Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M Nos.2084/19 in Suit No.1340/19
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.2084 OF 2019
(CNR NO. MH CC010058122019)
IN
L.C. SUIT NO. 1340 OF 2019
CNR NO. MH CC010049102019)
M/s. Atlantic Construction Company ].. Plaintiff.
V/s.
1 The Commissioner and three others ]..Defendants
Advocate Mr.Shivaji Yadav for the plaintiff.
Advocates Ms. Subhedar for defendant no.1.
Advocate Mr. Sushil Matkar for defendant no. 2.
Advocate Mr. Trivedi for defendant no.3.
Advocate Mr. Kudalkar for defendant no.4.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 8TH NOVEMBER 2019
ORDER
This Notice of Motion has been taken out by the plaintiff
for restraining defendant nos.1 to 4 temporarily from interfering in the
implementation of Slum Rehabilitation Scheme under DCR 33(10) by
demolishing structures and taking possession of any portion of suit
property for doing the construction work of Metro rail project4, Wadala
to Kasarvadavali.
2. In support, the plaintiff has filed affidavit of Authorized
Signatory Mr. Jayesh S. Pimple. In his affidavit, he has adopted
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2 N/M Nos.2084/19 in Suit No.1340/19
statements averments made in the plaint as a part of his affidavit.
3. Defendant no.1 has filed affidavit in reply of Tahasildar
Mr. Ganesh Sangale. It is contended that to improve the traffic and
transportation system in Region and to provide Mass Rapid Transport
(MRT System) defendant no.1 has prepared the Mumbai Metro Master
Plan. Due to insufferable traffic conditions, accidents on Mumbai
Suburban Railway system and commuting hardships, the State
Government of Maharashtra contemplated development of Metro
network in the city of Mumbai. Considering the importance of the said
Metro rail Projects and the need to develop the same in a wellplanned
and timebound manner, the Government of Maharashtra (GOM) has
appointed defendant no.1 MMRDA, as project implementing agency for
the construction of the Metro Rail Network in the Mumbai Metropolitan
Region under Metro Railway Act (Amendment) 2009.
4. It is further contended that Metro Line 4 is to be completed
by December 2021. About 50% of the funds required for both the
Projects will be availed by multilateral loans. As per MCGM's DCR
2034, any alignment, modifications introduced in Metro/Mono/Coastal
Road/ Elevated Corridors/corridors of Mass & Rapid Transport System,
including BRTS, by the appropriate authority and sanctioned by the
Government, shall stand automatically amended on the Development
Plan as modified.
5. It is further contended that to implement the Metro Rail
Project expeditiously, several pieces of land are required to build the
allied project activities, such as car depots, casting yards etc. in the
vicinity. For the implementation of the Metro Rail Line 4 project, a
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portion of the suit property is required. Part of the scheme which is
affected by the project is as shown in the Map. In order to implement
the Metro Rail Line 4 project, Baseline Survey was carried out in
OctoberDecember 2017 and nearly 148 structures were found to be
affected by the Metro Rail Line 4. As per the R & R policy, the project
affected persons (PAP) will be rehabilitated at Kanjurmarg Rehab
Building with each PAP getting about 269 sq. feet of tenement free of
cost. Accordingly, Notices were issued by the Additional Collector2 to
the affected persons vide letters in April 2019. Public Notice inviting
them to a meeting to be held on 09.04.2019. In the Public meeting held
on 19.06.2018, the alignment and Metro Line 4 plan along with policy
rehabilitation was explained and discussed with the attending PAPs.
None of the PAPs have objected to the shifting and obtaining
rehabilitation tenements at Kanjurmarg. Out of 148 PAP's, 134 PAP's are
eligible and out of 134, 115 PAP's have been allotted tenements at
Kanjurmarg and are shifted there, as per the table annexed and marked
ExhibitB. MMRDA required the land for public purpose, which has
been sanctioned by the State Cabinet. The suit property is Government
land. It is an admitted fact, in the pleadings that the land belongs to
defendant no.4.
6. It is further contended that the plaintiff has no locus standi
visavis to the suit property. The documents produced by the plaintiff
do not indicate any permission given by defendant no.3. The plaintiff
has only produced documents, which are at the most applications under
the consideration of defendant no.3. Defendant no.3 has not granted
any Letter of Intent (LOI) to the plaintiff and no plan has been
approved. No construction work is being carried out by the plaintiff.
The Metro Plan has been finalized and all the necessary permission and
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approvals have been granted by the Government of Maharashtra. The
plaintiff has no claims, right, title in the suit property. The Metro
projects will be held up, if suit property is held up in litigation, causing
huge loss to the exchequer and public funds. Delay in obtaining the suit
property will have a cascading effect on the construction program of
Metro Line 4 and will adversely affect its viability and have adverse
financial implications on public funds.
7. It is further contended that the balance of convenience is
lying against the plaintiff. The plaintiff has failed to make out prima
facie case for grant of temporary injunction. This notice of motion and
suit is misconceived, untenable and unsustainable. Hence, prayed for
dismissal of notice of motion.
8. Heard the learned advocate for the plaintiff and the learned
advocate for defendant no. 1 at length.
9. The following points arise for my determination. I have
recorded points and findings thereon alongwith the reasons are as
follows:
Sr.
No.
POINTS FINDINGS
1. Whether the plaintiff has established
prima facie case ?
In the
Negative
2. Whether balance of convenient lies in
favour of the plaintiff ?
In the
Negative
3. To whom irreparable loss would be To the
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caused, if this notice of motion is not
allowed ?
Defendant no.1
4. What Order ? As per final Order
R E A S O N S
10. Perused documents tendered by the plaintiff and defendant
no.1. Admittedly, MMRDA, is project implementing agency for the
construction of the Metro Rail Network in the Mumbai Metropolitan
Region under Metro Railway Act (Amendment) 2009 and its Special
Planning Authority for implementation of various projects including the
Metro Line 4 (WadalaGhatkoparMulundThaneKasarwadavali of 32
km) project. Admittedly, the State of Government of Maharashtra has
approved the Metro Line4 project vide GR dated 25.10.2016 and it has
been declared that the same to be a Vital Urban Transportation Project
and “Public Project of Urgency”.
11. According to defendant no.1, Metro Line 4 project is to be
completed by December 2021 and about 50% of the funds required for
both the Projects will be availed by multilateral loans. Further, it is not
denied by the plaintiff that as per MCGM's DCR 2034, any alignment
modifications introduced in Metro/Mono/Coastal Road/Elevated
Corridors/corridors of Mass & Rapid Transport System, including BRTS,
by the appropriate authority and sanctioned by the Government shall
stand automatically amended on the Development Plan as modified.
12. In this background, according to defendant no.1, for the
implementation of the Metro Rail Line 4 project, a portion of the suit
property is required and in order to implement the Metro Rail Line 4
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project, Baseline Survey was carried out in OctoberDecember 2017 and
nearly 148 structures were found to be affected by the Metro Rail Line
4. Further, according to defendant no.1, as per the R & R policy, the
project affected persons (PAP) will be rehabilitated at Kanjurmarg
Rehab Building with each PAP getting about 269 sq. feet of tenement
free of cost.
13. Now it is for the plaintiff to establish primafacie case. The
plaintiff has to prove its locusstandi visavis to the suit property. The
plaintiff has come before the Court being developer of defendant no.2.
Defendant no.2 is a society formed under Slum Rehabilitation Scheme
situated on CTS No.194(Part). According to the plaintiff, as per the
policy of the Government the said structure holders are entitled for their
rehabilitation under DCR 33(10). The slum dwellers having structures
on the suit property has appointed the plaintiff as their builder and
developer for rehabilitation of the slum dwellers by constructing a
building on the suit property as per provisions of DCR 33(10). The
Slum Rehabilitation Scheme is submitted by the plaintiff and defendant
nos.2 and 3, in the year 2016 under DCR(10) for rehabilitation of slum
dwellers on the suit property. Defendant no.3 has issued their respective
NOCs. Further, according to the plaintiff, the suit property is in the
possession of the plaintiff and the society jointly for construction of
tenements. The plaintiff has started shifted the slum dwellers from the
suit property in the month of February 2019 and they have already
shifted 39 numbers of slum dwellers. The plaintiff has submitted slum
map, GIS Survey map, building plans, layout plans, triangulation plans
to defendant no.3 in respect of the suit property for getting the building
plans sanctioned from defendant no.3.
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7 N/M Nos.2084/19 in Suit No.1340/19
14. In this background, it is to be noted that it is not the case of
the plaintiff that at any point of time defendant no.3 has granted the
plaintiff Letter of Intent (LOI). Further, the plaintiff has not filed on
record approved plan sanctioned by defendant no.3. The plaintiff has
filed on record letter dated 04.11.2019 issued by the Executive
EngineerIII, Slum Rehabilitation Authority to the plaintiff. It discloses
that the Executive EngineerIII, Slum Rehabilitation Authority
principally accepted S.R. Scheme through Architect of the plaintiff for
the suit property, but it till subject to final outcome of Writ Petition
No.1152/2002 and with three conditions. I would like to mention that
the plaintiff has not primafacie proved that the plaintiff has made
compliance all three conditions mentioned in the letter dated
04.11.2019. No doubt, three months time has been granted, but while
coming before the Court for seeking injunction, it is for the plaintiff at
least, how the plaintiff has made compliance of the said necessary
documents.
15. Further, it appears that the plaintiff has not proved on
record by producing documents that the plaintiff had already shifted 39
slum dwellers in February 2019. Besides, the plaintiff has filed on
record letter dated 05.04.2019 issued to Slum Dwellers by the
Additional Collector2 of defendant no.1 informing that MMRDA
wanted to do the work of Metro rail project no.4, Wadala to
Kasarvadavali and for that purpose has called them for discussion on
09.04.2019. It reveals from the reply filed by defendant no.1 that after
the said meeting, discussion has been taken place and project affected
persons have not objected the shifting and obtained Rehabilitation
tenements at Kanjurmarg. Defendant no.1 has filed on record Exh.B to
the reply showing eligible and noneligible of Savirtibai Phule Nagar
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SRA CHS Ltd. Members, in respect of being project affected persons. It
appears that out of total 148 project affected persons 134 are eligible
and out of 134, 115 project affected persons have been allotted
tenement at Kanjurmarg and they are shifted as per the table.
16. It is argued by advocate for defendant no.1 that remaining
project affected persons will be shifted on 11th or 12th November 2019. I
would like to mention that the plaintiff has not filed affidavit of any
person disclosing the fact that the plaintiff has shifted said person from
the suit property in view of S.R. Scheme. Basically, at this stage,
without Letter of Intent, the plaintiff has no right, title and interest in
the suit property.
17. The plaintiff has come before the Court, in view of notice
issued by the Deputy Collector to Mumbai Metro Rail 4 dated
05.11.2019, but in view of above facts, defendant no.1 has issued notice
in compliance of legal procedure under project. Further, in view of
amended provisions of 41(ha) Specific Relief Act also, the plaintiff has
no right to seek injunction to cause delay in the progress or compliance
of the public project.
.
18. On the other hand, it seems that because of plaintiff's
objection, project will be affected adversely. It appears that Baseline
Survey was carried out in OctoberDecember 2017, but none of the
project affected persons or the plaintiff have objected the same.
Considering GR dated 30.06.2018, Notification of the Government of
Maharashtra dated 30.06.2018, this act of the plaintiff is nothing, but
causing hurdle in implementation of this huge Metro Rail Line4 project
and which is to be completed by December 2021. None from defendant
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no.2 has supported to the plaintiff. Therefore DP remarks and DP Plan
tendered by the plaintiff is of no use in support of the case of the
plaintiff. Thus, I have no hesitation to hold that the plaintiff has failed
to establish primafacie case, in its favour. Hen ce, I answer point no.1 in
the negative.
AS TO POINT NOS.2 AND 3;
19. So far balance of convenience is concerned, considering
Multi lateral loan obtained for completion of the project and mandate to
complete the project by December 2021 and considering intention of
Government with regard to Metro Rail Project4, I am inclined to hold
that the balance of convenience is lying in favour of defendant no.1. If
this notice of motion is allowed, irreparable loss would be caused to the
defendant no.1 and public at large. Hence, I answer point nos.2 and 3
accordingly.
20. In the light of my above discussion and findings as to points
nos.1 to 3, this notice of motion is to be dismissed. With this, I proceed
to pass the following order:
ORDER
1. Notice of Motion No.2084 of 2019 is hereby dismissed
with costs.
2. Notice of Motion No.2084/2019 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 08/11/2019. City Civil Court,
Gr. Bombay.
Dictated on : 08/11/2019
Transcribed on : 13/11/2019
Signed on : 18/11/2019
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10 N/M Nos.2084/19 in Suit No.1340/19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20/11/2019 At 4.46 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
08.11.2019
Judgment/Order signed by P.O. on 18.11.2019
Judgment/Order uploaded on 20.11.2019
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