Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M Nos.2118/19 in Suit No.1412/19
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.2118 OF 2019
(CNR NO. MH CC010058762019)
IN
LONG CAUSE SUIT NO.1412 OF 2019
(CNR NO. MH CC010055722019)
Mr. Dinesh Changanlal Solanki ].. Plaintiff.
V/s.
1 The Mumbai Municipal Corporation ]
and two others. ]..Defendants
Advocate Mr. Satish Kumbhar for the plaintiff.
Advocate Mr. Suryawanshi for defendant nos.1 and 2.
None present for defendant no.3.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 28th AUGUST 2019
ORDER
This Notice of Motion has been taken out by the plaintiff
for restraining the defendants temporarily from taking any action of
demolition pursuant to the final order dated 24.05.2019, passed by the
Corporation.
2 In support of notice of motion, the plaintiff has filed
affidavit and reiterated the statements made in the plaint.
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2 N/M Nos.2118/19 in Suit No.1412/19
3 Defendant nos.1 and 2 have filed reply by filing affidavit of
Shri Anil Bhambu Pawar, working as Colony Officer and he has stated
that for want of notice under section 527 of the Bombay Municipal
Corporation Act, the suit is liable to be dismissed. The plaintiff is
eligible for commercial structure admeasuring 4 X 3 sq. meters, which
having entry at Serial 452 in Demand Register of these defendants. The
plaintiff is also eligible for residential structure and also got the
possession of newly constructed premises situated at Sanyukta Eakjute
CoOperative Housing Society and residing therein since more than one
year and it is admitted by the plaintiff in paragraph no.3 of the plaint.
4 It is contended that the concerned officer of the defendants
has prepared AnnexureII and inserted the name of the plaintiff in it for
both the structures at serial nos.330 and 331. Therefore, the plaintiff
did not have any right to protect the suit structure. The commercial
structure of the plaintiff is situated inside at the corner of the residential
structure and therefore, the plaintiff is misleading the Court and trying
to protect residential as well as commercial structure. The Sanyukta
Eakjute CoOperative Housing Society has issued a letter to the
Assistant Commissioner of F/N Ward that the permanent alternate
accommodation already handed over to the plaintiff. But still he did
not vacate the residential premises. The said society has also issued
letter to the Colony Officer of these defendants and mentioned therein
that small portion of commercial structure is situated within the
residence of the plaintiff at serial no.17. The said letter is dated
21.08.2018.
5 It is further contended this defendant finalized the
AnnexureII and the plaintiff is eligible for commercial structure
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3 N/M Nos.2118/19 in Suit No.1412/19
admeasuring 4 X 3 sq. feet. The plaintiff has failed to make out prima
facie case. The permanent alternate accommodation is allotted to the
plaintiff in respect of both the structures. Hence, prayed for dismissal of
notice of motion with compensatory costs.
6 The plaintiff has filed rejoinder to affidavit in reply,
wherein he has averred that his old residential premises was Room
No.209, D/54/5/7, Adarsha Nagar Zopadi Sangha, Katrak Road,
Wadala Market, Mumbai, He has stated regarding AnnexureII and
Supplementary AnnexureII disclosing his eligibility at serial no.330 for
residential.
7 It is averred that he has given consent on 21.08.2008 for
demolition of the said premises and the said premises has been
demolished by the Mumbai Municipal Corporation. After handed over
the said premises the developers provided alternate accommodation in
Transit Camp No.1, Room no.05 behind Wadala Market, Katrak,
Wadala, Mumbai in lieu of old premises. Thereafter, the developers
and society were handed over the flat to him at newly constructed
premises at Sanyukta Eakjute CoOperative Housing Society, Room
no.908, AWing, 9 th floor, Shri Bhairavnath Mandir Road, Katrak Road,
Wadala, Mubai. The impugned final order has been issued by the
Mumbai Municipal Corporation on 24.05.2019 is in respect of old
residential premises, which was already demolished by the Mumbai
Municipal Corporation.
8 It is further averred that he has one commercial shop
bearing D/54/4/7 Adarsha Nagar Zopadi, Sangha Kartak Road, Wadala
Market, Mumbai. He is in use, occupation and possession of the said
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shop since 1992 years and running his business in the name M/s.
TWINKLE STORES and he has stated about the license issued in the
year 1999, rent receipt issued by MMC, AnnexureII, Supplementary
AnnexureII, Photographs of the said shop and further, he has stated
that his eligibility decided for commercial at serial no.331 of
AnnexureII.
9 It is further averred that the Mumbai Municipal
Corporation collusion with the developers and the society has passed
final order in respect of the old premises room no.209, D/54/5/7 and it
is contrary to judicial norms as laid down under provision of Mumbai
Municipal Corporation Act as well as a Maharashtra Slum Act. Hence,
prayed for allowing notice of motion.
10 Heard the learned advocate for the plaintiff and the learned
advocate for defendant nos.1 and 2.
11 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
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5 N/M Nos.2118/19 in Suit No.1412/19
3 To whom irreparable loss would be
caused, if this notice of motion is
allowed ?
To the
Defendant
4 What Order ? As per final Order
R E A S O N S
12 The present suit has been filed by the plaintiff for
challenging the final order dated 24.05.2019 passed by the corporation
and accordingly, filed this notice of motion for seeking relief of
temporary injunction. Prima facie, it appears that the plaintiff, at
present is residing at room no.908, 9th floor, Shri Bhairvnath Mandir
Road, Katrak Road, Wadala West, Mumbai. Admittedly, as per the
certificate AnnexureII, the plaintiff's residential premises was held
eligible and he has been declared as eligible at serial no.330 for
residential premises in Annexure II dated 08.03.2006. Admittedly,
supplementary AnnexureII dated 07.12.2006 was prepared. According
to the plaintiff, he has given consent for demolishing the old residential
premises. Further, according to him, after handing over the old
premises to the developers, the developers were provided alternate
accommodation in Transit Camp No.1, Room no.05 behind Wadala
Market, Katrak, Wadala, Mumbai in lieu of old premises. Further,
according to the plaintiff, supplementary annexureII in respect of
commercial shop no.331 was challenged in Writ Petition No.1472
Stamp 1472 of 2019 and now the defendants have passed final order on
24.05.2019. Prima facie, it appears, annexureII in respect of
commercial shop at serial no.331 is under challenge and not residential
premises at serial no.330. The plaintiff has tendered documents in
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respect of commercial shop D544/5/7 and filed photograph of the said
structure.
13 The defendants have filed on record copy of Demand
register in respect of eligibility of the plaintiff for commercial structure
admeasuring 4 X 3 sq. feet. The plaintiff is in the possession of
residential structure in newly constructed premises. Further, the
defendants have filed copy of AnnexureII showing entitlement of the
plaintiff in respect of residential and commercial structure at serial
nos.330 and 331. According to the defendants, the plaintiff is
misleading the Court and trying to protect residential as well as
commercial structure because it is situated inside at the corner of
residential structure admeasuring 4 X 3 sq. feet. In this background, the
defendants have filed letter dated 06.05.30299 issued by Sanyukta
Ekjut Cooperative Housing Society to the Assistant Commissioner of
F/N Ward . It appears prima facie that the plaintiff is residing in the
newly constructed building of the society and society has specifically
informed that the plaintiff has not vacated his earlier residential
structure. Further, even the said society of the plaintiff has issued letter
to the Colony Officer of the defendants on 21.08.2018 disclosing the
fact that in his residential area there is small commercial gala. It is
pertinent to note that the defendants have not denied that these
defendants have finalized the AnnexureII and the plaintiff is eligible for
commercial structure admeasuring 4 X 3 sq. feet. It is to be noted that
the plaintiff has not filed any document to show that when he handed
over the possession of his residential premises, as alleged and on what
date it was demolished. Therefore, prima facie, in the absence of
evidence by the plaintiff in respect of handing over the possession of old
residential premises, it is believable and acceptable, in view of letters
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7 N/M Nos.2118/19 in Suit No.1412/19
issued by the society of the plaintiff that the plaintiff has not vacated
residential premises.
14 In the above circumstances, it appears that the defendants
have issued notice dated 24.05.2019, considering the fact that the
plaintiff has taken possession of flat no.908 in lieu of his old residential
premises, in view of his eligibility decided in AnnexureII at serial
no.330. Thus, prima facie, notice issued by the defendants to the
plaintiff is legal.
15 The learned advocate for the defendants have placed his
reliance in Ramesh G. Karani and others V/s. Slum Rehabilitation
Authority and others reported in Special Leave to Appeal (C) No.
12332/2019 and M/s. Sumer Corporation V/s. State of Maharashtra
reported in Notice of Motion No.542/2011. With respects principle
held in the authorities cited is guideline. Thus, in view of above
discussion, I have no hesitation to hold that the plaintiff has failed to
establish prima facie case. Hence, I answer point no.1 in the negative.
AS TO POINT NOS.2 AND 3;
16 Now the plaintiff is residing in newly constructed building
at flat no.A/908. Then, it is incumbent upon the plaintiff to hand over
the possession of old premises against which he has received the new
premises. Therefore, I hold that balance of convenience is not tilted in
favour of the plaintiff and it is lying in favour of the defendants. If this
notice of motion is allowed, irreparable loss would be caused to the
defendants. Hence, I answer point nos.2 and 3 accordingly.
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17 In the light of my above discussion and findings as to points
this notice of motion is to be dismissed. With this, I proceed to pass the
following order:
ORDER
Notice of Motion No.2118 of 2019 is hereby dismissed with costs
2. Notice of Motion No.2118 of 2019 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 28/08/2019. City Civil Court,
Gr. Bombay.
Dictated on : 28/08/2019
Transcribed on : 28/08/2019
Signed on : 28/08/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29/08/2019 At 2.05 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
28/08/2019
Judgment/Order signed by P.O. on 28/08/2019
Judgment/Order uploaded on 29.08.2019
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10 N/M Nos.2118/19 in Suit No.1412/19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
14/06/2019 At 2.55 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
13.06.2019
Judgment/Order signed by P.O. on 14.06.2019
Judgment/Order uploaded on 14.06.2019
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