Final Order 1

Order Details: Other
Pdf Text: 1 NM No.428719 IN SUIT No.374213
MHCC010117792019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4287 OF 2019
IN
SUIT NO. 3742 OF 2013
Shreedhar Pandurang More & Anr. ] ...Plaintiffs.
Versus
Jadhav Virje Gajra Developers & Ors. ]…Defendant.
Appearance:
Ld. Advocate Aniket More for Plaintiff.
Ld. Advocate Sanchita Sontakke for Defendant No.1
Ld. Advocate Lata Wadhwani for Defendant No.2.
Ld. Advocate Chandra More for Defendant No.3/ MCGM.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 01/02/2023
ORAL ORDER
Plaintiffs have taken out present notice of motion for grant of
interim relief of temporary injunction restraining defendants and contemnors
especially defendant Nos. 1 and 2 from putting up any construction of
whatsoever nature and from digging and pulling down the plaintiffs
premises, for interim mandatory injunction directing defendant Nos. 1 and 2
and contemnor to restore the suit W. C. blocks to its original state , for
interim mandatory injunction directing defendant Nos. 1 and 2 to restore
and release area of 146 Sq. mtrs belonging to Slum Scheme.
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2) Perused the notice of motion, affidavit in support of notice of
motion, affidavit in reply of defendant No.1, affidavit in reply of defendant
No.2, affidavit in rejoinder of the plaintiff and record. Heard arguments
advanced by Ld. Advocate for plaintiff and Ld. Advocates for defendant nos.
1 to 3. As the defendant No. 4 and its advocate were absent, defendant No. 4
could not be heard.
3) Ld. Advocate for plaintiff argued that plaintiff No.1 is in use,
occupation and possession of Room No. 4 and plaintiff No. 2 is in occupation
and possession of Room No. 6 of Gaikwad Chawl at Gaurishankar Wadi, Pant
Nagar, Mumbai. There were W. C. Blocks for the use of occupants of the
Gaikwad Chawl (hereinafter the above premises occupied by plaintiffs and
W.C.Blocks are referred as “suit premises and suit W. C. Blocks”
respectively). Defendant nos. 3 and 4 were maintaining suit W. C. Blocks. As
the defendants were threatening to demolish the suit premises without
following due process of law and they were intending to put construction,
discharge the drainage water and to construct the wall to prevent access to
the plaintiffs from the main road, the plaintiffs filed present suit for
permanent injunction restraining defendants from putting up any
construction of whatsoever nature including walls, discharging the drainage
water and from demolishing the 'suit premises' and suit W. C. Blocks without
following due process of law and for declaration that defendants are not
entitled to put up any construction of whatsoever nature including walls and
from demolishing suit premises and suit W. C. Blocks. Plaintiffs were using
the suit W. C. Blocks for more than last 35 years. However during pendancy
of suit defendant No. 2 demolished the suit W.C. Blocks forcefully without
following due process of law and took the land of said W. C. Blocks in the
premises of Neelyog C1 building and constructed compound wall .
Defendant Nos. 3 and 4 had no authority to give permission for demolition
of the suit W. C. Blocks. Defendant No. 1 and 2 and contemnors jointly
destroyed suit W. C. Blocks and constructed walls and prevented the access
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to the plaintiffs rooms from the main road. Defendant Nos. 1 and 2 also
demolished RCC water tank for storage of the water. Defendants and
contemnors were aware of the pendancy of the present matter and inspite of
same they demolished suit W.C. Blocks forcefully without following due
process of law. Therefore defendants and contemnor have committed
contempt of the court and it is necessary to restore and reconstruct suit W.C.
Blocks to its original state and to direct the defendant Nos. 1 and 2 to restore
and release area of 146 Sq. mtrs grabbed by them which belongs to SRA and
to restrain defendants and contemnors from putting up any construction of
whatsoever nature or from pulling down the suit premises. Therefore Ld.
Advocate for plaintiffs prayed that Notice of motion be made absolute.
4) On the other hand Ld advocate for defendant No. 1 argued that
present Notice of motion is filed in the style of “Contempt Notice of Motion”
without making reference to any order of the court alleged to be disobeyed
by the defendants or contemnors. Therefore present Notice of motion is not
maintainable. Subject matter of the suit relates to Slum Rehabilitation
Scheme. Therefore as per Section 42 of the Maharashtra Slum Area
(Improvement Clearance and Redevelopment) Act 1971 (hereinafter referred
as Slum Act) court has no jurisdiction to entertain suit and Notice of motion .
Defendant no. 1 was appointed as a Developer to develop the property
bearing No. 5630 and 5656 and defendant No. 1 redeveloped the said land
property in the year 2013 itself and one Gajra Paradise CHS is already
formed on 14/05/2013 by the members of the building on said property.
Therefore defendant No. 1 is not necessary party and the above society is
necessary party. The structure of the suit W. C. blocks was demolished after
following due process of law by the defendant no. 2 in October, 2013 itself.
Redevelopment work of the property bearing No. 5630 and 5656 was
completed in the year 2013 itself. As the suit W. C. blocks were coming in
the DP road, same were demolished and defendant Nos. 1 and 2 had
constructed additional 3 toilets across the DP road. Defendant Nos. 1 and 2
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constructed the boundary wall in the year 2013 and on humanitarian ground
constructed 5 ft access road to provide access to the the 8 room structures
which had otherwise became land locked without any access including the
structures of the plaintiffs. The suit is bad for nonjoinder of necessary
parties. There is no prayer in the suit for grant of mandatory injunction.
Defendant no. 1 has not disobeyed any order of the court. There are delay
and latches on the part of plaintiffs . Therefore Ld advocate for defendant
No. 1 submitted that Notice of motion be dismissed.
5) On the other hand Ld advocate for defendant No. 2 argued that
plaintiffs have not come before court with clean hands. Plaintiffs have not
referred order or directions of this court alleged to be disobeyed by
defendants/ contemnors . Subject matter of the suit and present Notice of
motion relates to Slum Rehabilitation Scheme. Therefore as per section 42 of
the Slum Act, this court has no jurisdiction to entertain the suit and Notice of
motion. Defendant No. 2 developed the Slum Rehabilitation Scheme known
as Omkar (SRA) CHS Ltd, Jai Santoshi Maa CHS Ltd and Saidham CHS Ltd
on plot bearing CTS No. 5655 and 5657 of village Ghatkopar. Defendant
No.2 completed the construction of all rehabilitation and sale buildings in
the year 2013 itself. In the Slum Redevelopment Scheme 8 rooms in the
Gaikwad Chawl were not included. MHADA had prepared annexure II of
structures entitled for benefit of scheme and defendant No. 2 provided
permanent alternate accommodation to said slum dwellers. Eight structures
in the Gaikwad Chawl including the structure of plaintiffs were out side
ownership of MHADA and and samewhere not part of Slum Redevelopment
Scheme. Said 8 rooms of the Gaikwad Chawl are adjacent to the property
developed by the defendant No. 1 and school known as Dominic Savio
Vidyalaya. Defendant no.1 and above school had constructed boundary walls
leaving the said 8 structures outside their properties and due to same said 8
structures had no access. On humanitarian ground defendant no. 1 and 2
left out part of their properties to leave a 5 feet access road from DP road to
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the said 8 structures and said access road was constructed in the year 2013
itself. The demolition of the suit W.C. Blocks was necessary for construction
of DP road. Therefore after obtaining the NOC from MCGM suit W.C. Blocks
were demolished on 30/10/2013. Defendant nos. 1 and 2 had constructed
additional 3 toilets across the DP road for avoiding any inconvenience to the
occupants of said 8 rooms structure including structures of plaintiffs. The
construction of slum redevelopment scheme of defendant no.2 was
completed in the year 2013 itself. Plaintiffs have filed false suit in order to
pressurise defendant no. 2 for providing permanent accommodation.
Therefore Ld. advocate for defendant No. 2 submitted that Notice of motion
be dismissed.
6) On the other hand Ld advocate for MCGM argued that no relief
is claimed against defendant MCGM suit W. C. blocks were not demolished
by MCGM. Plaintiffs have failed to make out case for grant of interim
mandatory injunction. Defendant no. 3 MCGM followed due process of law.
Therefore Ld. advocate for defendant No. 3 submitted that Notice of motion
be dismissed.
7) Following points arise for determination and court has recorded
its decision thereon for the reasons stated there under:
Points Decision
(i) Whether plaintiffs proved that prima facie case lies
in their favour ?
No.
(ii) Whether plaintiffs proved that balance of
convenience lies in their favour ?
No.
(iii) Whether plaintiffs proved that they will suffer
irreparable loss if, interim reliefs as prayed are not
granted ?
No.
(iv) What Order? As per final
order.
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REASONS
As to Point No.1 to 3:
8) As point No.1 to 3 are interconnected with each other they are
decided simultaneously in order to avoid repetition of facts.
9) Plaintiffs have filed present suit for declaration that defendants
are not entitled to put up any construction, or discharge drainage water or to
demolish suit premises of the plaintiffs and suit toilet W. C. Blocks or to
prevent their access to main road and for permanent injunction. Plaintiffs
have also prayed for permanent injunction restraining defendants from
putting up construction of whatsoever nature including walls and preventing
the air and light, from discharging the drainage water and from demolishing
the plaintiffs suit premises and suit W. C. blocks. Admittedly, contemnors in
the present Notice of motion are not parties to the present suit. Admittedly,
the suit W.C. blocks and water tank for storage of water was demolished by
defendant No. 2 on 30/10/2013 . However from the matter on record it
appears that till date plaintiffs have not amended plaint for seeking relief of
mandatory injunction , for restoration of the suit W. C. blocks to its original
state.
10) Defendant nos. 1 and 2 came with specific case that
construction of the building was completed in the year 2013. From the
perusal of affidavit in support of Notice of motion it is clear that there is no
pleading that defendants or contemnors are trying to put any construction on
trying to do any digging work on trying to pull down the suit rooms of the
plaintiffs or trying to put up any construction at the site of the suit rooms or
doing digging work at the side of suit rooms. Admittedly suit W. C. blocks
were demolished on 30/10/2013. As per plaintiffs claim itself the defendant
Nos. 3 and 4 were maintaining the suit W. C. blocks The documents at
Exh.E to the affidavit in reply of defendant No. 2 reveals that MCGM had
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given no objection to defendant No. 2 for demolition of the suit W. C. blocks.
Therefore prima facie it appears that defendant No. 2 demolished the suit W.
C. blocks with permission of MCGM after following due process of law. As
such prima facie there appear no substance in the case of plaintiff that
defendant Nos. 1 and 2 and contemnors without any authority forcefully
demolished the suit blocks without following any Rules and Regulation
during pendancy of suit and therefore said act of defendants and contemnors
is illegal. Moreover plaintiffs have failed to produce on record any material
to show that defendants and contemnors are intending or likely to put any
construction at the site of suit premises of plaintiffs or defendants are
intending or likely to do digging work at the site of suit premises of the
plaintiffs or defendants are likely to pull down suit premises of plaintiffs.
Moreover defendant Nos. 1 and 2 have stated on oath that the development
of the buildings is already completed long back. Therefore prima facie
apprehension of the plaintiffs does not appear reasonable. As such prima
facie case does not lie in favour of plaintiffs.
11) Moreover prayer clause (B) and (C) in the Notice of motion are
for the relief of interim mandatory injunction. From the matter on record, it
appears that till date plaintiffs have not amended plaint for claiming the
relief of mandatory injunction is which is sought in the present Notice of
motion. It is settled preposition of law that the relief which cannot be
granted finally on merit, cannot be granted at initial stage. Moreover prima
facie plaintiffs failed to show that they are having right or interest in the area
of 146 Sq. mtrs which is alleged to the grabed by the defendants. In the
present matter prima facie does not appear that the defendants demolished
suit W. C. Blocks illegally/ without following due process of law or
defendant Nos. 1 and 2 have grabbed any area which belongs to slum
scheme as alleged. Prima facie there appear no legal obligation on the part
of defendant Nos. 1 and 2 to restore the suit W. C. blocks and to restore any
area of slum scheme. Therefore from the matter plaintiffs prima facie failed
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to bring on record any material to justify findings that the suit W. C. blocks
were demolished illegally without following due process of law or defendant
Nos. 1 and 2 have grabbed any area of the slum scheme. Moreover
admittedly defendant Nos. 1 and 2 provided additional 3 toilet blocks for the
use of occupants of the Gaikwad chawl. As such prima facie no case of
exceptional hardship is made out by the plaintiffs. Therefore court hold that
plaintiffs failed to make out case of exceptional hardship and interest of
justice do not demand the grant of interim mandatory injunction as sought.
12) Present Notice of motion is taken out in the year 2019. As such
there are delay and latches on the part of plaintiffs. There is no prayer for
grant of any mandatory order in the suit. Moreover the grant of interim of
mandatory injunction at this stage will amount to grant of final relief itself.
No such final relief is prayed in the suit. Prima facie apprehension of
plaintiffs do not appear reasonable. From the matter on record there appear
no serious bonafide question which requires adjudication in present matter.
Moreover, considering the nature of the reliefs sought no irreparable loss is
likely to be caused to plaintiffs which can't be compensated in terms of
money if interim relief as prayed are not granted. Therefore considering
material on record and above discussion, court hold that plaintiffs failed to
prove that prima facie case and balance of inconvenience lies in their favour
and they will suffer irreparable loss if the interim reliefa as sought are not
granted. Therefore point Nos. 1 to 3 are answered in negative.
AS TO POINT NO.4:
13) In the affidavit in support of the Notice of motion plaintiffs have
prayed to take action by issuing notice for contempt to defendants and
contemnors for demolishing suit W. C. blocks inspite of pendancy of the
proceeding. However, there is no pleading of plaintiffs that defendant Nos. 1
and 2 or contemnors have disobeyed any order or directions of the court.
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Admittedly, no order was passed by this court in this suit restraining the
defendants or contemnors from demolishing the suit W. C. blocks. Moreover
it is not the case of plaintiffs that defendants had given any undertaking to
the court not to demolish the suit W. C. blocks. Mere fact that the present
suit was pending does not mean that the defendants and contemnors were
automatically restrained from demolishing the suit W. C. blocks. As such
plaintiffs failed to prove that the defendant Nos. 1 and 2 and contemnors
disobeyed any order of this court. As such no case for initiating any action
for the contempt is made out by the plaintiffs.
14) In view of the negative decision of the point Nos. 1 to 3 and
above discussion, present Notice of motion is liable to dismissed. Hence
court proceed to pass following order.
ORDER
1) Notice of Motion No. 4287 of 2019 is dismissed.
2) Notice of Motion No. 4287 of 2019 is disposed off accordingly.
Date : 01/02/2023. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on : 01/02/2023
Typed on : 02/02/2023
Checked on : 07/02/2023
Signed on : 08/02/2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
13/02/2023 at 02.45 p.m. Samruddhi Jadhav
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of ORDER 01/02/2023
ORDER signed by P.O. on 08/02/2023
ORDER uploaded on 13/02/2023
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