Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1722/19 in Suit No. 1906/18. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1722 OF 2019
(CNR NO. MHCC010047472019)
IN
L. C. SUIT NO. 1906 OF 2018
(CNR NO. MHCC010093132018)
Abdul Khalique Ansari ...Plaintiff
Versus
Municipal Corporation for Greater Mumbai ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 15th NOVEMBER, 2019.
Mr. A.M.Saraogi with Ms. Pallavi Ashar, Advocate for Plaintiff.
Mr. Som Sinha, Advocate for Defendants MCGM.
ORDER
This is a motion taken out by plaintiff Abdul Ansari for
temporary injunction to restrain the defendant MCGM from
implementing a letter dated 17/03/2018, restrain from demolition of
suit premises unless alternate accommodation is provided.
2. Perused replycumwritten statement submitted by
defendant vide Exh.2.
3. Gala No. 109 situated at Madani Estate, Link Road,
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N/m No. 1722/19 in Suit No. 1906/18. 2 Order.
Bhandup hereinafter referred as 'suit property'. According to plaintiff,
in a road widening scheme of Link Road, defendant has started
demolition of various premises. Plaintiff has purchased the suit
property from Mr. Abdul Subhan by affidavit dated 31/01/2000.
Defendant had issued a notice dated 02/04/1996 to the predecessor of
the plaintiff under Section 314 of MMC Act. In view of a notice dated
02/04/1996 issued to plaintiff's predecessor, some part of the suit
property was removed in road widening. Plaintiff holds N.A.
assessment tax as issued by Tahsildar dated 26/12/2000. According to
plaintiff, more than 50% of the area of the suit property is required to
be demolished. Accordingly plaintiff has sent a notices to defendant on
22/06/2016 and 16/07/2016. Plaintiff has also served the letters dated
03/07/2017 and 30/07/2017. There is no appropriate scheme initiated
by the defendant and it is contrary to the policy of Government.
According to plaintiff, as per Kurar Pattern, the party will be permitted
to construct upon existing premises by way of additional floors on
existing structure or alternate accommodation required to be provided
to the plaintiff. It is claimed to restrain the defendant from
continuation of demolition process unless alternate accommodation is
made available to the plaintiff.
4. Perused written statement vide Exh.2. It is specifically
mentioned that the agreement between the plaintiff and his predecessor
is silent in respect of area purchased by the plaintiff. It is observed that
plaintiff has extended the structure on the ground floor than area
purchased and occupied by the plaintiff. It is added that one additional
unauthorized floor is already constructed by the plaintiff. Therefore,
plaintiff is not entitled for regularization under Kurar pattern. It is
added that only 30% of the suit property is required to be demolished.
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N/m No. 1722/19 in Suit No. 1906/18. 3 Order.
There is no notice under Section 527 of MMC Act given by the plaintiff
before filing present suit. It is requested to reject the motion.
5. Ld. advocate Saraogi alongwith advocate Pallavi argued
that there is no acquisition of suit property and without process of
acquisition, any structure cannot be demolished. It is added that in
view of ratio laid down in Olga Tellis V/s. BMC (LEX (SC) 1985 7 17),
there is incumbent on Government to provide alternate accommodation
and any policy of the Government cannot be against basic principles of
law. The following points are mainly harped by ld. advocate Saraogi for
plaintiff :
A) In view of a notice issued to Mr. Mohamad Shabir dated
02/04/1996, predecessor of plaintiff, he has voluntarily
surrendered some area of the structure for Link Road.
B) As per notice dated 27/11/2000 issued to Ratansi
Karsandas and plaintiff dated 27/11/2000, map of
Tahsildar dated 06/12/2000 and letter of BMC dated
22/06/2016, it establish possession and standing structure
of plaintiff over suit property.
C) In view of order issued by BMC dated 19/03/2018, plaintiff
has claimed for further measurement of suit property.
D) In view of Order 12 Rule 6 of CPC, it is added that
judgment has to be pronounced on admission.
E) As the existing road is bottleneck, further extension of the
road is not necessary. All steps obtained by BMC are for
the benefit of the builder.
F) Plaintiff has not accepted the notice dated 19/03/2018,
therefore benefits of Kurar pattern are given to the plaintiff.
G) Various documents produced by defendant BMC are not
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N/m No. 1722/19 in Suit No. 1906/18. 4 Order.
supported with affidavit.
H) In view of order dated 19/03/2018, it is contended by
plaintiff that he comes in Part 2.
I) As per minutes of meeting dated 28/06/2016, the benefits
of "P.A.P." (People Affected by Project), defendant has to
provide alternate accommodation.
6. ld. advocate Saraogi submits that he will be last person to
obstruct in development project of BMC. However, there is no
appropriate measurement of the suit premises. Therefore either
defendant be directed to provide alternate accommodation or officer of
defendant be deputed for appropriate measurement. It is claimed for
temporary injunction, till then, demolition process be stopped.
7. Ld. advocate Som Sinha for defendant submits that benefits
of Kurar pattern are already granted to plaintiff. The affected area of
suit premises is 34%, it means beyond 25%, therefore the benefits of
Kurar pattern are already granted to plaintiff. There are no documents
with plaintiff to show authorization of the structure. There are in total
137 structures, amongst them around 10 structures are demolished and
for 28 structures Kurar pattern has been granted by the defendant.
There is no description of the suit property as per affidavit of sale deed
is filed by plaintiff. In view of order of BMC dated 17/07/2018,
plaintiff entitled for 225 sq.ft. as alternate accommodation if entire
structure is demolished or handed over by the plaintiff. The affected
area of the plaintiff is 34%, therefore permission is granted to regularize
mezzanine floor i.e. 187.92 sq.ft. The order of BMC dated 14/09/2019
is not challenged by the plaintiff. It is claimed to reject the motion.
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N/m No. 1722/19 in Suit No. 1906/18. 5 Order.
REASONS FOR ORDER
8. It is admitted fact that benefits of Kurar pattern are granted
to plaintiff. According to plaintiff, he entered into the shoes of his
predecessor Abdul Subhan Shaikh as plaintiff purchased the suit
property for Rs.1,30,000/ on 31/01/2000. It appear to be registered
later on i.e. dated 03/02/2000. On perusal of date of assignment and
affidavit submitted by plaintiff (plaintiff called it as registered sale
deed) it is material to note that there is no description of suit property,
no fourboundaries are given, no length and width is mentioned. It is
not disputed that plaintiff is in possession of a structure i.e. Gala No.109
at Madani Estate. The material contention of plaintiff is to provide
additional benefit of alternate accommodation in addition to mezzanine
floor. According to defendant, plaintiff has encroached over ground
floor and mezzanine floor as constructed after measurement was
completed by putting scheme of Link Road.
9. According to plaintiff, he issued a notice on 03/07/2017.
Therefore, he has claimed for remeasurement. It is contention of
plaintiff that the correct area is 58.14 sq.mtr. The material part of his
contention is reproduced as follows :
"In this context my client has instructed to bring to
your notice that the area mentioned in the list of
eligibility is 48.14 sq. metre instead of correct area
of 58.14 sq. meter except the affected set back area
of 34% sq. meter. You are requested to fix up an
appointment for joint measurement to ascertain
the factual aspect and rectify your records
accordingly."
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N/m No. 1722/19 in Suit No. 1906/18. 6 Order.
10. On perusal of letter issued to predecessor of plaintiff dated
02/04/1996, notice issued to plaintiff and Mr. Ratansi dated
27/11/2000, map of Tahsildar, letter of BMC dated 22/06/2016, in all
letters the area of plaintiff is mentioned as 48 sq.mtrs. It is important
to note that in a map prepared by Additional Tahsildar dated
06/12/2000 the standing structure of plaintiff is shown with map
admeasuring 12 x 4 = 48 sq.mtr. It is specifically mentioned in a notice
dated 22/06/2016 issued by BMC alongwith detail of length and width,
which explain suit structure is only 48 sq.mtr. The material part is
reproduced as follows :
"vkiys mijksDr ueqn ?kj@nqdku@xkGk gs cka/kdke lnj jLrk #anhdj.kkr
ykach 2-9 eh- #anh 16-60 eh- rGetyk $ & etys gs cka/kdke lnjgq
izLRkkfor jLrk #anhdj.kkr va'kr% @ iw.kZi.ks ckf/kr vlY;kps fun'kZukl
vkys vkgs- fo"k;kdhar jLrk #anhdj.kkps dke c`gUeaqcbZ
egkuxjikfydsekQZr izk/kkU;kus gkrh ?ks.;kr vkys vlqu lnj #anhdj.kkr
vkiys mijksDr ueqn ckf/kr cka/kdke vkgs-"
11. In view of aforesaid clear position, there will be no
question on dispute of measurement of suit property. On perusal of
specific letter issued to plaintiff by MCGM dated 14/09/2019, the
description of total structure, total affected area and area of structure
after Kurar pattern is given as follows :
"In this case, the office has obtained sanction from
A.M.C.(E.S.) & DMC (ZVI) (vide no.
AMC/ES/1989 dt. 01.04.2019 & MDE/2920/Gen
10.01.2019) to allow eligible structure owned /
occupied by Shri. Abdul Khalique Ansari to be
repaired and raised to the height of 17'0" as
original structure is affected in road widening. As
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N/m No. 1722/19 in Suit No. 1906/18. 7 Order.
per survey carried out, original area of structure
under reference was 2.90 Mtr. X 16.60 Mtr. =
48.14 Sq.Mtr. (517.99 sq. ft.) & area affected in
Road widening is (6.33 mtr. + 5.70 mtr.)/2 X
2.90 Mtr. = 17.46 Sq.Mtr. (187.92 sq.ft.). (shown
in sketch overleaf)."
"Details for the Kurar Pattern for Structure No.109
is as under :
Total structure area : 2.90 Mtr. X 16.60 Mtr. =
48.14 Sq.Mtr. (517.99 sq. ft.).
Total affected area : (6.33 mtr. + 5.70 mtr.)/2 X
2.90 Mtr. = 17.46 Sq.Mtr. (187.92 sq. ft.).
Area for Gr. Flr 30.48 Sq.mtr. (330.11 sq.ft.) &
area under Kurar Pattern is =15.77 sq.mtr.
(169.74 sq.ft.).
Total area of the Structure after Kurar Pattern
permission for (Gr.Flr + Mezzanine flr.) is 500
Sq.Ft."
12. On perusal of sale deed between plaintiff and Abdul
Subhan Shaikh, there is no reference of mezzanine floor or existing
structure as purchased by plaintiff. There is no permission of MCGM
with plaintiff in respect of any additional construction over the suit
property. There is no reference in sale deed of plaintiff dated
03/01/2000 about existence of mezzanine floor as alleged. On the
contrary, whenever any reference is moved by the MCGM, it clearly
indicate that plaintiff was in possession of 48 sq.mtr. Therefore the
notice issued by plaintiff through advocate Bipin Joshi dated
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N/m No. 1722/19 in Suit No. 1906/18. 8 Order.
03/07/2017 that total area of plaintiff is 58.14 sq.mtr. hold no
foundation. In short, there is no prima facie case as averred by plaintiff.
13. The road widening as explained by ld. advocate for MCGM
is a need of hour. Defendant has already provided benefits of Kurar
pattern. The measurement on behalf of MCGM, map of Additional
Tahsildar, description of total area, affected area etc. is already on
record. Even if plaintiff entitled for any benefit as per policy of
government, the said option is always available to the plaintiff. For that
purpose it would not judicious to restrain the project of road widening.
Therefore the balance of convenience lies in favour of defendant.
14. The benefits of Kurar pattern are already granted to
plaintiff. Therefore, it will cause no irreparable loss to the plaintiff. In
short, there is no substance in motion. Hence the order :
ORDER
1. Notice of Motion No. 1722/2019 stands rejected.
2. N/m No. 1722/19 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 15/11/2019. Mumbai.
1. Dictated on : 15/11/2019.
2. Transcribed on : 15/11/2019.
3. Signed on : 16/11/2019.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 1722/19 in Suit No. 1906/18. 9 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/11/2019. 1.13 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 15/11/2019.
Judgment/Order signed by P.O. on 16/11/2019.
Judgment/Order uploaded on 16/11/2019.
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