Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.3386/19 (LCS No.2290/19)
MHCC010092472019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.3386 OF 2019
IN
LONG CAUSE SUIT No.2290/2019
Zubair Ahmed Nasibulla Shaikh … Plaintiff
- Versus -
Municipal Corporation of
Greater Bombay ... Defendant
Appearance :-
Mr. Yadav h/f. Mr. Shukla, Advocates for plaintiff.
Mr. Om Suryavanshi, Advocate for defendant/M.C.G.M.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 25/09/2023.
O R D E R
. This is suit for perpetual injunction restraining defendant/
B.M.C. from forcibly dispossessing or evicting the plaintiff from suit
premises i.e. shop/Room No.211, M/s. Real Sweet Farsan (more
particularly described in paragraph No.1 of the plaint) (in short suit
property) and the plaintiff has taken out present Notice of Motion under
Order-XXXIX Rule-1 of The Code of Civil Procedure for temporary
injunction.
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2 N/M. No.3386/19 (LCS No.2290/19)
2] In short, facts of the plaintiff’s case are as under :-
The plaintiff is in possession of suit premises. Defendant/
B.M.C. has issued notice dated 12/7/2019 stating that suit premises is
affected by widening of a Nallah and further directed the plaintiff to
submit documents for deciding his eligibility for an alternate
accommodation. The plaintiff replied show cause notice alongwith
documents. The plaintiff’s father was residing and doing business in suit
premises since 1961. The plaintiff is in possession of shop and
establishment licence issued by defendant/B.M.C., trade licence bearing
No.97243 dated 2/12/1978 in the name of father of the plaintiff. The
plaintiff is having water connection No.ME-S-880-0003 from 1/4/1981
in the name of father of the plaintiff. The plaintiff is having electricity
connection. The plaintiff is having patch holder’s card in the name of his
father late Mr. Nasibullah Sahabudin Shaikh and other various
documents showing existence of structure since prior to 2000. Thus, the
plaintiff is entitled for an alternate accommodation as per the
Government policy.
3] It is further stated that the plaintiff replied show cause
notice. However, on 27/7/2019 the officer of the B.M.C. Mr. Anup
Thakuar with two security guards came to suit premises and informed
the plaintiff to vacate suit premises within 2 days, otherwise, they
would forcibly dispossess or evict him from suit premises. Therefore, the
plaintiff filed this suit and taken out Notice of Motion for temporary
injunction.
4] Defendant/B.M.C. resisted Notice of Motion by filing reply-
cum-Written Statement vide exhibit-2. At the outset, it is stated that suit
is not maintainable for want of statutory notice under Section 527 of
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3 N/M. No.3386/19 (LCS No.2290/19)
The Mumbai Municipal Corporation Act (in short the M. M. C. Act).
Notice is executive or administrative act and same is not open to
challenge in the Court of law. The plaint discloses no cause of action
hence suit is not maintainable. The reconstruction, widening and
deepening of Ayodhya Nagar Nallah project is going on so also
widening of R. C. Marg bridge is going on. Therefore, the Maintenance
Department of M/East ward carried out survey of proposed project. It is
further stated that due to shifting of the alignment of service road
alongwith Nallah from North bank to South bank, Executive Engineer
(SWD), Z-V, ES has revised/rectified total survey plan and forwarded
inventory of affected structures to Maintenance Department of M/East
ward. Accordingly, Assistant Commissioner, M/East ward issued letters
to affected structures to submit documents to verify eligibility of
structures. The plaintiff is the occupier of one of the affected structures
No.6. As per the Annexure-II prepared by the Senior Colony Officer,
M/East ward issued under reference No. l-vk@,e@iwoZ@254@l-lk-@o-
o-v- fn-15@1@2020. The plaintiff is not eligible for an alternate
accommodation against the affected structure No.6.
5] It is further stated that notice has been issued to
commercial structure No.6. However, the plaintiff is raising contention
about structure No.211 i.e. M/s. Real Sweet Farsan. Structure No.6 is
not eligible for alternate accommodation. The Corporation has declared
the plaintiff’s structure No.6 as noneligible for alternate
accommodation. The Corporation has followed due process of law and,
therefore, the plaintiff is not entitled for any relief. Therefore, suit as
well as Notice of Motion deserves to be dismissed.
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4 N/M. No.3386/19 (LCS No.2290/19)
6] 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
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No. 1 TO 3 :-
7] Learned advocate for the plaintiff submitted that the
plaintiff is running Farsan & Sweet Mart in the name and style M/s.
Real Sweet Farsan at shop No.211 i.e. suit structure. The suit structure
is in existence since 1961 and competent authority has issued photo-
pass to notice structure. It is further submitted that after impugned
notice the plaintiff submitted relevant documents. However, the officer
of the Corporation Mr. Anup Thakur threatened to dispossess the
plaintiff. Therefore, the plaintiff has filed this suit and taken out Notice
of Motion.
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5 N/M. No.3386/19 (LCS No.2290/19)
8] On the other hand, learned advocate for the Corporation
submitted that the documents relied by the plaintiff are in respect of
shop No.211 and not relating to notice structure. The defendant/B.M.C.
has prepared Annexure-II and the plaintiff is not eligible for alternate
accommodation. It is further submitted that none of the documents
submitted by the plaintiff is in respect of notice structure and, therefore,
the plaintiff is not entitled for relief of temporary injunction.
9] The plaintiff has taken out this Notice of Motion for
temporary injunction under Order-XXXIX Rule-1 of the C.P.C. Plaintiff is
seeking equitable relief of interim injunction. It is well settled that
before granting relief of temporary injunction following requisites are to
be made out by plaintiff, (i) existence of a
prima facie case necessitating
protection of plaintiff's right by issuing temporary injunction, (ii)
balance of convenience tilting in his favour and (iii) clear possibility of
irreparable loss being caused to him if temporary injunction is not
granted. In addition to this, temporary injunction being an equitable
relief the discretion to grant such relief would be exercised only if
plaintiff's conduct is free from blame and he came to the Court with
clean hand.
10] The plaintiff filed this suit for injunction restraining
defendant/ B.M.C. or its officers from dispossessing or evicting the
plaintiff from structure No.211 i.e. M/s. Real Sweet Farsan without
following due process of law. On the other hand, it is contention of
defendant/B.M.C. that the notice has been issued to structure No.6.
However, the plaintiff has produced documents relating to structure
No.211. The defendant/B.M.C. has prepared Annexure-II on 16/1/2020
and the plaintiff is held as noneligible for alternate accommodation in
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6 N/M. No.3386/19 (LCS No.2290/19)
lieu of notice structure. The plaintiff has produced on record shop
registration certificate bearing No. MI-170. However, said certificate is
in respect of shop of Charcoal and Fire and not in respect of sweet mart.
The plaintiff has produced on record intimation receipt of shop namely
M/s. Real Sweet & Farsan. On perusal of said intimation, it appears that
said intimation has been given on 22/4/2019. None of the documents
relied by the plaintiff i.e. shop and establishment certificate, intimation
etc. shows that notice structure is in existence prior to 1/1/1995 or
1/4/2000.It is alleged by the plaintiff that after issuance of impugned
notice the officer of the B.M.C. threatened to dispossess or evict the
plaintiff without following due process of law and defendant/B.M.C.
has prepared Annexure-II on 16/1/2020 in respect of notice structure
wherein the plaintiff has been declared as non-eligible. This shows that
defendant/B.M.C. has followed due process of law. It appears that after
issuance of impugned notice the plaintiff the plaintiff replied notice
alongwith documents.
11] The plaintiff has produced on record photo-pass. However,
address of notice structure and photo-pass is different. Thus, the
plaintiff has not established that notice structure is censused and photo-
pass has been issued by competent authority.
12] On perusal of impugned notice, it appears that notice
structure is affected by widening of a Nallah at Ayodhya Nagar. As per
provisions of Section 41 (ha) of The Specific Relief Act injunction
cannot be granted if it will impede or delay the progress or completion
of any infrastructure project or interfere with the continued provisions
of relevant facility related thereto or services being the subject-matter of
such project. As per the Schedule to The Specific Relief Act the sewage
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7 N/M. No.3386/19 (LCS No.2290/19)
collection, treatment and disposal system, road and bridge falls under
the category of ‘infrastructure project’. Therefore, in view of the
provisions of Section 41 (ha) of The Specific Relief Act the plaintiff is
not entitled for relief of temporary injunction as prayed.
13] In the circumstances, the plaintiff has not made out case to
grant 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 No.3386/2019 is dismissed.
Date : 25/09/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
29/09/2023 02:55 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 25/09/2023
ORDER Typed on 27/09/2023
ORDER signed by P.O. on 29/09/2023
ORDER uploaded on 29/09/2023
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