Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1500 OF 2020
IN
LONG CAUSES SUIT NO. 1194 OF 2020
YASHODA RAJENDRA YADAV ]
Aged 60 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 one upper floor made up
of BM Wall AC Sheet roof area admeasuring about 30 X 89 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, husband of plaintiff has
acquired the suit property from the previous occupier pursuant to the
affidavit dated 05/10/1994. 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 has 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. 0718220
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
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considering the documents filed by the plaintiff along with the reply.
Defendant is threatening 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 the 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 defendants. 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
regarding the suit property. Defendant No.1 has further stated that the
documents annexed by plaintiff to 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
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person without prior permission of the railway authorities. It is further
stated that unless the plaintiff gets appropriate sanction from the
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 the 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 as required under section
527 of the Maharashtra 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
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 16/05/2018. The Suit was No.7012/2018.
In that matter Court directed not to take any coercive action. 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.
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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
said construction, the officer of the defendant no. 2 asked Rajendra
Yadav to produce permission/plan approved by competent authority in
respect of the construction. However, Rajendra failed to produce any
such plan/permission. Hence, the Corporation issued stop work notice
on 28/04/2018 to the occupiers. It was duly served upon them. A
period of 24 hours was given to the occupants to produce the
documents. As no documents were produced, the order dated
09/05/2018 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 the 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 her favour?
In the
Negative
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3 Who will suffer irreparable loss? Defendant No.1
4 What Order and decree ? As per Final Order
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 1994 when she acquired the property. In support of her
claim, she has filed on record a copy of affidavit of Shri Kalu Singh who
has stated in his affidavit that he was occupying the property mentioned
therein. He has transferred the hut/structure in favour of present
plaintiff. If we peruse the description of the suit property in the
affidavit, it admeasures about 10’ X 20’. In the plaint, the
measurements of the property mentioned therein are shown as 30 X 89.
Therefore, there is considerable difference in the measurements of the
property which plaintiff allegedly acquired and the present suit
property. Another important aspect is that in the affidavit there is
mention of a hut/structure. There is no mention of the Khot Chawl.
Therefore, it is clear that the property which was sold by the original
occupier is not 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 floor. Defendant no. 2 has come up with the case that the said
construction was carried out subsequently.
12. Plaintiff has produced on record a ration card which stands
in the name of Rajendra Durjandas Yadav. It appears to be husband of
present plaintiff. The ration card shows that there are five members in
the family. The address on the ration card runs as: “Vinoba Bhave
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Marg, Gaondevi Mandir Samor, Khot Chawl, Room No.6, Mumbai – 70”.
There is no mention of the room number in the affidavit of the earlier
occupier at all.
13. Plaintiff has produced on record and electricity bill dated
08/02/1999 on which the name of plaintiff is mentioned along with
address as ‘06, Vinoba Bhave NGR, P M G CLY, Near Temple Gaondevi
Kurla West, Mumbai-400070. Therefore, plaintiff has not prime facie
shown that the property occupied by her at present is the same which
was transferred to her by the original occupier.
14. The Aadhar card of the plaintiff is showing her address as
Gaondevi Khot Chawl but the complete address is not legible. Plaintiff
has produced on record one declaration regarding Room No. 6 of the
Khot Chawl. It is stated that, there is no other hut in his name. but
again the Room No. 6 is not mentioned in the affidavit of the earlier
owner.
15. Plaintiff has produced similar notice in the name of her
husband dated 26/07/2000. There is no address of the property
regarding which the application was submitted. Plaintiff has not
produced any copy of such application along with the receipt. Plaintiff
has produced on record a copy of the receipt of the application made by
him for recording the name in voters list. Copy of the application is filed
on record. There is mention of the address on the receipt of the suit
property. But that cannot be a proof of right or title. Therefore, there is
no prima facie material to show that both the receipts are regarding the
suit property only.
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16. Plaintiff has produced on record a notice issued by the
revenue authorities to plaintiff for production of relevant documents to
make her eligible as beneficiary. Plaintiff has not produced anything on
record whether she submitted such documents and whether this notice
was in respect of present suit property.
17. 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 his 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 the track as well as 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.
18. 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 letter of all the residents is attached
with that letter. Those residents are residing in the area for 25-30 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
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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.
19. I have gone through all those documents carefully. It does
not appear that the property acquired by plaintiff from the original
occupier and the present suit property are the same. The address and
description of both the properties are different. Therefore, it is difficult
to identify from the documents produced by plaintiff on record the
exact nature of property belonging to plaintiff. Plaintiff has not
produced anything on record to show that it is a ground plus 2 storied
structure.
20. 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.
21. The MLA has mentioned in the letter to the railway
authority that no structure can be removed unless the occupiers are
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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 the relief as claimed for.
22. It is important to note that the plaintiff had stated in
paragraph 14 of the plaint that she has not filed any other suit in
respect of the suit property in any other court. But as per the case of
defendants, she has filed a civil suit against the defendant number 2
challenging the notice issued by him regarding the unauthorised
construction. That suit ia still pending. Therefore, the plaintiff has not
come before the court with clean hands.
23. It is the case of plaintiff that the land on which his 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 no.1, 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.
24. 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
claim of adverse possession. Prima facie it appears that the railway
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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: –
25. 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. 1500 of 2020 is
dismissed with costs.
2. Notice of Motion No. 1500 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
30.11.2021 AT 3.30 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 30.11.2021
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