Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1499 OF 2020
IN
LONG CAUSES SUIT NO. 1193 OF 2020
NEERU DINDAYAL RAI ]
Aged 38 years, Residing at Khot ]
Chawl, Gaodevi Zopadpatti, ]
Near Transit Camp, Vinoba Bhave ]
Nagar, Kurla (West), ]
Mumbai 400 070. ].. Plaintiff.
V/s.
1. UNION OF INDIA, ]
Through Divisional Railway ]
Manager, Central Railway, ]
Having its office at C.S.T. ]
Mumbai 400 001. ]
2. MUNICIPAL CORPORATION FOR ]
GREATER MUMBAI, (A Body ]
Corporate incorporated under the ]
Provisions of BMC Act 1889) having]
its head office at Annexe Building, ]
Mahapalika Marg, Mumbai C.S.T. ]
Mumbai – 400 001. ]..Defendants.
Advocate Mr. V. T. Dubey for the plaintiff.
Advocate Mr. L.K. Tripathi for defendant No.1.
Advocate Ms. Chandramore for defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 24th NOVEMBER, 2021
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ORDER
The suit for injunction simplicitor is instituted for the relief
of restraining the defendants from demolishing the suit property. The
suit property described in the plaint as under.
Rooms consisting of ground plus two upper floors made up
of BM Wall AC Sheet roof area admeasuring about 30 X 9 lying and
situated at C.T.S. No.917 (part), Khot Chawl, Gaodevi Zopadpatti, Near
transit camp, Vinoba Bhave Nagar, Kurla (West), Mumbai – 400070 and
it is hereinafter referred as suit property for the sake of convenience.
2. It is the case of plaintiff that, plaintiff has acquired the suit
property from the previous occupier pursuant to the agreement of sale
dated 01/02/2006. Since then plaintiff is occupying the said property.
Plaintiff is having all the documents like Ration Card, electric bill,
Aadhar card, voters identity card issued by the competent authorities.
Plaintiff is further stated that the suit premises were surveyed by the
competent authority in that year 1990. It was again surveyed by the
authority in the year 2000 and the receipt no. 0718223 was issued in
the name of the plaintiff dated 26/07/2000.
3. It is the case of the plaintiff that the suit property is
situated on the land belonging to the State Government and the
competent authority is the Dy. Collector and not the MCGM or Railways.
In spite of that, the defendants have issued notice in respect of the suit
property. The said notice was duly replied by the common letter
through the then MLA vide his letter dated 03/11/2018. Thereafter, the
defendants did not rejoin or took any action. Defendant No.2 is not
considering the documents filed by the plaintiff along with the reply.
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Defendants are threatening the to demolish the suit property without
following due process of law. The suit property is in existence prior to
datum line. It is protected as per the Government Policy. The defendants
have no right to demolish the suit property.
4. The officer of the defendant No. 1 came on the spot on
02/10/2020 at 01.00 pm. He threatened that defendant will demolish
the suit premises with help of the police protection. The plaintiff tried to
convince him regarding the status of the suit property. However, he did
not listen. Hence, plaintiff is constrained to institute the present suit for
the relief of perpetual injunction. He has prayed for temporary
injunction vide this Notice of Motion.
5. Divisional engineer of the Central Railways has filed the
affidavit in reply and has denied all the contentions in the plaint. He has
stated that the documents filed by the plaintiff on record do not confer
any right on the plaintiff to claim any relief against the defendant. It is
further stated that the suit property belongs to the Railways and not the
State Government. The documents produced by the plaintiff are false
and bogus. They do not confer any right title or interest on the plaintiff
over the suit property. Defendant No.1 has further stated that the
documents annexed by plaintiff along with the plaint do not show the
exact nature of the suit property. Plaintiff has not annexed any
sanctioned plan or approved plan. There is no evidence on record to
show that plaintiff was residing in the suit property since long.
6. Defendant No. 1 has further stated that as the land belongs
to the railway, nobody can transfer the same in the name of any other
person without prior permission of the railway authorities. It is further
stated that unless the plaintiff gets appropriate sanction from the
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relevant authorities, he cannot get any right as alleged to seek
protection in the form of present suit. Defendant No.1 has further
stated that, there is no notice reply on the part of plaintiff and the reply
sent by a third person cannot be treated as reply of plaintiff. The
defendant has prayed for dismissal of the suit on all the above grounds.
7. Defendant No. 2 filed reply to the Notice of Motion.
Defendant No.2 has stated that the notice is required under section 527
of the Bombay Municipal Corporations Act is not issued and hence the
suit is not tenable. It is further stated that the suit notice is executive or
administrative act. Therefore, the same cannot be challenged before any
court of law. There is no cause of action to the present suit. Hence the
suit is not maintainable.
8. Defendant No.2 has further stated that the description is
given in the plaint is not sufficient to identify the suit property.
Therefore the suit is liable to be dismissed. The valuation of the suit is
also challenged by defendant No.2. Defendant No.2 has further stated
that as per section 515 – A, this court has no jurisdiction to try and
decide the suit. In notice under section 354–A of the Maharashtra
Municipal Corporations Act is issued and plaintiff had filed a suit
challenging the order dated 20/11/2017. The Suit was No. 2309/2017.
The suit is pending before the Court No. 11. In spite of that the plaintiff
has filed the present suit. Plaintiff may approach to the proper forum
for redressal of her grievances.
9. Defendant No. 2 has further stated that the officers of the
Corporation inspected the suit premises and found the unauthorised
construction of 1st and 2nd floor with brick masonry wall and MS section
support. The said work was in progress at that time. On noticing the
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said construction, the officer of the defendant No. 2 asked occupier to
produce permission/plan approved by competent authority in respect of
the construction. However, he failed to produce any such
plan/permission. Hence, the Corporation issued stop work notice on
05/10/2017 to the occupiers. It was duly served upon them. The
occupier filed reply along with documents. On considering the reply and
documents, the order dated 20/11/2017 was passed. That order is
challenged before this court and the matter is pending. As the property
is situated on the railway land, the railway authorities also issued a
notice to plaintiff on 26/10/2018 which is challenged in the present
suit. For all the above reasons, defendant No. 2 has prayed for
dismissal of the suit.
10. Considering the plaint, Notice of Motion, reply filed by
defendant No. 1 and documents on record, following points arise for my
determination and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether plaintiff has proved prime facie
case?
In the
Negative
2 Whether plaintiff has proved that balance of
convenience lies in his favour?
In the
Negative
3 Who will suffer irreparable loss? Defendant No.1
4 What Order and decree ? As per Final Order
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R E A S O N S
AS TO POINT NO.1 :
11. Plaintiff has claimed to be in possession of the suit property
since the year 2006 when he acquired the property. In support of her
claim, she has filed on record a copy of affidavit of Smt. Savita
Suryakant Dhule who has stated in his affidavit that she was occupying
the property mentioned therein i.e Room Premise No. 68, situated at
Gaondevi Slum, premier Colony Road Kurla West Mumbai-70. She
transferred the said premises in favour of Plaintiff on 01/02/2006 by
affidavit. There are no measurements of the suit property mentioned.
Room Number is not mentioned in the plaint. Therefore, there is
nothing on record to show that the property which was sold by the
original occupier is the property involved in the suit. Another important
point is that in the affidavit of the original occupier, there is no mention
of upper floor but in the present suit property there is clear mention of
upper two floors.
12. Plaintiff has produced on record a copy of the ration card
on record which shows the address as Khot Chawl but it is not
completely legible. Plaintiff has produced on record the electricity bill
dated 28/05/2018. It is showing the address of Khot Chawl but there is
no room number. Plaintiff has produced on record another electricity
bill in her name. The Address mentioned thereon is the same.
13. Plaintiff has produced Aadhar Card on record. It bears
address of 19, Transit Camp, MIG Road, Gaondevi, Kurla West, Mumbai
400 070. There is no mention of Khot Chawl. Room No. is also different.
Plaintiff has produced receipt in the name of Savita Suryakant Dhule
dated 26/07/2000. There is no address of the property regarding
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which the application was submitted. Plaintiff has not produced any
copy of such application along with the receipt. Therefore, there is no
prima facie material to show that the receipt is regarding the suit
property only.
14. Plaintiff has produced on record the copy of the notice
issued to original occupier Savita for production of her documents
regarding occupation. It is not on record whether those documents were
produced by her or not.
15. Plaintiff has produced on record a copy of a notice issued to
her by the railway authorities on 26/10/2018. The said notice shows
the name of plaintiff and her address as “Gaodevi, Kurla (W), Behind
Kurla Car Shed”. It is mentioned in the said notice that during the
inspection of the railway staff, it was found that the plaintiff has
constructed unauthorised structures on the railway land at abovesaid
location without taking any permission from Railway. These structures
are affecting safety of track as well causing obstruction in the smooth
working of construction of infrastructures being carried out for railway
department. The plaintiff is called upon to remove the said
unauthorised structures and hand over peaceful possession of the said
land to railway administration within 7 days from the date of receipt of
the notice. It is also mentioned that on failure to do so, railway
administration shall proceed to get the same removed as per law.
16. Plaintiff has produced on record a letter issued by one
Mohmed Arif (Nasim) Khan to the D.R.M. Of Central Railway. It is
mentioned in the said reply that later of all the residents is attached
with that letter. Those residents are residing in the area for 25 – 30
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years and having required government residential documents as per
their testimony. As per the central and state government policy, no
structure can be removed before rehabilitation. The said person appears
to be MLA of the area and he has requested the DRM of the Central
Railway to verify the structures and their documents so that it will be
easy to rehabilitate them. It is important to note that the letter which
was addressed by the residents is not submitted along with this letter of
MLA. Therefore, it is difficult to find out whether plaintiff was one of
the residents as mentioned in the letter of MLA.
17. I have gone through all those documents carefully. The
description of the suit property as given in the documents produced by
the plaintiff is different from the one mentioned in the plaint.
Therefore, it is difficult to identify the suit property from the documents
produced by plaintiff on record and the exact nature of the suit
property. Plaintiff has not produced anything on record to show that it
is a ground plus 1 storied structure.
18. The notice issued by railway authorities to plaintiff which is
produced on record shows that anyhow plaintiff has some structure in
his possession over the land belonging to railway. The notice clearly
states that plaintiff has to remove the same within 7 days from the
receipt of the notice. There is nothing on record to show that plaintiff
replied that notice. When the notice is issued in the name of plaintiff,
then it is necessary for him to reply the same. The reply sent by some
MLA jointly on behalf of all the residents cannot be considered as a
reply to the notice sent to the plaintiff. Furthermore, there is nothing
on record to show that plaintiff is included in all the residents
contemplated in the letter of MLA.
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19. The MLA has mentioned in the letter to the railway
authority that no structure can be removed unless the occupiers are
rehabilitated at suitable place. However, those encroachers can be
removed by using the provisions of Public Premises (Eviction of
Unauthorized Occupants) Act, 1971. In the circumstances plaintiff has
not prime facie shown that she is entitled to relief as claimed for.
20. It is the case of plaintiff that the land on which her alleged
structure it standing is belonging to the State Government and hence
Deputy collector is the authority who can evict the plaintiff. However,
nothing of that sort showing that the land belongs to state government
is produced by plaintiff on record. On the other hand when plaintiff has
instituted the present suit in reply to the notice sent by the defendant,
then it becomes clear that plaintiff is seeking relief against the railway
only. Plaintiff has to prove prime facie case. Plaintiff has failed to prove
the same.
21. Another important aspect of the matter is that the plaintiff
herein has stated in the plaint Para 14 that she has not filed any other
suit regarding the suit property. But as per the case of defendant no. 2
such suit No. 1611 of 2018 is pending before the C.R.No.11. therefore it
is clear that the plaintiff has not come with the clean hands before the
Court.
22. In view of all above discussion, I have come to the
conclusion that plaintiff has failed to prove that the defendant No. 1 has
not adopted the due process of law before removing the plaintiff from
the suit property. Mere electricity bill or Aadhar card or ration card
cannot show that plaintiff is lawful occupier of the property. There is no
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claim of adverse possession.
Prima facie it appears that the railway
authorities are competent and entitled to remove the encroachments on
their land. Therefore I answer point No. 1 in the negative.
AS TO POINT NOS. 2 AND 3: –
23. Plaintiff has failed to prove that he has any legal right to
remain in possession of the suit property. On the other hand the
defendant No. 1 has issued a legal notice to plaintiff for removal of its
structure. It is a public property and plaintiff cannot occupy the same
without any right for his personal use. Therefore, I have come to the
conclusion that the balance of convenience lies in favour of defendant
No. 1 who is lawful owner of the suit property. As plaintiff has no legal
right to hold the suit property, he will not suffer any irreparable loss
even if he is evicted. Therefore, I answer point Nos. 2 and 3 in favour
of defendant No.1. In answer to point No.4, I proceed to pass following
order.
O R D E R
1. Notice of Motion No. 1499 of 2020 is
dismissed with costs.
2. The Notice of Motion No. 1499 of 2020 is
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date:24.11.2021 Gr.Mumbai.
Dictated on: 24.11.2021
Typed on : 25.11.2021
Signed on : 29.11.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
29.11.2021 AT 5.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of Pronouncement of
Judgment/Order
24.11.2021
Judgment/Order signed by P.O. on 29.11.2021
Judgment/Order uploaded on 29.11.2021
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