Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.3926/2019
in S.C. Suit No.2613/2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.3926 of 2019
(CNR NO. MH CC010108272019)
In
S.C. SUIT No.2613 OF 2019
Mr. Keshavram Santram Jaiswal ….Plaintiff
V/s.
Mumbai Metropolitan Regional Development
Authority (MMRDA) & Ors. ....Defendants
Appearance:
Mr. U.V. Singh, Advocate for the plaintiff.
Mrs. Shubhangi Subhedar, Advocate for the defendant Nos.1 to 3.
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 17 th December, 2019.
ORDER
1. By this notice of motion, plaintiff has prayed for restraining
defendants, their servants, agents or any other persons claiming through
them from demolishing the suit premises i.e. Room situated at Savitribai
Phule Nagar, Pant Nagar, Gulli No.5, Kranti Jyot C.H.S. Ltd., Ghatkopar
(E), Mumbai without following due process of law and without providing
permanent alternate accommodation or transit accommodation in lieu of
the suit premises to plaintiff.
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2 Notice of Motion No.3926/2019
in S.C. Suit No.2613/2019
2. In support of notice of motion, the plaintiff has filed affidavit
and has relied on the contentions raised in the plaint. It is further
averred that if the reliefs as prayed in the notice of motion are not
granted plaintiff will suffer grave, harm, loss, injury and prejudice which
cannot be compensated in terms of money.
3. In affidavit in reply it is submitted by defendant No.1 that to
improve the traffic and transportation system in Mumbai Region and to
provide Mass Rapid Transport, the defendant No.1 has prepared
immediate master plan. Once its completed, the Metro Line4 (Wadala
Kasarvadavali) will establish NorthSouth connectivity and will hugely
alleviate the traffic congestion and commuting difficulties of the citizens.
The Government of Maharashtra has appointed defendant No.1/MMRDA
as “Project Implementing Agency” for the construction of the Metro Rail
Network in Mumbai Metropolitan Region under Metro Railways Act
(amendment) 2009.
4 It is further averred by defendant No.1 that it has been
appointed as Special Planning Authority for implementation of various
projects including Metro Line4 and it has declared the same to be a vital
Urban Transportation Project to be “Public Project of Urgency”. As per
the procedure, survey of Savitribai Phule Nagar falling in map No.5 of
Metro Line4 project was carried out by the NGO EQMS. The project
affected persons to be occupants enumerated in annexureII list are
entitled for resettlement and rehabilitation benefits. According to
defendants the name of Smt. Geeta Jaiswal is listed at ID No.87 in the
survey list on the basis of the documents produced by her, she was held
eligible in annexureII.
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in S.C. Suit No.2613/2019
5. It is further averred by the defendants that the plaintiff
approached to them claiming that he was residing in the suit premises at
ID No.87 and therefore entitled to alternate tenement. The Deputy
Collector on hearing of plaintiff and Smt. Geeta Jaiswal on 08.04.2019,
opined that both the parties were not residing nor in possession of the
suit premises. Further, Suit No.1577/2018 is pending between both the
parties in the City Civil Court, Bombay. As the matter is subjudiced, it
was held by Deputy Collector that allotment of alternate tenement will
be withheld till the final decision in Suit No.1577/2018. Accordingly,
plaintiff and Smt. Geeta Jaiswal were informed vide letter dated
08.05.2019. The plaintiff is not in possession of the suit premises and it
is vacant. Vacant possession of the remaining structure has been
obtained and there is urgency to complete clearing the area from the
construction of Metro Line4. According to defendants, due process has
been followed by giving the plaintiff complete opportunity to establish
claim. Therefore, project can not be held up for years merely to
accommodate single claimant.
6. It is further averred that the metro project will be held up, if
the relief as sought in the notice of motion is granted in favour of
plaintiff causing huge loss to the Exchequer and Public Funds. For all
these reasons, it is prayed that notice of motion may kindly be dismissed.
7. Following points arise for consideration. Findings against
each of them along with reasons are stated as below.
SR. NOS. POINTS FINDINGS
1. Whether the plaintiff has
established prima facie case ?
In Negative.
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in S.C. Suit No.2613/2019
2. Whether balance of convenience
tilt in favour of plaintiff ?
In Negative.
3. Who would suffer irreparable loss
if relief of injunction is granted ?
Defendants
4. What Order ? As per final order
REASONS
As to point No.1.
8. Learned Advocate for plaintiff submitted that the plaintiff
has not received any notice from the defendants. If the structure is
demolished, plaintiff will be roofless. Plaintiff is not against the
Government project but the suit premises should not be demolished
without following due process of law and without considering the claim
of plaintiff for alternate accommodation. It is further submitted by
learned Advocate of plaintiff that Smt. Geeta Jaiswal in collusion with
Sandeep Pagare, the office bearer of Kranti Jyot Society by frivolous and
fabricated documents, got her name recorded in AnnexureII. The
application of plaintiff addressed to Deputy Collector Metro Line4,
MMRDA dated 06.09.2018 is pending for consideration and therefore it
is prayed that notice of motion may kindly be made absolute.
Per contra, learned Advocate for defendant submitted that the
entire structure of suit premises is between Metro 4 project. Except the
suit premises all other structures have been demolished. The Metro 4
project being public project, no question of due process of law arise.
Issue of permanent alternate accommodation is subject to proving the
eligibility. The name of the plaintiff is not mentioned in annexureII and
Suit bearing No.1577/2018 is pending between the parties. It is further
submitted by learned Advocate for defendants that plaintiff is not
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in S.C. Suit No.2613/2019
residing in the suit premises and there is no provision for providing
transit accommodation in MMRDA. Thus, it is prayed that notice of
motion may kindly be dismissed.
9. It is the contention of defendant that allotment of alternate
tenement will be withheld till the final decision of the Court in Suit
No.1577/2018. On the other hand, it is the contention of plaintiff that
Suit No.1577/2018 is not title suit but it is an injunction suit. Copy of
Suit No.1577/2018 is filed on record by the plaintiff. On perusal of the
said plaint, it appears that the plaintiff has claimed relief of permanent
injunction from dispossessing him from the suit premises without
following due process of law whereas in the present suit, the plaintiff has
claimed the relief of injunction, thereby restraining the defendants from
demolishing the suit premises without following due process of law and
without providing permanent alternate accommodation. The plaintiff
has based his claim on various copies of Electricity Bills, Telephone Bills,
Ration Card, Voter list2009. The list of annexureII discloses the name
of one Smt. Geeta Jaiswal, who was the wife of deceased brother of
plaintiff. Whether the plaintiff or Smt. Geeta Jaiswal are entitled for
permanent alternate accommodation or not, can be decided on the basis
of evidence adduced by both the parties. At this stage, it is not in dispute
that Metro Line4 (WadalaKasarvadavali) is in progress which will
establish NorthSouth connectivity. Therefore, the said project which is
undertaken for the benefit of public at large can not be withheld by
restraining defendants from demolishing the suit premises. Therefore, I
am of the opinion that no prima facie case has been made out by
plaintiff, in order to grant relief of temporary injunction in his favour.
Accordingly, point No.1 is answered in negative.
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As to point No.2 and 3 jointly .
10. So far as balance of convenience is considered, it tilt in
favour of defendants and irreparable loss will cause to them, if the Metro
Line4 is withheld which is meant for the benefit of public at large.
Hence, point Nos.2 and 3 are answered in negative.
As to point No.4
11. In view of forgoing discussion, as plaintiff is not entitled for
the relief of temporary injunction, for the answer of point No.4, I pass
following order.
ORDER
1) Notice of Motion No.3926/2019 is dismissed.
2) Notice of Motion No.3926/2019 stands disposed off accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 17/12/2019
Dictated on : 17.12.2019
Transcribed on : 18.12.2019
Signed on : 19.12.2019
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in S.C. Suit No.2613/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
20.12.2019 11.00 a.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 17.12.2019
Order signed by P.O. on 19.12.2019
Order uploaded on 20.12.2019
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