Final Order 1

Order Details: Notice of Motion
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IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.2274 OF 2018
IN
L.C. SUIT NO.1260 OF 2018
SHAKTI JAISING RANE ]...Plaintiff.
Versus
1. The Municipal Corporation for ]
Greater Mumbai & Ors. ]...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 12th June, 2019.
Mr. Remedios h/f Mr. Thorat, Advocate for plaintiff.
Ms. Mhatre, Advocate for MCGM/Defendant.
O R D E R
1. By this Notice of Motion the plaintiff has sought temporary
injunction to restrain the defendants and anybody through them from
demolishing or puling down or removing the suit premises and from
removing the vegetables and plantations put by the plaintiff on the suit
plot of land.
2. In brief plaintiff's case is that, she is in exclusive use, occupation
and possession of the plot of land measuring 46 ft. x 400 ft. in survey
No.113 (part), Hissa No.A1 corresponding to CTS No.291, village
Hariyali, Taluka Kurla, situated opposite building No.14 at Tagor Nagar,
Vikroli (East), Mumbai together with a structure measuring 17 ft.x 25
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ft. made of B.M. wall with A.C. Sheets roof. (hereinafter to be referred
as the "Suit Property"). The structure bears Census No.1985/S/MS/1.
The plaintiff’s late father Jaising Patil was cultivating the suit plot of land
since the year 1950 onwards. After his death in the year 1980 plaintiff is
cultivating the suit plot of land. She has constructed a structure thereon
in the year 1983 and is using as her residence. She has got a ration card
on the address of suit premises. The plaintiff had applied before a
Census authority and the structure is censused. A pitch holder's card is
issued in the plaintiff’s name. In the year 1990 the Officers of defendant
No.1 threatened to demolish the suit premises. The plaintiff filed L.C.
Suit No.8774 of 1990. It was disposed of in the year 1997. She had
obtained the water connection in the suit premises. In the communal
riots on January, 1993 the suit premises were damaged and she had
reported it to the police. The Notice dated 19.12.1996 was issued to the
plaintiff by M/s. Tata Electric Company falsely alleging that the suit
premises is illegally constructed below the overhead electric line. She
had informed said Company that the suit premises is censused. The suit
plot of land was not having fence. Nearby residents were dumping waste
material thereon. Therefore, she had written a letter to defendants to
take steps to abate the nuisance. Thereafter, the officers of defendants
had erected two gates on suit plot and the keys were given to the
plaintiff. She has also obtained electric connection in the suit premises.
One Bochanvashi Shree Akshar Purshottam Sanstha (hereinafter referred
as "Sanstha") had broken one of the gates. The representatives and
workers of said Sanstha had damaged the cultivation on suit plot of land
by dumping debris. They put up 20 pits of sand to raise construction of
hall. The plaintiff addressed a communication to defendants. She also
lodged a complaint with Vikhroli Police Station. One Mr. Kantibhai
Motibhai Patel had on behalf of said Sanstha, attempted to construct a
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room on the suit. The defendants' Officers informed the plaintiff that the
suit plot is not allotted to the Sanstha. The plaintiff pointed out to the
Officers of defendants that the illegal construction of a wall by the
Sanstha is still in existence. The defendants informed the plaintiff that
only one wall of 10 ft. is existing and on the incomplete structure and
electricity meter is installed. Defendants again informed the plaintiff
that no illegal work was found on the suit plot. The plaintiff filed a
complaint with Vikhroli Police Station that the representatives of the
Sanstha have erected partly constructed wall and High Power Main
Switch. She also filed a complaint with B.S.E.S. Ltd. She wrote various
letters to B.S.E.S. Ltd. upon which she was called upon for discussion.
She came to know that the Sanstha was intending to start a Child
Development Centre and a garden on the suit plot. The plaintiff again
wrote a letter to the B.S.E.S. Ltd. for removal of electric Meter and cable
laid through the suit plot. Since High Tension Electric wire are existing
over the suit plot, no construction is permitted below it. The said
Sanstha has not obtained any permission for construction. The State of
Maharashtra is the owner of the suit plot. The Sanstha is not entitled to
enter upon or in any manner disturb the plaintiff's possession on the suit
plot. On 7.4.2000 the representatives of Sanstha directed the plaintiff to
remove censused structure. The Department of Collector of Kurla also
asked the plaintiff to remove herself from the suit plot. She filed suit
No.1747 of 2000 before the Hon'ble Bombay High Court. The suit is
decreed on 26.8.2003. The first Appeal filed by the Sanstha is dismissed
by the Hon'ble High Court. The Letters Patent Appeal No.265 of 2005
filed by the Sanstha also came to be dismissed. The Sanstha filed a
Special Leave Appeal before the Hon'ble Supreme Court which also came
to be dismissed. The plaintiff applied for levy of tax in pursuance to
plantation on the suit plot but she was advised to contact the Manager of
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Hydroelectric Power Supply Company. The plaintiff made
correspondence with defendants to allow her to use the tubewell water
for the plantation. She also applied for Certificate of Establishment.
Consequently, she was issued a Certificate of Establishment. There are
continuous threats from the Officers of defendants either for removal of
plantation or demolition of the suit premises. She had issued a letter to
the Assistant Commissioner of defendants, the defendants and the police
authorities. On 2.5.2018, the Superintendent of Gardens, i.e. Defendants
visited the suit plot and informed the plaintiff that it is required for
creation of garden. The defendants informed the plaintiff that any how
the suit property is to be got vacated to create a garden and to demolish
the suit premises. Hence the injunction is prayed for.
3. The defendants opposed the Notice of Motion on the ground that
CTS No.291 having total area of 18000 sq. ft. is owned by State
Government and is alloted to M/s. The Tata Hydroelectric Power Supply
Company Ltd and the Andra Vally Power Supply Company Limited.
These Companies requested the defendant in 1998 to develop the said
plot to protect the same from encroachment. After following necessary
procedure and after obtaining necessary permission the Contractor M/s.
Balaji Infrastructure was appointed to develop the said plot.
Accordingly, the work order was issued and a garden is developed on the
said plot by providing pathway, playing apparatus, compound wall, Gate,
Horticultural work, play area etc. Now the plaintiff has sown seeds of
vegetables in the children playing area and thereafter approached this
Court. There is no structure existing in the developed area of the garden
plot. The suit premises i.e. structure of present plaintiff is not situated in
the developed garden plot. The owner is not made party to the present
suit and therefore plaintiff is not entitled to relief. The photo pass is for
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the structure measuring 12 x 9 ft. however plaintiff claims suit structure
measuring 17 x 25 ft. The plaintiff has not submitted photographs of the
suit structure and the plan certified by the Licenced Architect. The
documents produced by the plaintiff do not prove authorization of the
suit structure. No threats of demolition of the structure without following
due process of law were given to the plaintiff.
4. Following points arise for determination against which findings are
recorded for the reasons to follow:
Sr. No. POINTS FINDINGS
1. Does plaintiff prove a prima facie case
in her favour?
In the negative.
2. Whether the balance of convenience lies
in plaintiff’s favour?
In the negative.
3. Whether the plaintiff will suffer
irreparable loss if injunction as sought
is refused?
In the negative.
4. What Order ? Notice of motion is
dismissed.
REASONS
As to point Nos.1 to 4.
5. Heard the advocate for plaintiff and defendants. Perused the
proceedings.
6. The plaintiff has sought interim injunction not to remove the
vegetables and plantation on an open piece of land measuring 46 x 400
ft. i.e. of 18,400 sq. ft. She has also sought an injunction restraining
defendants from demolishing the suit premises. According to her
defendants shall be injucted from doing so without following due process
of law.
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7. A bare reading of the plaint reveals that the plaintiff claims to be
in exclusive possession of the open plot of land and the suit premises.
8. In order to decide the plaintiff's case, it has to be seen whether,
prima facie, the plaintiff is in exclusive possession of the said open plot
of land and the suit premises on the date of the suit.
9. Plaintiff has produced a Property Record Card, Exh.D, of CTS
No.291 which reveals that it has an area of 44417.5 sq. mtrs. The owner
of the land is State of Maharashtra whereas the possessor of land is
Andra Vally Power Supply Company Ltd.
10. The plaintiff herein claims to be in possession of 18400 sq. ft. area
out of total area measuring 44417.5 sq.meters. Admittedly it is piece of
open land. An open piece of land of 18400 sq.ft. out of 44417.5 sq.
meters cannot be identified merely with reference to its City Survey
number or Survey number etc. In such a case the boundaries of such
piece of land are necessarily to be identified and mentioned for the
appropriate identification of such piece of land measuring 18400 sq.ft.
In this case the plaintiff has not mentioned the boundaries of the land
allegedly possessed by her. In such case if injunction is granted, it can be
used to claim protection of any area of said survey number. Thus the
injunction will be blanket one. This is legally not permissible.
11. It is the settled legal position that, whenever an issue as to
possession on open land is to be decided or considered, possession will
follow the title. In this case plaintiff is not the owner. Therefore, the
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plaintiff has to make out a strong prima facie case of being in exclusive
possession of said open piece of land.
12. The plaintiff has relied upon many documents most of which is the
correspondence by the plaintiff to various authorities. In one of such
letters or communication produced at Exh.AD the plaintiff has claimed
that all the plantation and cultivation allegedly planted by her was
destroyed. She has also produced certain photographs on record. Few of
the photographs reveal the vegetation and plantation. However, few
photographs show or reveal a developed garden. Such garden is
allegedly developed by the defendants. Considering the contents of the
communication at Exh.AD and the photographs filed by the plaintiff
herself revealing development of garden by the defendants, plaintiff's
case, of being in exclusive possession of the said open piece of land, on
the date of suit, is not acceptable.
13. The plaintiff was called upon to explain the photographs produced
by her revealing that a garden is already developed by the defendants on
said piece of land, before filing of the suit. The plaintiff submitted that
the plaintiff is still in possession of said plot of land which includes the
garden developed by the defendants. This is something not admissible in
law that a person claims to be an exclusive possession of piece of land on
which the defendants have already developed the garden.
14. The Advocate for plaintiff submitted that this Court cannot look
into the documents submitted by the defendants along with affidavit in
reply at Exh.4. According to him in view of provisions of Order 8 Rule 1
A of CPC, the defendants cannot rely upon such documents which are
not produced along with written statement. The submission is made
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since written statement is also filed by the defendants.
15. A bare look to the Provisions of Order 8 Rule 1A and specifically
of sub Rule 1 and Sub Rule 3 thereof reveal that, these provisions deal
with the power of defendants to produce the documents. However, these
provisions do not deal with the power of the Court to look into such
documents which are produced by the defendants though not strictly in
accordance with the Provisions of Order 8 Rule 1A of CPC. Thus, this
Court can very well look into the documents produced by the defendants
in order to arrive at appropriate conclusion in the case.
16. The photographs produced by the plaintiff and produced with the
Affidavit in support of documents filed by defendants, reveal that the
garden is already developed before filing of the suit. Thus, the plaintiff
cannot claim an exclusive possession on said plot of land. It is also clear
that despite having knowledge that the defendants have already
developed a garden, the plaintiff has suppressed said fact in her
pleadings.
17. So far as the suit premises is concerned, according to the plaintiff
it is measuring 17 x 25 ft. and is made up of B.M. walls and A.C Sheets.
According to the plaintiff the suit premises is already censused.
18. To support her case, plaintiff has relied upon a photo pass at
Exh.B. The photo pass Exh.B however does not support the plaintiff's
case, as it is in connection with a temporary structure measuring 12 x 9
ft. Thus, the suit premises is not the structure censused by virtue of
photo pass Exh.B though it is so claimed by the plaintiff. The plaintiff is
thus coming with an incorrect or false version before the Court.
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19. The advocate for plaintiff submitted that the plaintiff's possession
on a piece of land as well as the suit premises was subject matter of
earlier round of litigation which reached up to the Hon’ble Supreme
Court. According to him the plaintiff was successful throughout and
therefore plaintiff's possession is prima facie established.
20. The copies of decree and orders in earlier around of litigation,
produced by the plaintiff, reveal that the plaintiff had withdrawn the suit
as against the State of Maharashtra and others i.e. Owner and possessor
mentioned in P.R. Card Exh.D. The plaintiff prosecuted the suit only
against the Sanstha. In such circumstances the plaintiff cannot prove her
exclusive possession on said piece of land and the suit premises on the
strength of the earlier round of litigation, when her own photographs
reveal that, on the date of suit, she was not in exclusive possession of the
piece of land.
21. The Advocate for plaintiff pointed out that, in its reply the
defendants in paragraph No.6 (e) have admitted plaintiff's possession on
the plot of land.
22. A bare perusal of paragraph 6(e) of the reply by the defendants
revealed that, the plaintiff’s exclusive possession is nowhere admitted by
the defendants. What is stated therein is that the plaintiff has planted
some vegetation on the already developed garden. It in no way proves
plaintiff's exclusive possession on the plot of land as alleged.
23. The Advocate for plaintiff also submitted that, the photographs
filed by the plaintiff with rejoinder revealed that she had grown some
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vegetables on the piece of land and therefore her possession is
established. Such arguments cannot be accepted for the reason that a
mere act of plaintiff in planting some plants in the garden developed by
the defendants cannot establish claim of exclusive possession of the
plaintiff on said piece of land.
24. The advocate for plaintiff relied upon RAME GOWDA (dead) by
lrs. Vs. M. VARADAPPA NAIDU (dead) by lrs. and another, 2004(1)
Supreme Court Cases 769 and submitted that the plaintiffs "Settled
possession" is reflected in the documents and it needs to be protected.
The plaintiff is entitled to an injunction as the defendants are not the
owner of the piece of land.
25. In this case, prima facie, the plaintiff is not in exclusive possession
of the said open piece of land as alleged by her. The defendants have,
rightly or wrongly, already developed a garden on said piece of land and
thus the plaintiff has lost the possession thereof. In such circumstances
the authority cited supra will not help the plaintiff.
26. Advocate for the plaintiff also relied upon Abdul Hasan Shaikh
Mansuri Vs. Municipal Corporation of Mumbai & Ors, 2007 4
AIR(Bom)(R)590 and submitted that defendants cannot take action
against the plaintiff in respect of said open piece of land as well as the
structure without following due process of law.
27. The Advocate for defendants relied upon the Judgment of
Hon'ble Bombay High Court in Appeal From Order Stamp No. 5578
of 2017 dated 8.3.2017 between Rajnikant Narayan Shinde Vs.
Municipal Corporation of Greater Mumbai wherein after considering
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the Abdul Hasan's case, cited supra, the Hon'ble Bombay High Court has
observed that,
“In any case, minimum that is expected of plaintiff is that the
plaintiff states that the suit structure is not only in existence but also,
it has also some semblance of legality. Otherwise, any plaintiff who
puts up a illegal and unauthorized structure will simply rush to the
Court and deflect or at least delay even the taking of steps by the
Municipal Authorities, on account of the pendency of the matter."
28. Thus the legal position is that, even in a suit, seeking injunction
against the Corporation that it shall not take action otherwise than by
due process of law, minimum that is expected of plaintiff is that the
plaintiff establishes that the suit structure is not only in existence but
also, it has also some semblance of legality.
29. In this case the plaintiff has claimed that the suit premises is a
censused structure. However, photo pass Exh.D reveals otherwise. That
apart, in reply the defendants have stated that the suit premises is not in
existence in the disputed plot of land and thus they have no concern with
the suit premises. Therefore, it has nothing to do with following due
process of law in connection with the suit premises. Though the
statement in the reply are not properly worded, it is clear that the
defendants have come with a case that they have no concern with the
suit premises. Thus there is no apprehension as expressed by the
plaintiff. Hence, in absence of any legality of the suit premises and in
absence of a real apprehension, the plaintiff is not entitled to an
injunction as sought for.
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30. To sum up, the identity of the disputed plot of land measuring
18400 sq.ft. is not established in absence of boundaries. The plaintiff is
not in exclusive possession of the disputed piece of land. She has come
with a false version of exclusive possession on the disputed piece of land
and further that the suit premises is censused. The injunction being an
equitable remedy, it is least expected from the plaintiff to come before
the Court with clean hands. The plaintiff not following this principle of
equity can never seek an equitable remedy of injunction from the Court,
despite other facts being in her or his favour. In such circumstances, I
hold that the plaintiff has failed to make out a prima facie case in her
favour. The balance of convenience also does not lie in her favour.
Considering the circumstances, and facts of this case no case of
irreparable loss is made out by the plaintiff. Hence, I answer point Nos.1
to 3 in the negative and pass the following Order:
ORDER
1. Notice of Motion 2274 of 2018 is dismissed.
2. Costs in cause.
Sd/
(A.N. MARE)
Judge,
12/06/2019 City Civil Court, Mumbai.
Dictated On : 12.06.2019
Transcribed on : 15.06.2019
HHJ Signed on : 18.06.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
18.06.2019 02.50 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
12.06.2019
JUDGEMENT /ORDER signed by
P.O. on
17.06.2019
JUDGEMENT /ORDER uploaded
on
18.06.2019
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