Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1502 OF 2020
IN
LONG CAUSES SUIT NO. 1265 OF 2020
BHAGWAN SHANKAR KAKADE ]
Aged 61 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 is as under:-
Rooms consisting of ground plus two upper floors made up
of BM Wall AC Sheet roof area admeasuring about 30 X 12 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 is residing in the suit
premises since prior to year 1980. 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
and the survey receipt was issued in the name of plaintiff under No.
0079281 dated 27/11/1990 in respect of the suit property.
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.
Defendants are threatening the to demolish the suit property without
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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, defendants 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
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 prior to the
year 1980.
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 as
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 number 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 24/06/2019. The Suit was No. 7057/2019.
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 his 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 number 2 asked Bhagwan
Kakade to produce permission/plan approved by competent authority in
respect of the construction. However, Bhagwan failed to produce any
such plan/permission. Hence, the Corporation issued stop work notice
on 19/06/2019 to the occupiers. It was duly served upon them. A
period of 24 hours was given to the occupant to produce the
documents. As no documents were produced, the order dated
24/06/2019 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 number 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 prior to 1980. In support of his claim, he has filed on record a
copy of a ration card which stands in the name of Vishal Bhagvan
Kakade. He appears to be son of the plaintiff. However, the ration card
shows that there is only one member in the family that it is Vishal
himself. There is no mention of name of plaintiff. It is difficult to infer
prime facie that plaintiff is residing on the address. The address on the
ration card runs as: “Khot Chawl, Room No.1/4-A, beside Gaondevi
Mandir, Vinoba Bhave Nagar, Premier Vasahat, Kurla, Mumbai–400070”.
It is important to note that the room number is not mentioned in the
description of the suit premises given in the plaint. Therefore, prime
facie it cannot be inferred that room No.1/4 is the present suit property.
12. Plaintiff has produced on record an electricity bill dated
04/10/1991 on which the name of plaintiff is mentioned along with
address as ‘Khot Chawl, Near Transit Camp, V Bhave Nagar, Kurla W,
Bombay 70. Another electricity bill dated 27/05/2019 is produced on
record which shows the same address. Plaintiff has produced one more
electricity bill on record which is in the name of Vishal and it shows the
address which it shown on the ration card. The said electricity bill is
dated 13/05/2019. Therefore, the inference can be drawn that the
property of which the electricity bill is standing in the name of plaintiff
and the property of which the electricity bill is standing in the name of
Vishal are 2 different properties.
13. Plaintiff has produced on record a copy of his Aadhar card.
It shows the name of plaintiff and the address shown on the ration card
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of Vishal. Plaintiff has produced on record a copy of his voters identity
card. It shows the address as: “Hut – 65, Gaodevi Slum, Premier Colony
Road, Kurla (Pashchim) Bombay”. This appears to be one more address.
14. Plaintiff has produced on record a receipt of submission of
application for slum census bearing application No. 0079281 which he
submitted on 27/11/1990 to the concerned authorities. It is pertinent
to note that there is no address of the hut on the said receipt. Plaintiff
has produced on record a copy of a notice issued to him 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 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.
15. 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
years and having required government residential documents as per
their testimony. As per the central and state government policy, no
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structure can be removed before rehabilitation. The said person appears
to be ML A 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.
16. I have gone through all those documents carefully. It
appears that the property mentioned in the name of plaintiff and the
property mentioned in the name of Vishal are different. The address 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 two storied structure.
17. 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.
18. 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, no such government policy or
rule or regulation is produced on record by the plaintiff to show that the
encroachers on the railway land need to be rehabilitated prior to
removal of encroachment. On the other hands, 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 he is entitled to be rehabilitated.
19. 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, then it becomes clear that plaintiff is seeking relief against
the railway only. Plaintiff has to prove prime facie his case. Plaintiff
has failed to prove the same.
20. Another important aspect of the matter is that the plaintiff
herein has stated in Para 14 of the plaint that he has not filed any other
suit regarding the suit property. But as per the case of defendant no. 2
such suit No. 7057 of 2019 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.
21. In view of all above discussion, I have come to the
conclusion that plaintiff has failed to prima facie 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
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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 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: –
22. 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. 1502 of 2020 is
dismissed with costs.
2. Notice of Motion No. 1502 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
02.12.2021 AT 3.00 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
Number)
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 02.12.2021
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