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25_ao_335_2022.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO.335 OF 2022

WITH

INTERIM APPLICATION NO.2341 OF 2022

WITH

INTERIM APPLICATION NO.2344 OF 2022

IN

APPEAL FROM ORDER NO.335 OF 2022

Rajesh Ramharak Kanojia and Ors.

...Appellants

Versus

Municipal Corporation of Greater

Mumbai and Ors.

...Respondents

...

Mr. Vivek Shukla i/b. M/s. Shukla and Associates for the Appellants.

Mr. Ankur Shah i/b. Mr. Jatin Shah for the Intervenor.

Mr. Dharmesh Vyas i/b. Mr. R.Y. Sirsikar, for MCGM.

CORAM: SMT. ANUJA PRABHUDESSAI, J.

DATED : 5^th JULY, 2022.

P. C. :-

1.

Heard finally at the stage of admission.

2.

The Appellants, who shall be hereinafter referred to as the

Plaintiffs, have assailed order dated 26/10/2020 whereby the learned

Judge has dismissed the notice of motion in S.C. Suit No.3756 of

2020.

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3.

The Plaintiffs claim to be the owners of the immovable

property bearing CTS No.4948, 4947 A/1, 4949, 4949/1 to 3 of village

Kolekalyan, Taluka Andheri Mumbai admeasuring 1086.97 sq. mtr.

The grievance of the Plaintiffs appears to be that the Respondent -

Corporation has encroached upon the land under CTS No.4947

/A(part) and has constructed a road, which is not as per the directions

of the Hon’ble Supreme Court. It is stated that the road has been

constructed in a private land by circumventing the provisions under

compulsory acquisition. The Plaintiff filed a suit for mandatory/

perpetual injunction to direct the Corporation :

A-(i) to commence the construction of access road as per

the chart of the Hon’ble Supreme Court adhering to

points ‘

ABCD’ marked in the Chart;

(ii) to restrain the Corporation from encroaching upon or

carrying out construction in the suit property or

entering into his land beyond ABCD access road;

(iii) to set aside the plan provided by the MCGM and hold

it to be illegal, null and void;

(iv) to direct the Corporation to implement letter dated

12/03/2020 and 05/03/2020 for removal of the

unauthorised construction in compliance with the

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directions of the Hon’

ble Supreme Court;

(v) to compensate the Plaintiffs by acquiring 6600 sq.ft.

area out of the Suit Property as part of the ‘

access

road’.

(B) To set aside the ‘

existing road’ shown in the ‘

Final

Development Plan’

being illegal, null and void.

4.

The notice of motion has been taken out for interim reliefs

in terms of the prayers in the Suit and in addition prayer (c) to appoint

an expert/ commissioner to identify boundaries of the ‘

access road’

delineated at point ABCD, as per the plan referred to by the Hon’

ble

Supreme Court and to demarcate the boundaries and submit the plan

and report indicating the current location/status of the MCGM ‘

access

road’. The Plaintiffs have further prayed to stay execution of the part

of the ‘access road’ which is beyond points ‘

ABCD’ road.

5.

Learned Judge while dismissing the notice of motion has

taken note of the fact that the previous Suits being S.C. Suit No.6092 of

1993 and 4271 of 2000 filed by the Plaintiffs were dismissed by

judgment dated 02/01/2003 and 16/11/2004, respectively. Being

aggrieved by this, the Plaintiffs have preferred this appeal.

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6.

The records reveal that the Civil Suit No.6092 of 1993

seeking declaration that construction of road from CST Road to Park

Bay society through Survey No.295, 10 (part) and 12 (part) CTS

No.4949 is illegal, has been dismissed by the Trial Court. The

subsequent Suit No.4271 of 2000 has also been dismissed.

Consequently, claim of the Plaintiff with regard to road from CST to

Park Bay Society through Survey No.295, 10 (part) and 12 (part) CTS

No.4949 stands rejected.

7.

The records reveal that the Red Rose Cooperative Housing

Society had filed Writ Petition No.1740 of 2016 for directions to the

Respondent Nos.1 and 2 to take measures and work to improve and

repair