Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.3431/19 (L.C.S. No.1100/19)
MHCC010093602019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.3431 OF 2019
IN
LONG CAUSE SUIT No.1100/2019
Karishma Nilesh Golwankar … Plaintiff
- Versus -
Municipal Corporation of
Greater Bombay ... Defendant
Appearance :-
Mrs. S. S. Donde, Advocate for plaintiff.
Ms. Jyoti Patil-Mhatre, Advocate for defendant/M. C. G. M.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL
COURT,
COURT ROOM No.4.
DATED : 16/03/2024.
O R D E R
. This is suit for injunction restraining defendant/B.M.C. or
anybody through it from dispossessing the plaintiff from flat No.401,
building No.13, Siddhivinayak CHS Ltd., Shiv Shahi Purnarvasan
Prakalp, Turbhe Mandale Mankhurd, Mumbai – 88 without following
due process of law and the plaintiff has taken out present Notice of
Motion for temporary injunction under Order-XXXIX Rule-1 of The Code
of Civil Procedure (in short the C. P. C.) restraining defendant/B.M.C.
from dispossessing the plaintiff without following due process of law.
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2 N/M. No.3431/19 (L.C.S. No.1100/19)
2] It is contended by the plaintiff that plaintiff was in
possession of structure at Navrang Compound, Mahim Fatak Pipeline,
Mumbai (in short old structure) and said structure was on a footpath
and same is removed by the Corporation as per its policy. Defendant/
B.M.C. has issued notice under Section 314 of the M. M. C. Act on
1/10/2004. The plaintiff was called upon to produce documents
showing that original structure of the plaintiff is in existence prior to
1/1/1995 for deciding eligibility of the plaintiff for permanent alternate
accommodation. Accordingly, the plaintiff submitted original documents
alongwith reply. It is further stated that defendant/B. M. C. issued
letter giving details of date of lottery to be held for allotment of
tenements. It is further stated that the Corporation considered
documents and held the plaintiff eligible for an alternate
accommodation. Then defendant/B. M. C. allotted suit premises to the
plaintiff in lieu of his old structure and issued possession letter.
3] It is further stated that the plaintiff is in legal possession of
notice structure as per allotment letter. The plaintiff is paying
maintenance to society. The plaintiff is having electricity connection,
Aadhaar Card, PAN card, ration card etc. The plaintiff is in lawful
possession of notice structure since 2010 however, on 16/3/2019 the
basis of a false complaint the officer of the Corporation with security
guards visited suit premises and threatened that the plaintiff is
unauthorizedly occupying structure and also threatened the plaintiff to
dispossess without following due process of law. Therefore, the plaintiff
filed this suit and taken out Notice of Motion.
4] It is further stated that the Corporation has not issued any
notice to the plaintiff. The plaintiff is in legal possession of suit
premises. The Corporation ought to have issued notice under Section
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3 N/M. No.3431/19 (L.C.S. No.1100/19)
105B of the M. M. C. Act however, the Corporation has not followed
due process of law. Therefore, the plaintiff is entitled for temporary
injunction as prayed.
5] Defendant/B. M. C. opposed Notice of Motion by filing
reply-cum-Written Statement below exhibit-5. At the outset, it is stated
that the plaintiff has not given notice under Section 527 of the M. M. C.
Act, therefore, suit is not maintainable. There is no cause of action to
file this suit. It is further stated that the plaintiff is not a project affected
person and is trying to encroach upon property of the Corporation on
the basis of fake and fabricated documents. It is further stated that after
service of Notice of Motion, the officer of the defendant/B. M. C.
checked the record of the B. M. C. and surprised that notice structure
has not been allotted to any person and the keys are lying in the office.
It is further stated that M/East ward sent letter to Assistant Engineer,
Maintenance, G/North ward and called remarks whether allotment
letter and possession receipt are issued by F-South ward. The Assistant
Engineer, Maintenance G/North by letter dated 11/7/2022 informed
that allotment letter and possession receipts are not issued by G/North
ward.
6] It is further stated that the B. M. C. has not issued NoC for
transfer of electricity meter. The plaintiff is not a project affected
person. The suit structure has not been allotted to the plaintiff. The
plaintiff prepared false and fabricated documents and filed this suit.
Defendant/B. M. C. has not issued allotment letter to the plaintiff. The
plaintiff has filed suit on the basis of false and fabricated documents
and this amounts interference in the administration of justice and the
plaintiff is liable to be punished under Section 192 of the Indian Penal
Code, therefore, defendant prays action under Section 195 of the Code
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4 N/M. No.3431/19 (L.C.S. No.1100/19)
of Criminal Procedure. On these grounds, defendant/B. M. C. prays for
dismissal of Notice of Motion.
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
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No. 1 TO 3 :-
8] Heard learned advocates for the parties.
9] Learned advocate for the plaintiff submitted that the
plaintiff was in possession of structure situated at Navrang Compound,
Mahim Fatak Pipeline, Mumbai, which was situated on a footpath and
the Corporation had issued notice under Section 314 of the M. M. C. Act
and called upon the plaintiff to submit documents, for deciding
eligibility for alternate accommodation. Accordingly, the plaintiff
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5 N/M. No.3431/19 (L.C.S. No.1100/19)
submitted documents. It is further submitted that the Corporation has
arranged lottery for allotment of alternate accommodation and,
accordingly, the Corporation allotted suit premises to the plaintiff as a
permanent alternate accommodation in lieu of his old structure and also
issued possession receipt. It is further submitted that the plaintiff is in
possession of notice structure since 2010. The plaintiff is having
maintenance receipt and electricity bill at the address of suit structure.
10] It is further submitted that the plaintiff is in possession of
suit structure since 2010 however, the officer of the Corporation
threatened to dispossess the plaintiff without issuing any notice and,
therefore, the plaintiff has filed this suit for injunction and taken out
Notice of Motion. It is further submitted that a person in possession
cannot be dispossessed without following due process of law and in the
case on hand, the plaintiff is in lawful possession of suit structure.
Therefore, the plaintiff is entitled for temporary injunction as prayed. It
is further submitted that the documents relied by the plaintiff cannot be
stated to be forged and fabricated at this primary stage and after
recording evidence the Court can decide whether documents are
genuine or fake or fabricated and till then the plaintiff is entitled for
protection.
11] On the other hand, learned advocate for the Corporation
submitted that the documents submitted by the plaintiff are fake and
fabricated. The defendant/B. M. C. has not allotted notice structure to
the plaintiff as a project affected person. The impugned notice at
exhibit-A to the plaint and allotment letter exhibit-C to the plaint are
false and fabricated and on the basis of false and fabricated documents
the plaintiff is claiming right over suit structure. It is further submitted
that as per record of the B. M. C. notice structure is not allotted to
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6 N/M. No.3431/19 (L.C.S. No.1100/19)
anybody and same is in possession of the Corporation. It is further
submitted that the plaintiff fabricated documents i.e. allotment letter
and possession receipt and filed the suit. Therefore, action be taken
against the plaintiff as per the provisions of Section 340 of the Cr. P. C. It
is further submitted that the plaintiff has not come to the Court with
clean hands and is not entitled for relief of temporary injunction.
12] The plaintiff filed suit for injunction restraining defendant/
B. M. C. and its officers from dispossessing or evicting the plaintiff
without following due process of law. It is case of the plaintiff that she is
a project affected person and old structure situated at Navrang
Compound, Mahim Fatak Pipeline, Mumbai has been removed by the
Corporation as it was situated on a footpath and in lieu of her old
structure the Corporation allotted notice structure to the plaintiff.
Defendant/B. M. C. denied that the plaintiff is a project affected person
and notice structure has been allotted to her. Thus, the burden lies upon
the plaintiff to prove his legal possession over notice structure.
13] In order to show that the plaintiff is a project affected
person he has produced copy of notice alleged to be issued by B. M. C.
under Section 314 of the M. M. C. Act to the plaintiff. The plaintiff has
also relied upon allotment letter dated 1/10/2007 allegedly issued by
Assistant Commissioner, G/North Ward to show that defendant/B. M. C.
has allotted the notice structure to the plaintiff. Defendant/B. M. C.
alongwith reply to Notice of Motion produced on record letter written
by Assistant Engineer, G/North ward alongwith Annexure-II showing
the hut occupiers whose structures are affected in Tansa water pipeline
at Navrang and Sanaullah Compound. According to the plaintiff, her
earlier structure was situated at Navrang Compound, Mahim Fatak
Pipeline, Mumbai however, her name does not find place in the list of
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Project Affected Persons produced by defendant B. M. C. It is contention
of the B. M. C. that suit structure has not been allotted to the plaintiff
and she is not a project affected person. It is contention of B. M. C. that
allotment letter relied by the plaintiff is false and fabricated. The name
of plaintiff does not find place in Annexure-II. The plaintiff has not
produced ration card, electricity bill or document relating to old
structure at Navrang Compound and her name is not find place in
Annexure-II. Therefore, I substance in the contention of defendant
B.M.C. that the plaintiff is not project affected person and suit premises
is not allotted to her in lieu of her old structure. The plaintiff has not
produced copy of Annexure-II, or any other document, showing address
of old structure or to show that notice structure has been allotted to her
by defendant B. M. C. as a project affected person. Therefore, I hold
that the plaintiff has failed to establish her lawful possession over suit
structure.
14] The plaintiff has filed this suit for perpetual injunction
restraining defendant/B. M. C. from dispossessing the plaintiff without
following due process of law. However, the plaintiff has failed to
establish her lawful possession over suit premises. The plaintiff has not
produced on record legitimate documents to show that she is project
affected person and she is in lawful possession of suit structure. In the
circumstances, the possession of plaintiff, even if there may be any, can
merely be termed as a 'trespasser'. Hon'ble Apex Court in the case of
Maria Margarida Sequeria Fernandes and Others Versus Erasmo Jack de
Sequeria (Dead) through L.Rs. (Civil Appeal No.2968 Of 2012) held
that the due process includes the opportunity to file pleadings and
documents and does not include whole trial and such a due process of
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law is satisfied the moment rights of the parties are adjudicated upon by
competent Court.
15] In the case on hand, the plaintiff has failed to establish any
lawful possession over suit premises or any legal right over suit
premises. Therefore, I hold that the plaintiff has not made out
prima
facie case for grant of temporary injunction. Balance of convenience
does not tilt in his favour. Accordingly, points No.1 to 3 are answered in
the negative and in answer to point No.4 following order is passed :-
O R D E R
1] Notice of Motion is dismissed.
2] Cost in cause.
Date : 16/03/2024. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
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