High Court that work of felling of
tress or cutting of trees for widening and extension of MVR Shinde
Marg will be undertaken only after a permission is granted by the tree
authority under the Maharashtra (Urban Areas) Protection and
Preservation Of Trees Act 1975. By referring said order it was argued
by adv. Mr. Pawar that it was submitted by Sr. Counsel of defendant
before Hon’ble High Court that till 17.07.2018 process of obtaining such
permission was not started. Hence according to adv. Mr. Pawar unless
such a permission from tree authority is obtained by defendant,
widening of road cannot be done hence injunction as prayed can be
granted.
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8. In reply defendant’s adv. Mr. Mangade has argued that in
L.C. Suit No. 2663/2017 N/m No. 4510/2017 filed by Bhandup Ambar
CHS was allowed by City Civil Court on 19.03.2018 and in said N/m
also injunction against defendant was sought restraining defendant
from taking any action in pursuant to the impugned notice dated
27.11.2017. Sr. Counsel Mr. Mangade produced before the Court copy
of unreported judgment of Hon’ble High Court passed in AO 595/2018
alongwith Civil Application No. 787/2018. While referring Judgment
dated 18.09.2018 of Hon’ble High Court passed in AO No. 595/2018
adv. Mr. Mangade argued that Hon’ble High Court while passing
judgment of said appeal has referred sec. 299 of MMC Act and it was
pointed out that by referring judgments of the case between Municipal
Corporation of Gr. Bombay Vs. Durgadas Shankarrao Rege and Anr.
1979, Bom C.R. 432, judgment of Hon’ble Apex Court in the case of
State of Bombay and Anr. Vs. Sardar Venkat Rao krishna Rao Guja; AIR
1966 SC 991 the Hon’ble High Court is pleased to observe that “ the
word structure which is used in sec. 299 of MMC Act is already
interpreted by Hon’ble Apex Court in Judgment of Indian City
properties Limited Vs. Municipal Commissioner of Gr. Bombay (2005)
6 SCC 417, holding that term structure includes any platform,
verandah, steps etc which is external to the building. Here in the case,
as the cabin of the Security Guard is a 'structure', external to the
building and not occupied, and the compound wall is also something
which is contemplated in Section 299 of MMC Act itself, this Judgment
will not be helpful to the learned counsel for respondent”. The Hon’ble
High Court is pleased to further observe that “ as a result, once it is held
that impugned notice, issued under sec. 299 of MMC Act, is legal and
valid, it has to be held that the Trial Court has committed an error in
allowing N/m, merely on the count that it was vague and not specific,
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which, I have already held, is more than sufficiently specific, as it also
includes the 'Plan' of the land, of which the possession was sought.
Hence, the impugned order passed by trial Court is required to be
quashed and set aside.” It is argued by Counsel Mr. Mangade that AO
No. 595/2018 was allowed by Hon’ble High Court that order passed by
City Civil Court, Mumbai in N/m No. 4510/2017 is set aside by Hon’ble
High Court. Defendant Counsel Mr. Mangade referred paragraph nos.
11 and 12 from the judgment of Hon’ble High Court passed in AO No.
595/2018 and in which it is observed that
" While challenging this order of the Trial Court, as rightly
submitted by learned Senior Counsel for the Appellant
Municipal Corporation, the only ground on which the Trial
Court has made the Notice of Motion absolute is that, the
impugned notice is vague and not specific. however, even a
cursory perusal of the impugned notice goes to show that, it
not only specifies the certain land (not occupied by the
building), of which the possession was to be taken, together
with the structures standing thereon, but it also states that,
the 'plan' of the land referred to may be inspected in the
Office of Assistant Commissioner "S" Ward, on application
being made to him during office hours. As a matter of fact,
as per the very case of the RespondentSociety also, the
copy of the said 'Plan' was enclosed with the impugned
notice. Therefore it can hardly be accepted that the notice
was vague in any way.
Moreover, for the sake of argument, even if it is
accepted that the impugned notice was vague,
learned Senior Counsel for the Appellant has
pointed out that, now the Municipal Corporation
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has, on 6th April 2018, issued a fresh notice
informing the RespondentSociety the specific area,
of which possession was to be taken over. The copy
of the said notice is produced on record and it
contains the 'Plan" indicating the affected area,
which "Plan' was already attached to the impugned
notice. The detail sketch and the area of the land
affected in the 'Regular Line of Road', i.e. 13.40
meters Wide Road, is also mentioned in the present
notice. Therefore, now the alleged defect, which
remained in the impugned notice, is also corrected.
Therefore, the impugned order, which was passed
by the Trial Court on the ground that the notice was
vague, no more remains and, therefore, it follows
that the Appeal should be allowed, setting aside the
impugned order passed by the Trial Court."
9. By referring judgment of AO No. 595/2018, it was strongly
argued by defendant counsel that all the arguments advanced by
plaintiff before this Court is considere by Hon’ble High Court while
giving judgment in AO No. 595/2018 and hence according to counsel
Mr. Mangade this Court cannot take different view than observations of
Hon’ble High Court.
10. From observations of Hon’ble High Court in AO No.
595/2018 it becomes clear that Hon’ble High Court has considered
arguments advanced on behalf of plaintiff and thereafter hold that
notice in question cannot be accepted to be vague in any way. Thus as
Hon’ble High Court in AO No. 595/2018 is pleased to set aside
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injunction order passed by City Civil Court, Mumbai against defendant,
restraining defendant from acting upon impugned notice, in the same
set of facts this Court cannot take a different view. It is admitted
position that Bhandup Ambar Cooperative Housing society is adjoining
to plaintiff and land of Bhandup Ambar society is also going to be
affected in the road widening of MVR Shinde Marg. In such
circumstances, when Hon’ble High Court while deciding AO No.
595/2018 has set aside injunction order passed by City Civil Court,
Mumbai I find that this Court cannot grant injunction as prayed in the
same set of facts. At this stage it becomes necessary to refer here the
conclusive observations of Hon’ble High Court from Judgment of AO
No. 595/2018. These observations are as under
“ learned Counsel for respondents seeks extension of ad
interim order passed by trial court, which was in
existence during the pendency of this appeal. However,
considering the facts stated above and also having
regard to the fact that property is required for public
cause of 'Road Widening Project’, the ad interim order
passed by the trial court cannot be extended. Hence
this prayer stands rejected.”
11. As the road widening is being done by defendant for public
purpose and as impugned notice is issued by defendant to plaintiff after
following due procedure of law which is provided under sec. 297 to
299 of MMC Act, I find that injunction as prayed by plaintiff cannot be
granted. Further documents filed by defendant on record make it clear
that hearing was given to the plaintiff about proposed plan of widening
of road hence it cannot be said that without considering objections
raised by plaintiff impugned notice was issued by defendant. Hence for
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all above reasons I find injunction as prayed by plaintiff cannot be
granted. Hence I proceed to pass following order.
O R D E R
1. N/m No. 1281/2018 stands rejected/ disposed of.
2. Earlier interim order passed by my learned predecessor
stands vacated as the property in question is required for
public cause of road widening project.
(K.P.Nandedkar)
Judge,
City Civil Court,
11/10/2018 Gr.Bombay
Dictated on : 11.10.2018
Transcribed on: 19.10.2018
Signed by HHJ on: 22.10.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
22/10/2018 04.15PM Y.S. Patil (H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 11/10/2018
Judgment/order signed by P.O on 19/10/2018
Judgment/order uploaded on 22/10/2018
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