Final Order 1

Order Details: Copy of Judgment
Pdf Text: CNR NO. : MHCC010071442019. 1 L.C. Suit No. 2002/2019.
JUDGMENT.
Presented on : 11.07.2019.
Registered on : 12.07.2019.
Decided on : 05.05.2025.
Duration : 05 Y, 09 M, 24 D.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
{Presided over by A.G. Santani}
LONG CAUSE SUIT NO. 2002/2019. EXHIBIT NO. 18.
1. Chandrakant Ishwar Chauhan (Since Dead }
through his Legal Representatives) }
(1a). Savita Chandrakant Chuhan, }
Aged : 45 years, Occupation : Housewife, }
(1b). Vikram Chandrakant Chuhan, }
Aged : 23 years, Occupation : Student, }
(1c). Vikrant Chandrakant Chuhan, }
Aged : 21 years, Occupation : Student, }
All residing at Flat No. 611, Building No. 12-A, }
Shivshanti Punarvasan Vasahat, Maharashtra }
Nagar, Mankhurd Mandala, Mumbai - 88. }
2. Mrs. Shaeen Mukhtar Rode, }
Aged : 41 years, Occupation : Housewife, }
Residing at Flat No. 614, Building No.12-B, }
Shivshanti Punarvasan Vasahat, Maharashtra }
Nagar, Mankhurd Mandala, Mumbai – 88. …....... } .......... PLAINTIFFS.
: VERSUS :
The Municipal Corporation of Greater Mumbai, }
Through, the Assistant Municipal Commissioner, }
M-East Ward, Chembur, Mumbai – 400 043. ….....} ......... DEFENDANT.
APPEARANCES :
Mr. Asit Singh, Ld. Advocate for the Plaintiffs.
Mrs. Sujata Puri, Ld. Advocate for the Defendant/MCGM.
*****
JUDGMENT. DATED : 05.05.2025.
01. This is the suit for grant of perpetual injunction, restraining
the defendant to remove the plaintiffs from the suit premises and/or to
disturb their such possession, without following the due process of law.
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JUDGMENT.
RIVAL PLEADINGS, IN NUTSHELL :
02. Briefly stated, the plaintiffs case is that they are residents
of Mumbai. Initially, they had their hut at Patil Wadi, Deonar, Govandi,
Mumbai, which was affected owing to some Public Project. Being so, the
defendant called them to file documents showing their eligibility and on
it's production, they were allotted with the tenements of Flat Nos. 611
and 614, in Building Nos.12/A and No. 12/B respectively, at Shivshanti
Purnarvasan Vasahat, Maharashtra Nagar, Mankhur, Mumbai-88. These
flats are subject-matter of this suit (the suit premises). Accordingly, the
allotment and possession letters were issued to them. Thenceforth, they
are in possession of the suit premises. Still, on 06.09.2019, one Officer
from M/East Ward of the defendant visited the campus and threatened
them to vacate on before 20.07.2019, as they were not allotted with the
said tenements and their occupation was illegal. Although, the plaintiffs
showed him the documents in respect of such allotment, but all in vain.
On this backdrop, as they apprehended of vacation of the suit premises
by force, they had to file this suit for the aforesaid reliefs.
03. The defendant resisted the suit by filing Written Statement
(Exhibit 2). On legal aspects of the matter, it contended that this suit is
bad for want of notice U/s. 527 of the MMC Act. Moreover, the issuance
of notice is the executive or administrative act of the defendant/MCGM
and, hence, the same can't be challenged in this suit. The plaintiffs had
no cause of action to file this suit. On facts, it contended that they could
not have filed this suit for two different immovable properties. Further,
many persons are trying to encroach upon the defendant's property and
are seeking interim orders on the basis of forged/fabricated documents.
More so, on verification of the record, it revealed that the suit premises
were never allotted to the plaintiffs or any of the persons and they were
put in possession of the defendant. More so, in view of the record, the
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JUDGMENT.
suit premises were lying vacant. In fact, the Office of Executive Engineer
(Suburbs), S.P.P.L. delivered vacant possession of tenements of Building
No. 12, up to 7th floor, in size 225 sq. ft., on 09.04.2008 for the project
affected persons (the PAP). However, in all 21 persons were trying to
encroach upon the property on the basis forged/fabricated documents.
Further, by the letter dtd. 25.08.2022, the defendant asked the Office of
Assistant Engineer, Maintenance, M/East Ward, as regards the allotment
letter and possession receipt for the suit premises. After verification, by
the letter dtd. 29.09.2022, it was informed that the Office did not issue
the said allotment and possession receipt. More so, the defendant never
gave any NOC for transferring electricity meter in plaintiffs' name and,
therefore, such bills, annexed with the plaint, were sham and bogus. In
this way, the plaintiffs aren't entitled for continuation of relief. They are
trying to play fraud and they are not allotment holders of the suit PAP
tenements. They suppressed material facts from this Court and prepared
fabricated documents. As the defendant never issued the said allotment
letters to them, as the PAP., there is no question to follow due process of
law. More so, in the light of the letter dtd. 29.09.2022, it is clarified that
they forged the documents to obtain relief from this Court and, hence,
the suit is to be dismissed. The record reveals that during pendency of
the suit, the Original plaintiff died and, therefore, in view of Order dtd.
21.11.2022, on Chamber Summons No. 1624 of 2022, plaintiff Nos.1(a)
to 1(c) were substituted being his legal representatives.
04. The issues were framed below Exhibit 04. I am reproducing
the same, along-with my findings and the reasons therefor, as under:
Sr. No. ISSUES FINDINGS
(1). Whether the plaintiff prove that suit
flat has been allotted to him by
defendant/Corporation as project
affected person? …………………………. ... No.
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(2). Whether the defendant prove that suit
is not maintainable for want of notice
U/s. 527 of the MMC Act?…….........…… ... No.
(3). Does the plaintiff is entitled for relief
of injunction ?..................……………….. ...
Only till lawfully
evicted.
(4). What Order and Decree?..............……… … As per final Order.
05. To support their claim, the plaintiffs examined plaintiff No.
1 (a) as PW1, at Exhibit 7. She repeated the plaint averments on oath.
In cross-examination, she denied that she wasn't residing in flat No. 611
and it is in possession of the defendant. She denied that the defendant
didn't allot this flat and the said allotment letter was fabricated. Except
the electricity bill and the allotment letter, she didn't file any document
to manifest that this flat was allotted to her husband as PAP. She did not
furnish recent electricity bill of this flat and the documents pertaining to
Room No. 84. She is not aware as to whether her name was entered in
Annexure-II prepared by the BMC. She isn't aware about the documents
of this Room. Still, she denied that the defendant never issued the said
allotment letter and possession receipt. In addition to her oral version,
the plaintiffs relied upon the electricity bills (Exhibit 10 Colly.). In view
of the Roznama Order dtd. 20.10.2023, copies of the Allotment Letters,
filed as per list Exhibit 9, were not exhibited as its contents could not be
proved. More so, the defendant denied having issued the said allotment
letters. On the other hand, the defendant examined Mr. Sushil Sawant,
Senior Inspector, M/East Ward, as DW 1 vide Exhibit 12. However, as he
could not offer himself for cross-examination, the defendant's evidence
came to be closed as per Roznama Order dtd. 27.01.2025. In addition,
the defendant filed copies of Possession Receipt (Exhibit 14), the letter
dtd. 25.08.2022, asking verification of the Allotment Letter, (Exhibit 15)
and the letter dtd. 29.09.2022 (Exhibit 16). However, in the light of the
Roznama dtd. 11.10.2024, this Possession Receipt and such letters, etc.
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were exhibited, subject to further proof, which the defendant never led.
SUBMISSIONS ON MERITS OF THE CASE :
06. In written submissions on merits (Exhibit 17), the plaintiffs
reiterated their contentions. Further, they submitted that as they were in
settled possession of the suit premises, the defendant is bound to follow
the due process of law. In support of their contentions, they relied upon
the cases of Krishna Ram Mahale (Dead) by his LRs V/s. Shobha Venkat
Rao, (1989 Mh.L.J. 1130), Sukh Dutt Ratra V/s. State of MP, (2022 Live
Law SC 347) and MCGM V/s. Prakash CHSL, {2014 (4) ALL MR 635}.
On the other hand, the defendant adopted it’s written statement as the
submissions on merits. Additionally, it relied upon the case of Jayashree
Prakash Mahadik V/s. Om Prakash Gupta, (AFO No. 907 Of 2022) and
contended that as the said allotment letters and the possession receipts
were fabricated, the suit is liable to be dismissed.
-: REASONS FOR THE FINDINGS :-
AS TO ISSUE NO. 1 :
07. Since beginning, the plaintiffs came with case that initially,
they had their respective hut and, accordingly, the PAPs. During the said
inquiry, they placed the documents with the defendant to ascertain their
eligibility. After verification, they were allotted with the suit premises in
Building Nos. 12/A and B respectively and thenceforth, they possessed
the same. However, on 06.09.2019, the defendant threatened their such
possession and, hence, they had to file this suit. Contrarily, as I referred
above, the defendant outright disputed 'their entitlement' and disowned
the alleged allotment in their favour. It contended that after verification
and the letter of dtd. 29.09.2022 (Exhibit 16), it transpired that the said
allotment letters and possession receipts were never so issued. True it is
that to substantiate their claim, the plaintiffs filed the allotment letters,
as per the list Exhibit 9. However, the Roznama Order dtd. 20.10.2023
shows that the said letters were not exhibited and marked as 'proved' as
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JUDGMENT.
it were denied by the defendant. More so, barring Savita (PW 1), whose
version is, apparently, falling short to establish their claim, the plaintiffs
didn't examine any other witness to substantiate the said allotment and
their status of the PAP. Thus, they couldn't justify the very basis for filing
this suit. Simultaneously, their plaint averments are completely silent to
infer as to what was the nature of structure, initially possessed by them,
which was subsequently acquired by Office of the defendant and in-lieu
thereof, they were allegedly allotted with this suit premises. The plaint
averments are, thus, vague and scanty to gather the minimum required
details of the earlier structure and it’s acquisition. That apart, except the
said allotment letters (which were never proved) and the electricity bills
(Exhibit 10 Colly.), they didn't place any other document on the record.
Furthermore, Savita (PW 1) is not aware much about facts of the matter
and therefore, she could not enlighten on this crucial aspect of the suit.
She categorically conceded that barring the electricity bills (Exhibit 10
Colly.), she did not have any other document to show this allotment and
she had no 'NOC', issued by the defendant, for installation of electricity
connection. More so, she had no document pertaining to Room No. 84,
much less, she was aware that her name was reflected in Annexure II. It
is, thus, clear that nowhere, the plaintiffs could prove their status as the
PAP and consequential allotment of the suit premises to them. Hence, I
answered issue No. 1 in the negative.
AS TO ISSUE NO. 2 :
08. The defendant assailed this suit for want of the notice U/s.
527 of the MMC Act. While justifying the non-issuance of such a notice,
the plaintiffs pleaded aspect of urgency and arbitrariness on the part of
defendant. They contended that despite their entitlement for allotment,
the defendant was bent upon to dispossess them, without following the
due process of law. Hence, being apprehended about such dispossession,
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they filed this suit. On this backdrop, it can safely be concluded that as
the urgency was involved in the matter, this notice U/s. 527 of the MMC
Act stood waived. Certainly, the demolition of the suit premises, prior to
filing of this suit, would have non-suited the plaintiffs. Being so, the suit
is tenable even in absence of such notice. Hence, I answered issue No. 2
in the negative.
AS TO ISSUE NOS. 3 AND 4 :
09. By filing this suit, the plaintiffs restricted their relief for the
grant of perpetual injunction, restraining the defendant to disturb their
possession on the suit premises, expect by following due process of law.
While disusing the above issues, I expressed my opinion that they could
not prove their status as the PAP and consequential allotment of the suit
premises in their favour. However, the fact remained that although, the
defendant disputed the said allotment letters, being fake and fabricated,
even, it couldn't substantiate the said aspect on trial. Rather, it avoided
to lead its side, despite affording of sufficient opportunities. Notably, it
also failed to prove the contents of the vital letters (Exhibit 15 and 16),
which could have shaken the plaintiffs' entire claim. On this backdrop, it
can safely be concluded that the defendant failed to establish the said
allotment letters as false and fabricated. Here, it can not be lost sight of
that although, the plaintiffs could not prove sanctity and authenticity of
the allotment letters, still, they filed electricity bills (Exhibit 10 Colly.),
pertaining to the suit premises. Being so, prima-facie, they could justify
their possession over the suit premises. However, they failed to manifest
their rights on the suit premises. Further, the plaint averments are silent
to gather 'the lawful origin', if any, of their possession and its continuity.
Consequent thereto, I am of the opinion that they are not entitled to be
continued at the suit premises. However, still, the defendant, which also
failed to establish the alleged falsity of such allotment letters, can not be
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JUDGMENT.
permitted to to take law in its hand. I have gone through the ratio laid
in the matter of Jayashree Mahadik, Cited Supra. I am also in agreement
with the same. However, with all respects, I am of the opinion that the
same is not appealing to the present set of facts. Because, in that case,
the trial Court observed that the said allotment letters were forged and
fabricated documents, which is not the position in this case. More so, in
the said Judgment the Hon'ble High Court also referred to the matter of
Jayprakash Patru Chouhan V/s. MCGM, (AFO No. 1186 of 2013), dtd.
05.05.2017, wherein, eight suits were filed by Constituted Attorneys of
the plaintiffs and when they were called upon to file affidavits, in all 17
plaintiffs did not file individual affidavits before the Hon'ble High Court.
However, this is not the position in the present case. Admittedly, in view
of the electricity bills (Exhibit 10 Colly.), the plaintiffs could show their
possession and it requires to be protected, till they are legally evicted by
the defendant by following due process of law. Considering this peculiar
scenario of the case, I feel that the parties should bear their own costs of
the suit. In the sequel, I answered issue No. 3 accordingly and to answer
issue No. 4, I pass following Order:
-: O R D E R :-
1. The suit is partly decreed.
2. The defendant, it’s agent, it's servant and anybody
else claiming through it are hereby restrained to
dispossess the plaintiffs, except by following the
due process of law.
3. The parties to bear their own costs of litigation.
4. Decree be drawn-up accordingly.
{A.G. Santani}
Mumbai. Judge,
Dated : 05.05.2025. City Civil Court, Mumbai.
Dictated on : 05.05.2025.
Typed on : 05.05.2025.
Checked and Signed on : 06.05.2025.
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JUDGMENT.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT.”
06.05.2025 04:10 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. A. G. Santani,
Court Room No. 4.
Date of Pronouncement of
JUDGMENT
05.05.2025
JUDGMENT signed by P. O. on 06.05.2025
JUDGMENT uploaded on 06.05.2025
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