Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 2282/19 (LCS 1462/19)
MHCC010062672019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.2282 OF 2019
IN
LONG CAUSE SUIT No.1462/2019
Hiralal Gurjar & 11 Ors. … Plaintiffs
Versus
M.C.G.M. & Anr. ... Defendants
Appearance :
Mr. Kharatmol with Mr. J. S. Jamkhandi, Advocates for plaintiffs.
Mrs. Tondwalkar, Advocate for defendants.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 16/1/2023.
O R D E R
. This is suit for declaration that defendant/Corporation or
anybody through it cannot dispossess the plaintiffs from suit premises
without following due process of law and for permanent injunction and
the plaintiffs have taken out Notice of Motion for temporary injunction
restraining defendant/Corporation from dispossessing the plaintiffs
from suit premises without following due process of law.
2] In short, it is case of the plaintiffs that they are residing in
respective structures as described in exhibitB of the plaint since last
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several years and are in possession of the said premises. They are in
possession of Survey Receipts. The plaintiffs' original premises have
been taken by defendant/Corporation for road widening and in lieu of
their old structures they have been allotted suit premises. The plaintiffs
have submitted all the necessary documents for the purpose of
allotment of suit premises. The suit premises have been allotted to the
plaintiffs against their original premises which were protected. The
plaintiffs have been put in possession of suit premises by virtue of
allotment letters issued to them. However, on 27/5/2019 the officer of
the Corporation threatened to dispossess the plaintiffs from suit
premises. Defendant has not issued notice or intimated the plaintiffs.
The officer of the defendant threatened the plaintiffs to dispossess
forcibly from suit premises, if they have not vacated suit premises.
There is apprehension that defendant/Corporation will dispossess the
plaintiffs without following due process of law. Hence the plaintiffs
approached this Court by filing suit and took out present Notice of
Motion for temporary injunction.
3] The defendant/Corporation resisted suit as well as Notice
of Motion by filing reply cum Written Statement vide Exh.2. The
defendant/Corporation denied contentions in the plaint as well as
Notice of Motion. At the outset, it is stated that suit is not maintainable
for want of statutory notice under Section 527 of The Mumbai
Municipal Corporate Act (in short the M.M.C. Act). The plaint discloses
no cause of action and hence suit is liable to be dismissed.
4] It is further stated that the plaintiffs have filed a common
suit by clubbing different immovable properties. As per Order1 Rule8
of The Code of Civil Procedure the plaintiffs ought to have filed
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separate suits. They have not taken permission of the Court. Hence suit
is not maintainable.
5] It is further stated that the Mumbai Metropolitan Region
Development Authority (M.M.R.D.A.) handed over vacant possession of
the tenements on 1st to 5th floors of the building No.65B, Ekta Society,
Lallubhai Compound, Tatanagar Road, S. V. Patel Marg, Mankhurd,
Mumbai having carpet area admeasuring 225 Sq. Ft. each to M, East
Ward of the M.C.G.M. on 9/11/2011 for Project Affected Persons (in
short P.A.P.). The plaintiffs are trying to encroach upon premises of the
M.C.G.M. The plaintiffs are not P.A.Ps. and they are not in lawful
possession of suit premises. After receiving praecipe from advocate Mr.
Kapil Shetty the officer of the Corporation verified the office record and
surprised that suit premises are not allotted to any person and some of
the rooms are locked and the keys are lying in the office and some are
open without doors. The plaintiffs are not in possession of suit premises
and they have made false statement in the plaint as well as affidavit in
support of Notice of Motion.
6] The plaintiffs are neither P.A.Ps. nor they have not been
allotted suit premises. The plaintiffs are not in lawful possession of suit
premises and, therefore, they are not entitled for injunction. They have
not come to the Court with clean hands. As the plaintiffs are not in
lawful possession of suit premises hence there is no prima facie case.
Balance of convenience does not lie in their favour.
7] It is further stated that the plaintiffs have fabricated fake
documents and obtained reliefs which amounts to interference in the
administration of justice and their conduct is punishable under Section
192 of The Indian Penal Code. On these grounds defendant prayed for
dismissal of Notice of Motion.
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8] Points for determination alongwith findings thereon for the
reasons are as under :
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiffs have made out
prima facie case ? . . . No.
2) Whether balance of convenience lies
in their favour ? . . . No.
3) Whether plaintiffs 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 :
9] Learned advocate for the plaintiffs filed written notes of
arguments at Exh.4. It is stated that the plaintiffs are residing in suit
premises since 2018. Suit premises have been allotted to them as
P.A.Ps. in lieu of their old structures which were acquired by the
Corporation. The plaintiffs are having electricity bills, maintenance
receipts, Aadhaar Cards and other documents at the address of suit
premises. The officer of the Corporation threatened to dispossess the
plaintiffs from suit premises. Hence the plaintiffs filed this suit. The
defendant/Corporation is bound to follow due process of law, however
the Corporation has not followed due process of law. Therefore, the
plaintiffs are entitled for temporary injunction.
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10] In support of submissions learned advocate for the
plaintiffs relied on the following judgments :
a) Mrs. Manda Suresh Adhav and Others. Versus Municipal
Corporation of Greater Mumbai and Another (Appeal From Order
No.90/2022) in that case adinterim relief was refused by this Court.
However, in appeal the Hon'ble Bombay High Court protected plaintiffs'
possession till further order for the purpose of verifying documents by
the advocate for Corporation,
b) Mr. Abdul Hasan Shaikh Mansuri vs Mum Corpn of
Mumbai and ors (Civil Appln No.5957 of 2005) the Hon'ble Bombay
High Court held that where existence of some structure is not disputed
and even structure is unauthorized Authority cannot be permitted to
take unilateral action except by following due process of law,
c) Mr. Prakash S/o. Hanumant Nakhwa V/s. Municipal
Corporation of Gr. Mumbai (Appeal From Order No.536 of 2007)
the Hon'ble Bombay High Court directed this Court to dispose of Notice
of Motion and during pendency of Notice of Motion interim protection
was granted to the suit structure,
d) Muni Suvrat Swami Jain S.M.P. Sangh Vs. Arun
Nathuram Gaikwad (Civil Appeal 4448 of 2006) the Hon'ble Apex
Court directed the Corporation to decide the matter after considering
relevant facts and circumstances and till then protection was granted,
e) Salim Anwar Moammed Amin Siddique Vs. Municipal
Corporation of Gr. Mumbai (Appeal From Order No.534 of 2003)
and Municipal Corporation of Greater Mumbai and anr vs Prakash
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Cooperative Hosing Society Ltd. (Appeal From Order No.1135 of
2013) the Hon'ble Bombay High Court held that person in possession of
structure cannot be dispossessed without following due process of law.
11] On the other hand, learned advocate for the Corporation
submitted that suit premises are reserved for P.A.Ps., whose structures
have been acquired for road widening or public project. However, the
plaintiffs are not P.A.Ps. and they have acquired possession over suit
premises unlawfully. The plaintiffs are not in lawful possession of suit
premises. Therefore, injunction against true owner cannot be granted. It
is further stated that the plaintiffs are seeking equitable relief of
injunction on the basis of fake and fabricated documents. The plaintiffs
have not came to the Court with clean hand and, therefore, they are not
entitled for relief of equitable injunction. In support of submission
learned advocate for the Corporation relied on the judgment of the
Hon'ble Apex Court in case of Premji Ratansey Shah and Ors. Vs.
Union of India (UOI) and Ors. [(1994) 5 SCC 547].
12] The plaintiffs have taken out this Notice of Motion for
temporary injunction under OrderXXXIX Rule1 of the C.P.C. Plaintiffs
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.
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13] This is suit for declaration restraining defendant/
Corporation from dispossessing the plaintiffs without following due
process of law. It is contention of the plaintiffs that they are in lawful
possession of suit premises on the basis of allotment letters. The
plaintiffs old structures situated near Nana Fadnavis Fly Over have been
acquired by the defendant/Corporation for road widening and in lieu of
those old structures suit premises have been allotted by the defendant/
Corporation to the plaintiffs.
14] The defendant Corporation has denied contention of the
plaintiffs that they are allotees of suit premises and they are the P.A.Ps.
In support of the claim the plaintiffs have produced on record
photocopies of possession letters, possession receipts, electricity bills,
maintenance receipts issued by the Ekta Society. It is case of the
plaintiffs that they are the members of the Cooperative Housing Society
and paying maintenance charges regularly. The plaintiffs are claiming
that they are allottees of respective suit premises and in lawful
possession of same. The plaintiffs relied upon possession receipts issued
by the Corporation.
15] It is important to note that one of the plaintiffs Smt. Rubina
Noor Khan filed photocopies of two possession receipts in respect of flat
No.324. Both the possession receipts are of different dates. So also numbers of
huts are also different. In one of the Possession Receipts there is signature of
person who has received key of the flat and on the another receipt there is no
signature of the person receiving key of the flat. This prima facie creates
doubt about genuineness of the Possession Receipts. The defendant has filed
on record documents alongwith list Exh.3 including remarks given by
Assistant Engineer, Maintenance, F/North Ward in respect of suit structure.
On perusal of said remarks given by Assistant Engineer, F/North Ward
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appears that possession letter relied by the plaintiffs have not been issued by
the concerned Ward Officer. The officer of the defendant in his affidavit in
reply to Notice of Motion cum Written Statement has categorically stated that
the documents filed by the plaintiff i.e. Possession Receipts and allotment
letters are fake and fabricated and the plaintiffs have prepared bogus
documents for obtaining relief. C.A. of the plaintiffs filed rejoinder affidavit
and denied contentions in the affidavit in reply filed by the officer of the
defendant/Corporation. However, as stated earlier, the documents filed by the
plaintiffs i.e. allotment letter and Possession Receipts appear to be doubtful as
one of the plaintiffs Smt. Rubina Khan filed two allotment letters and two
Possession Receipts in respect of flat No.314 in which date of issuing
allotment letter and hut numbers are different. So also the plaintiffs have not
produced on record copy of AnnexureII showing that they are P.A.Ps. and are
eligible for permanent alternate accommodation.
16] Learned advocate for the Corporation submitted that
whenever any structure has been acquired by the Corporation for road
widening or a public project. Notice has to be issued to the P.A.Ps. for
submission of documents for deciding their eligibility for alternate
accommodation and after verifying them, eligibility list in the form of
AnnexureII is to be prepared. In the case in hand, the plaintiffs have
not produced such AnnexureII. It is not disputed that defendant/
Corporation is owner of suit premises. According to the plaintiffs, they
have allotted suit premises as P.A.Ps. However, the plaintiffs have not
established that they are P.A.Ps. and have been allotted suit premises as
P.A.Ps. and that they are in lawful possession of suit premises.
17] Learned advocate for the plaintiffs submit that the plaintiffs
are in settled possession of suit premises. In such circumstances, they
cannot be dispossessed without following due process of law. Learned
advocate for the plaintiffs further submits that the Corporation has not
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issued notice and given opportunity of hearing. Therefore, the
defendant/Corporation be restrained from dispossessing the plaintiffs
without following due process of law.
18] Here I may refer the judgment of the Hon'ble Apex Court in
the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de
Sequeira [(2012) 5 SCC 370] in which the Hon'ble Apex Court
explained what is meant by due process of law. It is held that, “Due
process of law means nobody can be unheard. The due process of law
means a person in settled possession will not be dispossessed except by due
process of law. Due process means an opportunity to the defendant to file
pleadings including written statement and documents before the court of
law. It does not mean the whole trial. Due process of law is satisfied the
moment rights of the parties are adjudicated upon by a competent court.”
19] Thus in view of above referred judgment the due process
does not mean the whole trial and due process of law means an
opportunity to the parties to file pleadings in the Court. In the case on
hand, the plaintiffs relied upon the allotment letter, possession receipts
and electricity bills. However, the possession receipts relied by the
plaintiffs appears to be doubtful. The plaintiffs have not produced on
record AnnexureII in support of their case that they are the P.A.Ps. and
are eligible for alternate accommodation.
20] It is not disputed that suit premises are owned by
defendant. In case of Premji Ratansey Shah and Ors. Vs. Union of
India (UOI) and Ors. [(1994) 5 SCC 547] the Hon'ble Apex Court held
that, “a person who was in unlawful possession or a trespasser, an
injunction cannot be issued in favour of trespasser or person who
gained unlawful possession as against owner”.
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21] Here may I refer a recent judgment of the Hon'ble Apex
Court in Padhiyar Prahladji Chenaji (Deceased) Through L.R.s
Versus Maniben Jagmalbhai (Deceased) Through L.R.s and Ors.
(Civil Appeal No.1382 of 2022) in which the Hon'ble Apex Court held
that due process or due course is satisfied the moment rights of the
parties are adjudicated upon by a competent Court. It does not matter
who brought the action to Court. It could be the owner in an action for
enforcement of his right to eject the person in unlawful possession. It
could be the person who is sought to be ejected, in an action preventing
the owner from ejecting him. Whether the action is for enforcement of a
right (recovery of possession) or protection of a right (injunction
against dispossession), is not of much consequence. What is important
is that in either event it is an action before the court and the court
adjudicates upon it. If that is done then, the ‘bare minimum’
requirement of ‘due process’ or ‘due course’ of law would stand satisfied
as recourse to law would have been taken. It is further held that, “when
a party approaches a court seeking a protective remedy such as an
injunction and it fails in setting up a good case, can it then say that the
other party must now institute an action in a court of law for enforcing his
rights i.e. for taking back something from the first party who holds it
unlawfully, and, till such time, the court hearing the injunction action
must grant an injunction anyway? I would think not.”
22] In the case on hand, the plaintiffs have prima facie failed to
establish that they are in lawful and legal possession of suit premises.
The documents relied by the plaintiffs i.e. Possession Receipts appears
to be doubtful. The plaintiffs have not produced any other document
i.e. AnnexureII in support of their case that they are the P.A.Ps. and are
entitled for alternate accommodation and suit premises have been
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allotted to them as P.A.Ps. Thus, the plaintiffs have prima facie failed to
prove their legal possession over suit premises. Defendant/Corporation
is owner of suit premises and, therefore, in view of the judgment relied
by the defendant/Corporation in case of Premji Ratansey Shah and Ors.
Vs. Union of India (UOI) and Ors. (supra) and Padhiyar Prahladji
Chenaji (Deceased) Through L.R.s Versus Maniben Jagmalbhai
(Deceased) Through L.R.s and Ors. (supra) the plaintiffs are not
entitled for injunction against defendant. Moreover, Section 314 of the
M.M.C. Act empowers Commissioner to remove any person without
notice who is unauthorizedly occupying or in wrongful possession of a
public land or property. Admittedly, suit premises are owned by
defendant/Corporation and in view of Section 314 of the M.M.C. Act
Commissioner has power to remove person who is in unauthorized
occupation and possession of premises owned by the Corporation.
Therefore, I find no substance in the contention of the plaintiffs that the
Corporation has not followed due process of law. As stated earlier, the
plaintiffs have not established that they are having legal possession over
suit premises. Therefore, they are not entitled for relief as prayed.
23] I have carefully gone through the judgments relied by the
plaintiffs. The facts of the judgments cited by the plaintiffs and the facts
of the case on hand are not identical. Hence with due respect the
judgments relied by learned advocate for the plaintiffs are not
applicable to the case on hand. Therefore, in view of discussion above
made I answer points No.1 to 3 in the negative and pass following order
in answer to point No.4 :
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O R D E R
1] Notice of Motion No.2282/2019 is dismissed.
2] Cost in cause.
Date : 16/1/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
19/01/2023 11:15 a.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 16/01/2023
ORDER signed by P.O. on 19/01/2023
ORDER uploaded on 19/01/2023
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