Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 3575/19 (LCS 2448/19)
MHCC010097502019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.3575 OF 2019
I N
LONG CAUSE SUIT No.2448/2019
Mr. Rajesh s/o. Gangji Savla … Plaintiff
Versus
Municipal Corporation of
Greater Mumbai. ... Defendant
Appearance :
Mr. Suraj Kudalkar, Advocate for plaintiff.
Mr. Gajanan Shinde, Advocate for defendant.
CORAM : S. H. SALUNKHE,
JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 06/08/2022.
O R D E R
. The plaintiff has taken out this Notice of Motion under
OrderXXXIX Rule1 of The Code of Civil Procedure for temporary
injunction restraining defendant/Corporation or anybody through it
from demolishing or removing of suit premises and its part i.e. structure
bearing No.TX161/3, 2/3 and 3/3, more particularly described in
paragraph No.1 of plaint.
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2] Brief facts of the case are as under :
The plaintiff is occupier/owner in respect of three suit
premises described in paragraph No.1 of plaint. Structure No.TX162/3
was owned by Mr. Avak Chauhan, No.TX161/3 was by Mr. Raghunath
Prasad and No.TX163/3 was by Mr. Vishwanath Gupta. These three
original occupiers transferred their rights in favour of Mr. Jogindersingh
D. Sharan, Mr. Ganesh B. Thapa and Mr. Shivramrao A. Kadam
respectively. Thereafter these three subsequent occupiers relinquished
their right, title and interest in suit structure in favour of father of the
plaintiff in 198182 by executing affidavit. These structures have been
censused by competent authority.
3] The plaintiff has received notice dated 4/7/2016 alleging
that suit structure is affected by widening of road/public project
undertaken by defendant. It is contended that notice has been issued by
defendant that suit structure is affected in R.L. of 45.70 meter wide at
MulundGoregaon Link Road and directed to submit documents within
15 days to prove that suit structures are in existence since 1976. The
plaintiff replied said notice on 5/8/2016. It is further contended that
defendant/Corporation deliberately issued one notice in respect of three
structures. The plaintiff objected to combine three structures together.
The defendant/Corporation has carried out survey in respect of suit
premises in 2017 after verifying documents and prepared AnnexureII
for eligibility of alternate accommodation. It is further contended that
defendant/Corporation with ill motive combined three different
structures together and issued AnnexureII which is against natural
justice. Three structures were purchased separately by the father of
plaintiff in the name of plaintiff as he being the elder son of the family.
There was family settlement and structure No.71 is remained with
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plaintiff, structure No.72 came to possession of Anil Nanji Dedhia and
structure No.73 came to possession of Deepak Gangji Savla.
4] The officer of the Corporation without giving notice visited
suit premises and threatened to demolish the same without considering
the facts and rights of the plaintiff. The plaintiff apprehends that officer
of the Corporation will demolish suit structure without following due
process. The plaintiff approached Assistant Commissioner who called
joint meeting with local MLA and Municipal councilor in which it was
assured that Assistant Commissioner will prepare fresh AnnexureII and
will allow three alternate accommodations to plaintiff and his brother
as stated above. However, neither officer did prepare fresh annexure
nor followed directions of Assistant Commissioner but visited suit
premises and threatened to demolish suit structure without following
due process. The action of the defendant/Corporation is against
procedure and provisions of law. Threats and intended action of
defendant is malafide and not binding on plaintiff. Threats are without
application of mind. Threats and action are without due process of law
and in contrary to law and it is null and void. Hence plaintiff filed this
suit and taken out Notice of Motion for temporary injunction.
5] The defendant/Corporation opposed Notice of Motion by
filing reply. The defendant denied all the adverse allegations. It is
further contended that as per the provisions of Sections 527 and
amended Section 515A of The Mumbai Municipal Corporation Act (in
short, the M.M.C. Act) suit is not maintainable. It is further contended
that a project of road widening of 45.70 meters at Mulund Goregaon
Link Road is undertaken by defendant and, accordingly, notices were
issued to structures affected in said road widening. The affected
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structure holders were informed to submit documents to fix eligibility of
said structures. Thereafter on verification of document AnnexureII was
prepared and same was informed to the parties. Thereafter Mr. Anil
Dedhiya, Mr. Rajesh Dedhiya and Mr. Deepak Salva preferred appeal
before defendant and stated that structures No.71 to 73 are separate
and shall be held eligible separately. It is further contended that after
hearing above said persons and perusing of documents concerned
officer of the Corporation found that documents submitted by the
plaintiff were same for all the three structures and all documents are in
the name of Mr. Rajesh Savla for Vasundhara Marbles. Even if it is
considered that these three separate structures having three different
TX numbers of one owner, still the plaintiff is entitled for 20.90 Sq.
Mtrs. (225 Sq. Ft.) under Project Affected Persons (in short, P.A.P.)
Scheme as per the Government notification/gazette dated 14/5/1998.
6] It is further contended that defendant has followed due
process of law and after verifying record held that the plaintiff is eligible
for area admeasuring 20.90 Sq. Mtrs. There is a huge public interest
involved as there is a issue of road widening to reduce heavy vehicular
traffic congestion. Therefore, the plaintiff cannot hold the project which
is of great public interest. The plaintiff is not having prima facie case.
Balance of convenience not lie in his favour. No injury or alarm would
likely to be caused if relief of temporary injunction is refused. On these
grounds the Corporation prayed for dismissal of Notice of Motion.
7] Heard advocates for parties.
8] Points for determination alongwith findings thereon for the
reasons are as under :
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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
rejected.
:: R E A S O N S ::
AS TO POINTS No. 1 TO 3 :
9] The plaintiff has produced on record Agreements to Sale
dated 22/7/1997, 19/10/1977 and 4/5/1978, affidavits 5/3/1981,
3/6/1982 and 18/6/1982, copy of application for permission to repair
premises being census No. TX 16 1/3, TX 16 2/3 and TX 16 3/3,
permission of tenantable repairs notice dated 4/7/2016, reply given by
plaintiff dated 20/3/2016, 11/8/2016, 16/8/2016, 20/8/2016,
26/8/2016, letter dated 24/8/2017, AnnexureII, photographs etc.
10] Defendant/Corporation produced documents viz. copy of
notice, Gumasta Licence, draft annexure, intimation letter, final
annexure, copy of guidelines for removal of bottlenecks, circular,
photographs etc.
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11] Advocate for plaintiff submitted that suit has been filed to
challenge notice under Section 314 of the M.M.C. Act. He submitted
that suit structures bearing No. TX16 1/3, TX16 2/3 and TX16 3/3
bearing municipal structures No.71, 72 and 73 are separate structures.
These structures are originally owned by three different occupiers. They
relinquished their rights in favour of subsequent occupiers and father of
the plaintiff acquired interest and title from the erstwhile owners and
transferred suit structures in the name of plaintiff, he being the elder
son of the family. Suit structure No.71 has been alloted to plaintiff,
structure No.72 came to possession of Anil Dedhia and structure No.73
came to possession of Deepak Savla. It is further submitted that
structures are required for road widening. The Corporation has issued
notice and called upon the plaintiff to submit document for fixing
eligibility. The plaintiff replied notice alongwith documents. However,
officer of the Corporation combined all the three structures and decided
their eligibility by holding that all the three structures as one unit and
held that plaintiff is entitled for only 20.90 Sq. Ft. as alternate
accommodation under P.A.P. which is against the principles of natural
justice. He submitted that officer of the Corporation without following
due process threatened the plaintiff to dispossess from suit premises.
Therefore, plaintiff has apprehension of dispossession from suit
premises without following due process. The plaintiff has raised triable
issue whether he is entitled for three separate alternate
accommodations hence it is necessary to restrain defendant/
Corporation from acting upon notice under challenge i.e. restrain
defendant from demolishing suit structure or remove any part thereof
till decision of suit.
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12] On the other hand, advocate for the Corporation submitted
that suit structures are required for road widening of Mulund Goregaon
Link Road, a public link road which is a public project. It is further
submitted that notices were issued to affected persons or holders to
show document for fixing eligibility of structures. It is further submitted
that accordingly officer of the Corporation after verifying documents
submitted by the plaintiff came to the conclusion that plaintiff is
entitled for 20.90 Sq. Ft. area as per the Government notification. It is
further submitted that all the structures are in the name of father of the
plaintiff and even for the sake of arguments it is assumed those three
structures are different but same are owned by the one owner, the
occupier is entitled for 20.90 Sq. Ft. area as alternate accommodation.
The suit structures are required for the purpose of road widening and it
is a public project, therefore, in view of amended provisions of Section
41 (h) (a) plaintiff is not entitled for injunction against the public
project. It is further submitted that it is contention of plaintiff that he is
entitled for three alternate accommodations against suit structures.
However, as per the Government circular dated 14/5/1998 the plaintiff
is entitled for only 20.90 Sq. Ft. (225 Sq. Ft.) area only. Advocate for
the Corporation relied upon the Government resolution dated
14/5/1998. It is further submitted that even if for the sake of arguments
it is assumed that the plaintiff is entitled for three separate alternate
accommodations against suit structures and officers of the Corporation
has not considered his claim, the plaintiff is not entitled for relief as no
any irreparable loss would be caused to him if injunction is refused. He
further submitted that the plaintiff has alternate remedy to claim
alternate accommodation. Therefore, the plaintiff is not entitled for
equitable relief of injunction.
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13] This Notice of Motion has been taken out for temporary
injunction restraining defendant from demolishing or removing of part
of suit structures under OrderXXXIX Rule1 of The Code of Civil
Procedure. A person claiming relief of temporary injunction must make
out prima facie case. He has to show that balance of convenience lies in
his favour and he would suffer irreparable injury or loss if temporary
injunction is refused.
14] From the pleadings of the parties and statement made on
behalf of the parties it appears that main grievance of the plaintiff is
that while deciding his eligibility for alternate accommodation
defendant has considered three different units as one and held that the
plaintiff is entitled for only 20.90 Sq. Ft. as per the Government
resolution. It is contention of the plaintiff that three suit structures are
three separate units and in the family arrangement/settlement
structure No.71 has been given to plaintiff, structure No.72 came to
possession of Anil Dedhia and structure No.73 came to possession of
Deepak Savla. However, plaintiff has not produced such family
arrangement in support of his contention that suit structures are owned
by three different persons, as stated above. On the contrary, the
document i.e. affidavit filed by plaintiff it appears that suit structures
are acquired by father of plaintiff Gangji Savla. Learned counsel for the
Corporation submitted that officer of the Corporation has followed due
process. He pointed out that officer issued notice to plaintiff and called
upon plaintiff to furnish for deciding eligibility under P.A.P. and after
verifying document officer of the Corporation and held that plaintiff is
entitled for 20.90 Sq. Ft. alternate accommodation against suit
structures as per the Maharashtra Government circular. On perusal of
the Maharashtra Government resolution dated 14/5/1998 it appears
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that the project affected person is entitled for 225 Sq. Ft. alternate
accommodation, even though, said person is holding longer area or
more than one structures. Prima facie it appears that in view of the
Government resolution dated 14/5/1998 plaintiff is entitled for 225 Sq.
Ft. area against suit structures, even though, he is possessing longer
area.
15] It is not disputed that suit structures are required for road
widening i.e. required for public project and as per Section 41 (ha) of
The Specific Relief Act injunction cannot be granted if it would impede
or delay the progress or completion of any infrastructure project or
interfere with the continued provision of relevant facility related thereto
or services being the subject matter of such project. As per schedule a
road widening comes under the category of infrastructure project.
Therefore, in view of the provisions of Section 41 (ha) of The Specific
Relief Act plaintiff is not entitled for relief of temporary injunction as
prayed. The plaintiff is claiming that he is entitled for longer area
against suit structures than fixed by the defendant. Even if for the sake
of arguments it is assumed that plaintiff is entitled for three different
accommodations against suit structures he has efficacious remedy of
filing appeal before competent authority. The plaintiff has not shown as
to how he will suffer irreparable loss/injury if temporary injunction is
refused. Learned counsel for the Corporation submitted that plaintiff is
not entitled for injunction restraining widening of road which is a public
project. In support of submission he relied on judgment Mahadeo
Savlaram Shelke and others Versus Pune Municipal Corporation
and another [(1995) 3 Supreme Court Cases 33] in which it is held
in paragraph No.15 that,
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“15. Public purpose of removing traffic congestion was sought to be
served by acquiring the building for widening the road. By orders of
injunction, for 24 years the public purpose was delayed. As a
consequence execution of the project has been delayed and the costs now
stand mounted. The courts in the cases where injunctions are to be
granted should necessarily consider the effect on public purpose thereof
and also suitably mould the relief.”
16] In the case in hand plaintiff is seeking relief of temporary
injunction restraining the Corporation from demolishing or removing
suit structures which are acquired for the purpose of road widening
which is a public project. The plaintiff has failed to establish that he is
entitled for excess area than offered by the Corporation. Moreover, in
view of amended Section 41 (ha) of The Specific Relief Act injunction
cannot be granted to delay public project. Therefore, considering facts
of case and in view of the judgment in case of Mahadeo Shelke (supra)
plaintiff has not made out prima facie case. Balance of convenience not
lies in his favour. In the circumstances, the plaintiff is not entitled for
relief of temporary injunction. Accordingly, I answer points No.1 to 3 in
the negative and in answer to point No.4 following order is passed :
O R D E R
Notice of Motion No.3575/2019 is dismissed.
Date : 06/08/2022. ( S. H. SALUNKHE )
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.”
13/08/2022 03:05 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 06/08/2022
ORDER Typed on 12/08 and 13/08/2022
ORDER signed by P.O. on 13/08/2022
ORDER uploaded on 13/08/2022
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