Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010048572020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1628 OF 2020
IN
L.C. SUIT NO. 3403 OF 2019
Jagruti Jayram Katkar ... Plaintiff
V/s.
1.Municipal Corporation of
Greater Mumbai
2.Mr. Ashok Maruti Renge ... Defendants
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH
CITY CIVIL COURT
GR.MUMBAI
DATE : 18/11/2021
Appearance
Adv. Mr. Kanoujia for the plaintiff
Adv. Ms. Meena Dhuri for the Defendant/BMC.
Adv.Mr. Sachin Kanoujia for the defendant no.2
ORAL ORDER
1. This Notice of Motion is taken out by the plaintiff to direct
the defendant to give personal hearing to the plaintiff by issuing Notices
u/s. 314 of the BMC Act and pass order thereon to decide the eligibility
of the plaintiff for permanent alternate accommodation in lieu of the
suit premises i.e. Kasturba Zopadpatti Sangh1, Katrak Road/
Bhairavnath Mandir Marg, Wadala, Mumbai.
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2. The defendant no.1 BMC appeared and contested this
Notice of Motion by filing reply.
3. The defendant No.2 appeared and filed reply. The
defendant No.2 has supported the claim of the plaintiff in his reply.
4. Points for determination alongwith my findings are as
under:
Sr.
No.
Points Findings
1 Whether the plaintiff has made out
prima facie case?
No
2. Whether balance of convenience lies in
favour of the plaintiff?
No.
3. Whether plaintiff would suffer
irreparable loss if order of temporary
injunction is not granted in his favour?
No.
4. What order? As per final order
REASONS
As to Point Nos.1 to 3.
5. Heard the learned Advocates for the plaintiff, Defendant
No.1 and defendant No.2 at the length. Perused the documents filed by
the plaintiff on record.
6. Brief background of the matter is that defendant No.1 BMC
has issued notice u/s. 314 of the Mumbai Municipal Corporation Act on
22.11.2019 to Mr. Ashok Maruti Renge (Defendant No.2.) in respect of
the Hut No.2 situated at Sumantai Mhatre Marg, Wadala. It was
directed to Mr. Ashok Maruti Renge to remove the said hut as it is not
proved to be protected as per The Maharashtra Slum Areas
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(Improvement, Clearance And Redevelopment) Act, 1971 and
construction of the said hut as illegal and unauthorized. The said notice
was issued to Mr. Ashok Maruti Renge as he was in occupation of the
said hut. Thereafter, after considering the reply of Mr. Ashok Maruti
Renge (defendant no.2) , the designated officer of the defendant no.1
on 09.12.2019 passed an order to calling upon him to produce
documents in respect of the said hut. Thereafter on 17.12.2019 the
designated officer of the defendant No.1 on considering the reply and
documents filed by the defendant no.2, disqualified the defendant No.2
as per the The Maharashtra Slum Areas (Improvement,Clearance And
Redevelopment) Act,1971 and called upon defendant no.2 Mr. Ashok
Maruti Renge to remove the said hut within 24 hours. Undisputedly, on
21.12.2019 the said structure i.e. hut was demolished by the defendant
no.1. The photo copy of the report of the demolition is produced by the
defendant No.1 on record.
7. The defendant No.1 being Municipal Corporation issues
notice under the Mumbai Municipal Corporation Act to the occupant of
the structure held to be illegal or unauthorised. Whomsoever is in
occupation and possession of the suit premises are issued notices by the
defendant corporation.
8. The plaintiff is claiming right in respect of the suit premises
and want that defendant corporation should consider his claim in
respect of the same as per The Maharashtra Slum Areas (Improvement,
Clearance And Redevelopment) Act,1971. According to the plaintiff he
has purchased the suit premises from the defendant no.2 vide Sale Deed
on 16.06.1997. The plaintiff has produced the photocopy of the sale
deed. The said sale deed is not registered sale deed as per the law. The
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plaintiff has not produced any documents on record to prove his
possession over the suit premises since the year 1997 till the date of its
demolition. The survey receipt produced by the plaintiff does not bear
the signature of the officer of the defendant corporation or stamp of the
same. The Aadhar Card also does not show the address of the premises
which is demolished by the defendant corporation. The shop Act license
is a license issued by the defendant corporation to any person
permitting him to carry out business. It does not mean that this
permission to carry out business is granted to any particular place.
Therefore, the photocopy of the shop Act licenses produced by the
plaintiff on record cannot be considered as a primafacie proof of his
possession over the suit premises i.e. Hut, which is demolished by the
defendant corporation.
9. On considering the documents on record, it is held that
plaintiff has primafacie failed to prove his possession over the suit
premises i.e. alleged hut which is demolished. The plaintiff has not
produced any document on record to show that he was in possession of
the suit premises since year 1997. According to the plaintiff, he has filed
application with the defendant corporation to consider his eligibility as
per The Maharashtra Slum Areas (Improvement, Clearance And
Redevelopment) Act,1971 and the same application is pending before
the defendant corporation. The plaintiff wants that this Court should
issue a mandatory temporary injunction to the defendant corporation to
consider his eligibility as per The Maharashtra Slum Areas
(Improvement, Clearance And Redevelopment) Act,1971. This prayer of
the plaintiff is in the nature of Writ of Mandamus and the same is out of
jurisdiction of this Court. Therefore, this court is being a Civil Court
cannot issue Writ of Mandamus in the nature of mandatory temporary
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injunction against the defendant corporation to consider the eligibility
of the plaintiff as prayed.
10. In this background , it is held that the plaintiff has failed to
prove primafacie case for temporary injunction. The plaintiff is not
entitled for relief of temporary injunction against the illegal structure
which is already demolished by the defendant no.1 by following due
process of law as per section 314 of the Mumbai Municipal Corporation
Act. Balance of convenience is not in favour of the plaintiff and he
would not suffer any irreparable loss if the order of temporary
injunction is passed in his favour. Hence, point no.1 to 3 are answered
in the negative.
As to Point No.4
11. In view of findings as to point Nos.1 to 3, it is held that
plaintiff is not entitled for any order of temporary injunction as prayed.
In consequence this Notice of Motion is liable to be dismissed and
following order is passed.
ORDER
1. The interim relief in terms of prayer clause (a) in the notice of
motion No.1628/2020 is dismissed.
2. The Notice of Motion No.1628/2020 is disposed off.
(Smt. S.G.Shaikh)
Date 18/11/2021 Judge,City Civil Court,
Gr.Mumbai.
Dictated on : 18/11/2021
Typed on : 18/11/2021
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/11/2021 05.30 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
18/11/2021
JUDGMENT/ORDER signed by
P.O.on
18/11/2021
JUDGMENT/ORDER uploaded on 18/11/2021
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