Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1503 OF 2020
IN
LONG CAUSES SUIT NO. 1268 OF 2020
DAYARAM YADAV ]
Aged 46 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 one upper floor made up
of BM Wall AC Sheet roof area admeasuring about 14 X 11 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, the plaintiff has acquired the
suit property from the previous occupier pursuant to the affidavit dated
22/04/1999. 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. 0718224 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 defendant has issued notice in respect of the suit
property. The said notice was duly replied by the common notice
through the then MLA through his letter dated 03/11/2018. Thereafter
the defendant did not reply the notice or took any action. Defendants
are not considering the documents filed by the plaintiff along with the
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reply. 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, 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 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
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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 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
no.1 has prayed for dismissal of the suit on all the above grounds.
7. Defendant No.2 did not file reply to the Notice of Motion.
8. Considering the plaint, Notice of Motion, reply filed by
defendant number 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
R E A S O N S
AS TO POINT NO.1 :
9. Plaintiff has claimed to be in possession of the suit property
since the year 1999 when he acquired the property. In support of his
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claim, he has filed on record a copy of affidavit of Shri Rajendra
Duijram Yadav who has stated in his affidavit that he was occupying the
property mentioned therein i.e Room No. 7 of the Khot Chawl. He has
transferred the said premises in favour of present plaintiff. If we peruse
the description of the suit property in the plaint, it is admeasures about
14 X 11. In the affidavit, the measurements of the property mentioned
therein are shown as 11’ X 7’. Therefore, there is considerable difference
in the measurements of the property which plaintiff allegedly acquired
and the present suit property. 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.
10. Plaintiff has produced on record a ration card which stands
in the name of plaintiff. The ration card shows that there are five
members in the family. The address on the ration card runs as: “6,
Vinoba Bhave Nagar, Near PMGP, Near Gaondevi Mandir. There is
mention of a room number 6 but in the affidavit of the earlier occupier
room no. 7 is mentioned.
11. Plaintiff has produced on record and electricity bill dated
06/08/1999 on which the name of plaintiff is mentioned along with
address as “7, Vinoba Bhave Ngr, P M G CLY, Near Gaondevi Temple,
Kurla West, Mumbai-70”. Therefore, plaintiff has not prime facia shown
that the property occupied by him at present is the same which was
transferred to him by the original occupier.
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12. The Aadhar card of the plaintiff is showing his address as
Room N -7, Gaon Devi Mandir, Lal Bahadur Shastri Marg, Near Transit
Camp, Kurla West, Mumbai - 70. Plaintiff has produced on record in his
name. The Address mentioned thereon is G-23, Khot Chawl which is
again different from the address of the property mentioned in the
plaint.
13. Plaintiff has produced receipt in his name 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. Therefore, there is no
prima facie
material to show that both the receipts are regarding the suit property
only.
14. 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 structure 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.
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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
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 does
not appear that the property acquired by plaintiff from the original
occupier and the present suit property are 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 one
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,
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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
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 prima facie shown that he is entitled to relief as claimed for.
20. 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
prima facie case. Plaintiff has
failed to prove the same.
19. 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: –
20. 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. 1503 of 2020 is
dismissed with costs.
2. Notice of Motion No. 1503 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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