Final Order 1

Order Details: Notice of Motion
Pdf Text: Order N/m No. 151/2020 1 Suit No. 252/19
MHCC010004102020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 151 OF 2020
(CNR NO. MHCC01-000410-2020)
IN
L. C. Suit NO. 252 OF 2019
(CNR NO. MHCC01-016079-2019)
Sudhiram Sattan Yadav ...Plaintiff
Versus
1. Govind Singh Basantram Singh & 2 Ors. ...Defendants
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Appearance
Mr. B.T. Yadav, Advocate for Plaintiffs.
Mr. S. C. Singh, Advocate for Defendant No.1
Ms. Shweta Singh, Advocate for Defendant No.2
Ms. Smita Chavan h/f Adv. Ms. Hajare, Advocate for Defendant No.3/
MCGM.
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CORAM : DR. U. J. MORE
(C.R.NO.08).
DATE : 16th FEBRUARY, 2021
ORDER ON NOTICE OF MOTION NO. 151 OF 2020
1. This is Notice of Motion filed by the plaintiff, seeking relief
of transit accommodation and alternate transit accommodation and
security deposit with rent, till transit accommodation is provide by
defendant No.1 and 2.
2. It is stated that, plaintiff is one of the tenant in the Suit
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premises i.e. Room No. 13 and 14B, situated and lying at 2nd Floor,
‘Kaushal Kunj’ Building now named as “Govind Apartment”, in so called
proposed Redevelopment, Sarojini Naidu Road, Mulund (W), Mumbai –
400080, of which the Defendant No.1, is Landlord and owner,
defendant No. 2 is Developer.
3. Plaintiff was residing in Room No. 13 and 14B alongwith
his family members. The Suit building was demolished, while pending
the Notice of Motion and Suit unauthorizedly. Plaintiff having carpet
area about 375 Sq. Ft., and residing therein prior to 1960 or thereabout.
Initially, M/s. Sankh Developers has mentioned in renewal agreement
plaintiffs Room No.13 and 14B, the carpet area of the suit premises as
264 Sq. Ft. in their two agreements with intention to deprive the right
title and interest of the plaintiff, in the Suit premises to extent of deficit
area 111 Sq.Ft., Hence, plaintiffs is entitled for permanent alternate
accommodation of 375 Sq. Ft., for two rooms in new redeveloped
building in accordance with, the new Development Control and
Promotion Regulations (DCPR 2034 of 2018)
4. As per statutory provisions of DCPR 2034 of 2018, plaintiff
is entitled for two premises; in rehabilitated building in area of 300
Sq.Ft., each in lieu of his tenanted premises i.e., Room No. 13 and 14B
free of cost.
5. It is further stated that, defendant Nos.1 and 2, to be
directed, to provide adequate and appropriate ‘Transit accommodation’,
in the same vicinity till possession and occupation of conflicts in
redevelopment building are provided, in lieu of Room No. 13 and 14B,
and also prayed to pay interest on security deposit and rent, since Suit
premises is demolished on dated 28/02/2019. It is also prayed, to direct
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defendant No. 1 and 2 to comply statutory provisions i.e., new DCPR
2034 of 2018, and entire agreement with the plaintiff for
redevelopment of the dilapidated tenanted building.
6. Defendant No.1, strongly objected for any relief. Defendant
No.1 filed his reply and stated that, as per paragraph - a), the plaintiff
prays for adequate and appropriate transit accommodation, however,
the defendant No. 1 and 2, can provide only what they have given to
the other Tenants. There is a dispute regarding the number of Rooms
i.e., given to the plaintiff on Tenancy Basis. According to the Defendant
No.1, the plaintiff is a Tenant of only one Room; whereas, the plaintiff is
claiming tenancy of two rooms. However, the defendant Nos. 1 and 2
are willing to provide rent for alternate accommodation of only for one
room. They are willing to deposit the same in the Court.
7. It is stated, in his reply in paragraph No. b) that, the
question of paying interest does not arise, as it is the plaintiff who was
not willing to take the rent offered by the defendant Nos. 1 and 2. In
fact the plaintiff caused a lot of loss to the defendant Nos. 1 and 2, by
not co-operating in the redevelopment project and delaying it.
8. It is stated, in his reply in paragraph No. C) that, they have
not opted to develop the Suit premises under the new DCPR 2024 of
2018. It may be noted that, the new DCPR rules were only optional for
the projects, which had already started before November, 2018 and in
the present case, the defendant Nos. 1 and 2, have opted not use the
benefit of the FSI, under the new DCPR 2034 of 2018. Hence, new
DCPR 2034 of 2018, is not applicable on the defendant Nos. 1 and 2.
However, the defendant Nos. 1 and 2, had sent across a standard
agreement, which was signed by all the tenants except plaintiff, but it
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was the plaintiff who did not sign the agreement; and chose to file the
present Suit.
9. It is further stated, in reply, in paragraph No. d) that,
defendant has followed due process of law for demolition of the Suit
premises, the said building was declared ‘C-1’ category by defendant
No.3 and the Suit premises was at a risk of collapsing and harming the
life and property in the surrounding area. Also the plaintiff had failed to
acquire a stay on the demolition and hence, there was no Law stopping
the defendants from demolition of the premises, and the demolition was
done by defendant No.3, following their ‘C-1’ category Notice and
ample time was given to the residents of the Suit premises; to vacate
their rooms, but the plaintiff refused to do so hindering the due process
of Law for his malicious purpose putting the life of everyone in danger.
10. It is submitted that, defendant Nos. 1 and 2, has already
given rent to the other tenants of the Suit premises, then, why would
have refused to plaintiff?, the defendant Nos.1 and 2 are willing to
deposit the rent for single Unit, in the Hon’ble Court. Plaintiff had
already shifted from the Suit premises before demolition; and
defendants had already started paying rent to all other tenants, as they
had vacated the premises; and premises was halting the whole project
by way of his greedy demands of two rooms. Room No. 13 and 14B are
only one room of 286.60 Sq.Ft., and the 75.53 Sq.Ft., is the common
toilets and utility area. The common toilets and utility area, does not
belong to the plaintiff and it is to be shared by all the tenants on that
floor. All the common toilets and utility area is owned by the Landlord
and it is only for the use of the tenants, the tenants cannot claim that,
area as their own.
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11. Defendant No.2 has also repeated same reply as stated by
defendant No.1., defendant Nos.1 and 2, also ready to deposit the rent
for single Unit in the Hon’ble Court.
12. Heard, Ld Adv. Mr. B. T. Yadav for the plaintiffs, Ld. Adv.
Mr. S. C. Singh for defendant No.1 and Ld. Adv. Ms. Shweta Singh for
defendant No.2, at considerable length.
13. In view of aforesaid rival contention, following points arise
for determination and findings thereon are narrated as follows:
SR.NO. POINTS FINDINGS
1. Whether plaintiff prove a prima facie
case? Affirmative
2. Whether balance of convenience lies in
favour of plaintiff? Affirmative
3.
Whether it will cause irreparable loss to
plaintiff, if injunction as claimed is
refused?
Affirmative
4. What order? As per final order.
REASONS FOR ORDER
AS TO POINT NO.1 to 3:
14. It is not disputed that, the suit property has been
demolished on 28/02/2019, it is not disputed that, there were total 19
tenants in ‘Kaushal Kunj Building’ and it is given for redevelopment
purpose after demolition to the developer i.e., defendant No.2, by
owner, defendant No.1 and all other tenants except this plaintiff.
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15. It is not disputed that, the plaintiff is a tenant in the Suit
property and, Hence, entitled for the rent of the Suit premises after
demolition. It is not disputed that, plaintiff was a tenant in the
possession of room No. 13/14B, with only 264 Sq.ft., area. It is not
disputed that, the defendant No.1 and 2 are ready to pay per month
rent to the plaintiff as given to the other 18 tenants.
16. Thus, in short now dispute remains only regarding the
exact area of the Suit premises of which the plaintiff was in possession;
as a tenant before demolition of Suit property as per plaintiff. As per
plaintiff, since, the defendants have demolished the Suit premises on
28/02/2019, and plaintiff and his family were not provided transit
accommodation, as required under provision of DCPR 2034 of 2018.
Defendants shall provide adequate and appropriate transit
accommodation immediately without any delay and further, interim and
ad-interim order to pay adequate and appropriate compensation with
effect from 28/02/2019, till the transit accommodation in the same
vicinity is provided to the plaintiff; and also provide security deposit of
Rs. 50,000/- to Rs. 1,00,000/-. Plaintiff is tenant in respect of room No.
13 for 264 Sq.Ft., area and room No. 14B for 75 Sq.Ft. Area, and
therefore, plaintiffs is eligible for rehabilitation of both the rooms.
17. Both defendant Nos. 1 and 2, have submitted in reply that,
there is dispute regarding number of rooms i.e. given to the plaintiff on
tenancy basis. According to the defendant Nos. 1 and 2, the plaintiff is a
tenant of only one room; whereas, the plaintiff is claiming tenancy of
two rooms. However, the defendant Nos. 1 and 2 are willing to provide
rent for alternate accommodation only for one room. They are willing
to deposit the same in Court, and not willing to pay any interest; as
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plaintiff was not willing to take the rent offered by the defendants,
which was paid to all other tenants. Defendants never opted to develop
the Suit premises under the new DCPR 2034 of 2018, as these rules for
optional for the projects which had already started before, November
2018 and in the present case. The defendant Nos. 1 and 2 have opted
not to use the benefit of the FSI under the new DCPR 2034 of 2018, and
hence, new DCPR 2034 of 2018 is not applicable to the defendant Nos.
1 and 2.
18. It is noted that, all the other tenants have signed
redevelopment agreement with defendant No.2, except plaintiff, due to
the dispute on the grounds of either two premises or one premises. As
per defendants area of the Suit premises is 286.60 Sq.Ft., and the area
75.53 Sq.Ft., is the common toilet and utility area. It is not belong to
the plaintiff and it is to be shared by all the Tenants on that floor. All the
common toilets and utility area is owned by the Landlord and it is only
for the use of the tenants and not for ownership.
19. My leaned Predecessor was pleased to send dispute
regarding the measurement of rooms to the Architect. The Architect
Jaweed Mohamed Ishaa Ghazali, conducted measurement of the Suit
premises, and filed his report on record at Exhibit 5. I am of the opinion
that, at present need of the plaintiff, in the capacity of the tenant is to
be consider, in view of the Writ Petition No. 1135 of 2014 and MCGM
Guideline dated 25th May, 2018. The plaintiff being the tenant is
certainly entitled for the rent of the Suit premises the question
regarding, whether he is entitled for the two Suit premises or one Suit
premises; would be matter of evidence, which needs trial, and
therefore, by keeping point open regarding the entitlement of the two
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Suit premises or one Suit premises by plaintiff. It would be decide by
giving parties proper opportunity of adducing evidence of the trial Suit,
then issue regarding the payment of rent is decide at certain extent,
accordingly, while passing this Notice of Motion order.
20. It is not disputed that, the plaintiff is entitled for the
payment of rent by developer, as discussed above. The reply filed by the
both the defendants, transpires that, they are ready to pay the rent
amount, which was given to the other tenants; in argument, it is
submitted by the defendants that, they paid of Rs. 13000/- of other
tenants per month, as per area of plaintiff is 264 Sq.Ft., X 50, per Sq.Ft.,
Rs.14,300/- per month. They are ready to pay as per Architect area i.e.
264 Sq.Ft., which gives Rs. 14,300/- per month.
21. In argument of Ld. Advocate for the plaintiff that, it is
submitted to pay atleast Rs. 25,000/-,(Twenty five thousand rupees
only) per month for two rooms i.e., Room No. 13 and 14B.
22. I am of the opinion that, considering the submissions of
both parties for temporary purpose till the outcome of the trial, plaintiff
is entitled for Rs.18,000/-, per month rent since, date of demolition
from 28/02/2019, till disposal of the suit. Defendant Nos. 1 and 2 are
under obligation in such circumstances to provide alternate temporary
accommodation, as the plaintiff will be render shelter-less / homeless.
They did not have any other place to live with their family. Owner to
proceed for compliance of it is mandatory statutory duties, as per the
ratio laid down in the W. P. No. 1135 of 2014 and guideline dated 25th
May, 2018 and D.C. Rules.
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23. There is prima facie case of the plaintiff that, he is came on
the road alongwith family, due to the demolition on 28/02/2019, it is
the plaintiff who would suffer irreparable loss, if Notice of Motion is not
granted considering the facts and circumstances of the case. The
plaintiff is entitled for the rent alongwith security deposit of Rs.
50,000/-. Therefore, balance of convenience is lies in favour of plaintiff,
regarding the entitlement of the exact suit area would be decide on
merits at the conclusion of trial. Hence, I answer point No. 1 to 3 are
affirmative. As, I answered point No. 1 to 3 are affirmative. I am
inclined to pass following order.
- ORDER -
1. Notice of Motion No. 151 of 2020 is partly allowed.
2. Defendant Nos. 1 and 2, do pay rent of Rs. 18,000/-
(Eighteen thousand rupees only) per month to the plaintiff
from 28/02/2019, till disposal of the Suit.
3. Defendant Nos. 1 and 2, do pay amount of deposit for
rented premises of Rs.50,000/- (Fifty Thousand rupees
only) to plaintiff.
4. Defendant Nos. 1 and 2, are directed to deposit all these
amounts at Serial No. 1 and 2 in Court within three
months from today.
5. Notice of Motion No. 151 of 2020 is disposed of
accordingly.
(Dr. U. J. More)
Judge,
City Civil & Sessions Court,
Mumbai.
Date: 16/02/2021.
1. Dictated on : 16.02.2021
2. Transcribed on : 16.02.2021
3. Signed on : 16.02.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/02/2021. at 5:50 p.m. Mr.G.R.Suryawanshi
Name of the Judge (with Court Room no.) HHJ Shri U.J.More.
(Court Room No.08).
Date of Pronouncement of Judgment/Order 16.02.2021
Judgment/Order signed by P.O. on 16.02.2021
Judgment/Order uploaded on 16.02.2021
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