Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Int Order- Draft NM in SU3200-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF ON
DRAFT NOTICE OF MOTION
IN
SUIT NO. 3200 OF 2019
(CNR no. MHCC010125642019)
1. Ratanlal Narsibhai Oza ]
Age : 73 years, Occ Business ]
through his son and duly Constituted Attorney ]
Ashok Kumar Ratanlal Oza, age 50 years. ]
2. Smt. Fencibai Jayantilal Oza ]
Age : 59 years, Occ Business ]
through her son and duly Constituted Attorney ]
Dineshkumar Jayantilal Oza, age 37 years. ]
Both residing and carrying on business in the name ]
and style of M/s. Laxmi Vilas Sweet and Farsan Mart ]
and M/s. Laxmi Steel at Shop No.3,3/2, ]
Dadarkar Chawl, R. C. Marg, Chembur Naka, ]
Chembur, Mumbai 400071. ]... Plaintiffs
Versus
1. The Municipal Corporation of Gr. Mumbai, ]
having its Head Office at Mahanagar Palika Marg, ]
Mumbai400 001, through its ]
Assistant Commissioner, M/West ward, ]
Municipal Office, Sharadbhau Acharya Marg, ]
Near Natraj Cinema, Chembur, Mumbai400071. ]
2. The Estate Officer, ]
Municipal Corporation of Greater Mumbai, ]
having office at MMC Annex, 4th Floor, ]
New Building, Mumbai 400001. ]....Defendants
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Appearances:
Ld. Advocate Mr. Sharad Bhosle for the Plaintiff.
Ld. Advocate Mr. S. C. Khandagle for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 8)
DATED : 10th December, 2019
O R A L O R D E R O N A D I N T E R I M R E L I E F
1. Perused Notice of Motion, documents annexed to the
plaint, documents filed by the defendant/MCGM and heard both sides.
By this Notice of Motion, the plaintiff has prayed to grant temporary
injunction restraining defendant/MCGM from enforcing the notice
dated 18.11.2019 purported to be under Section 314 of Mumbai
Municipal Corporation Act, 1888 (hereinafter "MMC Act") in respect of
the suit premises. Ld. Advocate for the plaintiff has taken me through
the plaint wherein it is stated that the suit premises was allotted to the
plaintiff by Estate Department of defendant/MCGM on a monthly rent
and the defendant/MCGM has not followed any guidelines for
providing alternate arrangement to the plaintiff for demolition of the
suit premises for road widening. Ld. Advocate for the plaintiff has
claimed that the plaintiff can be rehabilitated as per 'Kurar Pattern' and
the defendant/MCGM has ignored reply filed by the plaintiff to various
notices under various provisions of MMC Act since 2006. Ld. Advocate
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for the defendant/MCGM has submitted that the suit premises needs to
be demolished for road widening, the plaintiff is declared noneligible
for permanent alternate premises and if he has any grievance against
the said findings, he has to prefer appeal before Zonal DMC within 15
days from publication of Annexure II.
2. I have gone through the plaint allegations, documents in support
of the plaint and documents tendered by defendant/MCGM. From all
the allegations of the plaintiff it transpires that the plaintiff is primarily
aggrieved by declaration that he is noneligible for permanent alternate
accommodation/compensation for demolition of the suit premises for
road widening purpose. It is not in dispute that the road widening in
crowded city like Mumbai is a public project and such project is
undertaken for larger public interest and therefore, such public project
should not be stalled.
3. As submitted rightly by Ld. Advocate for the defendant/MCGM if
the plaintiff is dissatisfied with the decision of the Asst. Commissioner
with respect to the eligibility/noneligibility of the person/occupant of
the structure for rehabilitation as a PAP, he is at liberty to file an appeal
before Zonal DMC within 15 days as per Circular
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No.Ch.E./DP/19922/ES dated 20.03.2017 of defendant/MCGM. It is
also mentioned in the said circular that any person can give
suggestion/objection with respect to draft PAP list to Zonal DMC. The
plaintiff has not shown by documentary evidence that he has preferred
such appeal to Zonal DMC.
4. Ld. Advocate for the plaintiff has given emphasis to the plaint
allegations that the suit premises is allotted to the plaintiff by Estate
Department of the defendant/MCGM on monthly rent and the same is
not located in slum area. However, the above submissions have no
relevance to the facts of this case as suit premises is required to be
demolished for the road widening project.
5. Ld. Advocate for the plaintiff has further argued that the
defendant/MCGM has not prepared Annexure II till date. In this
context, the defendant/MCGM has produced Annexure II along with
demolition order dated 20.11.2019. Therefore, there is no substance in
the contention that Annexure II is not prepared by defendant/MCGM.
6. Ld. Advocate for the plaintiff has next argued that the
defendant/MCGM issued series of notices to the plaintiff and never
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arrived at a conclusion that suit premises was unauthorized structure or
it required to be demolished. All the previous notices have no relevance
to the road widening project and to the issuance of notices to the
plaintiff for proving his eligibility for PAP/compensation. As discussed
hereinearlier if the plaintiff succeeds in establishing before the
Appellate Authority or this Court that he is eligible for
PAP/compensation as per the policy of defendant/MCGM the directions
can be given to defendant/MCGM in accordance with the prayers of the
plaint. At this stage, if temporary injunction is granted in favour of the
plaintiff, it will stall a public project. The documents produced by the
defendant/MCGM establish that the defendant/MCGM has followed
due process of law in declaring the plaintiff noneligible for
PAP/compensation. Therefore, this is not a fit case to grant temporary
injunction. Hence, following order :
ORDER
Adinterim relief is rejected.
(C. V. Marathe)
Judge,
Date : 10.12.2019 City Civil Court, Gr. Mumbai.
Dictated on : 10.12.2019
Transcribed on : 10.12.2019
Signed by HHJ on : 12.12.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 12.12.2019 at 4.42 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
10/12/2019
JUDGMENT/ORDER signed by
P.O. on
12/12/2019
JUDGMENT/ORDER uploaded
on
12/12/2019
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