Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.2171/19 (LCS No.1359/19)
MHCC010060352019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.2171 OF 2019
IN
LONG CAUSE SUIT No.1359/2019
Mr. Sharad s/o. Shripati Nalawade … Plaintiff
- Versus -
Municipal Corporation of
Greater Mumbai ... Defendant
Appearance :-
Mr. Pathak with Mr. Kudalkar, Advocates for plaintiff.
Mr. Om Suryavansi, Advocate for defendant/M. C. G. M.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 21/12/2023.
O R D E R
. This suit is for declaration that the plaintiff is lawful
allottee of Room No.321, 3rd floor, B-Wing, building No.61, Panhal Gadh
C.H.S.L., Lallubhai Compound, near Municipal Colony, Mankhurd,
Mumba (in short “suit structure”), further for declaration that notice
dated 3/6/2019 is bad-in-law and illegal and for perpetual injunction
restraining defendant B. M. C. from dispossessing or vacating the
plaintiff from suit premises and the plaintiff has taken out present
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Notice of Motion under Order-XXXIX Rule-1 of The Code of Civil
Procedure (in short the C. P. C.) for temporary injunction.
2] In short, it is case of the plaintiff that suit structure has
been allotted to him in lieu of his old structure i.e. hut No.34, Bhartiya
Indira Nagar, Jay Shankar Yadnik Marg, Matunga (E), Mumbai (in short
‘said hut’), which is demolished by defendant B. M. C. The plaintiff was
in possession of said hut since last many years. The plaintiff is having
ration card at the address of said hut. Number of said hut has been
shown in notice issued to the plaintiff by Assistant Commissioner,
B.M.C. The said hut was on a footpath, therefore, same was required to
be removed under the policy of M. C. G. M. and the State Government.
The Corporation has issued notice under Section 314 of The Mumbai
Municipal Corporation Act (in short the M. M. C. Act) to produce
documents prior to 1/1/1995 for deciding eligibility. The plaintiff has
submitted documents in F/North ward of the B. M. C. and after
verifying the documents the plaintiff was held eligible for an alternate
accommodation. Then, the Corporation issued allotment letter dated
7/5/2010 and allotted suit premises to the plaintiff as permanent
alternate accommodation. Accordingly, the plaintiff was put in
possession of suit premises.
3] The plaintiff is having ration card, Aadhhar Card, electricity
meter at the address of suit premises. The plaintiff is in continuous
possession of suit premises since October 2010. However, on 29/9/2016
the officer of the B. M. C. alongwith two security guards told the
plaintiff that he is residing there unauthorizedly and threatened to
remove the plaintiff immediately. Therefore, the plaintiff construed to
file this suit and took out present Notice of Motion.
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4] It is further stated that suit premises has been allotted to
the plaintiff and, therefore, without taking action under Section 105B of
the M. M. C. Act the B. M. C. cannot dispossess the plaintiff, who is in
legal possession. The plaintiff had filed Long Cause Suit No.2550/2016
in which compromise was taken place and the B. M. C. made a
statement that the Corporation shall not evict the plaintiff without
following due process of law. Accordingly, suit came to be disposed of as
withdrawn on 14/7/2018. Then the Corporation issued notice dated
3/6/2019 that documents submitted by the plaintiff in Long Cause Suit
No.2550/2016 are fake and fabricated and the plaintiff is in
unauthorized possession of notice structure and directed the plaintiff to
vacate suit premises within 7 days, otherwise, the Corporation will
initiate action under Section 105B of the M. M. C. Act. Therefore, the
plaintiff filed this suit challenging notice and declaration.
5] Defendant B. M. C. opposed Notice of Motion by filing
reply dated 19/6/2023. At the outset, it is stated that suit is not
maintainable for want of statutory notice under Section 527 of the
M.M.C. Act. Notice is executive or administrative act or order and same
is not open to challenge in the Court of law. The plaint discloses no
cause of action. The plaintiff has not give description of property to
identify it hence suit is liable to be dismissed under Order-VII Rule-3 of
the C. P. C. It is further contended that the plaintiff is claiming
possession of suit premises which is owned by the B. M. C. on the basis
of fake and fabricated documents.
6] It is further contended that on 1/11/2011 the M.M.R.D.A.
handed over possession of tenements on 1 to 5 floors of building No.
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61/B to Administrative Officer, M/East Ward for providing said
tenements to Project Affected Persons.
7] It is further contended that after receiving copy of the
plaint the defendant B. M. C. checked record with office and surprised
to see that suit premises has not been allotted to anyone and possession
is with the Corporation. The keys of suit premises is lying at the office of
B. M. C. The plaintiff is not possession of suit premises. Defendant
wrote letter to Assistant Engineer, Maintenance, F/North for submitting
allotment letter and possession receipt in respect of suit premises for
verification. The Assistant Engineer, Maintenance, vide letter dated
6/3/2023 informed that allotment letter and possession receipt has not
found in office record.
8] It is further stated that the B. M. C. has never given NoC for
transferring electricity meter. The allotment letter and possession letter
submitted by the plaintiff are fake and bogus. The plaintiff is not a
Project Affected Person (P. A. P.) and suit premises has not been allotted
to the plaintiff. The plaintiff is claiming possession over suit premises on
the basis of fake and fabricated documents and, therefore, the plaintiff
is not entitled for the equitable relief of injunction. The plaintiff
fabricated allotment letter and possession receipt and same amounts
interference of justice and the plaintiff is liable to be punished under
Section 192 of The Indian Penal Code. On these grounds, defendant
B.M.C. prayed for dismissal of Notice of Motion.
9] Points for determination alongwith findings thereon for the
reasons are as under :-
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Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out
prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No. 1 TO 3 :-
10] The plaintiff filed written notes vide exhibit-5 and
reiterated contentions in Notice of Motion. Advocate for the plaintiff
relied upon documents
viz. copies of ration card, election card, notice
dated 7/5/2008, letter dated 7/5/2008, possession receipt,
maintenance receipt, share certificate, electricity bill, Aadhhar Card,
L.I.C. policy, possession receipt, PAN card, passport, impugned notice,
reply etc.
11] Learned advocate for the plaintiff submitted that the
plaintiff was in possession of structure situated at hut No.34, Bhartiya
Indira Nagar, Jay Shankar Yadnik Marg, Matunga (E), Mumbai which
was situated on a footpath and the Corporation had issued notice under
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Section 314 of the M. M. C. Act and called upon the plaintiff to submit
documents, for deciding eligibility for alternate accommodation.
Accordingly, the plaintiff submitted documents. It is further submitted
that the Corporation has arranged lottery for allotment of alternate
accommodation and, accordingly, the Corporation allotted suit premises
to the plaintiff as a permanent alternate accommodation in lieu of his
old structure and also issued possession receipt. It is further submitted
that the plaintiff is in possession of old structure since last many years.
The plaintiff is having maintenance receipt, electricity bill, PAN Card,
Aadhhar card, gas connection etc. at the address of suit structure.
12] It is further submitted that the plaintiff is in possession of
old structure since last many years however, the officer of the
Corporation threatened to dispossess the plaintiff without issuing any
notice and, therefore, the plaintiff has filed this suit for injunction and
taken out Notice of Motion. It is further submitted that a person in
possession cannot be dispossessed without following due process of law
and in the case on hand, the plaintiff is in lawful possession of suit
structure. Therefore, the plaintiff is entitled for temporary injunction as
prayed. It is further submitted that the documents relied by the plaintiff
cannot be stated to be forged and fabricated at this primary stage and
after recording evidence the Court can decide whether documents are
genuine or fake or fabricated and till then the plaintiff is entitled for
protection.
13] On the other hand, learned advocate for the Corporation
submitted that the documents submitted by the plaintiff are fake and
fabricated. The defendant B. M. C. has not allotted notice structure to
the plaintiff as a project affected person. The impugned notice at
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exhibit-N to the plaint and allotment letter exhibit-C to the plaint are
fake and fabricated and on the basis of false and fabricated documents
the plaintiff is claiming right over suit structure. It is further submitted
that as per record of the B. M. C. notice structure is not allotted to
anybody and same is in possession of the Corporation. It is further
submitted that the plaintiff fabricated documents i.e. allotment letter
and possession receipt and filed the suit. Therefore, action be taken
against the plaintiff as per the provisions of Section 340 of the Cr. P. C. It
is further submitted that the plaintiff has not come to the Court with
clean hands and is not entitled for relief of temporary injunction.
14] The plaintiff has taken out this Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 of the C. P .C. Plaintiff
is are seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a
prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
15] The plaintiff sought relief of declaration that the plaintiff is
a lawful allottee of suit premises and further sought relief of perpetual
injunction and taken out present Notice of Motion for temporary
injunction restraining defendant B. M. C. from dispossessing or
removing him from suit premises. It is contention of the plaintiff that he
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is lawful allottee of suit premises. The Corporation has allotted suit
premises to the plaintiff as permanent alternate accommodation in lieu
of hut No.34 situated at Matunga (E). The Corporation has denied that
the plaintiff is a lawful allottee of suit premises and also denied that the
Corporation has issued allotment letter or possession receipt. It is
further case of the Corporation that allotment letter and possession
receipt produced the plaintiff is fake and fabricated. In that case, the
initial burden lies upon the plaintiff to prove that he is a lawful allottee
and in legal possession of notice structure. In support of this, he relied
upon photocopy of notice alleged to be issued by B. M. C. under Section
314 of the M. M. C. Act and allotment letter. It is important to note here
that the allotment letter exhibit-C to the plaint appears to be issued on
7/5/2010. Interestingly, in the said allotment letter dated 7/5/2010 it is
mentioned that suit premises has been allotted to the plaintiff as per
lottery conducted on 10/5/2010. I do not understand how suit premises
has been allotted on 7/5/2010 when lottery has been conducted on
10/5/2010. Further the possession receipt appears to have been issued
on 10/5/2010 however, date below signature of the concerned officer
on the photograph is mentioned as 10/4/2010 which is in Marathi and
English i.e. 10@4@10. In the circumstances, I find substance in the
submissions of defendant that the allotment letter relied by the plaintiff
is false and fabricated. The plaintiff has not produced Annexure-II
prepared by the M. C. G. M. to support his contention that he is a P. A. P.
Thus, I hold that the plaintiff failed to establish that he is a lawful
allottee and in legal possession of suit premises.
16] The plaintiff is seeking relief of declaration that notice
dated 3/6/2019 issued by B. M. C. be declared as null and void. It is
case of the plaintiff that in previous Long Cause Suit No.2550/2016 a
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statement was made by advocate for B. M. C. that the plaintiff will not
be evicted without following due process of law and said suit was
withdrawn on 14/7/2018. The plaintiff has replied show cause notice.
However, there is no pleading as to how the impugned notice dated
3/6/2019 is illegal, inoperative and without jurisdiction. By the said
notice, defendant B.M.C. informed the plaintiff that the document
submitted by him in earlier Suit No.2550/2016 are false and fabricated
and further directed him to vacate suit premises within 7 days,
otherwise, action under Section 105B of the M. M. C. Act will be taken
for evicting the plaintiff. As per Section 105B of the M. M. C. Act the
Commissioner has power to evict the person who is in unauthorized
occupation of the premises of the Corporation. Thus, Section 105B of
the M. M. C. Act empowers the Commissioner to evict a person who is
in unauthorized possession of the premises of the Corporation. In the
case on hand, it is not disputed that suit premises has been allotted to
the M. C. G. M. by the M. M. R. D. A. for allotting the same to the
P.A.P.s. The plaintiff has failed to establish that he is in lawful possession
of notice structure. It is well settled that an injunction cannot be
granted against true owner. The Hon'ble Apex Court in the case of
Padhiyar Prahladji Chenaji (Deceased) Through L.R.s Versus Maniben
Jagmalbhai (Deceased) Through L.R.s. and Ors. [2022 LiveLaw (SC)
241] observed that, “
Injunction may be granted even against the true
owner of the property, only when the person seeking the relief is in
lawful possession and enjoyment of the property and also legally
entitled to be in possession, not to disposses him, except in due process
of law”.
17] In the case on hand, the Corporation is having right, title
and interest over suit property. The plaintiff has failed to prove his
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lawful possession. The person who is in possession of immovable
property is entitled to protect his possession if said person is in lawful
possession and it must be with the knowledge of owner. However, in
this case, the plaintiff failed to prove his lawful possession. The
documents relied by the plaintiff appears to be doubtful. Thus, I hold
that the plaintiff is not entitled for the relief of temporary injunction as
prayed. Learned advocate for the plaintiff relied on the judgment of the
Hon'ble High Court in the case of G. J. Kanga, ADM. Of Municipal
Corpn., Greater Bombay and another vs. S. S. Basha [1992 Mh.L.J.
1573] to submit that the order passed in administrative capacity which
involves civil consequences cannot be made without hearing to a party
to dispute and opportunity of hearing must be given. However, the facts
of the case and the facts of the judgment relied by the plaintiff are not
identical. In the case on hand, by notice dated 3/6/2019 it is intimated
that if the plaintiff has not evicted suit premises action under Section
105B of the M. M. C. Act would be taken. As such, there is no allegation
that the Corporation threatened to evict the plaintiff without following
due process of law. The Corporation cannot be restrained from
following due process of law under Section 105B of the M. M. C. Act.
The plaintiff has not established
prima facie how the notice dated
3/6/2019 is bad-in-law and illegal. In the circumstances, I hold that the
plaintiff has not made out case for grant of interim relief as prayed.
Accordingly, I answer points No.1 to 3 in the negative and in answer to
point No.4 following order is passed :-
O R D E R
Notice of Motion is dismissed.
Date : 21/12/2023. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
26/12/2023 01:20 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 21/12/2023
ORDER Typed on 22/12/2023
ORDER signed by P. O. on 26/12/2023
ORDER uploaded on 26/12/2023
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