Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion No. 2202 of 2018
In
L.C.Suit No. 1031 of 2018
MHCC010071122018
Shri Krishna Vithal Kamble ..Plaintiff
V/s
The Municipal Corporation of Greater Mumbai ...Defendants
Advocate R.D.Thorat for plaintiff
Adv. Kumawat for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 25th July 2018.
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this notice of motion to restrain the
defendant from demolishing or pulling down or removing the suit
premises or any portion thereof i.e. Room No. 4, situate at Municipal
Mahanagar palika Patra Shed, K.K. Marg, New Shirin Lane, Saatrasta,
Jacob Circle, Mumbai 400 011, admeasuring approximately about
10ft. x12ft. and made of B.M. Walls and A.C.Sheets roof, in pursuance
of notice dated 5/1/2018 and order dated 4/4/2018 till the decision
of suit.
2 The case of plaintiff may be summarized as under:
Plaintiff is in possession of the suit premises. Plaintiff
resides in the suit premises alongwith his family. The suit premises is in
existence since prior to 1961. Earlier suit premises was occupied by
plaintiffs father Shri Vithal T. Kamble. Shri Vithal Kamble had saving
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bank account with Rajapur Taluka Janata Sahakari Bank Ltd on the
address of the suit premises. The said bank pass book was from
12/3/1983. Shri Vithal Kamble had taken electricity connection. The
BEST authorities had disconnected the electricity supply but again the
supply to the suit premises is reconnected. Plaintiffs father had identity
card issued by Election Commission of India and also census receipt
dated 4/12/1990 on the address of the suit premises. Shri Vithal
Kamble had also Insurance Policy on the address of the suit premises.
Thus, Vithal Kamble and thereafter plaintiff have the documents
showing that they are in possession of the suit premises since prior to
1961.
3 The defendant issued a notice U/s 314 of the MMC Act
dated 5/1/2018 in the name of deceased Vithal Kamble. In fact Vithal
Kamble expired on 23/11/2010. Defendant has falsely alleged that
the structure is unauthorized. Thereafter plaintiff gave reply to
defendant and produced documents but defendant did not consider the
reply of the plaintiff.
4 According to plaintiff, the suit premises is hut and as per
Government Resolution the datum line is 112000. Thus the notice
and the order are illegal, null and void. Defendant did not consider that
plaintiffs father and thereafter plaintiff is in possession of the suit
premises since prior to 196162. Plaintiff has prima facie case, balance
of convenience lies in favour of plaintiff and if injunction as prayed is
not granted then irreparable loss will be caused to plaintiff. Therefore
prayed to grant interim injunction as per prayer clause (a) of the
notice of motion till the decision of suit on merit.
5 Notice is served to defendant. Defendant filed affidavit in
reply of Shri Shivaji Rama Hipparkar, Jr. Engineer, Maintenance to the
notice of motion. Defendant denied that suit premises is in existence
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since prior to 196162. Defendant denied that the notice and order are
illegal and void. Defendant denied that plaintiff is entitled for interim
relief as sought.
6 According to defendant, plaintiff has not given notice U/s
527 of the MMC Act, plaintiff has not disclosed cause of action in the
plaint, plaintiff has not given the correct description of the suit
premises. Hence, the suit is not maintainable.
7 Defendant further contended that the suit premises is
situated on the footpath of Saatrasta. The defendant is carrying out the
work of beatification of Saatrasta Junction. Accordingly, the officers of
the defendant visited the suit premises and it is found that the structure
is unauthorized. Therefore, Municipal Commissioner directed to
remove or shift the structure. Accordingly,defendant issued a notice
U/s 314 dated 5/1/2018. Plaintiff has made unauthorized construction
approximately 4.40 m. x 4.50 m. in brick masonry structure on
Municipal Road/footpath. This is serious violation under section 313
(1)a, of MMC Act. Plaintiff gave reply to the notice and also produced
the documents. However, the documents do not prove the
authorization of the structure prior to the datum line. Accordingly,
defendant has passed order. The defendant has followed the due
process of law. Hence, prayed to dismiss the notice of motion.
8 From the rival contention of both the parties,following
points arise for my determination to which I record my findings against
them for the reasons given below:
Sr.No POINTS FINDINGS
1. Whether plaintiff has made out prima
facie case?
In the affirmative
2. Whether balance of convenience lies in
favour of plaintiff
In the affirmative
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3. To whom irreparable loss will be
caused if injunction is refused ?
To the Plaintiff
4. What order ? As per final order.
R E A S O N S
9 Shri R.D.Thorat advocate for plaintiff has submitted that
the suit structure is in existence prior to 196061. Plaintiffs father
Mr. Vithal Kamble was in possession of the suit premises. He had
account in Rajapur Taluka Janata Sahakari Bank Ltd and the pass book
is in the address of the suit premises. He further invited my attention
towards the documents on record. All the documents i.e. electricity
bills, telephone bills, pan card, electricity identity card are on the
address of the suit premises. The suit premises is a hut. As per the
allegations of the defendant the suit premises is situate on footpath.
Plaintiff's father and thereafter plaintiff is in possession of the suit
premises since long. Therefore, they are entitled for alternative
accommodation under the scheme of Mahatma Gandhi Pathkranti
Yojna. He further submitted that the datum line is prescribed under the
said scheme is 112000. The designated officer has wrongly drawn the
conclusion that datum line is 1961. Therefore, the impugned order is
illegal.
10 He further submitted that Shri Vithal Kamble is no more.
He is expired in the year 2010. The notice is issued to the dead person.
Hence the said notice cannot be treated as a notice to the plaintiff. The
defendant has not followed the guidelines issued by the Hon'ble High
Court in Shri Sopan Maruti Thopte and another V/s Pune Municipal
Corporation an another, 1996 (2) ALL MR 383. The impugned order
is mechanical order. The Commissioner has directed to remove or shift
the structure on the road. Therefore the defendant has to follow the
due process of law. Thus, he prayed to grant interim injunction.
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11 Shri Kumawat advocate for defendant has submitted that
the other structures are removed. Plaintiffs father was in service of the
corporation. Therefore accommodation was given to him. According to
him, plaintiff has not given correct description of the suit premises .
Somewhere it is stated that the suit premises is patra shed. The suit
premises is unauthorized. The defendant after receipt of the reply by
the plaintiff passed the detailed speaking order. The structure is
unauthorized therefore it cannot be said that plaintiff is entitled for
alternative accommodation. Hence, he prayed to dismiss the notice of
motion.
12 Here in the present case earlier ad interim relief was
refused by this court. Plaintiff has filed appeal in the Hon'ble High
Court bearing no. 219/2018. Hon'ble High Court in para no. 5 held
that the impugned order indicates that the subject structure is in
existence since 198283 and thereby directed this court to decide the
notice of motion finally.
13 Defendant alleges that the suit premises situate on
road/footpath. Defendant issued a notice U/s 314 of the MMC Act.
Plaintiff mainly relied on the minutes of meeting of GAD, Govt of
Maharashtra dated 4/6/2010. From the perusal of said minutes it
appears that the Government has declared the datum line in
implement the scheme of Mahatma Gandhi Pathkranti Yogna as 11
2000 instead of 111995. It is also directed to implement the said
scheme immediately. Thus, considering the status of the suit premises
and allegations of the defendant that suit premises is on footpath. I find
that the datum line to prove the structure under the scheme is 112000
Therefore, Plaintiff has to prove that Shri Vithal Kamble and thereafter
he is in possession of the suit premises prior to 112000.
14 Defendant issued a notice U/s 314 of MMC Act to Vithal
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Kamble . The notice is issued on 512018. However, the Vithal Kamble
is expired in the year 2010. It means that defendant know that Vithal
Kamble was in possession of the suit premises.
15 I have perused the documents produced by plaintiff .
Plaintiff has produced the passbook of Rajapur Taluka Janata Sahakari
Bank Ltd The said pass book is of the year 198283 and in the name of
Vithal Kamble, father of the plaintiff. The pass book, election identity
card , electricity bills, telephone bills are on the address of suit
premises i.e. Mahapalika Patra Shed. All the documents do show that
the structure is in existance prior to 112000.
16 Shri Vithal Kamble and thereafter Plaintiff is in possession
of the suit premises. The documents to show that the possession of the
plaintiff of suit premises is at least since 198283. Thus, plaintiff has
prima facie proved that the possession of the plaintiff of the suit
premises is prior to the datum line i.e. 112000.
17 I have perused the order dated 442018. Plaintiff has
produced all the documents which are filed alongwith the plaint.
However, the designated officer has only given the reasoning in one
line stating that the documents do not prove the authorization of the
said structure prior to 196162. The designated officer has not
considered the Government Resolution under the scheme of Mahatma
Gandhi Pathkranti Yogna and datum line there under. The order is not
reasoned. Hence, I find that plaintiff has made out prima facie case,
balance of convenience lies in favour of plaintiff and if interim
injunction as prayed is not granted then irreparable loss will be caused
to the plaintiff. Therefore I answer the points accordingly and pass the
following order:
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ORDER
1 Notice of Motion No 2202 of 2018 is hereby made
absolute in terms of prayer clause (a).
2 Notice of motion disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 25/7/2018
Typed on : 25/7/2018
Signed by HHJ. : 26/7/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
26/7/2018 Mrs. S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
25/7/2018
JUDGEMENT/ORDER signed by
P.O. on
26/7/2018
JUDGEMENT/ORDER uploaded
on
26/7/2018
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