Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.3387/19 (L.C.S. No.2291/19)
MHCC010092482019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.3387 OF 2019
IN
LONG CAUSE SUIT No.2291/2019
Shaikh Nisar Nasibulla … 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 : 07/02/2024.
O R D E R
. This is suit for perpetual injunction restraining defendant
B.M.C. or anybody through it from dispossessing or evicting the plaintiff
from suit structure described in paragraph No.1 of the plaint without
following due process of law and the plaintiff 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 dispossessing the plaintiff.
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2 N/M. No.3387/19 (L.C.S. No.2291/19)
2] In short, facts of the plaintiff's case are that the plaintiff is
the owner and in use, occupation and enjoyment of suit structure. He
was in possession of shop near Manish Vijay Society, R. C. Road, Vashi
Naka, Chembur, Mumbai (in short the original structure). The structure
of the plaintiff was alleged to be near a Nallah and same was required
to be removed for widening of Nallah. As per the policy of the B. M. C.
and the State Government if any structure is in existence prior to
1/1/2000, which is required to be removed for public project, occupier
is entitled for an alternate accommodation. However, defendant B.M.C.
bent upon to demolish structure without considering that the plaintiff is
entitled for an alternate accommodation.
3] It is further stated that defendant B. M. C. has issued notice
on 12/7/2019 directing the plaintiff to submit documents of his shop
No.213, room No.213 i.e. suit structure for widening of Ayodhya Nagar
Nallah and bridge on R. C. Road. The plaintiff submitted documents
showing existence of structure prior to 1/1/2000 to the Assistant
Municipal Commissioner. The father of the plaintiff was carrying
business in suit structure since 1961. The plaintiff is having shop act
licence in the name of his father Mr. Nasibullah Shaikh. The plaintiff is
having trade licence No.97243. The Corporation has issued water
connection bearing No.ME-S/880-003. However, on 27/7/2019 the
officer of M/East Ward with security guards informed the plaintiff that
suit structure is unauthorized and remove within two weeks. The
plaintiff has not received any notice that the plaintiff is in unauthorized
possession of premises and, therefore, the allegations of the B. M. C.
that the plaintiff is in unauthorized possession is false and baseless.
Therefore, the plaintiff filed this suit and taken out Notice of Motion.
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3 N/M. No.3387/19 (L.C.S. No.2291/19)
4] Defendant B. M. C. resisted Notice of Motion by filing
reply-cum-Written Statement below exhibit-2. It is contended that for
the purpose of widening of Ayodhya Nagar Nallah and R. C. Marg
bridge concerned department has carried out survey of Ayodhya Nagar
Nallah, training, widening, deepening, reconstruction project. Structure
bearing No.213 of the plaintiff is affected. Accordingly, B. M. C. has
issued notice dated 1/4/2017. Total four structures at serial Nos.1 to 4
i.e. structures No.214, 214/A, 215 and 216 are affected by Nallah
widening and widening of bridge project. However, due to shifting of
alignment of service road alongwith Nallah from North Bank to South
Bank executive engineer (SWD), Z-V, E.S. revised survey plan and
forwarded inventory of affected structures to Assistant Commissioner,
M/East ward who is competent authority.
5] It is further stated that as draft annexure of above referred
structures was already prepared hence no fresh letter was issued to
abovesaid four structures and letters are issued to other structures. The
Corporation has decided eligibility of structures affected in said project.
As per available record, it appears that the defendant held eligible
structure No.5 in the name of M/s. N. S. Engineering Work, for
providing alternate commercial Gala. The structures No.213 and
structure No.5 are same and structure No.5 is held eligible for area of
15.11 square meters. The list of eligible structures has been submitted
to Assistant Commissioner, Market to allot alternate commercial shop to
Mr. Raja Nasibullah Shaikh.
6] It is further stated that the plaintiff claimed alternate
accommodation in lieu of structure No.213 but structure No.213 and
structure No.5 are the same and it is already declared as eligible.
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4 N/M. No.3387/19 (L.C.S. No.2291/19)
Therefore, the plaintiff is not entitled for any alternate accommodation
as claimed in suit. Therefore, the plaintiff is not entitled for any relief
claimed. The Corporation has followed due process of law. Hence Notice
of Motion deserves to be dismissed.
7] The plaintiff filed rejoinder affidavit and denied
contentions in reply.
8] 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 :-
9] Learned advocate for the plaintiff submitted that suit
structure is in existence since prior to 1961 and father of the plaintiff
was carrying on business since 1961. The Corporation issued notice
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5 N/M. No.3387/19 (L.C.S. No.2291/19)
dated 12/7/2019 directing the plaintiff to submit documents. The
plaintiff has annexed notice below exhibit-A to the plaint which is dated
1/4/2017 and not filed notice dated 12/7/2019. Learned advocate for
the plaintiff further submitted that defendant B. M. C. has not
considered eligibility of the plaintiff and the officer of B. M. C.
threatened to demolish structure without providing alternate
accommodation hence the plaintiff is entitled for relief of temporary
injunction.
10]
Per contra, learned advocate defendant B. M. C. submitted
that none of the documents relied by the plaintiff is relevant. The
plaintiff has not produced so called notice dated 12/7/2019. It is
further submitted that the Corporation has issued notice dated
1/4/2017 to occupier of Modern Electronic and structures No.213 and 5
is one. It is further submitted that the plaintiff is held eligible for an
alternate accommodation in lieu of structure No.5. It is further
submitted that as per Annexure prepared by the B. M. C. the plaintiff is
held eligible for structure No.5 which is in the name of M/s. N. S.
Engineering Shaikh Raja. It is further submitted that the plaintiff is
claiming alternate accommodation to same structure stating that
structure No.213 is different structure. Therefore, the plaintiff is not
entitled for another alternate accommodation for same structure.
11] The plaintiff contended that the Corporation has issued
notice dated 12/7/2019 directing him to submit documents regarding
shop No.213, room No.213. However, the plaintiff has not produced
said notice. The notice exhibit-A to the plaint is notice dated 1/4/2017.
The photocopy of said notice bears the name M/s. Modern Electronic.
The plaintiff is claiming that said room No.213 is occupied by him and
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6 N/M. No.3387/19 (L.C.S. No.2291/19)
he is carrying on business in the name and style M/s. Modern
Electronic. The plaintiff has filed shop and establishment certificate
issued in the name of M/s. Modern Electronic. However, the address of
said establishment is shop No.45, R. C. Marg. None of the documents
produced by the plaintiff supports his case that he is occupying shops
No. 213 or 213/A. On the contrary, the shop and establishment
certificate produced by the plaintiff at exhibit-D to the plaint shows that
the address of Modern Electronic is different than mentioned by the
plaintiff in the plaint. Thus, I hold that the plaintiff has failed to prove
that structure No.213 is separate structure i.e. structure No.213 and 5
are not one and same.
12] On perusal of copy of Annexure-II produced by B. M. C., it
appears that structure No.5 is held eligible for alternate
accommodation. It is case of the Corporation that structure No.5 and
suit structure i.e. structure No.213 is one and same. The plaintiff has
not produced document in respect of structure No.213. The relief of
temporary injunction is discretionary and an equitable relief and it is
not mandatory that on mere asking such relief should be given. The
interim injunction cannot be granted without establishing
prima facie
case.
13] The plaintiff prayed that the Corporation be temporarily
restrained from dispossessing or evicting the plaintiff without following
due process of law. However, it has come on record that the B. M. C. has
issued notice to the plaintiff on 1/4/2017 and called upon to submit
documents. Thereafter considering the documents submitted by
occupiers of affected structures the Corporation has prepared Annexure-
II and sent list of eligible persons to Assistant Commissioner, Market
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7 N/M. No.3387/19 (L.C.S. No.2291/19)
Department for providing alternate commercial Galla. This shows that
the Corporation has followed due process of law. No fault could be
found in the procedure to be followed in deciding eligibility for
permanent alternate accommodation. Therefore, I hold that the plaintiff
has not made out
prima facie case. Balance of convenience does not tilt
in his favour, hence there is no question of causing any irreparable loss
if temporary injunction is refused. 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 : 07/02/2024. ( 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.”
12/02/2024 05:00 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 07/02/2024
ORDER Typed on 08/02/2024
ORDER signed by P. O. on 09/02/2024
ORDER uploaded on 12/02/2024
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