Order 1

Order Details: Notice of Motion
Pdf Text: (CNR No.: MHCC010066352018) 1 Notice of Motion No. 2034/2018
in L.C. Suit No. 2935/2015.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2034 OF 2018.
IN
L.C. SUIT NO. 2935 OF 2015.
Farida Hussain Shah Patel………………………….. …. PLAINTIFF.
V/s.
MCGM. ....………………………………………........ …. DEFENDANT.
CORAM : SHRI. S.H. SALUNKHE.
(Court Room No.11).
DATED : 25th April, 2025.
APPEARANCES :
Mr. Tejas Dhotre a/w Mr. Ahirwar, the Ld. Advocate for Plaintiff.
Mrs. Sheetal Metkari a/w Mr. Yadav, the Ld. Advocate for Defendant/MCGM.
*****
01. This is the suit to challenge notice dtd. 23.11.2015, issued
u/s. 314 of the Mumbai Municipal Corporation Act, 1888,(‘the MMC
Act’) by the defendant/BMC and the plaintiff has taken out the present
Notice of Motion (‘the NM’), under Order XXXIX, Rule 1 of the Civil
Procedure Code, 1908 (CPC), and for temporary injunction, restraining
the BMC from implementing the notice structure without following the
due process of law.
02. The defendant/BMC did not file reply, hence, as per Order
dtd. 06.09.2022, the NM proceeded for hearing without reply. Perused
the record and proceeding. Heard both the sides.
03. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has made out prima
facie case in her favour? …..........…......….…In the affirmative.
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(CNR No.: MHCC010066352018) 2 Notice of Motion No. 2034/2018
in L.C. Suit No. 2935/2015.
(ii). Whether balance of convenience lies in
favour of the plaintiff? ….…..…............….… In the affirmative.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted?.….................. … In the affirmative.
(iv). What Order? …..........….…....................... …As per final Order .
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
04. Ld. Advocate for the plaintiff submitted that the plaintiff is
owner of the structure, which is subject matter of the notice and she has
purchased the suit structure from earlier occupier Mr. Hiraman Tapal.
Ld. Advocate further submitted that the suit structure is situated in slum
declared area and competent authority has issued photo-pass in the
name of earlier occupier bearing photo-pass No.NHC122-1/1.
Thereafter, the plaintiff acquired the said structure from earlier occupier
and Addl. Collector (encroachment) has sanctioned transfer as per
Order dtd. 25.01.1996. Accordingly, plaintiff has paid necessary transfer
charges. Ld. Advocate further submitted that documents i.e. Order of
the Addl.Collector and Addl. Tahsildar (encroachment), correspondence
by the plaintiff to Addl. Collector and Addl. Tahsildar (encroachment)
establishes that the structure is protected under the slum act. However,
BMC issued notice alleging the structure is situated on the footpath and
he did not obtain permission of the commissioner required as per sec.
312 (1) or 313 of the MMC Act. In his submission, the notice structure
is protected under the Slum Act and it is not causing inconvenience or
required for public project. In the circumstances, action taken by BMC
U/s.314 of the MMC Act is not legal.Ld. Advocate further submitted that
the Estate Manager of Board of Housing and Architect Development as
per its letter dtd. 14.09.1981, granted permission to carry out repairs to
the structure which specifies the dimension and hight of the structure.
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(CNR No.: MHCC010066352018) 3 Notice of Motion No. 2034/2018
in L.C. Suit No. 2935/2015.
Lastly, he submitted that the documents establishes legality of the
structure.Hence, action initiated by the BMC is illegal. While concluding
the oral submission, Ld. Advocate for the plaintiff filed written notes of
argument.
05. Ld. Advocate for the defendant/BMC filed written notes of
arguments and submitted that present notice has been issued u/s.314 of
the MMC Act, as structure is situated on public drain and the plaintiff
did not obtain permission u/s. 312 or 313 of the MMC Act. Therefore,
the BMC has issued notice u/s. 314 of the MMC Act. Ld. Advocate
further submitted that sketch annexed to the notice establishes that
structure is unauthorized, which is situated on footpath and constructed
on drain portion. Ld. Advocate further submitted that the documents
relied by the plaintiff are not registered documents and description of
structure is different.
06. It is case of the plaintiff that the notice structure is situated
in slum area and it is protected under the Slum Act and competent
authority i.e.Addl. Collector (encroachment) by Order dtd. 25.01.1996,
approved the transfer of the suit structure in her favour. On perusal of
Order, the Addl. Collector, annexed to the plaint, it appears that Hut No.
NHC/122-1/1 is censused and photo-pass was issued in the name of
earlier occupier Mr. Hiraman. The plaintiff has produced on record
photo copy of the certificate issued by Gaondevi Police station, thereby
it is certified that Mr.Hiraman has made compliant of missing of photo-
pass bearing No. NHC/122-1/1. The plaintiff also produced on record
receipts of payments made to MHADA in respect of HUT No.NHC122-
1/1.
07. The defendant/BMC contended that these documents are
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(CNR No.: MHCC010066352018) 4 Notice of Motion No. 2034/2018
in L.C. Suit No. 2935/2015.
not relating to the notice structure. However, BMC has not produced on
record any material to show that the photo-pass is in respect of different
structure. The documents relied by the plaintiff i.e. Order of the Addl.
Collector dtd. 25.01.1996 and correspondence between the plaintiff and
competent authority, payments receipts issued by MHADA
prima-facie
establishes that the competent authority has issued photo-pass to the
notice structure. In the circumstances, the issue arises for consideration
as to whether the notice structure is situated on public land or drain.
The document produced by the plaintiff prima-facie shows that the
structure is protected under the Slum Act. Thus, action u/s.314 of the
MMC Act cannot be said to be the due process of law. Thus, I hold that
the plaintiff has raised triable issue, which needs to be decided after
giving an opportunity to the parties to lead evidence. Therefore, I hold
that the plaintiff has made out the
prima-facie case for granting
temporary injunction. The balance of convenience tilts in her favour. If,
the interim injunction is refused, she would suffer irreparable loss.
Accordingly, I answer point Nos.1 to 3 in the affirmative and in answer
to point No. 4, I pass the following Order :
-: ORDER :-
(i). The defendant/BMC is temporary restrained from implementing
the impugned notice till decision of the suit.
(ii). Notice of Motion No. 2034/2018, accordingly, disposed of.
(S.H. Salunkhe)
Mumbai. Ad-Hoc Judge,
Dated : 25.04.2025. City Civil Court, Mumbai.
Directly typed on computer on : 25.04.2025.
Draft given to HHJ on : 28.04.2025.
Checked and Signed on : 30.04.2025.
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(CNR No.: MHCC010066352018) 5 Notice of Motion No. 2034/2018
in L.C. Suit No. 2935/2015.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
on 03.05.2025 at 11.20 a.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri Salunkhe
(Court Room No.11).
Date of Pronouncement of Judgment/Order 25.04.2025.
Judgment/Order signed by P.O. on 30.04.2025.
Judgment/Order uploaded on 03.05.2025.
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