Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3970/19 in L.C Suit No. 2567/19. 1 Order.
MHCC010109822019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3970 OF 2019
(CNR NO. MHCC01-010982-2019)
IN
L. C. SUIT NO. 2567 OF 2019
(CNR NO. MHCC01-009893-2019)
1. AYUB PUNJE KHAN AND ORS ]...Plaintiff
Versus
1. MUNICIPAL CORPORATION OF GREATER
MUMBAI AND ANR. ]...Defendants
CORAM : SHRI U.J.MORE
(C.R.NO.08).
DATE : 07th March, 2020
=====================================
Appearance :-
Mr. Kapil Shetey, Advocate for Plaintiff.
Mr. Khandagale, Advocate for Defendant corporation
=====================================
ORDER ON NOTICE OF MOTION NO. 3970 OF 2019
This Notice of Motion filed by plaintiff seeking injuntive
relief against the defendant corporation. It is stated that, suit premises
and his hut situated at
“Nana Fadanvis Flyover, Wadala, Mumbai.”
Plaintiffs were in possession since last several years.
-- 1 of 12 --
N/m No. 3970/19 in L.C Suit No. 2567/19. 2 Order.
2. It is further stated that, plaintiffs original premises have
been taken over by the Defendants authorities and all the Plaintiffs No.1
to 4 have been allotted the premises as mentioned in the cause title of
the plaint in Building No.26A & 30A, SRA Scheme, Near RNA Park,
Vashinaka, Chembur, Mumbai. (Hereinafter, referred as the suit
premises.)
3. The plaintiffs in pursuance to the notice vacated their said
old / hut premises. They were allotted new premises i.e. suit premises
in lieu of the original premises and earlier premises demolished by the
corporation. Defendant officer came in suit premises and threat for the
suit premises. Hence, prayed for interim protection against the
defendant corporation.
4. The defendant corporation filed affidavit in reply. It is
stated that, on 10.06.2012, MMRDA handed over vacant possession of
all tenements from of the Building No. 26A and 30A situated at Suit
premises SRA, Laxmidham, Vashinaka, Chembur, Mumbai 400088.
Admeasuring area 225 sq.ft. Carpet area to M/East ward of these
defendants on 26.11.2007 for project affected persons.
5. The four number of persons i.e. plaintiff illegally
encroached upon the property in possession of the Municipal
Corporation by breaking open the locks and thereafter they approached
to this court with false and fabricated documents for securing interim
orders in their favour.
6. on 7th May, 2019 in routine round of inspection of
defendant. It has been found that plaintiff were not in possession of suit
-- 2 of 12 --
N/m No. 3970/19 in L.C Suit No. 2567/19. 3 Order.
PAP and it is surprisingly noticed in the first week of June, 2019 that the
plaintiffs in the present suit were encroached in suit PAP. After receiving
the praecipe on 25.09.2019 from advocate Kapil Shetey. Corporation
checking records with office and surprise that, the above four rooms
were not allotted to any person room No. 503, room No. 504, room No.
601, and room No. 204. The allotment letters in respect of PAP 503, 504
and 601 are false as per reply of Assistant Engineer maintenance
F/North ward. The verification report by letter No. ODFN/8782/Maint
dated 08.07.2019 that no such allotment letters have been issued by A.
E Maint F/North department.
7. Accordingly, the Assistant Commissioner M/E ward has
directed by order dated 16.08.2019 and 22.08.2019 to take action
against the plaintiff. Directed to Estate officer accordingly Estate officer
send memo dated 21.08.2019 to police authorities for obtaining the
police protection for forceful eviction of plaintiff when plaintiff came to
know about action they came to court.
8. Heard, Adv.Kapil Shetey for the plaintiff, Adv.Khandagale
for defendant at length.
9. Ld. Advocate for the plaintiff advanced his arguments as
follows:
1) The plaintiffs are Project Affected persons and they have
accommodated in the suit premises by the corporation.
2) Plaintiffs original suit premises demolished in road
widened project.
3) plaintiffs having his electricity bills of suit premises.
4) defendants have been followed due process of law.
-- 3 of 12 --
N/m No. 3970/19 in L.C Suit No. 2567/19. 4 Order.
5) Plaintiffs are in possession.
10. Ld. Adv. Mr. Khandagale for the defendant advanced his
arguments as follows:
1) Verification report filed by the Assistant Engineer about the
notice premises shows that no any possession and no any
allotment letter issued by the corporation.
2) The ad interim protection taken on the basis of forge
documents.
3) Aadhar Card of Mr. Ayub Khan does not reflects address of
notice premises.
4) No question of due process of law by corporation. In case of
illegal possession by encroachment action is not taken due
to non favour of police.
11. In view of aforesaid rival contention, following points arise
for determination and findings thereon are narrated as follows :
SR.NO. POINTS FINDINGS
1.
Whether plaintiff prove a prima facie
case ? Negative
2.
Whether balance of convenience lies in
favour of plaintiff ? Negative
3. Whether it will cause irreparable loss to
plaintiff, if injunction as claimed is
refused ?
Negative
4. What order ? As per final order
-- 4 of 12 --
N/m No. 3970/19 in L.C Suit No. 2567/19. 5 Order.
REASONS
AS TO POINT NO. 1 TO 3
12. Plaintiff placed reliance on first letter dated ODFN/1112/M
dt – 05.09.2016 in the name of 1) Shri Ayub Punje Khan as per letter
the plaintiff was allotted to room No. 503. As a PAP holder as per
“Mahatma Gandhi Pathkaranti scheme” annexure 2. He was permitted
to take possession within two days of Hutment. After possession the old
Hutment will be demolished, second allotment letter in the name of 2)
Smt. Farhana Ismail Shaikh it is ODFN/1160/M dt 06.09.2016 for room
No. 601, 3) letter in the name of Smt. Tabbassum Abdul Rab Shaikh it is
ODFN/1210/M dt 06.09.2016, and 4) letter in the name of Smt.
Rukhsana Ayub Khan it is ODFN/1270/M dt 05.09.2016.
13. All plaintiffs placed reliance on electricity bill in the name
of plaintiff No.1 Ayub and Plaintiff No.3 Rukhsana. Hence, request letter
issued by the estate officer of second letter 26.12.2019 transpires the
buildings situated at RNA park were handed over in possession to the
corporation as per possession receipt. The BMC has filed verification
report of Building No. 26A as well as building No.30A.
14. 26A for room No.503 regarding plaintiff No.1. Room NO.
504 regarding plaintiff No.3 Ruksana, Room No. 601 regarding plaintiff
No.2 Farhana and the verification report about building No.30A. Room
No. 204 regarding plaintiff no. 4 Tabassum. All these reports transpires
that, the allotment letters filed by these plaintiffs that the plaint as
discussed above are bogus and fabricated documents on which basis
these 4 plaintiffs has taken illegally possession of suit premises of 4
rooms. Which are already reserved for the eligible PAP holders.
-- 5 of 12 --
N/m No. 3970/19 in L.C Suit No. 2567/19. 6 Order.
15. As per plaintiff they are PAP person and their original
premises have been taken over by the authority and all the plaintiff No.
1 to 4 have been allotted the premises in building No.26A (3 premises)
and 30A (One premises), SRA scheme, RNA park, Vashi Naka, Chembur.
It is pertinent to note that, these plaintiffs has failed to file any
documents to show that they were in possession of original premises
(Old premises). Corporation has on handed-over possession of these
four premises and they were declared as a eligible by publication of
annexure 2. Nothing file on record to show that they are authorized PAP
holders. The verification report of the BMC officers transpires that, the
plaintiffs are not came with the clean hands and they are not authorized
with the PAP holders unless and until valid documents filed on record.
Therefore, there is substance in the defense of the defendant that,
plaintiffs are in all encroached in PAP property own by the Municipal
Corporation, Greater Mumbai without any legal authority.
16. Ld. Adv. Mr. Kapil Shetey placed reliance on following case
laws :
“AIR 1989, Hon’ble Supreme Court 2097,
Krishna Ram Mahale Vs. Mrs. Shibha Venkat Rao.”
With due respect of the facts of this case is not applicable the case
in hand.
17. Ld. Adv. Mr. Khandagale placed reliance on following case
laws:
I)Appeal From Order No. 1135 of 2013,
MGCM Vs. Prakash Cooperative Housing Society Ltd.,
-- 6 of 12 --
N/m No. 3970/19 in L.C Suit No. 2567/19. 7 Order.
by Hon’ble High Court.
Ii) MCA DJ No. 11 of 2009, Jagan Nath Vs
Dda, through its vice chairman and Vikas Sadan, New
Delhi, by Delhi District Court
With due respect of the above both case laws ratio are
applicable in the case in hand.
18. It is well settled that the discretionary powers has to be
used judiciously. The discretion of the court is exercised to grant a
temporary injunction only when the following requirements are made
out by the plaintiff :
(i) existence of a prima facie case as pleaded,
necessitating protection of plaintiff's rights by issue of
a temporary injunction;
(ii) when the need for protection of plaintiff's
rights is compared with or weighed against the need
for protection of defendant's rights or likely
infringement of defendant's rights, the balance of
convenience tilting in favour of plaintiff; and
(iii) clear possibility of irreparable injury being
caused to plaintiff if the temporary injunction is not
granted. In addition, temporary injunction being an
equitable relief, the discretion to grant such relief will
be exercised only when the plaintiff's conduct is free
from blame and he approaches the court with clean
hands.
-- 7 of 12 --
N/m No. 3970/19 in L.C Suit No. 2567/19. 8 Order.
19. In Seema Arshad Zaheer & Ors. V/s. Municipal Corporation
of Greater Mumbai & Ors. (Special Leave Petition (civil) No. 9479 of
2005 dated 05/05/2006), in Para 30, it is observed as follows :
"It is true that in cases relating to orders for
demolition of buildings, irreparable loss may occur if
the structure is demolished even before trial, and an
opportunity to establish by evidence that the structure
was authorized and not illegal. In such cases, where
prima facie case is made out, the balance of
convenience automatically tilts in favour of plaintiff
and a temporary injunction will be issued to preserve
status quo. But where the plaintiffs do not make out a
prima facie case for grant of an injunction and the
documents produced clearly show that the structures
are unauthorized, the court may not grant a
temporary injunction merely on the ground of
sympathy or hardship. To grant a temporary
injunction, where the structure is clearly unauthorized
and the final order passed by the Commissioner (of
the Corporation) after considering the entire material
directing demolition, is not shown to suffer from any
infirmity, would be to encourage and perpetuate an
illegality. We may refer to the following observations
of this Court in M.I. Builders Pvt. Ltd. v. Radhey
Shyam Sahu [1999(6) SCC 464] made in a different
context :
"This Court in numerous decisions has held
-- 8 of 12 --
N/m No. 3970/19 in L.C Suit No. 2567/19. 9 Order.
that no consideration should be shown to the builder
or any other person where construction is
unauthorized. This dicta is now almost bordering the
rule of law. Stress was laid by the appellant and the
prospective allottees of the shops to exercise judicial
discretion in moulding the relief. Such a discretion
cannot be exercised which encourages illegality or
perpetuates an illegality. Unauthorized construction,
if it is illegal and cannot be compounded, has to be
demolished. There is no way out. Judicial discretion
cannot be guided by expediency. Courts are not free
from statutory fetters. Justice is to be rendered in
accordance with law. Judges are not entitled to
exercise discretion wearing the robes of judicial
discretion and pass orders based solely on their
personal predilections and peculiar dispositions.
Judicial discretion wherever it is requires to be
exercised has to be in accordance with law and set
legal principles."
20. As per they are threaten by the corporation officer on
18.09.2019 for delay to take action on these encroachers in the suit
property. The corporation has filed the office correspondence dated
22.01.2020 for seeking help of police protection. The documents with
the list of documents at page No. 53 to 63 transpires that, the Police
memo for eviction action but due to the paucity of police the action
could not be implemented for removal of plaintiffs from suit premises.
The verification reports regarding four suit premises reveals that, the
plaintiffs (All) had made encroachment in suit premises owned by
-- 9 of 12 --
N/m No. 3970/19 in L.C Suit No. 2567/19. 10 Order.
MCGM with help of sham and bogus allotment letter. They came
without clean hands and seeking equitable relief. Certainly it is not
permissible by law. Hence, there is no prima facie case of plaintiff for an
interim protection.
21. Except bogus allotment letter plaintiff has not brought on
record any documentary evidence to show that, They are PAP persons.
They have been allotted suit premises as a alternative accommodation
in lieu demolished of old premises, not a single document filed on
record regarding old premises. If any the defendant has filed the
documents which shows that, the verification report which shows that
plaintiff has not came with the clean hands. Therefore, balance of
conveyance does not lies in favour of plaintiff. If the possession for some
month with bogus documents is protected. It will be mockery of Justice.
Corporation is legal authority and owner of suit premises and plaintiff is
illegal encroached suit premises. Which are reserves for the project
affected persons.
22. Therefore, it is defendant who will sustained irreparable
loss rather it is the defendant which is legal authority sustained
irreparable loss rather plaintiff. Hence, I answer the point No. 1 to 3 are
negative.
23. As I answered to point No.1 to 3 are negative. I am inclined
to pass following order:
- ORDER -
1. Notice of Motion No. 3970/2019 stands dismissed.
-- 10 of 12 --
N/m No. 3970/19 in L.C Suit No. 2567/19. 11 Order.
2. Notice of Motion No. 3970/2019 stands disposed off
(U.J.More)
Judge,
City Civil & Sessions Court,
Mumbai.
Date : 07.03.2020
1. Dictated on : 07.03.2020
2. Transcribed on : 07.03.2020, 09.03.2020, 11.03.2020
3. Signed on : 17.03.2020
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N/m No. 3970/19 in L.C Suit No. 2567/19. 12 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
17/03/2020. at 11:50 p.m. Mr.G.R.Suryawanshi
Name of the Judge (with Court Room no.) HHJ Shri U.J.More.
(Court Room No.08).
Date of Pronouncement of Judgment/Order 07.03.2020
Judgment/Order signed by P.O. on 17.03.2020
Judgment/Order uploaded on 17.03.2020
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