Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1505 OF 2020
IN
LONG CAUSES SUIT NO. 1266 OF 2020
RAMESH BABURAO BARVE ]
Aged 55 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 8.6 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. The dimensions of the suit property are not mentioned in
the description of the suit property in the plaint but in the prayer
clause.
2. It is the case of plaintiff that, plaintiff has acquired the suit
property from the previous occupier pursuant to the agreement to sale
dated 21/08/1995. 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 and issued Survey Receipt No.
0079792 dated 26/11/1990. It was again surveyed by the authority in
the year 2000 and the receipt no 0718216 dated 26/07/2000 was
issued in the name of the plaintiff.
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
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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.
Defendant is threatening the plaintiff 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 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.
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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
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 failed to file reply to the Notice of Motion.
8. 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 prima 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 :
9. Plaintiff has claimed to be in possession of the suit property
since the year 1995 when he acquired the property. In support of his
claim, he has filed on record a copy of Agreement of Sale of Smt.
Gangabai Vishwambar Potdar, who has stated in her Agreement of Sale
that she was occupying the property mentioned therein i.e Room
admeasuring about 8’ X 18’ situated at Gaondevi Zopadpatti, Halav
Pool, Khot Chawl, Transit Camp, Vinoba Bhave Nagar, Kurla (W),
Mumbai - 70. He has transferred the said premises in favour of present
plaintiff. If we peruse the description of the suit property in the plaint,
measurements are not given. In the Agreement of sale, the
measurements of the property mentioned therein are shown as 8’ X 18’
Therefore, it is difficult to identify the suit property. Another important
point is that in the Agreement of Sale 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 six
members in the family. The address on the ration card runs as; “Vinoba
Bhave Nagar, Khot Chawl, Gaondevi, Near Transit Camp, Kurla (W),
Mumbai – 70. There is no mention of room number. Plaintiff has
produced on record an electricity bill dated 01/07/2000 on which the
name of plaintiff is mentioned along with address as ‘Khot Chawl, Near
Transit Camp, V Bhave Ngr, Kurla West, Mumbai-70. Therefore, the
description given by the plaintiff is not sufficient to identify the property
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and to infer that the same was transferred by the original occupier to
plaintiff. Plaintiff has produced another light bill on record which is in
the name of Vishembar Potdar. It is dated 06/03/1995. The original
occupier was Gangabai. Hence, it was necessary for the plaintiff to show
that the property was initially occupied by the Vishwambar and lateron
by Gangabai. There is no pleading to that effect. Therefore, it is difficult
to infer even
prima-facie that the same property was transferred by
Gangabai to the plaintiff.
11. Plaintiff has produced on record the telephone bill dated
15/11/1999. It is in the name of the plaintiff. The address is Room No.
2, Khot Chawl, Near Transit Camp, Gamdevi, Vinoba Bhave Nagar, Kurla
West, Mumbai-400070. Here there is room number which is not
mentioned in the plaint.
12. The Aadhar card of the plaintiff is showing his address as
Gaon Devi Mandir, LBS, Near Transit Camp, Kurla West, Mumbai - 70.
There is no mention of Khot Chawl in the address. Plaintiff has
produced a copy of his election card which shows the address as “T-33,
Khot Chawl, Colony Road, Kurla (p). This room number is different that
the one appearing on the telephone bill.
13. Plaintiff has produced receipt in the name of Smt.
Mangalabai Vishvembar Potdar dated 26/07/2000. Mangalabai is not
the person, who transferred the property to plaintiff. Plaintiff has not
pleaded or
prima-facie proved that Mangalabai transferred it to
Gangabai. Plaintiff has produced on record a copy of receipt of the
application in his name dated 26/07/2000. Again there is no copy of
the application annexed to it. Therefore, it is difficult to hold that the
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said application was filed in respect of the suit property only. There is
no address of the property regarding which the application was
submitted.
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 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
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
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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 1 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
rehabilitated at suitable place. However, those encroachers can be
removed by using the provisions of Public Premises (Eviction of
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Unauthorized Occupants) Act, 1971. In the circumstances plaintiff has
not prima 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
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.
20. 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: –
21. 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
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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. 1505 of 2020 is
dismissed with costs.
2. Notice of Motion No. 1505 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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