Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 L.C.S. No.1260/2018 [J]
MHCC010061132018 Presented on : 04.05.2018
Registered on : 05.05.2018
Decided on : 15.11.2025
Duration : 7Y 06M 11D
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
L.C. SUIT NO.1260 OF 2018
EXHIBIT NO.63
Shakti Jaising Rane.
Age 68 years, of Mumbai, Indian
Inhabitant, residing at Shakti Rane
House, Opposite building no.14,
Tagore Nagar, Vikhroli (East),
Mumbai 400 083. …..PLAINTIFF.
: V E R S U S :
1. THE ASSISTANT COMMISSIONER
“S” Ward, Municipal Office Building,
Near Mangatram Petrol Pump, L.B.S.
Road, Bhandup (West), Mumbai
400 078.
2. The Superintendent of Garden,
“S” Ward, Municipal Office Building,
Near Mangatram Petrol Pump, L.B.S. Road,
Bhandup (West), Mumbai 400 078. …..DEFENDANTS.
APPEARANCE :
Mr. R.D. Thorat, Ld. Advocate for the Plaintiff.
Mrs. Sheetal Metakari, Ld. Advocate for the Defendants/MCGM.
**************
CORAM : V. R. JAGDALE
ADDL. JUDGE CITY CIVIL COURT,
COURT ROOM NO. 11.
DATED : 15.11.2025
J U D G M E N T.
01. The plaintiff has sought relief of declaration and perpetual
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injunction.
02. It is averred by the plaintiff that she is in exclusive use,
occupation and possession of plot of land admeasuring about 46 ft. x
400 ft., bearing Survey No.113 (Part), Hissa No.A-1, corresponding to
C.T.S. No.291, of Village-Hariyali, Taluka-Kurla and situated at Opposite
Building No.14 at Tagore Nagar, Vikhroli (East), Mumbai 400 083,
together with a structure admeasuring 17 ft. x 25 ft. made of B.M. Walls
with A.C. Sheets roof, bearing Census No. 1985/S/MS/1 (hereinafter
referred as “the suit property” for the sake of brevity).
03. The father of the plaintiff Jaysingh Patil during his lifetime
since 1950 onwards was cultivating the suit plot by growing vegetables
and plants thereon which was his only source of livelihood. After
demise of her father on 23.12.1980 plaintiff is cultivating the suit plot
which is her only source of livelihood. In order to protect the suit plot
she has constructed structure thereon in the year 1983 for the purpose
of residence and since than she is using and occupying the same as a
residential premises.
04. The plaintiff has obtained ration card in the year 1989 on
the address of premises. After scrutiny of documents submitted by the
plaintiff the structure is censused and she has been issued pitch holder
card.
05. In the year 1990 official of corporation had issued threat of
demolition of censused structure. Therefore, plaintiff had filed LC Suit
No.8774/1990 seeking injunction. In the above suit Order of adinterim
injunction was granted and suit was disposed of on 19.02.1997. The
plaintiff had made application to the water department which has
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provided connection and plaintiff is paying water bills thereof. But in
the communal rights of 1993 her structure was damaged and she had
made complaint 09.02.1993 and in pursuant to policy of State
Government she had carried out repairs in the month of March 1993.
06. M/s. Tata Electric Company through their Inspector issued
notice dtd.19.12.1996 alleging that structure is illegally constructed
below overhead electric line and same be removed. The plaintiff
addressed letter dtd.21.12.1996 informing that structure is in existence
from 1983 and same is censused.
07. As there was no fencing around the suit plot nuisance was
created by near by residents. Therefore, she had addressed letter
dtd.05.06.1999 to the defendant no.1 requesting them to take necessary
steps. Accordingly, defendant no.1 has put two gates on the suit plot
and keys of the gates are given to the plaintiff so as to enable her to use
the suit plot.
08. The plaintiff has also taken electricity connection to her
residential premises and is paying necessary charges. But on 08.04.1999
representatives of certain Bochanvashi Shree Akshar Purshottam
Sanstha has broken one of the gates and caused damage to the
cultivation by dumping debris. Accordingly plaintiff had addressed
letter dtd.18.04.1999 to the defendant no.1 thereby inquiring whether
any portion of the suit land was given to the above sanstha. She had
also lodged complaint on 08.04.1999 with Vikhroli Police Station as
attempt was made to construct room and install electric meter. The
defendant no.1 informed the plaintiff that they had not allotted or
handed over suit land to the above sanstha. But without inspection the
defendant no.1 in collusion with above sanstha allowed illegal work on
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the suit land. The BEST had refused to lay electric cable for the benefit
of above sanstha. But inspite of above fact defendant no.1 had issued no
objection for laying electric supply to the partly constructed structure.
The plaintiff had made complaint to the Vikhroli Police station
intimating that above sanstha has installed high power main switch on
the partly constructed structure. She had also addressed letter
dtd.31.05.1999 to BEST for removal of Electricity meter installed by the
above sanstha. On inquiry with BEST the plaintiff came to know that
above sanstha intend to put up Child Development Center and Garden
on the suit plot. Accordingly, plaintiff had addressed letter
dtd.01.10.1999 to the defendant no.2 seeking clarification whether
permission is given to the above sanstha to put up child development
center and garden on the suit plot.
09. The above plot is only source of livelihood of the plaintiff.
But the defendant no.1 in collusion with Tata Electric company and
above sanstha intend to construct illegal structure on the suit plot
without any requisite permission. On 07.04.2000 representative of the
above sanstha had directed the plaintiff to remove cenused structure
with intention to take possession of the suit land.
10. The plaintiff had visited the office of Collector 07.04.2000
who refused to disclose any information to her and ask her to remove
herself and structure from the suit land, failing which they would take
possession of suit land. The plaintiff had gone to Vikhroli Police Station
to lodge complaint but police failed to take her complaint.
11. The plaintiff in LC Suit No. 1747 of 2000 has already
obtained injunction against the above sanstha and others. The sanstha
being aggrieved had approached Hon’ble High Court and filed first
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appeal which was dismissed on 14.09.2005. Thereafter, the sanstha had
filed Patents Appeal before Hon’ble High Court which was also
dismissed on 13.12.2005. Being aggrieved the sanstha had approached
Hon’ble Supreme Court by filing SLP. which was also dismissed on
20.03.2006.
12. The plaintiff had addressed letter dtd. 01.02.2012,
requesting the Asst. Commissioner to levy tax/rent from the plaintiff.
The defendant no.1 tendered reply on 05.05.2012 informing her that
above land is owned by Govt. of Maharashtra and same is leased to M/s
Andhra Valley Power Supply Co.,alongwith Tata Hydro Electric Power
Supply Company Ltd., The plaintiff had also addressed letter
dtd.25.10.2012 to Collector Bhandup requesting permission for
Borewell Water for cultivating vegetables. She had also made
application to Sr. Inspector Shop and Establishment Department for
issuance of Shop of Establishment Certificate. Accordingly, the suit
premises was surveyed and plaintiff was directed to produce documents
of ownership within 7 days.
13. The plaintiff had also addressed letter dtd.30.03.2015 to
the Asst. Commissioner alongwith documents. The plaintiff had again
addressed letter dtd. 27.10.2015 to senior inspector, shops and
establishment department for issuance of shop and establishment
certificate in the name of “Rope Vatika Center, Nursery” who had issued
shop and establishment certificate in the name of “Shakti Rane Rope
Vatika Center, Nursery”. The plaintiff had also addressed letter
dtd.27.01.2016 to the Deputy Municipal Commissioner for carrying out
repair to the suit premises. But as there was no reply she had again
addressed reminder letter dtd.29.02.2016. She had also issued letter
dtd.29.01.2018 to Asst. Commissioner and letter dtd.12.02.2018 to
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Executive Engineer not to demolish or to destroy the vegetables planted
by her. But on 02.05.2018, the Superintendent of Gardens alongwith
her officer had visited the suit plot and threatened to create garden.
Hence, plaintiff has sought relief of declaration and perpetual
injunction.
14. The defendants have filed written statement vide Exh.5 and
denied all the adverse allegations made against them.
15. It is contended by the defendants that CTS NO.291
admeasuring 18000 sq. fts. owned by State Government is allotted to
M/s. Tata Hydro Electric Power Supply Co. Ltd. and the Andhra Valley
Power Supply Co., Ltd, who had decided to develop plot into a garden
after obtaining necessary permission from MCGM. Accordingly, MCGM
had appointed M/s. Balaji Infrastructure for development and
maintenance of above land. Accordingly, work order was issued to the
contractor to develop the plot.
16. The plaintiff is growing vegetables on the land which is
kept for playground and the Court has rejected the ad-interim relief as
there is no structure on the plot. The above plot of land is already
developed by the defendants and the structure mentioned by the
plaintiff is not situated on the developed garden plot. Therefore, the
defendants have no concern to follow DPL. The suit is bad for want of
notice under section 527 of the MMC Act and cause of action did not
accrue to file the suit and it be dismissed with costs.
17. My Learned Predecessor has framed issues on 03.08.2021
vide Exh.6 which are reproduced alongwith my findings thereon with
the reasons as under.-
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Sr. No. ISSUES FINDINGS
1. Does plaintiff prove that she is owner and
in possession of suit property ? In the negative
2. Does plaintiff prove that defendant
obstructed possession of plaintiff of the
suit property ? In the negative
3. Does the plaintiff is entitled for the reliefs
as sought ? In the negative
4. Whether the suit is bad for want of notice
under section 527 of MMC Act? In the negative
5. What order and Decree ? As per final order.
18. Apart from her oral evidence the plaintiff has relied upon
following documents :-
Sr.
No.
Particulars of documents Exhibit Nos.
1 Original Ration Card bearing No.281172 dated
20th March, 1989.
10
2 Original Pitch Holder’s Card 11
3 Certified copy of 7/12 Extract of Survey
NO.113 (part) Hissa No.A-1 of village Hariyali.
12
4 Certified copy of Extract of Property
Registration Card of C.T.S.No.291.
13
5 Original Water Bills. 14 colly.
6 Acknowledged office copy of Complaint dated
9th February, 1993.
15
7 Original Notice bearing No. UN/45196 dated
19th December, 1996
16
8 Acknowledged office copy of Letter dated 21st
December, 1996.
17
9 Acknowledged office copy of Letter dated 4th
June, 1998.
18
10 Original Electricity Bill issued by B.S.E.S. Ltd. 19
11 Original Electricity Bill issued by M/s. Reliance
Energy.
20
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12 Acknowledged office copy of Letter dated 8th
April, 1999.
21
13 Certified copy of N.C. No.591 of 1999, dated 8th
April, 1999.
22
14 Original Letter dated 3rd May 1999, addressed
by Ward Officer, S/Ward of Defendants No.1.
23
15 Original Letter dated 30th August, 1999. 24
16 Acknowledged office copy of Letter dated 29th
May, 1999.
25
17 Acknowledged office copy of Letter/Complaint
dated 31st May, 1999.
26
18 Acknowledged office copy of Letter dated 19th
July, 1999.
27
19 Acknowledged office copy of Letter dated 19th
July, 1999.
28
20 Original Letter dated 22nd July, 1999. 29
21 Acknowledged office copy of Letter dated 23rd
September, 1999.
30
22 Acknowledged office copy of Letter dated 1st
October, 1999.
31
23 Certified copy of Judgment dated 26th August,
2003, passed in said L.C. Suit No. 1747 of
2000.
32
24 Certified copy of Order dated 14th September,
2005, passed in First Appeal (Stamp) No.19138
of 2005.
33
25 Certified copy of Order dated 13th December,
2005, passed in letter Patent Appeal No. 265 of
2005.
34
26 Certified copy of Order dated 20th March, 2006,
passed in Special Leave to Appeal (Civil) No.
4390 of 2006.
35
27 Original Letter dated 5th May, 2012 36
28 Original Letter dated 8th May, 2012 37
29 Acknowledged office copy of Letter dated 25th
October, 2012.
38
30 Acknowledged office copy of Letter dated 4th
March, 2013.
39
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31 Original Letter dated 23rd March 2015. 40
32 Acknowledged office copy of letter dated 30th
March, 2015.
41
33 Acknowledged office copy of letter dated 27th
October, 2015.
42
34 Original Shops and Establishment Certificates. 43
35 Acknowledged office copy of letter dated 27th
January, 2016.
44
36 Acknowledged office copy of letter dated 29th
January, 2018.
45
37 Acknowledged office copy of letter dated 12th
February, 2018.
46
38 Acknowledged office copy of letter dated 23rd
April, 2018.
47
19. On behalf of the defendants Shri Ankush J. Waje has filed
affidavit-in-lieu of examination-in-chief vide Exh.50 and relied upon
following documentary evidence.
Sr.
No.
Particulars of documents Exhibit Nos.
1 True copies of standing committee resolution
for development and maintenance of garden
and work Order given to contractor, acceptance
letter to develop plot dtd..1/1/2018 and
photographs of developed garden.
52 colly.
2 Letter from Andra Valley Power supply
company dtd.17.01.1998
54
3 Resolution of standing committee for
development and maintenance of garden.
55 colly.
4 Property card of CTS No.291 56
5 Acceptance letter to develop plot 57 colly.
6 Work Order P.O. No.4100041134
dtd.27.03.2018
58 colly.
7 Letter given to Smt. Shakti Rane. 59
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20. I have heard Ld. Advocate for the plaintiff and perused
written argument filed on behalf of the defendants vide Exh. 62.
- :: R E A S O N S ::-
AS TO ISSUE NO. 4:-
21. The defendant has raised plea in the written statement that
suit is bad for want of notice under section 527 of the MMC Act. Even
though during cross examination the plaintiff has admitted that she has
not issued notice under section 527 of MMC Act, prior to filing of this
suit. But the present suit has been filed on the apprehension that
defendants may evict the plaintiff from the suit property and structure
standing thereon without following due process of law.
22. Even though, as per the provisions of Section 527 of the
MMC Act there is bar for filing suit in respect of any act done in
pursuance or execution of the act or any neglect or default in the
execution of this Act without statutory notice under Section 527 of the
M.M.C. Act. In the case in hand, the plaintiff has not filed suit in respect
of any act done or execution or neglect or default in the execution of
this Act.
23. It is settled principle of law that when plaintiff wants to
seek immediate relief from the Court in the form of injunction it is not
necessary for her to wait till the period of statutory notice is over. The
Hon'ble Bombay High Court in Motillal Mahadev Sharma (Since … vs
The Municipal Corporation of …) (AIR 2005 Bom 344) held that,
“
Plaintiff filed suit for declaration and also for consequential
relief of injunction against Corporation and when the plaintiff
wants to seek immediate relief from the Court in the form of
injunction, it is not necessary for him to issue statutory notice
or wait till the statutory notice is served and the period
prescribed under section 527 of the Act is over”.
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24. In above referred judgment the Hon'ble Bombay High Court
held that if plaintiff want to seek immediate relief from the Court in the
form of injunction it not necessary for him to issue statutory notice and
wait till the period prescribed under Section 527 of the MMC Act is
over. In the case in hand, the plaintiff had taken out Notice of Motion
for temporary injunction restraining the defendants/Corporation from
demolishing or pulling down the suit premises or removing the suit
premises and from removing the vegetables and plantation put by the
plaintiff on the suit plot of land.
25. Thus, it is clear that the plaintiff had sought immediate
relief of temporary injunction. In the circumstances, I find no substance
in the submission of defendants that suit is not maintainable for want of
statutory notice under Section 527 of the MMC Act. Accordingly, I
answer issue no.4 in the negative.
AS TO ISSUE NO.1 TO 3 AND 5:-
26. The plaintiff has deposed in consonance with that of the
recital of plaint and has reiterated the same in her deposition.
27. As the plaintiff has claimed injunction in respect of open
piece of land and structure on it it was incumbent on the part of the
plaintiff to state/mention boundaries of the suit property in order to
identify it as it is open piece of land. But in the plaint as well as
evidence the plaintiff has not mentioned the boundaries of the suit
property. Therefore, it is clear that plaintiff has not complied with the
mandate laid down under order VII rule 3 of the C.P.C. Therefore, in
absence of stating/mentioning the boundaries of the suit property the
suit property cannot be identified.
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28. Be it so, it is the case of the plaintiff that her father was
cultivating the suit property since 1950 and thereafter, after demise of
her father the possessory right in respect of the suit property devolved
upon her and as such he having right, title and interest in the suit
property.
29. But on perusal of the plaint it is clear that it is not the case
of the plaintiff that her father was owner of the suit property. In fact, on
perusal of certified copy of 7/12 extract vide Exh.12 it appears that
state of Maharashtra is owner of the land. On perusal of property card
vide Exh.13 it appears that area of CTS No.291 is 44417.5 sq. mtrs. and
the owner of the land is state of Maharashtra whereas the possessor of
land is Andhra Valley Power Supply Company Ltd.,
30. So also, the plaintiff has admitted during cross examination
that land under CTS No.291 belongs to the State. Therefore, it is clear
that plaintiff is not the owner of the suit property and it is the State of
Maharashtra who is owner of the land to the extent of 44417.5 sq. mtrs.
of CTS No.291.
31. The plaintiff has further claimed that initially her father
was cultivating the suit property since 1950 and after demise of her
father it came in her possession and she is grown vegetable and
cultivating the suit property. The plaintiff has further claimed that there
is structure admeasuring 17 x 25 fts. which is standing on the suit
property. On 20.03.1989 ration is issued at the address of the suit
premises. A pitch holder card is issued by the State Government in
respect of the structure standing on the suit property which is a
censused structure. Accordingly, plaintiff has filed on record the original
ration card vide Exh.10 and original pitch holder card Vide Exh.11. The
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address mentioned in the title clause of the plaint is mentioned in the
ration card. In the pitch holder card the area of the structure is
mentioned as 12 x 19 fts. Therefore, it appears that structure which is
alleged to be standing on the suit property is not the structure censused
by virtue of above photo pass.
32. The plaintiff has filed on record copy of original water bill
vide Exh.14 and Electricity bill vide Exh.18 and 20. The address
mentioned in the title clause is mentioned in the above documents. But
both the documents are not sufficient to infer and conclude that
plaintiff is in possession of the suit property and structure standing
thereon.
33. The plaintiff has heavily relied upon certified copy of
Judgment dtd.26.08.2003, which is filed on record vide Exh.32 and also
certified copy of order dtd.14.09.2005 vide Exh.33, certified copy of
order dtd. 13.12.2005 vide Exh.34 and certified copy of order
dtd.20.03.2006 vide Exh.35. On perusal of Exh.32 it appears that
plaintiff had filed S.C. Suit No.1747 of 2001 against State of
Maharashtra, Tahasildar Kurla, Tata Electric Company and Bochanvashi
Shree Akshar Purshottam Sanstha. In the above suit plaintiff had
claimed that she is in exclusive possession of land to the extent of 46’ x
400’ in GTS No.291 Survey No. 113 part, Hissa No.A-1 of village
Hariyali Situate Opposite Building no.14, Tagor Nagar, Vikhroli (East),
Mumbai 400083, and the property mentioned in the above suit is the
same which is mentioned in this suit.
34. The plaintiff had also sought relief of perpetual injunction
in the above suit in respect of the suit property in this suit. In the above
suit Court had granted perpetual injunction against the defendant no.4
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only. The plaintiff had withdrawn suit against defendant no.1 to 3 and it
was dismissed. The defendant no.4 had not filed written statement and
the suit was decreed in view of order VIII Rule 10 of the C.P.C.
35. On perusal of Exh.33 it appears that defendant no.4 in the
above suit had approached Hon’ble High Court by filing civil appeal in
which application was filed for condonation of delay. But the delay
condonation application was dismissed on 14.09.2005. Therefore, it is
clear that in the above appeal Hon’ble High Court had not dealt with
the merits of the case and has dismissed delay application.
36. On perusal of Exh.34 it appears that the defendant no.4 in
the above suit had taken out letters of Patent appeal which was also
dismissed on 13.12.2005. But in above appeal also Hon’ble High Court
did not advert upon and deal with the merits of the case and had
dismissed the appeal at the threshold.
37. On perusal of Exh.35 it appears that defendant no.4 in the
above suit had filed Special Leave Petition before Hon’ble Supreme
Court which was also dismissed on 20.03.2006. The above SLP was also
dismissed at the threshold and Hon’ble Supreme Court did not advert
upon and deal with the merits of the case.
38. Therefore, in the above circumstances, it cannot be held
that Judgment in the above suit is sufficient to come to a conclusion
that plaintiff has proved her exclusive possession over the suit property.
39. The plaintiff has also filed on record correspondence which
was addressed by her to the various authorities vide Exh.27,28,29, 30,
31, 38, 39, 41,42,44,45,46,47 and various correspondence which was
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addressed to her by the concerned authorities vide Exh.36, 37, 40. It is
obvious that in the above correspondence which is addressed to the
various authorities the plaintiff has mentioned address which is
mentioned in the title clause of the plaint. She has also mentioned some
of the correspondence that she is in possession of the suit property and
structure standing on it. The concerned authorities have addressed
letter to the plaintiff on the above address which was mentioned by her
in the letters which were addressed by her to the concerned authorities.
But in none of the letters addressed it is admitted by the concerned
authorities that plaintiff is in possession of the suit property and suit
structure.
40. It appears on the basis of request made by the plaintiff the
concerned authority has issued license to her under Shop And
Establishment Act, to run a Rope Vatika Center (Nursery). But merely
because Shop and Establishment license is issued to the plaintiff does
not imply and proves the fact that plaintiff is in possession over the suit
property and suit structure.
41. On the contrary, on behalf of the defendants Ankush J.
Waje has deposed vide Exh.50, that plot CTS NO.291 admeasuring
18000 sq. fts. owned by State Government is allotted to M/s. Tata
Hydro Electric Power Supply Co. Ltd. and the Andhra Valley Power
Supply Co., Ltd, who had decided to develop plot into a garden after
obtaining necessary permission from MCGM. Accordingly, MCGM had
appointed M/s. Balaji Infrastructure for development and maintenance
of above land. Accordingly, work order was issued to the contractor to
develop the plot.
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42. The plaintiff is growing vegetables on the land which is
kept for playground and the Court has rejected the ad-interim relief as
there is no structure on the plot. The above plot of land is already
developed by the defendants and the structure mentioned by the
plaintiff is not situated on the develop garden plot. Therefore, the
defendants have no concern to follow DPL and cause of action did not
accrue to file the suit.
43. Even though during cross examination the above witness
has admitted that plaintiff was having structure on the above plot. He
has further admitted that there is no reference of CTS No. and hissa No.
in letter of acceptance vide Exh.52. It is further admitted by him that he
has not filed completion certificate on record and there is no
documentary evidence to show that work was completed as per work
order vide Exh.58. But the above admissions are not of much help to
the plaintiff because it is settled law the plaintiff has to stand on her
own legs and cannot take advantage of the weakness of the defendant.
44. On perusal of the documents filed on record by the
defendant, vide Exh.55 it appears that resolution was passed by the
standing committee on 27.12.2017 for development and maintenance
of garden. On perusal of Exh.57 it appears that Balaji Infra Project was
given contract to develop and maintain garden. On perusal of Exh.58 it
appears that above mentioned agency was given work order. On perusal
of photographs annexed alongwith Exh.58, it appears that defendants
have already developed garden on the above plot of land.
45. Therefore, the oral as well as documentary evidence
adduced by the plaintiff is not sufficient to prove the fact that she is in
exclusive possession over the suit property and structure standing
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thereon. The plaintiff has failed to prove her semblance of right in
regard to the suit property and structure standing thereon. If it is so,
than plaintiff cannot claim any relief as sought in respect of the suit
property and structure standing thereon.
46. Therefore, the plaintiff is not entitled for the relief of
declaration and perpetual injunction. Hence I answer issue No. 1 to 3 in
the negative and in the result answer to issue no.5, I proceed to pass
following order.
O R D E R
01. Suit is dismissed with costs.
02. Decree be drawn accordingly.
03. Record and proceeding be sent back to the Record
department.
Date: 15.11.2025
(V. R. Jagdale)
Judge
City Civil Court
Mumbai
Dictated on : 15.11.2025
Signed on : 15.11.2025
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
dtd.15.11.2025 at 5.55 p.m. Mrs. V.N.Rajgole
UPLOAD DATE AND TIME NAME OF STENOGRAPHERS
Name of the Judge(with CR No.) HHJ V. R. JAGDALE (C.R.NO.11)
Date of pronouncement of Judgment 15.11.2025
Order signed by P.O. on 15.11.2025
Order uploaded on 15.11.2025
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