Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.4175/2019
in S.C. Suit No.2816/2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.4175 of 2019
(CNR NO. MH CC01-011448-2019)
In
S.C. SUIT No. 2816 of 2019
M/s. Shivnery Mandal & Ors. …..Plaintiff
V/f.
State Government of Maharashtra
Through Sub Division Engineer,
Public Works Department, Mumbai ....Defendant
Appearance:-
Mr. S. K. Dubey, Advocate for the plaintif.
Mr. Kudalkar, Advocate for defendant
CORAM :- HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE :- 04th February, 2020.
ORDER
1. By this notice of motion, plaintifs have prayed for
restraining defendant, their servants, agents from enforcing
notice dated 16.09.2019 in respect of the suit premises i.e.
premises at Sahyadri Mitra Mandal Chawl, Near Mahatma Phule
Nagar, Opp. Mankhurd Railway Station, Mankhurd, Mumbai, for
directing ofcer of defendants to hear plaintifs and its
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2 Notice of Motion No.4175/2019
in S.C. Suit No.2816/2019
members as per the list Exh-A and consider the documents for
eligibility of alternate accommodation in respect of the member
of its respective premises.
2. In support of notice of motion, Mr. Pradeep S. Haram
filed afdavit and it is averred that he is duly authoriyed by
plaintif No.1. He has relied on the contentions raised in the
plaint and prayed that if the reliefs as sought are not granted,
he will sufer irreparable loss and damages which can not be
compensated in terms of money.
3. In afdavit-in-reply Mr. Kishore P. Patil, Executive
Engineer, Multistoried Building Diviosn, P.W.D., averred that the
notice of motion is not maintainable as it does not disclose any
cause of action. The suit is bad for want of statutory notice
under Section 80 of Code of Civil Procedure.
4. It is further averred that notice dated 16.09.2019 is
issued to M/s. Mauli Auto Garage and therefore M/s. Shivnery
Mandal is not having any right to challenge the said notice as
the notice is issued to individual and not to the society.
According to defendant, the encroacher M/s. Mauli Auto Garage
erected illegal structure on the road towards Bombay Side
Highway. Beneath the said structure, there is high pressure
pipeline of Hindustan Petroleum Corporation Limited (HPCL) /
GAIL. The illegal construction and shed on highway might lead
damage to pipeline of HPCL which may lead to leakage of
petroleum project and may lead to lives and property of HPCL
as well as defendant. It is further averred that the continuous
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3 Notice of Motion No.4175/2019
in S.C. Suit No.2816/2019
correspondence from HPCL as well as Deputy Collector
(Encroachment / Rehabilitation), local Police Station as well as
Mumbai Municipal Corporation for taking action in pursuance of
the notice dated 16.09.2019. Even HPCL and GAIL constructed
poll with warning board that Black Oil Pipeline under the land
near Mankhurd Railway Station on Sion - Panvel Highway is
dangerous to erect any construction there on. M/s. Mauli Auto
Garage, is unauthoriyed construction which is causing danger
to the pipeline of HPCL.
5. It is further averred that defendant received
schedule/circular under Bombay Highway Act 1955 which is
converted into Bombay Government Gayette bearing No.32
dated 26.08.1966 to classify the State Highway to be known as
Bombay – Panvel Highway. As per the said notification the
highway boundaries are fixed which shall be 100 feet on either
of the Central line of Bombay – Panvel road including building
line as well as control line. The existing plan for Sion - Panvel
Express Highway shows that M/s. Mauli Auto Garage
encroached upon express highway which is causing heavy
trafc as well as security and safety to Black Oil Pipeline and
Gas line beneath the land.
6. It is further averred by defendant that on
26.09.2019, after giving proper notice and following due
process of law, notice was issued to the encroacher including
M/s. Mauli Auto Garage, defendant had removed 50%
encroachment structures on Sion – Panvel Express Highway.
During the work of demolition, other illegal structure holders
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in S.C. Suit No.2816/2019
have given undertaking to the defendant that they will remove
their structures on or before 05.11.2019. There is no
documentary evidence to show that the notice structure is
project afected. The Mumbai - Sion to Panvel Highway is for
the benefit of public and for their safety in order to travel on
road but due to encroachment of the notice structure, it is not
possible to implement the public project. For all these reasons,
it is prayed that the notice of motion may kindly be dismissed
with cost.
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 plaintifs have
established prima facie
case ?
In Negative
2. Whether balance of
convenience tilt in favour of
plaintifs ?
In Negative
3. Whether plaintifs would
sufer irreparable loss if relief
of injunction is granted ?
In Negative
4. What Order ? As per final order
REASONS
Af to point Nof.1 to 3 jointly.
8. Heard learned Advocate for plaintifs and defendant.
Learned Advocate for plaintifs submitted that plaintifs are
entitled for alternate accommodation. Till the decision of
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in S.C. Suit No.2816/2019
Appeal which is pending before the Government, notice
structure is required to be protected.
Per contra, Learned Advocate for defendant submitted
that the notice dated 16.09.2019 is issued to M/s. Mauli Auto
Garage where as the present suit is filed by M/s. Shivneri
Mandal & Ors. which is not maintainable. The correspondence
of HPCL specifically shows that there is Black Oil Pipeline
beneath the notice structure which is causing obstruction for
the Sion – Panvel Highway which is meant for benefit of public
at large. Therefore, notice structure can not be protected at
the cost of public project. For all these reasons, it is prayed
that the notice of motion may kindly be dismissed with cost.
9. The plaintifs have relied on the ID Cards of slum
dwellers Bhausaheb Pol, Kavita Shinde, Vajreshwari Godse,
Nagesh Swami, Altaf Shaikh, Sunita Govalkar, Chaya Kadam,
Vikram Kadam, Janabai Sonawane, Mangal Jadhav, Bhartibai
Rathod, Sheetal Kadam, Ganesh Shinde, Bharat Chavan and
Maruti Shinde. They have further relied on the certificate dated
04.02.2004, issued by police station ofcer, Trombay police
station in favour Prabhakar Salvi, Voters list of 1988. They
have relied on the certificates of registration of M/s. Om Sai
Tyre Works and Om Sairam Communication. The recitals of the
said certificates itself shows that it is merely a registration
certificate and it does not by itself bestow any legality of the
structure. The letter dated 29.10.2003, issued by Regional
Nayab Tehasildar to Ganesh Shinde refects that opportunity
was given to him to produce the relevant documents for his
claim. The letter dated 21.12.2010 issued by Deputy Collector
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in S.C. Suit No.2816/2019
(Encroachment and Removal) Chembur to Chaya Kadam and
Suresh Kadam also refects that they were also given an
opportunity to submit relevant documents for their claim of
protection of structure.
The suit is filed by M/s. Shivneri Mandal and Ors. where as
the impugned notice dated 16.09.2019 is issued to M/s. Mauli
Auto Garage. No explanation is put forth on behalf of plaintifs
as to why the suit is filed by M/s. Shivneri Mandal when
independent notice dated 16.09.2019 was issued to M/s. Mauli
Auto Garage. It is not in dispute that the public project i.e.
Sion – Panvel Express Highway is being implemented at the site
where the suit structure along with other structures are
located. The Gas pipeline of GAIL and Black Oil Pipeline of
HPCL passes beneath the said structure. Therefore, it will be
hayardous and unsafe for occupants of the suit structure as
well as occupants of other structures nearby to occupy the said
structure. The correspondence between the ofcer of HPCL and
Executive Engineer, Multi-storied Building Division, P.W.D.,
refects that near Mankhurd Railway Station of Sion-Panvel
Highway, the shed is being constructed illegally and due to the
said construction, there may be chance of explosion or fire or
accident. Therefore, from the record it is evident that public
project is being implemented near Mankhurd Railway Station
where in the suit structure along with other structures are
located. Further more, some of occupants in the structures
near Mankhurd Railway Station have given undertaking dated
26.09.2019 that if they failed to protect their structures till
05.11.2019, they will abide by the demolition carried out by the
concerned authority. The said undertaking is addressed to the
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in S.C. Suit No.2816/2019
Executive Engineer, Multi-storied Building Division, P.W.D.,
Kurla, Mumbai. The signatories of the said undertaking are
some of the members of the plaintif No.1.
10. Learned Advocate for plaintifs have cited the
Judgment in the matter of OLGA Tellif and Orf. V/f.
Bombay Municipal Corporation and Orf. In 1985 SCR
Supl. (2) 51.
It has been observed by Hon'ble Apex Court that :
“ Pavement dwellers who were censused or who
happened to be censused in 1976 should be given,
though not as a condition precedent to their
removal, alternate pitches at Malavani or at such
other convenient place as the Government
considers reasonable but not farther away in terms
of distance; slum dwellers who were given identity
cards and whose dwellings were numbered in the
1976 census must be given alternate sites for their
resettlement; slums which have been in existence
for a long time, say for twenty years or more, and
which have been improved and developed will not
be removed unless the land on which they stand or
the appurtenant land, is required for public
purposes, in which case, alternate sites or
accommodation will be provided to them, the ‘Low
Income Scheme Shelter Programme’ which is
proposed to be undertaken with the aid of the
World Bank will be pursued earnestly; and, the
Slum Upgradation Program (SUP)’ under which
basic amenities are to be given to slum dwellers will
be implemented without delay.”
11. Learned Advocate for plaintifs have cited the
Judgment in the matter of Sopan Maruti Thopte and Orf.
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in S.C. Suit No.2816/2019
V/f. Pune Municipal Corporation in AIR 1996 Bom 304.
It has been observed by Hon'ble Apex Court that :
“ Where action is required to be taken against an
unauthorized construction or construction carried
out without prior permission as required under the
law, once notice is given stating the grounds for
arriving at a conclusion that the construction was
unauthorized and asking the concerned person to
show cause why the construction should not be
demolished and in case where no sufcient cause is
shown, it is not necessary for the Commissioner to
give personal hearing. As stated earlier, the
Municipal Commissioner may either call for
statement in writing showing cause or give personal
hearing to show cause why the unauthorized
construction should not be demolished. This would
be sufcient compliance with the principles of
natural justice and also provisions of Section 351 of
the Bombay Municipal Corporation Act or Section
260 of the Bombay Provincial Municipal Corporation
Act.”
The prepositions laid down above cannot be disputed but
it is evident from the record that while claiming impugned
notice, plaintif No. 1 is trying to protect all the structures near
Mankhurd Railway Station. The claim of plaintifs as to their
entitlement of alternate accommodation can be considered
after evidence tendered by both the parties. Therefore, at this
stage, the structure can not be protected at cost of public
project and which is also hayardous and unsafe in view of
passing of pipe line of GAIL and HPCL beneath the structure.
Therefore, I am of the opinion that no prima facie case is made
out by the plaintifs in order to grant temporary protection as
sought for. Moreover, irreparable loss will cause to the
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in S.C. Suit No.2816/2019
defendant, if the relief of temporary injunction is granted in
favour of plaintifs as it would be an impediment in the public
project i.e. Sion - Panvel Highway which is meant for the benefit
of public at large. Accordingly, point Nos.1 to 3 are answered
in negative.
Af to point No.4
12. In view of forgoing discussion, as plaintifs are 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.4175/2019 is dismissed.
2) Notice of Motion No.4175/2019 stands disposed of
accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date :- 04/02/2020
Dictated on : 04.02.2020
Transcribed on : 04.02.2020
Signed on : 06.02.2020
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10 Notice of Motion
No.4175/2019
in S.C. Suit No.2816/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
06.02.2020 02.50 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 04.02.2020
Order signed by P.O. on 06.02.2020
Order uploaded on 06.02.2020
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