Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM No.3802020 IN SUIT NO. 26362019
MHCC010012502020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 380 OF 2020
IN
SUIT NO. 2636 OF 2019
Pratibha Mahadev Bhojane ] ...Plaintiff.
Versus
MHADA & Others ]...Defendants.
Appearance:
Ld. Advocate Gavkar for plaintiff.
Ld. Advocate Pathak h/f Advocate Kandekar for defendant Nos. 1 &
2/MHADA.
Ld. Advocate Vijay Sharma for defendant No.3.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 06/12/2022
ORAL ORDER
1) Plaintiff has taken out present notice of motion for grant of
various interim reliefs. Plaintiff pressed for grant of interim reliefs in
terms of prayer clause (d), (e) and (h).
2) Perused the notice of motion, affidavit in support of notice
of motion, affidavit in reply of defendant No.3, written statement of
defendant No.3, affidavit in reply of defendant No.1 and 2, additional
affidavit in reply of defendant No.3, affidavit in rejoinder of plaintiff and
record. Heard arguments advanced by Ld. Advocate for plaintiff, Ld.
Advocate for defendants No.1 and 2 and Ld. Advocate for defendant
No.3.
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3) Ld Advocate for plaintiff argued that plaintiff was the tenant
and occupier of the Room No.50, Bori Chawl, C.S. No.1/204 of Parel
Sewree Division, Building No.56 bearing Cess No. FS/1128(1) situated
at Ram Tekdi Road, Sewri, Mumbai 400 015 (The above premises is
hereinafter referred as suit premises). The plaintiff was in occupation
and possession of the suit premises till its demolition for redevelopment.
The property wherein the suit premises was situated i.e. the suit building
was cess building. The property wherein the suit premises was situated
is redeveloped as per provisions of MHADA Act and Regulation No.33(7)
of Development Control Regulation, Gr. Mumbai under the supervision
of defendants No.1 and 2 by the defendant No.3 who is developer and
builder. As per the Annexure II prepared by defendants No.1 and 2 the
plaintiff is eligible tenant/occupant of the suit premises of which user is
residential. The defendant No.3 had assured and agreed to give
permanent alternate accommodation of 390 sq.ft.carpet area to the
plaintiff and all the occupants in the suit building in the reconstructed
new building. Therefore, plaintiff had executed consent affidavit and
handed over possession of the suit premises to defendant No.3 for
redevelopment.
4) The defendant No.3 developed the suit property and
constructed a new building. Defendant No.3 without obtaining
occupation certificate handed over possession of flats of 390 sq.ft. carpet
area to the other occupants/tenants of the suit building. However,
defendant No.3 has not given permanent alternate accommodation to
the plaintiff till date. Moreover, defendant No.3 stopped paying monthly
rent towards temporary alternate accommodation which was being paid
to the plaintiff @ Rs.13,000/ per month since 01/01/19. Defendant
No.3 is bound to pay rent for temporary alternate accommodation till
handing over the permanent alternate accommodation to the plaintiff as
given to other occupants of the suit building. The plaintiff is therefore
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entitled for permanent alternate accommodation i.e. flat premises of 390
sq.ft.carpet area in the reconstructed building Neha Residency in lieu of
the suit premises.
5) The building wherein the suit premises was situated was
demolished in the year 2013 and MHADA had informed defendant No.3
about the fact that the suit premises is held eligible as residential
premises in 2013 itself. Therefore, it was duty of defendant No.3 to
revise the approved plan for providing permanent alternate
accommodation in the reconstructed building to the plaintiff and to
execute agreement of permanent alternate accommodation in favour of
plaintiff. Inspite of direction of the defendants No.1 and 2 defendant
No.3 failed to execute the agreement of permanent alternate
accommodation in favour of plaintiff and failed to pay rent for
temporary alternate accommodation to plaintiff from 01/01/19. The
rent in the reconstructed building of 390 sq.ft.carpet area flat is
Rs.32,000/ per month. Till date all flats of the sale component are not
sold. As per the ready reckoner value of the 390 sq.ft.premises in the
reconstructed building is above Rs.99 Lacs. Actual market price is more
than Rs.1.50 Crores. The defendant No.3 is not ready to provide
permanent alternate accommodation in the reconstructed building nor
ready to pay the actual market value of the permanent alternate
accommodation to which plaintiff is entitled. The premises offered in
other building were not good and not of 390 sq.ft.carpet area. Plaintiff
offered only Rs.69 Lacs towards compensation. Hence, offer of
defendant No.3 was not accepted. Therefore, plaintiff prayed that during
the pendency of the suit defendant No.3 be directed to pay the rent at
the rate of Rs.20,000/ per month or more for temporary alternate
accommodation till handing over possession of the permanent alternate
accommodation to plaintiff from 01/01/19 and temporary injunction
restraining defendant No.3 from alienating the unsold flats of the sale
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component in the reconstructed building Neha Residency to the extent
of area of permanent alternate accommodation to which the plaintiff is
entitled in lieu of suit premises till the possession of the permanent
alternate accommodation is given to the plaintiff and for temporary
injunction restraining defendants from handing over permanent
alternate accommodation in lieu of suit premises to any other person
other than plaintiff.
6) On the other hand, Ld Advocate for defendant No.3 argued
that the plaintiff was tenant in respect of suit premises. As per the
certified list of tenants/occupants Annexure II the user of the suit
premises was shown as non residential. In the NOC granted by MHADA
also user of the suit premises was shown as non residential. After
issuance of IOD on 6/4/13 and issuance of commencement certificate on
20/8/13 construction of the new building was started by demolishing
the old building. On 25/10/13 the representation of plaintiff was
allowed and the user of the suit premises was converted from non
residential to residential and therefore, plaintiff is entitled to residential
flat admeasuring 300 sq.ft.as per MHADA Rules. However, MBR & R
Board had not informed the said modification to the Executive Engineer
(B & P) City /II of MCGM for modification of the approved plans. MBR &
R Board informed the Executive Engineer (Building & Proposal)
(City)/III of MCGM about same on 4/3/17 by which time construction of
new building was almost completed and there was no possibility to
modify and amend the plan. The construction of the new building was
completed in the year 2017 as per approved plans.
7) The rehab building construction consist of flats
admeasuring 390 sq.ft.carpet area i.e. area 300 sq.ft. and tangible area
of 90 sq.ft. which is aggregating 390 sq.ft. Out of sale component flats
four flats are already given to landlord as per terms and conditions of
redevelopment agreement and remaining 14 flats are sold out. As such
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none of the sale component flat is available now. Moreover, the sale
component flats are of 590 sq.ft. Therefore, after discussion with
plaintiff it was decided to purchase a flat of same area in the vicinity and
handover same to the plaintiff or to pay the cost of the flat of 300
sq.ft.carpet area to plaintiff as per ready reckoner. However, plaintiff
rejected flats shown to her and refused to accept the amount as per
ready reckoner. Therefore, defendant No.3 stopped paying rent of
temporary alternate accommodation from January 2019. The intention
of plaintiff is to grab 590 sq.ft.carpet area flat in the saleble component
and she is seeking money with interest for her own fault. As the
construction of new building is almost completed and the MBR & R
Board informed change of user of suit premises to MCGM in the year
2017 premise for plaintiff could not be adjusted in the new building. The
defendant is ready and willing to provide permanent alternate
accommodation in nearby area of the new building or the money in lieu
of alternate accommodation. However, without accepting same plaintiff
filed the present false suit. Defendant No.3 is under obligation to provide
permanent alternate accommodation of 300 sq.ft.carpet area only and
plaintiff is not entitled for permanent alternate accommodation of 390
sq.ft.carpet area. Plaintiff is taking benefit of own fault and mistake of
defendant No.1 and 2. Therefore, defendant No.3 submitted that notice
of motion be dismissed.
8) On the other hand, Ld Advocate for defendant No.1 and 2
argued that plaintiff is entitled for permanent alternate accommodation
in the newly constructed building. The developer has to provide
temporary transit accommodation or has to pay compensation/rent for
the same till handing over possession of the permanent alternate
accommodation. Defendants approached the senior inspector for filing
FIR against defendant No.3 for non complying mandatory conditions
and non handing over the permanent alternate accommodation to
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plaintiff. It was the obligation on the part of defendant No.3 to revise
approved plan and to construct permanent alternate accommodation for
plaintiff in the new building. Therefore, Ld. Advocate for defendant No.1
and 2 submitted that appropriate order be passed.
9) Following points arise for determination and court has
recorded its decision thereon for the reasons stated there under:
Points Decision
(i) Whether prima facie case lies in favour of plaintiff ? Yes.
(ii) Whether balance of convenience lies in favour of
plaintiff ?
Yes.
(iii) Whether plaintiff will suffer irreparable loss if
temporary injunction as the interim relief prayed
are not granted?
Yes.
(iv) Whether the plaintiff is entitled for the monetary
relief as prayed?
Yes.
(v) What Order? As per final
order.
REASONS
AS TO POINT NOS.1 to 3:
10) Plaintiff has filed present suit for declaration that plaintiff is
entitled for permanent alternate accommodation premises of 390
sq.ft.carpet area in the newly constructed building under redevelopment
scheme in lieu of the suit premises, for directing defendants to handover
the permanent alternate accommodation of 390 sq.ft.carpet area in
newly constructed building Neha residency in lieu of suit premises and
for permanent injunction restraining defendant from alienating or
parting with the possession of the unsold flats of the sale components in
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the new building to the extent of permanent alternate accommodation
which is to be provided to the plaintiff in lieu of the suit premises till
possession of permanent alternate accommodation is not given to
plaintiff and for restraining defendants from allotting and handing over
the permanent alternate accommodation in lieu of the suit premises to
any person other than plaintiff.
11) In the present matter admittedly the plaintiff was the
tenant/occupant of the suit premises and her name was reflected in
certified list of tenants/occupants i.e. Annexure II prepared by MHADA.
Admittedly, intimation of acceptance of proposal of the status of the suit
premises as residential by MBR & R Board and consequential changes to
that effect to be made in the certified list of tenants/occupants in respect
of suit premises was given to defendant No.3 in 2013 itself. Admittedly,
NOC was granted to defendant No.3 for redevelopment of the building
wherein suit premises was situated as per Regulation 33(7) of the
Development Control Regulation subject to terms and conditions. From
the no objection certificate at Exh.A annexed with the written statement
of defendant No.3 it appears that as per terms and conditions it was the
obligation on the part of defendant No.3 to reaccommodate all the
occupants of the suit building in the redeveloped building and to give
each occupant equivalent carpet area as occupied by him for residential
purpose in the old building subject to minimum carpet area of 300 sq.ft.
As per terms and conditions of NOC it is clear that defendant No.3 is
under obligation not to make a discrimination in providing rehab area to
all the occupants. As per NOC MHADA Act defendant No.3 legally bound
to provide temporary transit accommodation to the occupants of the old
building and to execute agreements for providing permanent alternate
accommodation with all eligible occupants of the suit building. However,
in the present matter admittedly defendant No.3 prima facie failed to
comply terms and conditions of the NOC granted by MHADA in respect
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of the suit premises.
12) From the letter at Exh.A dtd.25/10/13 it is clear that MBR
& R Board, Mumbai had informed the modification in the certified list of
tenants/occupants about the accepting the status of the suit premises as
residential to the Executive Engineer, MBR & R Board and copy of same
was also forwarded to the plaintiff on 25/10/13 itself. Moreover,
defendant No.3 has admitted the fact that he got knowledge about the
above modification in the certified list of tenants/occupants in respect of
the suit premises in November 2013 itself. Therefore, being
developer/builder prima facie defendant No.3 was under obligation to
apply for modification and to revise approved plan so as to
accommodate the plaintiff in the newly constructed building and to
provide permanent alternate accommodation of residential premises of
of 390 sq.ft.carpet area in the newly constructed building. Moreover,
defendant No.3 could have requested the MBR & R Board for informing
the said change to the Executive Engineer (B & P) of MCGM if it was
necessary for revision or modification of the approved plan. However,
prima facie defendant No.3 failed to do so. Moreover, admittedly
defendant No.3 had not executed agreement for providing permanent
alternate accommodation in favour of plaintiff in respect of the suit
premises of which earlier status was accepted as non residential.
Admittedly, in newly rehab constructed building flats admeasuring 390
sq.ft. area are provided to other tenants/occupants of old building.
Plaintiff cannot discriminate providing rehab area to the plaintiff.
Therefore, prima facie plaintiff appears to be entitled for permanent
alternate accommodation of 390 sq.ft.carpet area in reconstructed new
building in lieu of suit premises. Prima facie defendant No.3 is under
obligation to provide same to the plaintiff. Moreover, prima facie there
appear no fault on the part of the plaintiff and prima facie defendant
No.3 is at fault for non constructing permanent alternate
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accommodation of 390 sq.ft.carpet area residential premises for plaintiff
in the newly constructed building. Therefore, prima facie case lies in
favour of plaintiff.
13) Admittedly, till date defendant No.3 has not provided any
permanent alternate accommodation to the plaintiff in any other
building nor paid monetory compensation in lieu of permanent alternate
accommodation on residential premises of 390 sq.ft.carpet area as per
market rate to the plaintiff. Prima facie there appear no fault on the part
of plaintiff in not accepting premises in any other building as offered to
be provided by the defendant No.3 or to accept the money towards
compensation for the premises 300 sq.ft.only as per ready reckoner.
Actual market value generally use to be more than value shown of the
ready reckoner. Therefore, prima facie there appear no substance in the
contention of defendant No.3 that as the plaintiff rejected the proposal
of accepting alternate premises in the vicinity or the amount offered as
per ready reckoner for the area of 300 sq.ft. plaintiff is at fault and she is
not entitled for equitable relief.
14) Prima facie the defendant No.3 is under obligation to
provide permanent alternate accommodation of 390 sq.ft.carpet area to
the plaintiff in the newly constructed building. As per defendant No.3 all
the sale component flats in newly constructed building are sold.
However, as per plaintiff some flats in the sale components are still not
sold by the defendant No.3. Moreover, as prima facie plaintiff is entitled
for permanent alternate accommodation in lieu of the suit premises in
newly constructed building prima facie defendants are not entitled to
allot the permanent alternate accommodation in lieu of the suit premises
to any other person other than plaintiff. Therefore, in order to protect
the right of plaintiff of permanent alternate accommodation in the newly
constructed building in lieu of the suit premises and for avoiding
multiplicity of litigation it appears necessary to restrain the defendant
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No.3 from alienating, selling or parting possession or creating any third
party right in unsold flats of sale component in newly constructed
building if any and to restrain the defendants from allotting permanent
alternate accommodation in lieu of the suit premises to any other person
than plaintiff.
15) Plaintiff is a senior citizen. If defendant No.3 succeeds to
transfer all the sale component flats in the new building, in that case it
will be difficult for the plaintiff to obtain the permanent alternate
accommodation in lieu of suit premises in newly reconstructed building.
Moreover, if the defendants allot permanent alternate accommodation in
lieu of suit premises to third person then it will naturally cause
irreparable loss to the plaintiff. As such balance of convenience lies in
favour of plaintiff. Plaintiff is likely to suffer irreparable loss if the
interim relief in terms of prayer clause (e) and (h) of the notice of
motion are not granted.
16) Considering the matter on record and above discussion
court hold that plaintiff proved that prima facie case and balance of
convenience for grant of interim relief in terms of prayer clause (e) and
(h) lies in her favour and plaintiff will suffer irreparable loss if the
interim relief in terms of prayer clause (e) and (h) of the notice of
motion are not granted. Therefore, point Nos. 1 to 3 are answered in
affirmative.
AS TO POINT NO.4:
17) Admittedly, the suit building is redeveloped under
Regulation 33(7) of Development Control Regulation 1991. As per the
no objection certificate at Exh.A Colly to the written statement it is clear
that during the period of reconstruction the NOC holder has to provide
temporary transit accommodation to the occupiers of the old building.
Thus, the defendant No.3 is under obligation to provide temporary
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alternate accommodation or rent in lieu of same till handing over
permanent alternate accommodation to the plaintiff in lieu of the suit
premises. Admittedly, defendant No.3 paid rent @ Rs.13,000/ per
month till December 2018 only. Admittedly, till date defendant No.3 has
not provided permanent alternate accommodation to the plaintiff in lieu
of the suit premises. As discussed above prima facie defendant No.3
appears to be at fault for not making provision of permanent alternate
residential premises for plaintiff in lieu of the suit premises in the newly
reconstructed building. Moreover, defendant No.3 also admitted that
tenant is entitled for rent for transit temporary accommodation only till
handing over permanent alternate accommodation. Admittedly,
defendant No.3 has not given any permanent alternate accommodation
in lieu of the suit premises to plaintiff.
18) Prima facie there appear substance in the contention of the
plaintiff for refusal of the offer to accept the premises in other building
in the vicinity which were shown or compensation offered by the
plaintiff for premises of carpet area of 300 sq.ft.only at the rate of ready
reckoner. Admittedly, defendant No.3 stopped paying rent for transit
accommodation since 01/01/2019. As per the defendant No.3 he offered
plaintiff permanent alternate premises free of cost in other building and
plaintiff refused to accept the same or compensation, hence defendant
No.3 stopped payment of transit accommodation rent. However, in view
of the above discussion the cause stated for non payment of the rent for
transit accommodation does not appear to be just and reasonable.
Therefore, in view of the provisions of the MHADA Act, Development
Control Regulation and terms and conditions in the NOC granted by
MHADA to the defendant No.3, defendant No.3 is prima facie liable to
pay the rent for transit temporary accommodation from 01/01/19 to the
plaintiff till defendant No.3 hand over the possession of permanent
alternate accommodation in lieu of the suit premises to the plaintiff.
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19) Court can take judicial notice of the fact of escalation in
prices of immovable property and rent. Therefore, the rent for transit
temporary accommodation claimed by plaintiff @ Rs.20,000/ per
month appears to be reasonable. However, considering the facts of the
case and submission of the defendant No.3 that the defendant No.3 is
offering permanent alternate accommodation to the defendant No.3 in
other building in the same vicinity, it will not be appropriate to grant
interest on the said amount of rent or hike on the amount of transit
accommodation rent as sought. Moreover, considering the facts of the
matter and above discussion in the absence of prayer it will not be
appropriate to grant transit temporary accommodation rent @
Rs.32,000/ as prayed by plaintiff during arguments. Considering the
matter on record and as defendant No.3 prima facie appears to be at
fault there appear no substance in the contention of the defendant No.3
that plaintiff is not entitled for claiming the transit temporary
accommodation rent.
20) From the matter on record and above discussion court find
that as the defendant No.3 has not provided permanent alternate
accommodation to the plaintiff in newly constructed building in lieu of
suit premises and stopped paying the transit temporary accommodation
rent to the plaintiff from 01/01/19, plaintiff is entitled for the interim
relief of directing defendant No.3 to pay Rs.20,000/ per month
regularly to the plaintiff towards monthly rent in lieu of transit
temporary accommodation from 01/01/19 till handing over the
possession of permanent alternate accommodation to the plaintiff to
which she is entitled or till further order and to direct defendant No.3 to
pay arrears and pay further rent regularly and to allow the plaintiff to
withdraw the said amount if deposited by defendant No.3. Therefore,
point No.4 is answered in affirmative.
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AS TO POINT NO.5:
21) In view of affirmative findings as to point Nos. 1 to 4 in
order to prevent the alienation of the unsold flats if any of the saleble
components in the newly constructed building Neha Residency and in
order to restrain the defendants from allotting and handing over
permanent alternate accommodation in lieu of the suit premises to any
other person, the prayer of plaintiff for grant of temporary injunction in
terms of prayer clause (e) and (h) of the notice of motion deserves to be
made absolute. Moreover, in view of the affirmative findings as to point
No.4 in the interest of justice it will be appropriate to direct the
defendant No.3 to pay the amount of Rs.20,000/ per month to the
plaintiff towards transit temporary accommodation rent from 01/01/19
till handing over the possession of permanent alternate accommodation
in lieu of the suit premises to the plaintiff or till further order. Plaintiff
has not pressed for the reliefs in terms of prayer clause (a), (b), (c), (f),
(g),(i). Moreover, considering the nature of the said reliefs plaintiff does
not appear to be entitled for the said reliefs at this stage.
22) Considering matter on record facts of the present case and
above discussion, present notice of motion deserves to be partly allowed.
Therefore, court proceeds to pass following order:
ORDER
1) Notice of Motion no.380 of 2020 is partly allowed.
2) Defendant no.03 is hereby temporarily restrained from alienating or
parting with possession or creating any third party rights in the unsold
flats, if any, of the sale components of the new building Neha Residency,
till disposal of the suit or further order whichever is earlier.
3) Defendants are temporarily restrained from allotting and handing
over permanent alternate accommodation in lieu of suit premises to any
person other than the plaintiff till disposal of suit or further order
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whichever is earlier.
4) Defendant no.03 shall pay amount of Rs. 20,000/ (Rs. Twenty
Thousands only) per month to the plaintiff towards transit temporary
accommodation rent from 01.01.2019 till handing over possession of the
permanent alternate accommodation to the plaintiff in lieu of suit
premises or till further order whichever is earlier.
5) Defendant no.03 shall deposit arrears of the transit temporary
accommodation rent from 01.01.2019 till 30.11.2022 within one month
from the date of this order and Defendant no. 03 shall continue to pay
the transit temporary accommodation rent for further period to the
plaintiff every month regularly.
6) If the Defendant no.03 deposit the transit temporary accommodation
rent or arrears of the rent in the court, in that case plaintiff will be at
liberty to withdraw the said amount.
7) Notice of Motion No.380 of 2020 is disposed off accordingly.
Date :6/12/2022. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :6/12/2022.
Typed on : 7/12/2022.
Checked on :8/12/2022.
Corrected & Signed on:16/12/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/12/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
6/12/2022
JUDGMENT/ORDER signed by P.O.
on
16/12/2022
JUDGMENT/ORDER uploaded on 16/12/2022
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