Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 532 OF 2020
CNR NO. MHCC01-001378-2020
IN
L.C.SUIT NO. 284 OF 2020
Nitin Machhindranath Acharya …. Plaintiff
V/s.
Municipal Corporation of
Gr.Mumbai. ...Defendants
CORAM: HIS HONOUR JUDGE
SHRI. R. B. PARVEKAR
CITY CIVIL COURT
GR. MUMBAI
DATE : January 12th, 2024
Adv. Mr. D. A. Thorat for the plaintiff.
Adv. Ms.Meena Dhuri for the defendants/BMC.
ORAL ORDER
This notice of motion is taken out by the plaintiff
under order XXXIX Rule 1, 2 r/w section 151 of the Code of
Civil Procedure for temporarily restraining defendants/BMC [a]
from dispossessing the plaintiff or his tenant [b] from
demolishing or pulling down or removing the suit premises or
any portion thereof i.e. plot of land Adm. 650 sq.yards bearing
plot No. 239 and a plot of land admeasuring about 575 sq.yards
bearing Plot No. 240 corresponding to Cadestral Survey No.
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811, 980 and 981 of Dadar Naigaon Division in F/South
Municipal Ward together with the ownership of structures
standing thereon known as “Telwala Chawl” situated at G.D.
Ambekar Marg, Mumbai-400 014; in pursuance of Notice
bearing No. MDD/9812 dated 29 t h September, 2018 issued by
Deputy Municipal Commissioner, Improvements and Order
bearing MDD/ 5890 dated 9 t h September, 2019 passed by
Deputy Municipal Commissioner, Improvements of the
defendants.
2. For the sake of convenience, I would like to
reproduce description of the suit premises as follows:-
Plot of land adm. 650 sq.yard bearing plot No. 239
and a plot of land adm.about 575 sq.yard bearing Plot No.
240 corresponding to Cadestral survey No. 811, 980 and 981
of Dadar Niagaon Division in F/South Municipal Ward
together with the ownership of the structure standing
thereon known as Telwala Chawal, situated at G..D.Ambekar
Marg, Mumbai -4000 14.
[ hereinafter called as suit premises/ suit property]
Case of Plaintiff
3. It is the case of the plaintiff that he is a lessee. He
is in exclusive use, occupation and possession of suit
premises. Defendant is owner of the suit plot bearing No. 239
and 240 prior to 1948, the said plot of land was owned by
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Gulam Sabruddin Ali. On account of his leaving India and
settling in Pakistan, his property acquired by defendant/BMC.
Before shifting to Pakistan Mr. Gulam Ali had constructed
structure on the said lease hold plot of land.
4. The suit plot where put to auction by the
defendant/BMC in the year 1948. The said auction was
knocked down by Shri. Savalaram Rawji Acharya. The said
Salvalaram Acharya was declared as highest bidder of the
suit plot. After complying conditions, by order of
improvement committee of defendant, an agreement of lease
bearing No. ICR/ 372 dated 03.03.1948 was executed by
defendant through MC in favour of Savlaram Acharya for a
period of 999 years. On the date of holding auction, the
structure on the suit plot of land, were occupied by 52
tenants. As per lease agreement dated 03.03.1948 Savalaram
Acharaya paid lease rent to the defendant. Defendant issued
receipt to that effect.
5. During the lifetime Savalaram Acharya was not
collecting rent from 52 tenants. The rent was recovered from
the said 52 tenants by defendant/BMC and same was paid to
the lessee to Savlaram Acharya by defendant. Plaintiff
Savlaram Acharya expired on 19.01.1954 leaving unmarried
daughter Ms. Sumitra Savlaram Acharya as his wife pre-
deceased him on 06.06.1940.
6. Mr. Sumitra Salaram Acharya being unmarried
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daughter was only legal heir of Savlaram Acharya. Ms.
Sumitra Acharya expired as spinster on 07.04.1956.
Machindranath Raoji Acharya and Balram Raoji Acharya have
made representation jointly for transferring said lease in
respect of suit land. Defendant executed Registered Deed of
Lease dated 09.09.1960 jointly in favour of Machindranath
and Balram. Machhindranath Acharya is a father of plaintiff.
Balaram Raoji Acharya expired on 05.11.1964 being
unmarried. In the aforesaid circumstances only father of
plaintiff by name Machhindra Raoji Acharya was only alive
heir and representative of lesses of Savlaram Raoji Acharya.
Defendant called upon Machhindranath to obtain
administration bond in relation to the Estate if any left
behind by Balram Raoji Acharya. Machhindranath (Father of
plaintiff) filed Testamentary Petition No. 737/1968 before
Hon'ble High Court of Judicature Bombay. As per order dated
12.11.1971 Letter of Administration of Estate of Balaram
Acharya is issued in Testamentary Petition no. 737/1968 by
Hon'ble Bombay High Court. Machhindranath Acharya
expired on 23.03.1978. Smt. Menaka Machhindra Acharya
and plaintiff alongwith Shri. Deepak being son are only legal
heirs and representatives. Till the death of Machhindranath
Acharya, defendants were recovered rents from the tenants
and paid collected rent to the father of plaintiff till 1978.
Menaka Machhindranath Acharya made representation to the
Estate Department to the defendant for the transfer of lease.
Menaka Machhindranath Acharya expired on 13 t h January,
1994. Deepak Machhindranath Acharya expired on 07 t h
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August, 2000. Plaintiff is sole surviver of legal heirs and
representative. He has right, title and interest in the suit
land as a lessee. In Testamentary Petition No. 85/2020 for
grant of letter of Administration of Estate is pending before
Hon'ble High Court of Judicature of Bombay. Impugned
notice dated 29.09.2018 issued in the name of Menaka
Machhindra Acharya. In the said notice Menaka Machhindra
Acharya was accepted as lessee. Defendants are
contemplating to withdraw the said lease deed and
communication in the name of Smt. Menaka Machhindranath
Acharya. Deputy Municipal Commissioner passed order dated
09 September, 2019 and held that none of the heirs of
deceased Shri. Machhindra Raoji Acharya had or have any
right , title and interest in the suit plot and that lease in that
respect of suit plot is terminated. Notice dated 29 September
2018 and order dated 09 September 2019 is null, void and
bad-in-law. Hence, this notice of motion.
Case of defendant/BMC
7. Suit is bad for requirement of notice u/s. 527 of
the MMC Act. Suit premises were agreed to be leased out to
one Savlaram Raoji Acharya for the term of 999 years vide
Improvement committee resolution No. 372 dated
03.03.1948. Thereafter, plots were transferred in the name of
Balaram Raoji Acharya and Machhindranath Raoji Acharya
only for the purpose of giving refund of security deposit and
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legal charges of Rs.4400/- + Rs.300 for plot No. 239 and
security deposit and legal charges of Rs.3,800/- + Rs.300 for
plot No.240, which was paid by Savlram Raoji Acharya.
Balaram Raoji Acharya and Machhindra Raoji Acharya were
never the lessee of plot Nos. 239 and 240. The transfer effect
was given only for the limited purpose of giving refund of
security deposit and legal charges in respect of the plot Nos.
239 and 240. After the death of Balaram Raoji Acharya, the
plot vested in the name of Machhindra Raoji Acharya. After
the death of Machhindra Acharya, Menaka Acharya, legal
heirs of Machhindra made application dated 14.01.1984 for
payment of interest on securities for the period between
17.09.1977 to 16.09.1983. They also applied for transfer of
plot in her name vide application dated 01.03.1988. Office of
the defendant informed Menaka Acharya to submit
documents and to comply relevant document to bring her
name of office record of this defendant as lessee. Application
of Menaka Acharya was not process further for non
compliance on her part to submit relevant documents to
prove heir ship.
8. As per condition Nos.16 agreement to lease of plot
Nos. 239 and 240 dated 16.09.1948 vacant possession of the
plot will be given to the tenant after structure is removed
and possession of tenancy is obtained from the Vacant Land
Act. As per agreement to lease, lessee required to keep open
land unbuilt. But, the same land is seen encroached as of
date. Lessee fails to observed condition of covenant.
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Possession of plot Nos. 239 and 240 was neither handed over
nor taken over by the lessee till date. The said two plots
absolutely vested to the corporation. There is no lease
created in favour of lessee. Legal heirs of Savlarama Raoji
Acharya and Menaka Acharya and present plaintiff were not
act as lessee of Corporation. Municipal tenant and vacant
land tenancy holders on the said plot in the Chawl known as
Telwala Chawl. There are 26 residential tenements, 18
commercial tenants, 4 vacant land tenancy and 5 residential
cum commercial tenant. Out of 53 tenants 52 tenants have
already been brought on the Estate record of these
defendants and attornment process of remaining tenant is in
progress.
9. Public notice dated 04.04.2018 and show cause
notice 29.09.2018 was issued in the name of Menaka Acharya
as to why MCGM should not withdraw/ cancel ICR No. 372
dated 03.03.1948 and agreement to lease of said plot No.
239 and 240 bearing CS No. 811 and 890.
10. In pursuance to show cause notice hearing was
fixed on 14.11.2018 at 11.30 a.m. But Nitin Machhindra
Acharya alleged legal heirs of Menaka Acharya was not
present. On 05.01.2019 at about 03.00 p.m another hearing
was held. But, Nitin Acharya (plaintiff) failed to submit
document in support of his claim. Upon request, plaintiff
permitted to file written submissions on 14.01.2019.
Accordingly, plaintiff filed written submission on 14.01.2019.
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Plaintiff fails to show sufficient cause in respect of notice
dated 29.09.2018. Rest of the averments in plaint are denied
by the defendant/BMC in toto.
11. From the rival pleadings following points arise for
my determination to which I have recorded my findings for
the reasons stated here in below:-
Sr.
No.
Points Findings
1 Whether the plaintiff has prima-
facie case?
Negative.
2 Whether balance of convenience
lies in favour of plaintiff.?
Negative
3 Whether plaintiff will suffer
irreparable loss if injunction is not
granted?
Negative
4 What order ? As per final
order
REASON'S
12. Read Notice of motion, reply filed by the
defendants/BMC. Heard both the sides.
As to Point Nos.1 to 3
13. Point nos. 1 to 3 are interlinked with each other
hence, grouped together for discussions. First and foremost
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requirement for grant of temporary injunction is that the
party seeking such relief must establish prima-facie case in
his favour. To make out prima-facie case a party is not
required to establish his title. It is enough if he can show
that he has fair question to raise as to the existence of
alleged rights and the property in the meantime should be
preserved.
14. It is the contention of the plaintiff that he is a
lessee. He is in exclusive use, occupation and possession of
the suit premises. On the other hand, it is the contention of
defendant that only suit premises were agreed to be lease out
to Shri. Savlaram Raoji Acharya for a term of 99 years vide
improvement committee resolution No. 372 dated
03.03.1948.
15. In order to support the contention in respect of
occupation, possession of suit premises, plaintiff placed
photocopy of receipts. On perusal of receipts, it appears that
amount of Rs.300/-, Rs.300/-, Rs.4400 [ dated 20.04.1961]
and Rs.3800/-[dated 10.12.1947] were paid. Photocopy of
receipt does not bears the seal and signature of BMC
authority. On perusal of photocopy of receipt dated
10.07.1947, it appears that Savlaram Acharya deposited said
amount with BMC. In support of contention, relating to
status as a lessee and Lease Agreement dated 03 r d March,
1948, not a single document is placed on record by the
plaintiff. On perusal of reply dated 14.01.2019 filed by
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plaintiff relating to show cause notice dated 29.09.2018, it
appears that plaintiff himself admits in para No.4 that vacant
possession of said plot of land was not given to the
predecessor. It is not disputed that suit premises is owned by
defendant/BMC. In absence of registered Lease Deed status
of plaintiff cannot be termed or treated as lessee.
16. On minute perusal of the photocopy of resolution
No. 372 dated 13t h March, 1948, it appears that Bombay
Municipality, Deputy Municipal Commissioner passed
resolution and thereby accepted, acceptance of the offers and
grant of lease in perpetuity sanction as recommended in
favour of Savlaram Raoji Acharya. Hence, it is clear that
resolution is passed and sanction is given to execute lease
deed in favour of Savlaram Raoji Acharya. This document
implies and speaks that suit premises agreed to be lease out
to Salvaram Raoji Acharya. But, lease agreement is not
executed. On perusal of photocopy of form of lease referred
to in the agreement form,[Documents filed by defendant], it
appears that a draft copy of lease agreement was prepared on
30.12.1947 by Municipal Corporation of City of Bombay for
proposed execution of lease deed. In absence of lease
agreement and admission in reply dated 14.01.2019, “vacant
possession of the suit premises in favour of predecessor in
title has not been done till date.” Plaintiff has not placed any
document to prima-facie establish that vacant possession of
the suit premises was handed over by defendant/BMC either
in favour of Savlaram Raoji Acharya or his successor.
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17. It is the contention of the plaintiff that defendant
admits status of plaintiff as a lessee and thereby executed
Deed of Lease dated 09 September 1960. On the other hand,
it is the contention of defendant that the said Indenture Deed
dated 09.09.1960 is executed only for the purpose of refund
of amount deposited by Savlaram Raoji Acharya.
18. Considering the rival contention and on perusal of
Indenture Deed dated 09.09.1960, it appears that the said
Indenture Deed is executed between Balram Raoji Acharya
and Machhindranath Raoji Acharya [Real brother of Savlaram
Raoji Acharya] on one part and Municipal Corporation of
Greater Bombay on second part. It also appears that one
Laxmikant Ramrao Acharya stood as a surety for the said
Indenture dated 09.09.1960. The said Indenture Deed is
executed towards security and indemnify towards suit
premises. In Indenture dated 09.09.1960 it is specifically
mentioned that two agreements of lease both dated
16.03.1948 in respected of suit plot agreed to demise unto
one Salvaram Raoji Acharya for the period of 99 years at
annual ground rent. It is further mentioned in the Indenture
dated 09.09.1960 that Salvranam Raoji Acharya paid
Rs.440+Rs.3800 by way of security deposit and two sums of
Rs.300/- in Government Security as deposit for legal cost to
the Corporation. The Indenture dated 09.09.1960 clear the
fact that name of Balram and Machhindranath will be
recorded without requiring to obtain any representation to
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the Estate. Indenture Deed is a registered document. It is not
a lease deed in respect of suit premises. Therefore,
contention of the plaintiff is not supported by the document
placed on record.
19. It is the contention of plaintiff that in show cause
notice defendant/BMC admits that plaintiff is a lessee. Suit
plots were transferred in the name of Balram and
Machhindranath and thereafter in the name of Menka
Machhindranath Acharya. Therefore, plaintiff are having
right, interest in the suit premises. On the other hand, it is
the contention of defendant/BMC that representation of
Menka Acharya could not proceed further due to non
compliance of documents on her part. She is not a lessee.
20. Before considering these rival submissions, it is
necessary to mention here that Section 105 of Chapter V of
Transfer of Property Act described lease as a transfer of right
to enjoy an immovable property for certain time or in
perpetuity against consideration of price paid or promised to
the transferor by the transferee, who accept the transfer on
such terms. As discussed above, that proposed agreement to
lease is not executed in favour of Savlaram Raoji Acharya by
the defendant /BMC. Apart from this, it is not disputed that
vacant possession of the suit premises is yet to be given by
defendant/BMC to the plaintiff. Indenture Deed dated
09.09.1960 was executed to the extent to indemnify the
amount and to take name of Balram and Machhindranath on
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record at the place of Savlaram Raoji Acharya. Except recitals
relating to non process of representation of Menka Acharya,
nothing is brought on record by the parties. Relevant extract
relating to mentioning of name of plaintiff or his predecessor
are also not placed on record by the plaintiff. In absence of
lease agreement, status of deceased Menka Acharya cannot be
come under the purview of lessee. On perusal of photocopy of
letter dated 01.03.1988 [filed by defendant] it appears that
Menaka Acharya filed application dated 01.03.1988 with
defendant BMC mentioning therein to bring her name on
record and arrange to pay the interest accrued due from
1975. She also requested defendant BMC to provide draft
Indemnity Bond. This letter is a silent about her alleged
structure as lessee. It also does not whisper that Menaka
Acharya was receiving rent of suit premises from defendant
BMC. On the contrary she requested defendant BMC to pay
the interest. This fact is not disclosed by the plaintiff in
averments of plaint. On perusal of letter dated 02.08.1988 it
appears that defendant BMC informed and requested Menaka
Acharya to pay Rs.300/- towards charges of Indemnity Bond
in relation to letter dated 01.03.1988. By letter dated
18.08.1988 defendant BMC informed Menaka Acharya that
Indemnity Bond is prepared and approved by Corporation and
requested to got it registered. All theses documents prima
facie clarify the fact that for the purpose of payment of
interest registered Indemnity Bond agreed to be executed
between Menaka Acharya and BMC. As mentioned above that
in absence of Lease Deed prima facie plaintiff fails to
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establish his rights in the suit premises.
21. It is the contention of plaintiff that during the life
time Savlaram Raoji Acharya was not collecting rent from the
52 tenants. Rent was recovered from tenants by
defendant/BMC and same was paid to said lessee i.e.
Savlaram Raoji Acharya. On the other hand, defendnat/BMC
objected the said contention.
22. In support of contention relating to payment of
rent by defendant/BMC to Savlaram Raoji Acharya, not a
single document is placed on record by the plaintiff. On the
other hand, photocopy of receipt placed on record, prima-
facie shows the amount deposited by Savlaram Acharya with
the defendant/BMC are in respect of compliance of
Resolution No. 332.
23. Further it is the contention of plaintiff that show
cause notice dated 29.09.2018 is illegal. Procedure required
under section 105 to 111 of Transfer of Property Act, are not
complied by the defendant. Hearing given by defendant/BMC
cannot be called as hearing contemplated under section 105-
B of the MMC Act. Plaintiff is placed his reliance in the case
of Balwant Chatrabhuj Thakkar vs. Commissioner, Municipal
Corporation of greater Mumbai and Ors [2017 (1) ALL MR
189] and Mahadeo vs. Municipal Corporation [ The Bombay
Law Reporter [ vol.LXXII 780]
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24. On the other hand, it is the contention of the
defendant that after giving opportunity of being heard, due
process of law is followed by the defendant/BMC.
25. On minute perusal of show cause notice dated
29.09.2018 issued by defendant/BMC, it appears that in para
No.2 of the notice, it is specifically mentioned by deputy
Commissioner Improvement that plots were transferred in the
name of Balaram Raoji Acharya and Machhindranath Raoji
Acharya. Shri. Balaram Raoji Acharya was died and the plots
vests in the name of Machhindranath Raoji. The averments
made in the recitals of show cause notice dated 29.09.2018
are not supporting to the case of plaintiff for want of
existence of Lease agreement. Apart from this, as discussed
above that Indenture Deed dated 09.09.1960 was executed
only to indemnify the amount and not for execution of lease.
As discussed above, that proposed lease agreement was not
executed in favour of plaintiff or in favour of his predecessor.
Plaintiff himself admits in reply dated 14.01.12019 to the
show cause notice dated 29.09.2018 that possession of the
plot of land has not been done till today. It is settled law that
entries in Revenue Record are used for fiscal purpose. The
said entries does not create any right, title and interest in the
property. Therefore, mere recitals in the show cause notice
dated 29.09.2018 prima-facie does not create any right in
favour of plaintiff. The facts and circumstances of the present
case are different from the facts and circumstances
mentioned in the case laws relied by the plaintiff. Hence,
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case laws are not helpful to the case of plaintiff. Accordingly,
contention of plaintiff is not supporting to his case.
26. It is further case of plaintiff that notice is issued
in the name of Menka Machhindranath Acharya, who is dead
person. Therefore, notice issued in the name of dead person
is illegal and bad-in-law.
27. Considering the contention of plaintiff and on
perusal of photocopy of death certificate, it appears that
Menka Machhindranath Acharya reported to be died on
01.01.1994 and impugned notice is issued on 29.09.2018.
Admittedly, notice is issued in the name of Menka
Machhindranath Acharya, who was not alive at the time of
issuance of show cause notice dated 29.09.2018. But,
plaintiff participate in the proceeding and filed reply dated
14.01.2019 and 18.02.2019. Thereafter opportunity of being
heard is given to the plaintiff. After considering the reply,
defendant/BMC passed order dated 09.09.2019. From these
facts it is gather that opportunity of being heard is given to
the plaintiff and accordingly, due process of law is followed
by the defendant/BMC. In absence of Lease Agreement,
merely on the technical ground of issuance of notice in the
name of dead person, does not create any right in favour of
plaintiff.
28. Further it is the contention of the plaintiff that
officers of defendant/BMC came on the site of suit plots and
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gave threats. M/s. Royal Developer intends to redevelop the
suit plots, therefore, at the instance of developer impugned
notice is issued.
29. On other hand, it is the contention of defendant
that tenants were already resided in the structure standing
on the suit plots. Tenants formed the society and made
proposal for redevelopment of the structure. Plaintiff has no
right in the suit premises.
30. Considering the contention, it appears that
plaintiff filed reply to the show cause notice dated
29.09.2018. In reply dated 14.01.2019, plaintiff specifically
averred that he is having first priority to develop suit
property. As per averments in the plaint, it is not disputed
that at the time of auction in the year 1948, the structure
was standing in the suit premises. In para no.3 of the plaint
plaintiff specifically averred that the number of tenants are
52. Hence, from this record and averments it is primafacie
clear that structure was standing in the suit premises in the
year 1948 and 52 tenants are residing therein. Apart from
this there is no document on record to show that plaintiff is
collecting rent from the tenants. As discussed above, that
lease agreement is not executed in favour of plaintiff,
therefore, prima-facie plaintiff fails to establish his right,
interest in the suit premises. As per order dated 09.09.2019
redevelopment proposal is under process. Plaintiff has not
placed premium/ rent receipt deposited by Savalram Raoji
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Acharya or his successor with the defendant/BMC. There is
no document on record to show that defendant/BMC were
reverting rent amount to Savalram Raoji Acharya which is
collected from the respective 52 tenants from the structures
standing in the suit premises. Plaintiff has not placed
certified copy of Judgment passed in Suit No. 2451/1952
passed by the Hon'ble City Civil Court, Bombay relating to
eviction of occupant of the said Telwala Chawl. Plaintiff has
not placed any document to show his possession in the suit
premises. As discussed above, in absence of lease deed, rent
receipt, plaintiff fails to show that he has fair question to
raise as to the existence of his alleged right in the suit
premises. Accordingly, plaintiff fails to made out primafacie
case in his favour.
31. Plaintiff sought temporary injunction from
dispossessing him or his tenants and or from demolishing or
puling down suit premises. Admittedly, the said tenants are
not party to the suit though plaintiff sought relief in favour
of tenants, which is not permissible in the eye of law. Relief
of injunction is an equitable discretionary relief. So far
relative in convenience is concerned, plaintiff will not suffer
relative inconvenience by refusal of prohibitory relief. If
discretionary relief of temporary injunction is refused,
plaintiff will not suffer irreparable loss. Accordingly, I answer
all point in the negative and proceed to pass following order.
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ORDER
1. Notice of motion No.532/2020 is rejected.
2. Protection granted vide order dated 06.02.2020 stands
vacated.
3. Notice of motion No.532/2020 is disposed off
accordingly.
Date-12/01/2024 (R. B. Parvekar)
Ad-hoc Judge, City Civil Court
Gr. Mumbai
Dictated on:12/01/2024
Typed on : 12/01/2024
signed on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
16/01/2024 11.30 a.m. ( Mayuresh
P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. R. B. Parvekar (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
12/01/2024
JUDGMENT/ORDER signed by
P.O.on
15/01/2024
JUDGMENT/ORDER uploaded on 16/01/2024
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