Final Order 1

Order Details: Notice of Motion
Pdf Text: Dt.30/07/2019
ST 2015/19
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Roznama
CORAM : H.H.J SHRI. C. V. MARATHE (C.R.NO.08)
Plaintiff present, his advocate is absent.
Adv. Ms. Patil h/f Adv. khandagle for MCGM/Defendant
present.
Order on draft NM
By instant NM defendant no. 1 /MCGM has prayed to vacate
the adinterim relief in favour of the plaintiff vide order dtd.
17.02.2019 in Notice of Motion no. 978/19 whereby
defendants/ MCGM were restrained from implementing the
notice dtd. 07.02.2019. Ld. Adv. for the defendant has pointed
out that said notice dtd. 07.02.2019 was challenged in W.P.
No. 213/19 before Hon'ble Bombay High Court, the same
petition was dismissed on 26.04.2019 and SLP No. 12332 of
2019 was also dismissed by Hon'ble Apex Court. Ld. Adv. for
the defendant has, therefore, prayed to discharge the order of
injunction dtd. 17.02.2019. Ld. Adv. for the plaintiff has
submitted that letter dtd. 31.01.2019 of Government of
Maharashtra, holding that RL width of 122 ft. was nowhere
seen in the record, was not shown to Hon'ble Bombay High
Court in above Writ Petition and the plaintiff has every right to
challenge the notice dtd. 07.02.2019 on the ground of non
existence of RL width of 122 ft. According to him
defendant/MCGM has to approach Government of
Maharashtra to clarify width of RL and thereafter, they
can proceed with acquisition of land as per procedure laid
down under Mumbai Municipal Corporation Act, 1888.
He has further argued that if the injunction is vacated then
the plaintiff will suffer irreparable loss as the suit premises will
be demolished.
After going through the orders of Hon'ble Apex Court and
High Court in above petitions, the objection to the road
widening on the ground of the alignment of RL not being
uniform by reason of construction of multi storied buildings
has been dismissed. The Hon'ble High Court has also
considered, in paragraph no. 29, resolution of
defendant/MCGM dated 01.03.1976 and letter dtd.
18.03.1976. In paragraph no. 30 of the said judgment the
issue regarding width of RL (either 90 ft. or 122 ft.) is also
considered and it is held that the defendant/MCGM can not be
prohibited in law from widening the road depending upon the
requirements. Eventually, W.P. came to be dismissed and the
SLP was also dismissed. Therefore, the Hon'ble Bombay High
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Dt.30/07/2019
ST 2015/19
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Court has clearly dealt with the issue of width of RL line.
Therefore, I do not find merit in the submission that in absence
of reference to the letter dtd. 31.01.2019 the judgment of
Hon'ble Bombay High Court can be distinguished from this
matter.
It is also observed by Hon'ble Bombay High Court that
there can be no question of interfering with the project of
public importance of widening of a road in a highly conjusted
city like Mumbai. In view of these clear observations a project
of public importance ought not to be stalled due to
personal/individual cases with grievances about grant of less
area in the alternative or alike. If the plaintiff succeeds in
establishing his case of eligibility for certain carpet area, the
relief in respect of the same may be granted after trial. The
order of adinterim relief dtd. 17.02.2019 has caused undue
hardship to the public at large. Therefore, the order of
temporary injunction dtd. 17.02.2019 needs to be vacated due
to change in the circumstances. In view of the above draft NM
is allowed and made absolute in terms of prayer clause(a) and
order dtd. 17.02.2019 in NM No. 978/19 is vacated. NM be
registered for statistical purpose.
Plaintiff is directed to register the suit on or before next date.
Authenticated copies be given to the both parties.
Adjd to 21.08.2019 for NM reply.
Judge
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