Final Order 2

Order Details: Notice of Motion
Pdf Text: NM No.808-2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.808 OF 2020
IN
SUIT NO.858 OF 2020
CNR NO.MHCC01-002277-2020
Kubrabai Bagasrawala … Plaintiff
Vs.
Executive Engineer & Ors. … Defendants
Appearances:
Ld. Adv Nitesh Acharaya for plaintiff.
Ld. Adv Bhadang for defendant nos.3(a) to 3(o).
Ld. Adv Chandramore for defendant no.4.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.V. PATIL
(C.R.NO.09)
DATE : 09th JULY 2021
ORDER
. The plaintiff has filed this notice of motion with request that to
direct defendant nos.3, 3(a) to 3(o) to pay transit rent at the rate of
Rs.250/- per sq ft plus 10% per annum increment on it till the alternate
permanent commercial premises is provided to her in accordance with
law. In the same notice of motion, the plaintiff further requested that to
direct defendant nos.2 and 4 that they shall not grant permission for
commencement of development unless the concerned defendants made
agreement with plaintiff for permanent alternate accommodation as per
equivalent locational advantages of the suit property. These two prayers
are requested by the plaintiff in the notice of motion. Before going
ahead, it is necessary to go through summary of the pleadings from
both the sides.
Page 1 of 9
-- 1 of 9 --
NM No.808-2020
2. In short, it is the story of plaintiff in plaint that she has tenanted
commercial premises at Shop No.1-2 Dispensary, carpet area
admeasuring 28.98 sq mtr and built up area, Ground Floor, C.S.
No.4218, Noman Building, 36-40, Saifee Jubilee Street, Bhendi Bazar,
Mumbai 400 003 (hereinafter this property will be called as “suit
property”). The plaintiff submitted that the defendant no.1 is Executive
Engineer in M.B.R & R. Board, Mumbai. The defendant no.2 is
Maharashtra Housing and Area Development Authority. The defendant
nos.3, 3(a) to 3(o) are trustees of SBUT. The defendant no.4 is
Municipal Corporation. The plaintiff is having suit property. The
defendant no.4 has passed order on 31.05.2018. In this order, it was
directed to vacate suit premises, therefore, the said order was
challenged by the plaintiff before Hon’ble High Court in Writ Petition
No.3073 of 2019. During pendency of the said writ petition, on
10.10.2019 the said order was implemented and defendants have
forcefully evicted the plaintiff from the suit property therefore, the writ
petition become infructuous and it was withdrawn at the request of the
plaintiff. As per the order of defendant no.4 dated 31.05.2018 it was
imperative on the defendant nos.3, 3(a) to 3(o) to have provide the
transit rent immediately to the plaintiff after eviction her from the suit
premises. Inspite of that the concerned defendants have failed to pay
transit rent. On the contrary, they have got prepared draft agreement
for temporary alternate accommodation. That agreement is one sided,
it has number of defects and which is not admitted to the plaintiff but
the concerned defendants are insisting the plaintiff first to sign the
agreement and then go for claiming transit rent, therefore, this notice of
motion is filed.
Page 2 of 9
-- 2 of 9 --
NM No.808-2020
3. In the suit, the plaintiff has requested same relief against
defendants. She has further requested unless the defendants executed
agreement regarding alternate permanent accommodation having
equivalent locational advantages of suit property till then the
defendants be restrained to start any construction over the proposed
development area.
4. The defendant nos.3, 3(a) to 3(o) have filed reply to the notice of
motion and denied all the contents of notice of motion. It is their
submissions that they have obtained permission for eviction of tenants.
Number of tenants have shifted in temporary alternate accommodation,
some have claimed transit rent and defendants have executed
permanent alternate accommodation in favour of some tenants. The
work of defendants is in progress. It is for the benefits of
tenants/occupants. Only this plaintiff is against the scheme
implemented by the defendants. Even the Government Authority i.e.,
defendant nos.2 and 4 have not found any default in the scheme
implemented by the defendant nos.3, 3(a) to 3(o). The defendants
have asked the plaintiff to execute temporary alternate accommodation
or claim rent in lieu of temporary accommodation. But the plaintiff is
disagree with the contents of the alternate accommodation just to cause
delay for implementation of the scheme prepared by the concerned
defendants. With these grounds, contents of notice of motion are
denied.
5. The other defendants have not filed reply. As per contents of
notice of motion except defendant nos.3, 3(a) to 3(o). The other
defendants are formal parties.
Page 3 of 9
-- 3 of 9 --
NM No.808-2020
6. Heard the learned Advocate for plaintiff and the learned
Advocate for defendant nos.3, 3(a) to 3(o) at length. The whole
argument of the plaintiff is revolving around claim of transit rent and
contents of temporary alternate accommodation agreement. The copy
of agreement is filed by defendants along with their reply on record. On
perusal of copy of agreement it appears that the defendants are ready to
pay transit rent in lieu of temporary alternative accommodation. The
title of the agreement is temporary alternate accommodation but the
contents are also regarding allotment of permanent alternate
accommodation. It is submission from the side of plaintiff that
agreement is one sided and therefore, it cannot be accepted. The
defendants cannot insist the plaintiff to sign the agreement. In support
the plaintiff placed reliance on the citations of Hon’ble Supreme Court
in Poineer Urban Land and Infrastructure Limited Vs. Govindan
Raghavan (2019) 5 SCC 725 in which the Hon’ble Supreme Court has
discussed regarding unfair trade practice. But the facts of citations are
about expiry of agreement therefore, it was ordered to flat purchaser
that he is entitled for refund of earnest amount on the ground of default
of builder. The plaintiff further relied on the citation of Hon’ble
Supreme Court that in Central Inland Water Transport Corporation Ltd
Vs. Brojo Nath Ganguly in which the Hon’ble Supreme Court has
discussed about one sided agreement. In the case in hand also the
plaintiff has dispute about draft of agreement prepared by the
defendants. The agreement cannot be executed one sided. Agreement
means both parties must agreed about the contents of document. Here,
the plaintiff has disputed therefore, the defendants cannot insist
plaintiff first to sign the agreement and then go ahead for claim transit
rent. The plaintiff relied upon two letters of defendants dated
Page 4 of 9
-- 4 of 9 --
NM No.808-2020
13.02.2020 and 19.12.2020. Contents of first letter shows that the
defendants have call upon tenants to collect cheque for rental
compensation in lieu of temporary alternate accommodation. But
wording of second letter shows that the tenants was called upon to
execute temporary alternate accommodation agreement and either to
accept transit accommodation or rent in lieu of transit accommodation.
The second letter is issued by showing some change in circumstance in
Court proceeding. But prima facie at this stage from the wording in
second letter it can be said that tenants have first sign agreement and
then go ahead to claim transit rent.
7. The question of agreement whether it is one sided, whether it is
favourable to either side or it is suitable to plaintiff, all these questions
can be determined on merits. However, from the contents of agreement
it appears that it is not only for temporary alternate accommodation but
some contents there also are regarding permanent alternate
accommodation. Here the plaintiff has claimed equivalent locational
alternate accommodation like suit property therefore, he has dispute
about contents of agreement. But that fact can be considered by the
Court on merits. Here the only question regarding grant of transit rent.
It is already discussed in earlier para that the suit property is vacated on
25.10.2019. The order of Executive Engineer, GN Division, M.B.R.&R.
Board, Mumbai dated 30.08.2018 is not disputed to both parties. At the
time of argument both the parties have given emphasis on the contents
of order. Admittedly, the order is regarding eviction of tenants building
but the plaintiff has taken reference of order for grant of transit rent.
The defendants submitted that this suit is not for execution of order.
Certainly, the suit is not for execution of order. As per order suit
Page 5 of 9
-- 5 of 9 --
NM No.808-2020
property already vacated. Now, the question is regarding transit rent
therefore, it cannot be said that the plaintiff is willing to execute that
order. In plaint prayer and notice of motion prayer, the plaintiff is
asking transit rent. In the said order, the concerned authority has
discussed submission of SBUT regarding grant of transit rent therefore,
the plaintiff has taken reference of order and suit is not for execution of
order so, the submission from the side of defendants is not acceptable.
The defendants placed reliance on citation of Mohd Jahir Shaikh Nasir
Vs. State of Maharashtra & Ors., Writ Petition No.1182 of 2019 that
order is regarding direction to vacate property. He further relied on
Noorjahan Shabuddin Shaikh and Anr. Vs. State of Maharashtra & Ors.,
Writ Petition No.1248 of 2019 but the fact in that citation are totally
different from the fact in the case in hand.
8. Defendants further submitted that the Court has no jurisdiction to
implement the order. The Court can execute only the statutory and
contractual rights. The plaintiff has no locus standi to claim transit rent
because there is no contract between the parties. However to claim
transit rent is not statutory right. Though it is so, but the defendants in
their reply para 10(a)(ii) admitted that they are ready to pay temporary
alternate accommodation or rent in lieu of temporary alternate
accommodation as preference of the occupants /tenants. The
defendants have mentioned the rate of Rs.25,000/- per month for
tenements having an area upto 100 squater feet carpet area and in the
event the carpet area is above 100 square feet then Rs.250/- per square
foot per month will be provided. However, the defendants have also
shown their willingness in draft agreement regarding payment of transit
rent. Though that agreement is disputed but this shows that the
Page 6 of 9
-- 6 of 9 --
NM No.808-2020
defendants have no dispute about payment of transit rent. Now, the
question whether it is statutory or contractual right. The MHADA i.e.,
the Executive Engineer, GN Division, M.B.R.& R. Board, Mumbai is the
statutory authority appointed under Statutory Act. The order is for
eviction of premises but the observation of that authority is regarding
transit rent. The plaintiff has vacated her premises which was
commercial premises, which was her livelihood source. Now, it is lost
by her. She is not ready to accept temporary alternate accommodation
because of inconvenience to her. In such circumstances, it is obligation
of defendants to grant her transit rent as mentioned by them in para
10(a) (ii) of their reply. The plaintiff has also claimed 10% per annum
increment but the question of increment will also decide on merits. At
this stage, the plaintiff only is entitled for transit rent as submitted in
the order dated 30.08.2018 and para 10(a)(ii) in the reply of
defendants. Regarding other relief that defendants will stop from
commencing work of development is not proper. Already all the tenants
have vacated premises. The work of defendants is in process therefore,
it is not desirable to direct the defendants to stop their work unless they
have executed alternate permanent accommodation equivalent
locational advantages of the suit property in favour of plaintiff. That
question also be determined by Court at the time of merits. At this
stage, the plaintiff cannot held up development work.
9. The learned Advocate of defendants submitted that other tenants
have agreed with the scheme of defendants. But only the plaintiff has
raise dispute. Here, I would like to mention that if someone feels that
her right is violated because of act of others then she has right to raise
objection. Just because the others have agreed with the scheme of
Page 7 of 9
-- 7 of 9 --
NM No.808-2020
defendants does not mean that the plaintiff should also give her consent
by signing agreement. However, this observation will not affect the
rights of either party. The plaintiff has also placed reliance on common
order of Hon’ble High Court with similar question of transit rent in
Appeal From Order No.28358 of 2019. In that case, there was question
of handing over vacant possession against receipt of transit rent. Here
possession is already handed over, therefore, with the observation made
in earlier paras, the plaintiff is entitled for transit rent. Accordingly, I
proceed to pass the following order :-
ORDER
1. Notice of Motion No.808 of 2020 is partly absolute
in terms of prayer clause (a).
2. The defendant no.3, 3(a) to 3(o) are directed to pay
transit rent @ Rs.250/- per sq. ft. per month from the date
of vacation of premises.
3. Notice of Motion No.808 of 2020 stands disposed of
accordingly.
(C.V. PATIL)
Ad-hoc Judge,
Date : 09/07/2021 City Civil Court, Gr. Bombay
Dictated on : 09/07/2021
Transcribed on : 09/07/2021
HHJ signed on : 09/07/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
12.07.2021 2.09 p.m. ARUN ANNAMALAI MUDALIYAR
Page 8 of 9
-- 8 of 9 --
NM No.808-2020
Name of the Judge (With Court
Room No.)
HHJ SMT. C. V. PATIL (CR 09)
Date of Pronouncement of
JUDGEMENT /ORDER
09.07.2021
JUDGEMENT /ORDER signed by
P.O. on
09.07.2021
JUDGEMENT /ORDER uploaded
on
12.07.2021
Page 9 of 9
-- 9 of 9 --