Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1496 OF 2020
IN
LONG CAUSES SUIT NO. 1190 OF 2020
SUMAN RAJKUMAR DIXIT ]
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
-- 1 of 12 --
2
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 affidavit dated
10/05/2017. Since then, plaintiff is occupying the said property.
Plaintiff is having all the documents like Ration Card, Electricity 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. 0718228 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.
-- 2 of 12 --
3
Defendants are 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, defendants 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 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 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
-- 3 of 12 --
4
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 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 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 16/05/2018. The Suit was No. 1611/2018.
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 his grievances.
-- 4 of 12 --
5
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 Suman Dixit
to produce permission/plan approved by competent authority in respect
of the construction. However, Suman 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 occupant 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 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
-- 5 of 12 --
6
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 2017 when he acquired the property. In support of his
claim, he has filed on record a copy of affidavit of Shri Ramesh Baburao
Sonar who has stated in his affidavit that he was occupying the property
mentioned therein i.e. Room admeasuring about 7½ X 22 sq. ft. at Khot
Chawl, Gaondevi Temple, Near Transit Camp, Vinoba Bhave Nagar,
Kurla (West), Mumbai – 400 070. He transferred the said premises in
favour of Dattatraya Krishna Sanas on 02/05/1997 by affidavit.
Dattatraya Krishna Sanas transferred the said property to the present
plaintiff on 10/05/2017. There is no room number or other details in
the affidavit of Shri Sanas. If we peruse the description of the suit
property in the plaint, it admeasures about 30 X 9. In the affidavit of
Sonar, the measurements of the property mentioned therein are shown
as 7½ X 22 sq. ft.. 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 two floors.
12. Plaintiff has claimed to be in possession of the suit property
since the year 2017 when he acquired the property. Plaintiff has
-- 6 of 12 --
7
produced on record a copy of the Aadhar card which stands in the name
of plaintiff. The address on the ration card runs as “Khot Chawl,
Transit Camp, Vinoba Bhave Nagar, Kurla West, Near Kohinoor City,
Mumbai 70”. There is no mention of the room number of the Khot
Chawl in the address. Plaintiff has produced on record electricity bill
dated 28/07/2004 on which the name Dattatraya Krishna Sanas is
mentioned along with address as “Khot Chawl, Transit Camp, Vinoba
Bhave Nagar, Kurla W, Mumbai-70”. Plaintiff has produced on record
another electricity bill in her name. The Address mentioned thereon is
the same.
13. Plaintiff has produced receipt in the name of Dattatraya
Krishna Sanas 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 the receipt is
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 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 handover peaceful possession of the said
-- 7 of 12 --
8
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 structure
can be removed before rehabilitation. The said person appears to be
ML A of the area and he has requested the D.R.M. 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. 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 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
-- 8 of 12 --
9
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
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.
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
defendants, 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.
20. 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
-- 9 of 12 --
10
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.
21. 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
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
O R D E R
1. Notice of Motion No. 1496 of 2020 is
dismissed with costs.
-- 10 of 12 --
11
2. The Notice of Motion No. 1496 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
-- 11 of 12 --
12
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
-- 12 of 12 --