Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. : MHCC01-007745-2018. Notice of Motion No.2401/2018.
in L.C. Suit No. 1491/2017.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2401 OF 2018.
IN
L.C. SUIT NO. 1491 OF 2017.
Mohd. Shamin Khan+1. ....……….......…. ….. PLAINTIFFS.
V/s.
MCGM. .….........................................…… ….. DEFENDANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 25th January, 2023.
APPEARANCES :
Mr. Mukesh Dubey, Ld. Advocate for the Plaintiffs.
Mr. Sunil C. Khandagale, Ld. Advocate for Defendant.
*****
01. The plaintiffs have taken out this Notice of Motion (for the
brevity the NM), restraining the defendant from enforcing the Speaking
Order dtd. 11.10.2017, in respect of the suit premises, duly described in
plaint. Perused the NM, supporting affidavit of plaintiff No.1 and say of
the defendant. Heard both the sides.
02. 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 plaintiffs have a prima facie
case in their favour ? …........................... …No.
(ii). Whether balance of convenience lies in
favour of the plaintiffs ? …...................... ... No.
(iii). Whether the plaintiffs would suffer an
irreparable loss, if the interim reliefs, as
prayed for, are not granted ?.................... … No.
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CNR NO. : MHCC01-007745-2018. Notice of Motion No.2401/2018.
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(iv). What Order ? …..............….................... …As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are inter-connected, to maintain the brevity,
I am taking the same for the joint discussion. Assailing the notice of dtd.
22.06.2017, issued U/s. 351 of the MMC Act, and the Speaking Order of
dtd.11.10.2017, the plaintiffs contended that plaintiff No.1 is occupying
the suit premises and plaintiff No. 2 is joined in the suit as this notice
was issued to him. The suit premises is very old. Earlier, it was in use of
Mr. Sayyed Kasam Hussain and he assigned the same to plaintiff No.1 in
2014. Although, the suit premises was existed since long and is bearing
Census No. LG –371, 1/7. It is also situated at slum area. The plaintiffs
are also having the documents like Affidavit-cum-Declaration, Electricity
Bill, Patch Holder Card of previous occupant, Rent receipts, photographs
etc. of the suit premises. Further, the land, where it is situated, belonged
to the State. Still, upon the false complaints, the defendant initiated this
action. In fact, he had to authority to proceed against the suit premises.
Moreover, the entire locality proposed to be developed under the S.R.A.
Scheme and the Collector has no grievance about this suit premises. In
support of their case, at this interim stage, the plaintiffs relied upon the
copies of the said Affidavit-cum-Declaration, Electricity bill, Photo-pass,
the Rent receipts, the notice, their reply and the Speaking Order.
Having considered the record, here, it is notable that it is not the
plaintiffs' case that the notice structure was brought in existence after
due permission or sanction of the defendant/MCGM. As such, the plaint
averments are silent to infer their contentions as regards 'authenticity'
of this structure. They are justifying the notice structure mainly on the
grounds that it is a censused structure, having the slum photo-pass
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issued in the name of their previous owner. True that to substantiate
this position, they filed a copy of photo-pass. However, this photo-pass
is falling short to conclude 'existence' of the notice structure. Likewise,
the documents -tax receipts and Electricity bill would not be helpful to
establish this fact. Moreover, the Affidavit-cum-Declaration, executed in
the name of plaintiff No. 1, is also of no use for the plaintiffs, simply
because, on its bare perusal, the 'existence' of the notice structure is not
being clarified. Thus, to sum-up, I am of the opinion that nowhere, the
plaintiffs could prove the legality of the notice structure. Nor, they could
justify the same as Censused and therefore, the protected structure.
Further, the record is silent to assume the Government Notification,
declaring the said area as ‘Slum’. Nor, it is the plaintiff’s case is that 'the
Order of demolition' is already passed as regards the suit premises and
hence, the defendant has no jurisdiction to proceed against the same.
Consequently, in view of the Section 47 (3) of the Slums Act of 1971,
apparently, the defendant has 'an authority' to proceed against the
same.
04. Simultaneously, the record transpires that having received
the complaint, the concerned Officer of the defendant visited on the suit
site on 22.06.2017 and found the said illegal construction. At that time,
plaintiff No. 2 was present there and on inquiry, he could not justify the
said structure. Being satisfied that it was brought into existence only in
violation of the provisions of Sections 342 and 347 of the MMC Act, the
defendant issued the said notice and after considering 'his' notice reply,
passed the reasoned Speaking Order. This way, the defendant followed
a due process of law prior to targeting this notice structure. In support
of this position, defendant also relied upon copies of inspection report,
photographs, the notice and the Speaking Order. In the circumstances, I
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am of the opinion that at this juncture, the plaintiffs could not manifest
any prima-facie case in their favour nor the balance of convenience tilts
in their side. At the same time, as they do not seem to have a propriety
and lawful rights for the suit premises, non granting of this relief would
not cause an irreparable loss to them. Hence, I answered point Nos. 1 to
3 in the negative and to answer point No. 4, I pass the following Order :
-: O R D E R :-
(i). Notice of Motion No. 2401/2018 is stands dismissed.
(ii). Notice of Motion No. 2401/2018 is, accordingly, disposed
of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 25.01.2023. City Civil Court, Mumbai.
Dictated on : 25.01.2023.
Transcribed on : 27.01.2023.
Checked and Signed on : 30.01.2023.
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in L.C. Suit No. 1491/2017.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
30.01..2023 at 02.47 p.m.
Name of the Stenogrpher
Mrs. S.R.Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 25.01.2023.
Judgment/Order signed by P.O. on 30.01.2023.
Judgment/Order uploaded on 30.01.2023.
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