G.S. Kulkarni DECISION
G.S. Kulkarni, J.
1. This is an appeal filed by the appellant/plaintiff assailing an order dated 23 January, 2023 passed by the learned Ad-hoc Judge, City Civil Court at Mumbai whereby a notice of motion (Notice of Motion No. 4704 of 2022) filed by the appellant/plaintiff praying for a temporary injunction against the respondent/Municipal Corporation (for short, "MCGM") has been dismissed.
2. The suit in question (L.C. Suit No. 2801 of 2022) came to be filed by the appellant/plaintiff being aggrieved by a notice issued by the respondent (for short "MCGM") under Section 3141 of the Mumbai Municipal Corporation Act, 1888 (for short, "MMC Act"). The prayers in the suit are to the effect the said notice be declared to be null and void and for a permanent injunction to restrain the MCGM from implementing the impugned notice.
3. At the outset, it is required to be stated that in paragraph 3(a) of the plaint the appellant/plaintiff has claimed to be the owner and occupier of the land described as CTS No. 1491 admeasuring 175 sq. mtrs. situated at Mulund (West), Mumbai. In paragraph 1 of the plaint, the appellant/plaintiff has stated that the suit pertains to stalls which are occupied by his tenants. It is his case that there are 17 stalls which are put up on the said land by his predecessor- in- title who is stated to be one Mr. Jamadarsingh Gokulsingh. The land in question forms part of the road widening project being undertaken by the MCGM in the public interest namely road widening on JST Road outside the Mulund Railway Station.
4. The notices under Section 314 of the MMC Act were issued to the occupants of the stall holders who are 17 in number. The occupants of the stalls have not filed any independent proceeding as it appears that the present suit is filed by the appellant/plaintiff espousing the cause of the said stall holders.
5. At this juncture, it is required to be noted that, when the appellant/ plaintiff although makes categorical averments in regard to his ownership and title to the land in question, which is subject matter of road widening by the MCGM, not a single document of ownership, as the law would recognize to be any document of title, is placed on record by the Appellant. There is no document to show even the title of the appellant's predecessor- in- title. It appears that on such basic infirmities and surprisingly asserting the ownership rights on the land, the suit in question was filed. Further discussion is more interesting.
6. The case of the MCGM is also that in respect of the road widening project in question, which is being obstructed by the appellant and his unauthorized stall holders, there were other 138 persons on the adjoining land of the MCGM, who were in fact permitted to put up stalls by the MCGM who were also issued notices under Section 314 of the MMC Act. The association of the said 138 stall holders had approached the City Civil Court in a suit [L.C. Suit (Stamp) No. 2927 of 2020], who were also denied any relief of a temporary injunction, by an order dated 05 March, 2020 passed by the City Civil Court. The said association, thereafter, approached this Court in the proceedings of Appeal From Order No. 217 of 2021 on 02 January, 2021 which came to be dismissed by a judgment and order dated 09 March, 2022 passed by the Co-ordinate Bench of this Court. The road widening project in question being a public project, this Court in its judgment observed that it is settled law that if a project undertaken by the local body is beneficial for larger public, inconvenience to small number of people is to be accepted and their ........