Final Order 2

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NOS. 3828 OF 2019
IN
L.C. SUIT No. 2637 OF 2019
Shri Abdul Khalid Shaikh ].. Plaintiff.
V/s.
1. The Slum Rehabilitation Authority ]
and others. ]..Defendants.
Advocate Mr. R.A. Yadav for the plaintiff.
Advocate Mr. Trivedi for the defendant No.1.
Advocate Mr. Kapse for defendant No.2.
Advocate Ms. Nidhi Ashiwal for defendant No.6.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.Nos.09).
DATE : 20th DECEMBER, 2021
ORDER
The Notice of Motion is taken out by the plaintiff for
protecting the suit premises by the suitable order of temporary
injunction for restraining the defendants temporarily from demolishing
the suit hut or dispossessing the plaintiff from the suit property till final
disposal of the suit.
2. The suit property is hut No. 45 (89) which is a residential
premises and shop No. 46 (89) which is a ground plus one storeyed
structure having bricks walls and roof of AC sheets situated at Jay
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Bhavani Nagar which is now known as Shivshakti Nagar Cooperative
Housing Society, G. K. Sankpal Marg, Jacob Circle, Satrasta, Dhobighat,
Mumbai 400011 and it is hereinafter referred as suit property for the
sake of convenience.
3. It is the case of plaintiff that the suit property was
purchased by his father on 08/08/2000 from Kazi Mohmmed and Kazi
Taslimunnisa. The family of plaintiff was staying on the 1st floor
whereas his shop is situated on the ground floor by name ‘Khalid Pan
Bidi Shop’. The previous owners of the suit property were Padmakar
Rane and Sharada Padwal. It was purchased by Kazis on 17/08/1991.
The original owners executed a power of attorney in favour of Kazis on
19/11/1991. The hut and the shop were censused in the year 2000. In
fact, Subhadra Rane had applied for patch card for the suit property at
that time.
4. It is the case of plaintiff that his mother transferred the
residential premises 45 (89) to Vanita Narendra Dornala in the year
2016. Father of plaintiff died on 23/03/2009 and his death certificate
was issued on the address of room No. 45. It is further stated that the
SRA scheme was implemented in the society and defendant No. 6 was
appointed as a builder.
5. It is the case of plaintiff that his name was not recorded in
Annexture-II inspite of request of plaintiff. Hence, he filed application
to the competent authority for recording his name in Annexture-II.
However, that application came to be rejected. Plaintiff challenged the
said decision upto the Hon’ble High Court, wherein the Hon'ble High
Court was pleased to direct the defendant No. 2 to take decision on
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eligibility of the plaintiff regarding the suit hut within 2 months from
the date of the order. However, defendant No. 2 rejected the claim of
plaintiff.
6. Plaintiff has further stated that defendant No. 7 is claiming
the suit property as occupied by him. He has got forged electricity bills
and other documents including a license under the Shop and
Establishments Act in his name in respect of the suit hut. Plaintiff has
filed a police complaint for forgery against defendant No.7 and
investigation is initiated on the basis of those documents. Defendant
No. 7 has got a forged service sleep regarding the suit property in his
name and a ration card also. However, the concerned authorities have
informed plaintiff under the Right to Information Act that no such
documents were issued by that authority in the name of defendant
No. 7.
7. Plaintiff had stated that light bill was issued in the name of
the father of plaintiff in respect of the suit property in the month of
September 2010. The pan shop in the suit property is the only source of
income for the plaintiff. A license under The Shop and Establishments
Act is also issued in the name of plaintiff on 23/02/2016. Plaintiff
produced all these documents before the competent authority, appellate
authority and the grievance redressal forum but his claim was rejected.
Plaintiff states that the government resolution dated 16/05/2008
provides for regularisation on payment of fee.
8. Plaintiff had stated that in the circumstances above, the
defendants issued an eviction notice in the name of defendant No. 7
which was received by the plaintiff. The defendants have declared that
defendant No. 7 as well as plaintiff is ineligible for the benefit of the
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scheme. Infact, in the notice dated 19/03/2018, the defendants have
admitted that plaintiff is in possession of the suit hut. In the above
circumstances, the plaintiff has instituted the present suit.
9. Defendant No. 6 has filed reply to the notice of motion. It
is stated that plaintiff has failed to make out any case for the relief of
injunction. It is further stated that defendants No. 2 to 4 have given
concurrent finding that plaintiff is not entitled for the benefit of the
scheme. This Court has no jurisdiction to direct the authorities to enter
the name of plaintiff in Annexture-II. Infact, defendant No. 5 society has
addressed a letter to defendant No.3 on 17/01/2017 for initiating
eviction proceedings against the plaintiff. For all the above reasons, the
defendant No. 6 has prayed for dismissal of the Notice of Motion.
10. Considering the plaint, Notice of Motion, documents on
record and reply filed by the defendant No. 6, following points arise for
my determination and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether plaintiff has proved
prima-facie
case?
In the
Negative
2 Whether plaintiff has proved that he will
suffer irreparable loss if the application is
rejected?
In the
Negative
3 In whose favour does the balance of
convenience lie?
In the
Defendants
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4 What Order ? As per Final Order
R E A S O N S
AS TO POINT NO.1 :
11. Before going to the merits of the matter, it is necessary to
state the admitted facts.
1. It is admitted that the suit property is being used for
commercial purpose.
2. It is admitted that the licence under the Shop and
Establishment Act is issued on the address of the suit
property in the name of the plaintiff as well as
defendant No.7.
3. It is admitted that no name is entered in the Annexure-
II against the suit property.
4. It is admitted that the claim of the plaintiff for entering
his name as eligible for the suit property by the
competent authority is rejected.
12. It is necessary to see the reason given by the competent
authority while rejecting the claim of the plaintiff. Plaintiff claims that
as per the government resolution he is entitled to get his possession
regularised. However, the competent authority, the appellate authority
and the grievance redressal forum have concurrently held that the
plaintiff could not place any evidence on record that he was using the
suit property for the commercial purpose before 01/01/2000.
Therefore, plaintiff is not entitled to the benefit of the rehabilitation
scheme.
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13. It appears from all the documents produced on record by
the plaintiff that his possession in the suit property was subsequent to
the 01/01/2000. Infact, the plaintiff states that his father purchased of
the suit property on 08/08/2000. As rightly observed by the competent
authority, the license issued to plaintiff under the Shop and
Establishment Act is in the year 2016. Therefore, there is nothing on
record to show that the shop was in existence in the suit property prior
to the year 2016.
14. Defendant No. 7 has countered the claim of plaintiff by
producing the ration card, the survey sleep and electricity bill and the
license under the Shop and Establishments Act in his own name on the
address of the suit property. It is the case of plaintiff that those
documents are obtained by defendant No. 7 by playing fraud on the
government authorities. Plaintiff has produced on record a copy of first
information report filed by him against defendant No. 7 regarding the
alleged fraud. If plaintiff wants to prove the said fraud, he has to prove
it by leading evidence and which will be possible only at the trial of the
suit. At this stage, it is difficult to conclude
prima facie that defendant
No. 7 obtained those documents by playing fraud.
15. The competent authority while deciding the claim of
plaintiff has observed that plaintiff is found to be in possession of the
suit property. However, his claim was rejected on the ground that
plaintiff was not found to be in commercial use of the suit property
prior to 01/01/2000. Therefore, while coming to the court, plaintiff
was well aware of the fact that his claim is rejected on that ground.
Therefore, it was expected from him to produce any documentary
evidence to show that he was eligible to take benefit of the
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rehabilitation scheme. No such document is produced on record and
hence no
prima facie conclusion can be drawn that the suit property
was in occupation of the plaintiff for commercial use since prior to
01/01/2000.
16. Plaintiff has admitted that the residential room which was
located on the first floor was sold by his mother to the third person.
Therefore, there is no question of holding plaintiff entitled for that
room. In the circumstances, I have come to the conclusion that plaintiff
has not proved his prima facie case that he is entitled for protecting his
possession. I answer point No. 1 in the negative.
AS TO POINT NO.2 :
17. Plaintiff has not proved his
prima facie claim of eligibility
for the benefits of rehabilitation scheme. It is the case of defendant No.
6 that the entire scheme is held up due to the non-cooperation of
plaintiff and due to the fact that he is not vacating the suit hut. If that
is so, then it is clear that due to the conduct of plaintiff, the remaining
slum dwellers who are eligible to get new premises in the place of their
old hut after redevelopment are deprived of their rights. It is necessary
to note that they are deprived due to the not proved rights of plaintiff.
In the circumstances if the plaintiff is evicted from the suit property, he
will not suffer any irreparable loss as he is
prima facie not entitled for
the benefits. On the other hand, the other slum dwellers will suffer
irreparable loss. Hence, I answer point No. 2 in the negative.
AS TO POINT NO.2 :
18. In view of all above discussion, I have come to the
conclusion that the balance of convenience lies in favour of defendants.
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It is necessary to mention here that neither plaintiff nor defendant No. 7
are held eligible for the benefits. Therefore, there is no question of
competent authority or appellate authority or grievance redressal forum
favouring defendant No. 7. Accordingly, I answer point No. 3 in favour
of defendants and proceed to pass following order.
O R D E R
1. Notice of Motion No. 3828 of 2019 is dismissed
with costs.
2. Notice of Motion No. 3828 of 2019 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 20.12.2021 Gr.Mumbai.
Dictated on: 20.12.2021
Typed on : 11.01.2022
Signed on : 11.01.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
11.01.2022 AT 1.00 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
Nos.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. Nos.09)
Date of Pronouncement of
Judgment/Order
20.12.2021
Judgment/Order signed by P.O. on 11.01.2022
Judgment/Order uploaded on 11.01.2022
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