Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.3385/19 (L.C.S. No.2289/19)
MHCC010092452019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.3385 OF 2019
IN
LONG CAUSE SUIT No.2289/2019
Shaikh Raja Nasibullah … Plaintiff
- Versus -
Municipal Corporation of
Greater Bombay ... Defendant
Appearance :-
Mr. J. S. Yadav h/f. Mr. B. P. Shukla, Advocates for plaintiff.
Mr. Om Suryavanshi, Advocate for defendant/M. C. G. M.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 24/01/2024.
O R D E R
. This is suit for injunction restraining defendant B. M. C.
from dispossessing or evicting the plaintiff from shop No.212, M/s. N. S.
Engineering Works situated at R. C. Road, Vashi Naka, Chembur,
Mumbai without following due process of law and he has taken out
present Notice of Motion under Order-XXXIX Rule-1 of The Code of Civil
Procedure (in short, the C. P. C.) for temporary injunction restraining
defendant B. M. C. from evicting the plaintiff.
2] Brief facts of the plaintiff's case are as under :-
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2 N/M. No.3385/19 (L.C.S. No.2289/19)
The plaintiff is in use, occupation and possession of room
No.212, described in paragraph No.1 of the plaint (hereinafter called as
suit structure). The plaintiff is carrying on business in the name and
style M/s. N. S. Engineering. The structure is situated near a Nallah
and, therefore, same is required to be removed for widening of Nallah.
The plaintiff is in occupation of structure prior to 1/1/2000 and,
therefore, he is eligible for an alternate accommodation as per policy of
the B. M. C. However, defendant B. M. C. bent upon to demolish
structure without providing alternate accommodation. Therefore, the
plaintiff has filed this suit.
3] The plaintiff is having various documents, affidavit, Power
of Attorney etc. The father of the plaintiff was residing as well as doing
business in suit structure since 1961. The Corporation has issued shop
act licence in 1990 in the name of mother of plaintiff.
4] It is further stated that the Corporation issued notice to the
structure for widening of Nallah. Thus, the plaintiff is entitled for an
alternate accommodation. However, the Corporation is bent upon to
evict the plaintiff without following due process of law. It is prayed that
the Corporation be restrained from evicting the plaintiff.
5] Defendant B. M. C. resisted Notice of Motion by filing reply
dated 25/6/2023. At the outset, it is contended that the B. M. C. has
undertook widening reconstruction of Ayodhya Nagar Nallah project.
The Corporation has issued notices to the affected structures. Due to
shifting of alignment of service road alongwith Nallah Executive
Engineer has revised total station survey plan in 2019 and forwarded
inventory of affected structures. The plaintiff is one of the affected
occupier and his structure No.5 is affected to the extent of 28.86 %. The
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3 N/M. No.3385/19 (L.C.S. No.2289/19)
Corporation has prepared final Annexure. The plaintiff is eligible
hutment dweller for his affected commercial structure No.5 (M/s. N. S.
Engineering Works) and the plaintiff will be provided alternate
accommodation.
6] The plaintiff has filed copy of notice which was sent to
structure No.5 however, the plaintiff is claiming that structure No.212,
of M/s. N. S. Engineering Works is affected and he is entitled for
alternate accommodation. However, the plaintiff has been held eligible
for structure No.5. However, he is claiming that his structure No.212 is
also eligible for alternate accommodation. The claim of the plaintiff is
not maintainable. The Corporation has prepared Annexure-II and as
such the plaintiff is not entitled for the reliefs claimed.
7] Points for determination alongwith findings thereon for the
reasons are as under :-
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out
prima
facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . No.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
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4 N/M. No.3385/19 (L.C.S. No.2289/19)
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
8] The plaintiff relied on notice, reply, shop and establishment
certificate, trade licence, water bill, electricity bill, LIC receipt, patch
holder card, passbook issued by MHRDA, share certificate, property tax
bill, receipt of Oriental Insurance Co., domicile certificate, cylinder
deposit receipt, PAN card, passport, death certificate, voters I/D card,
telephone bill, Aadhaar card, copy of photographs.
9] The Corporation has produced on record copy of Annexure-
II 15/1/2020, letter sent to Market Department dated 10/10/2022.
10] Learned advocate for the plaintiff submitted that the
plaintiff is in occupation of room No.212 and carrying on business in
the name and style M/s. N. S. Engineering Works. The structure of the
shop is in existence since 1961. The Corporation has issued shop act
licence. In his submission, the shop act licence has been issued in 1987
and, therefore, the plaintiff is entitled for an alternate accommodation.
He further submitted that structure No.212 of the plaintiff is affected by
widening of the Nallah and, therefore, as per the policy of the
Corporation the plaintiff is entitled for alternate accommodation.
However, the Corporation threatened to demolish structure without
providing alternate accommodation, therefore, the plaintiff filed this
suit and taken out Notice of Motion.
11] It is contention of the plaintiff that he is in occupation of
shop bearing No.212 and carrying on business in the name and style
M/s. N. S. Engineering. On the other hand, it is contention of the
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5 N/M. No.3385/19 (L.C.S. No.2289/19)
Corporation that the plaintiff's structure No.5 has been held eligible and
the plaintiff is entitled for alternate accommodation in lieu of structure
No.5. It is further case of the Corporation that the plaintiff is not
entitled for alternate accommodation in lieu of room No.212. Advocate
for the B. M. C. submitted that the Corporation has issued notice to the
plaintiff in respect of shop No.5 for submitting document for deciding
eligibility. Accordingly, the plaintiff has submitted documents alongwith
letter advocate dated 22/7/2019 and he has been held eligible for
permanent alternate accommodation in lieu of shop No.5.
12] The plaintiff is claiming that his structure, which is
affected, is shop No.212 and he is eligible for alternate accommodation.
However, the plaintiff has not produced on record any document to
show that he is in occupation of room No.212 and said shop is in
existence since prior to 1/1/1995. It is grievance of the plaintiff that he
has not been held eligible by the B. M. C. for alternate accommodation.
In such circumstances, the plaintiff is having alternate remedy of filing
appeal before competent authority. The plaintiff has not produced
documents showing that structure No.212 is in existence prior to
1/1/1995 and he is in continuous occupation of room No.212. It
appears that the Corporation has issued notice to structure No.5 of the
plaintiff callling upon him to submit documents for deciding eligibility
for providing alternate accommodation. Accordingly, the plaintiff has
submitted documents and the Corporation has prepared Annexure-II.
The plaintiff has been held eligible for alternate accommodation in lieu
of his structure No.5. This shows that the Corporation has followed due
process. No fault can be found in the process to be followed for deciding
eligibility. The plaintiff has not produced on record documentary
evidence to show that his room No.212 is affected by widening of
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6 N/M. No.3385/19 (L.C.S. No.2289/19)
Nallah. In the circumstances, the plaintiff is not entitled for the relief of
temporary injunction as prayed. Accordingly, I answer points No.1 to 3
in the negative and in answer to point No.4 pass following order :-
O R D E R
Notice of Motion is dismissed.
Date : 24/01/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
30/01/2024 12:30 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 24/01/2024
ORDER Typed on 29/01/2024
ORDER signed by P. O. on 30/01/2024
ORDER uploaded on 30/01/2024
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