Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Draft notice of motion
In
S.C.Suit No.216 of 2019
Mrs. Anita Kashinath Palkar ...Plaintiff
Versus
M/s Aalay Developers and Ors ... Defendants
Advocate Mr. Zubin Dalal for plaintiff
Advocate B.S. Sutar for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 11th February , 2019
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this draft notice of motion for the
following reliefs:
a) Pending the hearing and final disposal of the present
suit, this Hon'ble Court be pleased to pass a temporary
injunction restraining the Defendant No.1, its servants,
agents person or persons claiming through or under it from
creating any third party right, title and interest by way of
sale, exchange, transfer mortgage , tenancy or otherwise in
respect of the free sale building and the rehab building
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situated and being constructed on the suit property being
C.S.No. 1871 off Byculla Division, known as Sarvodaya
Nagar, Farooq S. Umarbhoy Road, Agripada, Mumbai
400011.
b) Pending the hearing and final disposal of the present
suit, this Hon'ble Court be pleased to pass an order
directing the Defendant no.1 to reserve one flat in the
rehab and/or free sale building on the suit premises i.e.
being C.S.No 1871 off Byculla division, known as
Sarvodaya Nagar, Farooq S. Umarbhoy Road, Agripada,
Mumbai 400 011.
Facts in Brief are as under:
2 Plaintiff was in occupation of premises being hut no;.3,
Sarvoday Nagar, Farooq S Umarbhoy Road, Agripada, Mumbai 400
011. The said hut (Suit premises) was admeasuring approximately 100
sq ft. and was situated in a chawl. The said chawl was constructed prior
to 1940. Some of the rooms were occupied by Class 4 Municipal
Employees and therefore they were treated as staff quarters. As the
building was old, the plaintiff alongwith other persons who were
tenants/occupants on the property decided to redevelop the chawl.
3 According to plaintiff, defendant no.1 is the developer.
Defendant no.2 is the Assistant Commissioner, E ward, Defendant no. 3
is the Municipal Corporation of Greater Mumbai and defendant no.4 is
the Sarvoday Nagar Cooperative Housing Society wherein the suit
premises is situated. Accordingly an agreement dated 4/11/2006 is
entered between defendant no. 1 and defendant no. 4/society. The
said property was to be developed under Regulation 33 (7) of the D.C.
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Regulations and thereafter defendant no. 2 & 3 issued I.O.D dated
17th March 2010 approving the Plans for construction of the rehab
building. Thereafter, defendant no. 1 and defendant no.4 entered into
an agreement for Permanent Alternate Accommodation dated
1/04/2010 with the plaintiff thereby providing Permanent Alternate
acommodation to the plaintiff in lieu of the suit premises. It was agreed
by and between the parties that the permanent alternate
accommodation will be granted on the basis of the plaintiff being
declared as eligible by MCGM in the annexture II. It was admitted
that plaintiff was in possession of the earlier premises alongwith his
family members as stated in the said agreement. The permanent
alternate accommodation shall be self contained tenements having
area of 269.10 sq ft equivalent to 25 sq mtrs. and total usual carpet
area would 350 sq ft. (32.5 sq mtrs.) and the same shall be provided
free of cost in lieu of earlier premises. It was also agreed that the
defendant no.1 shall provide either temporary alternate
accommodation of 120 sq ft or shall provide an amount of Rs. 15,000/
per month till handing over possession of the Permanent alternate
accommodation .
4 Plaintiff has in his custody other documents to show that
plaintiff was in use, occupation and possession of the suit premises.
These documents do show that plaintiffs structure was before the
datum line of 112000 therefore plaintiff is entitled to be declared as
'eligible' under Annexure II. Accordingly defendant no. 2 & 3 made
annexure II. however, the plaintiff was declared as 'ineligible' under the
annexure II. At that time there was an issue as to whether datum line
was 111995 or 112000.
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5 Thereafter it was agreed between the parties that during
pendency of the scheme if the plaintiff and other persons who declared
as 'ineligible' get their status changed to 'eligible' any time prior to the
completion of the scheme i.e. to say before the Occupation Certificate is
obtained, then such permanent alternate accommodation would be
given . The same is also recorded in the said agreement and it is only
on the basis of the said understanding / agreement that the plaitniff
agreed to vacate the earlier premises. Relying upon these
representations, the plaintiff vacated the earlier premises. The plaintiff
was complied the necessary procedure to get himself as declared
eligible with defendant no.3.
6 Initially defendant no. 1 had provided rent in respect of
room premises in respect of permanent alternate accommodation.
However, in the year 2014, the approach and attitude of defendant
no.1 turned hostile and defendant no.1 stopped making payment of
rent. Thus, there are several issues and complaints interse between
plaintiff and defendant no.1.
7 Initially defendant no.4 was formed as a proposed society
and subsequently was registered with Registrar of Cooperative
Societies dated 31072010. Defendant no.4 accordingly submitted a
provisional list of voters for the year 2017.
8 Plaintiff was following up with the improvement
Committee of the Dependant no.3 for the purpose of ensuring his
eligibility and accordingly by way of order dated 2/01/2018, defendant
no.3 passed an order and declared the plaintiff as eligible and
accordingly on the basis of the said order annexure II being amended.
The defendant no.4 addressed a letter to the defendant no. 1 putting
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on record the said fact and requested them to carry out obligations and
also requested for appropriate change in the building plan and provide
details in respect of allotment of permanent alternate accommodation
to the eligible members. Plaintiff had also addressed letter to
Commissioner of Police, Mumbai.
9 On the basis of above mentioned representation the
defendant no.3 addressed a letter dated 12/10/2018 to the defendant
no.1 stating that Technical Scrutiny Committee has decided to include
the 9 structures in the rehab building including the structure of the
plaintiff. It was directed that defendant no. 1 to submit registered
undertaking that defendant no. 1 will accommodate the newly declared
eligible members including the plaintiff. However, defendant no.1 has
addressed letter and stated that the building is capable to stand only
stilt+6 floor as per the amended Plans dated 1/08/2017. Defendant
no. 1 further stated that the foundation and columns cannot withstand
more than 6 floors.
10 Plaintiff and other eligible persons have right of the
permanent alternate accommodation in rehab building. Defendant
no.1 is the developer of the plot. Defendant no.1 has constructed rehab
and salable building. However, defendant no.1 denied to give
permanent accommodation to the plaintiff. Hence, prayed to grant ad
interim relief.
11 Notice is issued to defendants. From the bailiff report it
appears that inspite of efforts made by plaintiff notice is not served to
defendant no.1.
12 Shri Zubin Dalal advocate for plaintiff has submitted that
plaintiff is eligible. Plaintiff is project affected person. Initially the name
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of plaintiff was not included in annexure II. However, plaintiff had
documents to show that she is in possession of room premises prior to
the datum line. Therefore, after inquiry the Assistant Commissioner
passed detailed order and held the plaintiff eligible. He has invited my
attention towards the documents on record. According to him, the plot
owned by defendant municipal corporation. It was specifically
requested to defendant no.1 to provide accommodation to the plaintiff.
However, defendant no.1 showed his inability to provide
accommodation. According to him, if all the plots are occupied by
various persons then plaintiff will suffer irreparable loss. Plaintiff will
not get any accommodation in the redevelopment scheme. Therefore, it
is necessary to reserve plot for the plaintiff in the scheme. Hence, he
prayed to grant ad interim relief.
13 I have perused the documents on record. The premises
wherein plaintiff was earlier residing was situated in the chawl i.e. hut
no. 3 Sarvodaya Nagar, Farooq S. Umarbhoy Road, Agripada, Mumbai
400 011. There were also staff quarters of classiv employee of
defendant. The building was old and accordingly plaintiff and other
occupants have formed cooperative society i.e. defendant no.4 which
is later on registered with the Registrar of Societies. The work of
redevelopment of the said chawl is entrusted to defendant no.1 under
the regulation 33(7) of the D.C.Regulation. Initially an agreement
dated 4/11/2006, is executed between the defendant no.1 and
defendant no.4. By the said agreement defendant no.1 agreed to
provide the permanent alternate accommodation to the project
affected persons.
14 From the record it appears that there was a dispute as to
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the application of the datum line,whether the datum line was 1/1/1995
or 112000. Accordingly, plaintiff was held ineligible . Thereafter, the
dispute referred to the Assistant Commissioner, Estate, head office. The
Assistant Commissioner made inquiry and he found that plaintiff and
other occupants are eligible for the permanent alternative
accommodation. Thereafter, the correspondence made with defendant
no.1. However, defendant no.1 stated that the said building consist
only stilt + 6 upper floors. Thus, in this way he showed his inability to
provide accommodation to the plaintiff. It is to be noted that plaintiff
has documents i.e. ration card, election card showing that possession of
the plaintiff is prior to 112000. The defendant no.1 had paid rent to
the plaintiff till 2014. Thus, from the documents on record, I find that
plaintiff is eligible for the permanent alternate accommodation in the
said redevelopment scheme. Plaintiff is project affected person.
Defendant no.1 is developer therefore in view of the agreement
executed by defendant no.1 and defendant no.4, it is the duty of
defendant no.1 to provide permanent alternate accommodation to the
plaintiff.
15 Now, the rehab building is ready. Shri B.S.Sutar advocate
for defendant corporation has submitted that occupation certificate is
not issued. Therefore, I find that plaintiff has made out prima facie
case, balance of convenience lies in favour of plaintiff and if injunction
is not granted then irreparable loss will be caused to the plaintiff.
Therefore, in view of the facts and circumstances of the present case, it
is necessary to direct the defendant no.1 to reserve one flat in the rehab
building for the plaintiff. Hence, I pass the following order:
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ORDER
1Defendant no.1 is directed to reserve one flat in the
rehab building on the suit premises i.e. being C.S.No.
1871 off. Byculla Division, known as Sarvodaya Nagar,
Farooq S. Umarbhoy Road, Agripada, Mumbai400 011
2 Plaintiff to comply order 39 rule 3 of CPC
3 Draft N/M be registered.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 11/02/2019
Typed on : 11/02/2019
Signed by HHJ. : 12/02/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
13/02/2019 S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
11/02/2019
JUDGEMENT/ORDER signed by
P.O. on
12/02/2019
JUDGEMENT/ORDER uploaded
on
13/02/2019
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