Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.3433/19 (LCS No.1058/19)
MHCC010093622019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.3433 OF 2019
IN
LONG CAUSE SUIT No.1058/2019
1] Vandana Santosh Jadhav
2] Suvarna s/o. Chandrakant Kondvilkar … Plaintiffs
Versus
Municipal Corporation of
Greater Mumbai. ... Defendant
Appearance :
Mrs. S. S. Donde, Advocate for plaintiffs.
Mr. Om Suryavanshi, Advocate for defendant.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 05/06/2023.
O R D E R
. This is suit for perpetual injunction restraining defendant/
B.M.C., dispossessing the plaintiffs from tenements bearing No.501 and
416, building No.19, Shriram CHS Ltd., Shiv Shahi Punarvasan Prakalp,
Maharashtra Nagar, Mankhurd, Mumbai (in short suit flats) without
following due process of law and the plaintiff has taken out this Notice
of Motion for temporary injunction under OrderXXXIX Rule1 of The
Code of Civil Procedure.
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2] In short, it is the case of the plaintiffs that they came in
possession of suit flats on the basis of allotment letter issued by
defendant/B.M.C. Suit flats have been allotted to them in lieu of old
structure which are demolished by the Corporation. The original
structure of the plaintiffs has been acquired by the Corporation and the
plaintiffs have been given suit flats as permanent alternate
accommodation as per policy of the Government. It is further stated
that the Corporation had issued notices under Section 314 of The
Mumbai Municipal Corporation Act (in short the M.M.C. Act) and the
plaintiffs submitted documents as per the said notices. It is further
stated that the Corporation verified documents and held the plaintiffs
eligible for alternate accommodation and, accordingly, the Corporation
allotted suit flats to the plaintiffs. It is further stated that on 6/4/2019
one of the officers from M/East ward with two security guards came to
suit flats and threatened to dispossess the plaintiffs.
3] It is further stated that suit flats have been allotted by the
Corporation and, therefore, it ought to have issued notice under Section
105B of the M.M.C. Act. However, without issuing notice the
Corporation threatened to dispossess the plaintiffs. Therefore, the
plaintiffs have filed this suit for permanent injunction and taken out
Notice of Motion. The plaintiffs have prima facie case. Balance of
convenience lies in favour of the plaintiffs and if temporary injunction,
as prayed is not granted, they will suffer irreparable loss or injury.
Hence it is prayed that Notice of Motion be allowed.
4] Defendant/Corporation opposed Notice of Motion by filing
replycumWritten Statement below exhibit2. At the outset, it is stated
that suit is not maintainable for want of statutory notice under Section
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527 of the M.M.C. Act. Notice is administrative or executive act or order
and same is not open to challenge in a Court of law. The plaint discloses
no cause of action.
5] It is further stated that the plaintiffs are not Project
Affected Persons (in short P.A.P.). On the contrary, the plaintiffs are
trying to encroach upon suit flats on the basis of forged and fabricated
documents. The plaintiffs have obtained interim order on the basis of
forged and fabricated documents. It is further stated that on 4/6/2013
B & F department had received vacant possession of tenements of
building No.19A, Shivshahi Punarvasan Prakalp, Mankhurd, Mumbai.
It is further stated that after receiving the plaint and documents
defendant checked record available in the office and surprised that suit
flat has not been allotted to any person and keys of flats were lying in
the office of M/East ward. The plaintiffs are not in possession of suit
flats. As such, the plaintiffs have made false statements. The plaintiffs
are not P.A.Ps. and holders of P.A.P. tenements. The plaintiffs are
claiming equitable relief of injunction on the basis of fake and
fabricated documents and suppressed material facts, therefore, the
plaintiffs are not entitled for any relief.
6] It is further stated that Assistant Commissioner issued letter
dated 25/8/2021 to Assistant Engineer, Maintenance, G/South ward to
verify allotment letters relied by the plaintiff. By letter dated
15/11/2021 it is informed by Estate Officer, M/East ward that the
allotment letters and possession receipts are not as per the AnnexureII
of project at Dr. E. Moses Road (L.L.) in G/South ward. It is further
stated that as per AnnexureII the plaintiffs are not P.A.P. and allotment
letters and possession receipts are not issued by Assistant Engineer,
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Maintenance, G/South ward. The name of the plaintiffs are not in the
AnnexureII prepared in respect of road widening project of Dr. E.
Moses Road. It is further stated that the Corporation has never given
NOC for transferring electricity meter in favour of the plaintiffs. It is
further stated that the documents filed by the plaintiffs alongwith plaint
are fake and fabricated. The plaintiffs ae not entitled for relief of
temporary injunction. On these grounds, the Corporation prayed 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 plaintiffs have made out
prima facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiffs ? . . . No.
3) Whether plaintiffs 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] Learned advocate for the plaintiffs submitted that the
plaintiffs are in use, occupation and settled possession of suit flat since
2010. The plaintiffs were residing at Dr. E. Moses Road and said
structures have been demolished by the Corporation for road widening
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project at Dr. E. Moses Road. It is further submitted that the
Corporation had issued notice under Section 314 of the M.M.C. Act
calling upon the plaintiffs to submit documents for deciding eligibility
for alternate accommodation. Accordingly, the plaintiffs submitted
necessary documents and after verifying documents submitted by the
plaintiffs defendant/Corporation allotted suit flats to the plaintiffs as a
P.A.P. vide letter dated 15/2/2010. Learned advocate for the plaintiffs
relying on photocopies of notices below exhibitA collectively and
allotment letters below exhibitsB and C annexed to the plaint
submitted that the plaintiffs have prima facie proved possession over
suit flats. It is further submitted that even the plaintiffs are not having
right, title and interest over suit flat, at this stage, the plaintiffs have
proved their possession. In such circumstances, the plaintiffs cannot be
dispossessed without following due process of law. In support of
submission learned advocate for the plaintiffs relied on the judgment of
the Hon'ble Bombay High Court in the case of Abdul Hasan Shaikh
Mansuri Versus Mun. Corpn. of Mumbai [LAWS (BOM)20073148 ]
in which it is held that,
“The limited controversy that was required to be answered by the trial
Court for the nature of the dispute is whether the suit structure existed
on the site as claimed by the plaintiff and if so, the Authorities would be
obliged to take action against such structure only by following the due
process of law, which was the limited direction sought by the appellant.
In other words, the decision of the trial Court impugned in this appeal
cannot be sustained either on facts or in law. Same is therefore set aside
and instead the suit is decreed with direction to the respondents to doth
take any action in relation to the suit structure after following due
process of law”.
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9] On the other hand, learned advocate for the Corporation
vehemently opposed Notice of Motion contending that the plaintiffs are
not project affected persons and on the basis of fake and fabricated so
called notice under Section 314 of the M.M.C. Act and allotment letters
the plaintiffs filed this suit and obtained adinterim protection. It is
further argued that the plaintiffs have not come to the Court with clean
hands. As such, the plaintiffs are not entitled for any relief. It is further
argued that signatures, outward numbers and the entire contents of
notice as well as allotment letters are false. It is further submitted that
the plaintiffs have prepared fake and fabricated documents and
claiming possession over suit flats, therefore, the plaintiffs are not
entitled for relief claimed.
10] The plaintiffs have taken out this Notice of Motion for
temporary injunction under OrderXXXIX Rule1 of the C.P.C. Plaintiff
are 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.
11] It is contention of the plaintiffs that they were residing in
structure at Dr. E. Moses Road and said structures were affected by road
widening project at Dr. E. Moses Road. The Corporation had issued
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notices under Section 314 of the M.M.C. Act calling upon the plaintiffs
to submit documents for deciding eligibility for permanent alternate
accommodation. Accordingly, the plaintiffs submitted documents and
after verifying documents submitted by the plaintiffs they have been
held eligible for permanent alternate accommodation and, accordingly,
the Corporation has allotted suit flats to them.
12] In support of contention the plaintiffs relied upon notices
issued by defendant under Section 314 of the M.M.C. Act and allotment
letters. On perusal of the notices under Section 314 of the M.M.C. Act, it
appears that notices have been issued on 9/8/2008 and allotment
letters of suit flats have been issued on 31/3/2010. Learned advocate
for the Corporation submitted that possession of suit flats have been
received by Assistant Engineer, Maintenance, M/East Ward on
4/6/2013 and it is case of the plaintiffs that suit flats have been allotted
to the plaintiffs in 2010. In that case, how it is possible that flats of
which possession was received by Assistant Engineer, Maintenance,
M/East ward in 2013 have been allotted to the plaintiffs as P.A.Ps. in
2010.
13] On perusal of possession receipts dated 4/6/2013 produced
by defendant/B.M.C., it appears that Assistant Engineer, Maintenance,
M/East Ward has received possession of suit flats on 4/6/2013. I do not
understand how possession of suit flats were given in 2010 to the
plaintiffs of which possession was received by the concerned ward office
in 2013. Thus, documents relied by the plaintiffs appear to be doubtful.
The Corporation has denied claim of the plaintiffs that they are P.A.Ps.
The plaintiffs have not produced copy of AnnexureII in support their
contention that they are P.A.Ps. On the contrary, in the photocopy of
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AnnexureII produced by defendant/B.M.C., name of the plaintiffs does
not find place. As earlier stated, the documents relied by the plaintiffs
appear to be doubtful. In the circumstances, the plaintiffs ought to have
produced copy of AnnexureII showing their names in the list of eligible
persons. The plaintiffs have not produced any other document to show
that they were residing at Dr. E. Moses Road.
14] On perusal of documents produced by defendant, it appears
that the plaintiffs have failed to establish that they are P.A.Ps. and suit
flats have been allotted as alternate accommodation in lieu of old
structures at Dr. E. Moses Road. Prima facie the notices allegedly issued
under Section 314 of the M.M.C. Act exhibitA collectively and
allotment letters exhibitsB and C annexed to the plaint appear to be
doubtful.
15] The plaintiffs have relied on judgment of the Hon'ble
Bombay High Court in Abdul Hasan Shaikh Mansuri Versus Mun.
Corpn. of Mumbai (supra) in which it is held that, “Municipal
Authorities would be obliged to take action against such structure.
Hon'ble Apex Court in Padhiyar Prahladji Chenaji (Deceased)
Through L.R.s Versus Maniben Jagmalbhai (Deceased) Through
L.R.s and Ors. (Civil Appeal No.1382 of 2022) held that, “Applying
the law laid down by this Court in the aforesaid decision to the facts of the
case on hand and once the rights of the parties are adjudicated and the
defendant No.1 is held to be the true owner on the basis of the registered
sale deed and on payment of full sale consideration, it can be said that due
process of law has been followed and thereafter the plaintiff is not entitled
to any permanent injunction against the true owner”. It is further held
that, “Due process of law means that nobody ought to be condemned
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unheard. The due process of law means a person in settled possession will
not be dispossessed except by due process of law. Due process means an
opportunity to the defendant to file pleadings including written statement
and documents before the court of law ”.
16] In the case on hand, the plaintiffs prima facie failed to
establish legal possession over suit flat. As such, the plaintiffs are not
entitled for relief of injunction as prayed. In the circumstances, the
judgment relied by the plaintiffs in the case of Abdul Hasan Shaikh
Mansuri Versus Mun. Corpn. of Mumbai (supra) is not helpful to the
plaintiffs. As stated earlier, the alleged notices exhibitA collectively and
allotment letters exhibitsB and C appear to be doubtful. Thus, I hold
that the plaintiffs have miserably failed to establish legal possession
over suit flats. Moreover, in view of Padhiyar Prahladji Chenaji
(Deceased) Through L.R.s Versus Maniben Jagmalbhai (Deceased)
Through L.R.s and Ors. (supra) the plaintiffs are not entitled for
injunction as prayed against defendant/B.M.C. who is owner of suit
flats. The plaintiffs have not made out prima facie case for grant of
injunction. Balance of convenience does not tilt in their favour. No
irreparable loss or injury would be caused if 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 No.3433/2019 is dismissed.
Date : 05/06/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
09/06/2023 03:00 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 05/06/2023
ORDER Typed on 08/06/2023
ORDER signed by P.O. on 09/06/2023
ORDER uploaded on 09/06/2023
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