Final Order 3

Order Details: Notice of Motion
Pdf Text: 1 NM 86519 in Suit St. No. 248519
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION No.865 of 2019
(CNR No.MHCC010022912019)
IN
SUIT (St.) NO.2485 OF 2019.
Shaikh Abdulla Ibrahim Shaikh & ors. }...PLAINTIFFS.
Versus
Municipal Corporation of Gr. Bombay Ors. }...DEFENDANTS.
Shri.M.V.Holamagi, learned advocate for the plaintiffs.
Shri.Suryawanshi, learned advocate for defendant No.1.
Shri. Kandekar, learned advocate for defendant Nos.2 & 3.
Shri. Ramchandani, learned advocate for defendant No.4.
Defendant Nos.5 to 9 exparte.
CORAM: HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 16/03/2019)
1. This Notice of Motion is taken out by the plaintiffs for
seeking relief of temporary injunction. The prayer made in the Notice of
Motion reads as “pending final decision of the suit the defendants and
their agents, servants, representatives and all persons acting through
and on behalf of defendant be restrained by temporary injunction, from
demolishing, pulling down, removing, using force dispossessing and/or
enforcing notice u/s.95 A of MHADA Act and doing any act prejudice to
the rights of the plaintiff in the said suit premises and doing any act to
deny the legitimate rights & legal rights of the plaintiff in the suit
premises without executing agreements and/or providing permanent
alternative premises free of costs and transit camps and corpus fund
and to complete the premises within stipulated period and such order
and direction as this Hon'ble Court deem fit and proper”. Read the
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affidavit filed in support of Notice of Motion, reply filed by defendant
Nos.2 & 3 and reply/additional reply filed by defendant No.4. Read the
rejoinders filed by plaintiffs. Learned advocate for plaintiffs submitted
that plaintiffs are not pressing the Notice of Motion against defendant
No.1. Defendant Nos.5 to 9 remained exparte though served. Heard
learned Shri.Holmagi, advocate for the plaintiffs, learned Shri.Kandekar
Advocate for defendant Nos.2 & 3 and learned Shri.Ramchandani,
advocate for defendant No.4. Perused the entire record.
2. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i)Whether primafacie case lies in favour of the
plaintiffs? ...No.
ii)Whether balance of convenience lies in favour
of the plaintiffs? ...No.
iii)Whether irreparable loss will cause to the
plaintiffs if injunction as prayed is not granted? ...No.
iv)What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
3. All the points are taken together for consideration. Learned
advocate for the plaintiffs argued that plaintiffs are occupants of those
suit premises as tenants of defendant No.5 which is a trust of which,
defendant Nos.6 to 9 are the Trustees. He argued that landlords of the
plaintiffs has issued rent receipts in favour of the plaintiffs in respect of
the respective premises in possession of the plaintiffs. He argued that
suit building is taken over for redevelopment as per the Scheme
formulated by defendant Nos.1 to 3 within the knowledge of defendant
Nos.5 to 9 & the redevelopment work is assigned to defendant No.4. He
argued that plaintiffs are the tenants of the five suit premises hence,
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defendants are required to execute agreements in respect of all five
premises in favour of the plaintiffs & it is essential for defendants to
provide transit accommodation, corpus funds & permanent
accommodation to the plaintiffs. He argued that plaintiffs have made
repeated requests for executing agreements but defendants are denying
to execute agreements in respect of all five suit premises in favour of
the plaintiffs. He argued that defendant Nos.2 & 3 have joined hands
with defendant No.4 and those defendants are trying to remove the
plaintiffs forcibly from the five suit premises without providing the
corpus fund & transit accommodation & permanent accommodation. He
argued that defendant Nos.2 & 3 have served notice under Section 95A
of MHADA Act on the plaintiffs with an illintention of dispossessing the
plaintiffs from the suit premises illegally without giving opportunity of
hearing. He argued that defendants have raised false contentions that
opportunity of hearing was given to the plaintiffs before passing the
order u/S.95A of MHADA Act. He argued that Mehrunnisa has expired
in year2012 yet it is mentioned in the order produced by defendants
that opportunity of hearing is given to said Mehrunnisa & said fact
clearly suggests that said order is passed without application of mind.
He argued that plaintiffs are very cooperative & they are ready to
cooperate in the process of redevelopment if transit accommodation,
corpus fund & permanent accommodation is provided by the defendants
by executing agreements as per law in their favour but defendants are
denying these legitimate rights of plaintiffs & those defendants are
trying to demolish the suit building by removing the plaintiffs forcibly
from the suit premises. He argued that if defendants are not restrained
from removing the plaintiffs from the suit premises & from enforcing
notice issued under Section 95A of MHADA Act, it will cause an
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irreparable loss to the plaintiffs due to which, it is necessary to restrain
the defendants from doing so by granting interim injunction in favour of
plaintiffs in terms of prayer clause (a) of the Notice of Motion.
4. As against this, learned advocate for defendant Nos.2 & 3
argued that notice is issued after passing order under Section 95A of
MHADA Act & said order is passed by giving opportunity of hearing to
the plaintiffs. He argued that it was essential for the plaintiffs to inform
the MHADA Authorities that Meharunnisa has expired in year2012 but
instead of informing it, plaintiffs have raised false contentions for the
first time in the rejoinders that opportunity of hearing is not given to
them before passing order under Section 95A of MHADA Act. He further
argued that plaintiffs can file Appeal against the said order and if they
succeed in the Appeal by producing appropriate documents to show
that they are lawful occupants of all five suit premises, they will be held
eligible and they will be provided with alternate accommodation and all
other benefits. He argued that plaintiffs have suppressed material fact
from this court that order under Section 95A of MHADA Act is passed
before issuance of notice under said provision and hence, plaintiffs are
not entitled for interim injunction.
5. Learned advocate for defendant No.4 argued that order
under Section 95A of MHADA Act is passed lawfully after giving
opportunity of hearing to the plaintiffs. He argued that Competent
Authority has rejected the claim of plaintiffs for three premises other
than the Room No.3 & premises No.1. He argued that defendant No.4 is
not supposed to provide any benefits including transit accommodation
beyond the order passed by the Competent Authority. He argued that
defendant No.4 is ready to execute agreements and provide all benefits
to the concerned occupants of Room No.3 & Gala No.1 who are held
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eligible as per the order passed under Section 95A by Competent
Authority. He argued that all other occupants in the suit building than
the plaintiffs have vacated their respective premises and the process of
redevelopment can not be allowed to be stalled at the instance of the 4
plaintiffs, as according to him, stalling of said process will cause
prejudice to other occupants who have already vacated their respective
premises. In support of his argument, learned advocate defendant No.4
has placed reliance on the following authorities.
i) Judgment dtd.07/04/2017 of Hon'ble Bombay High Court in a
matter between Mrs.Laxmi Venkat Bhinala Vs. Pratham Varad
vinayak Developers LLP Ltd. in Appeal (Long) No.82 of 2017,
ii)Calvin Properties and Housing Vs. Green Fields CoOperative
Housing reported in 2014(2) Bom.C.R. 398,
iii)Muniraj Vs State of Maharashtra reported in LEX(SC) 2016 3 125,
iv)Shabbir Vs. MHADA reported in LEX (BOM) 2017 7 80,
v)Rashid Vs. Executive Engineer
reported in 2016 SCC OnLine Bom 10279,
vi)Iqbal @ Mohammed Vs. Chief Officer
reported in 2016 SCC OnLine Bom 7481,
vii)Judgment dtd.30/07/2009 of Hon'ble Bombay High Court in Writ
Petition (Lodging) No.28 of 2009 in a matter between M/s.Whiz
Enterprises Pvt. Ltd. Vs. State of Maharashtra and Ors.
I have gone through those authorities.
6. At the first instance, it would be apposite to mention here
that plaintiffs have mentioned five tenements situated in 8488
Bazarwala Building, Bhavnagari Mohalla, Jakaria Masjid Road,
Mumbai09 as suit premises in the plaint. According to them, plaintiff
No.1 is occupant of Room No.3, plaintiff No.2 is occupant of premises
No.1A, plaintiff No.3 is occupant of premises No.1 & Gala No.3 and
plaintiff No.4 is occupant of premises No.1B. Plaintiffs have not given
detailed descriptions of those five premises. They have simply given the
numbers of the suit premises which do not appear sufficient to identify
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those tenements properly.
7. It would also be apposite to mention here that it is not in
dispute that notice under Section 95A of MHADA Act is issued to the
occupants of Room No.3 & Gala No.1. Defendants have produced copy
of order dt.15/2/2019 passed under Section 95A of MHADA Act by the
Competent Authority of which, reference is available in the copy of
Notice produced by the plaintiffs. Plaintiffs have challenged the said
notice by filing the present suit by contending that said notice is illegal.
In the order dtd.02/03/2019 passed by this Court, it is observed that it
is mentioned in the order passed u/s.95A of the MHADA Act that
Mehrunnisa was present in person & opportunity of hearing is given to
said Mehrunnisa but the copy of Death Certificate produced by the
plaintiffs shows that said Mehrunnisa has expired in year2012 i.e.
before 6 years of passing of order u/S.95A by the Competent Authority.
This court had given liberty to defendant/MHADA to produce proper
material on record to show that anybody from amongst the 4 plaintiffs
had attended the matter before Competent Authority on behalf of said
Mehrunnisa but anything is not produced on record by defendant/
MHADA to show that either of the four plaintiffs had attended the
matter before Competent Authority in capacity of legal heir of deceased
Mehrunnisa. Learned advocate for the plaintiffs argued that the inaction
on the part of defendant/MHADA is sufficient for concluding that the
inquiry is not conducted properly & dead person is shown to have given
opportunity of hearing before passing the said order due to which, said
order & notice issued as per said order are illegal.
8. I gave a thoughtful consideration to the said argument of
learned advocate for the plaintiffs. Indeed, there is averment in the
order passed under Section 95A that plaintiff No.1 & Mehrunnisa were
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present before Competent Authority & they stated that they are in
possession of the five tenements (which are described as suit premises).
It means that said order suggests that opportunity of hearing was given
to Meharunnisa also before passing order u/s.95A of MHADA Act.
Since the plaintiffs have produced copy of death certificate to show that
Meharunnisa has expired in year 2012, it appears next to impossible
that Mehrunnisa had personally attended the office of Competent
Authority during inquiry u/S.95A however, it does not appear that
plaintiffs have ever intimated the MHADA about death of Meharunnisa
before passing of said order. Furthermore, plaintiffs have not challenged
the legality of said order in the present suit and they have challenged
the legality of notice issued u/s.95A of MHADA Act by submitting in
the rejoinder that they are not aware of passing of the said order. Said
contention raised in the rejoinder appears to be far from truth, at least,
at this stage of the proceeding especially because, there is a specific
reference of said order in the copy of notice produced by the plaintiffs
themselves & as plaintiff No.1 is the husband of said Meharunnisa & his
presence before Competent Authority is specified in the said order. Even
though, defendant/MHADA has not produced any material to show that
either of the plaintiffs had represented Meharunnisa before the
Competent Authority, as mentioned earlier, plaintiffs have not
challenged the legality of said order in the present suit & this court is
not the appellate authority so far as the said order passed by Competent
Authority is concerned hence, the inaction on the part of defendant/
MHADA in not producing any material is not sufficient for holding that
prima facie case is lies in favour of the plaintiffs which is essential factor
for granting relief of temporary injunction.
9. Plaintiffs have come with a case that they are tenants in
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respect of all five suit premises. Contesting defendants have contended
that other tenements than Room No.3 and Gala No.1 are the
encroachments committed by the plaintiffs & hence, plaintiffs are not
entitled for any benefits in respect of those three tenements. Since the
plaintiffs have contended in the rejoinders that order under Section 95A
of MHADA Act is passed without giving opportunity of hearing to them,
the question for consideration is whether plaintiffs have produced
material before this Court to primafacie show that they are lawful
occupants of all five tenements which they have described in the Title
Clause of the Plaint as Room No.3, Premises No.1A, Premises No.1 and
Gala No.1 and Premises No.1B?
10. Defendants have admitted the claim of plaintiffs in respect
of Room No.3 and Gala No.1 hence, it can be said that plaintiffs are
entitled for benefits in respect of those two tenements. Defendants have
contended that Gala No.1A, Gala No.1B and premises No.1 A are not
reflected in Assessment Extract of the suit building. Plaintiffs are
claiming to have acquired rights in the tenements of father of plaintiff
No.1 & wife Mehrunnisa of plaintiff No.1. Defendants have contended
that plaintiffs have unlawfully encroached over the open space by the
side of those two tenements. Admittedly, name of plaintiff No.1 and his
wife Mehrunnisa are appearing in the list of eligible persons prepared
by MHADA.
11. Plaintiffs have produced copies of receipts allegedly issued
by defendant No.5, Electricity Bills, Ration Cards & Aadhar Cards in
support of their contention that they are lawful occupants of all five
tenements. Perusal of the receipts makes it clear that the receipts about
depositing certain amounts are issued by defendant No.5 in the names
of father of plaintiff No.1 & wife Mehrunnisa of plaintiff No.1. Only one
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of those five receipts is in respect of Gala No.1 which is standing in the
name of Meharunnisa. Defendants have admitted the eligibility of
occupant of said tenement. Defendants have also admitted the eligibility
of plaintiff No.1 also in respect of Room No.3. Thus, receipts produced
by the plaintiffs in respect of those two tenements are not in dispute
hence, it is not necessary to consider the genuineness of those receipts.
There is no receipt in respect of tenement described as Room No.1B of
plaintiff No.4 hence, it will have to be said that contention of plaintiffs
that plaintiff No.4 is occupant of Room No.1B is not supported by any
rent receipt. Even if it is accepted that receipt produced by plaintiffs in
respect of Gala No.B is pertaining to Room No.1B, it will have to be
seen whether said receipt is sufficient for accepting the contention of
plaintiffs that said tenement is lawfully occupied by plaintiff No.4?
12. Besides the copy of receipt in respect of Gala No.B,
plaintiffs have produced copies of receipts in respect of Gala No.3 &
Gala 1A. Defendant No.4 has produced copies of plaints & Annextures
of plaints in RAD Suits filed before Small Causes Court by the present
plaintiffs against present defendant Nos.4 to 9. Perusal of those copies
shows that plaintiffs have filed those suits for reliefs that plaintiffs be
declared as tenants of defendant Nos.5 to 9 in respect of all five
tenements described in this suit as suit premises. It appears that only
because defendant Nos.5 to 9 are not recognizing the plaintiffs as lawful
tenants in respect of all five tenements, plaintiffs have filed those RAD
Suits. Considering it, there appears no substance in the contention of
the plaintiffs that they are lawful occupants as tenants of all five
tenements & hence, I would say that the copies of receipts produced by
the plaintiffs are not sufficient for accepting that plaintiff No.2 is lawful
occupant of premises No.1 A, plaintiff No.2 is lawful occupant of Gala
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No.3 & plaintiff No.4 is lawful occupant of premises No.1B.
13. So far as the copies of Ration Cards and Aadhar Cards are
concerned, those copies are not primafacie sufficient for accepting the
contention of the plaintiffs that they are lawful occupants of all five
tenements. Out of the copies of three Electricity Bills produced by the
plaintiffs, two bills are of year2013 which are standing in the name of
Mehrunnisa in respect of tenement No.1 which appears to be in respect
of Gala No.1 and hence, those bills are also not sufficient for accepting
the contention of plaintiffs in respect of all five premises. One electricity
bill is standing in the name of plaintiff No.1 in respect of tenement
No.1B but, as mentioned earlier, there is no rent receipt in respect of
any such tenement & it appears that landlords of plaintiffs are not
recognizing any of the plaintiff as lawful tenant in respect of said
tenement because of which only, plaintiffs have filed RAD Suit for
declaration of tenancy hence, said copy of electricity bill is not helpful
to the plaintiffs. Thus, copies of electricity bills are also not sufficient for
accepting that plaintiffs are lawful occupants of other premises than
Room No.3 & Gala No.1.
14. As mentioned earlier, the notice in question is issued to the
occupants of Room No.3 and Gala No.1 only and not to the occupants
of the tenements described in plaint as premises No.1, premises No.1A
and premises No.1B due to which, the challenge to the legality of said
notice in respect of other tenements is not appearing to be acceptable.
As mentioned earlier, contesting defendants have contended that they
are ready to execute agreements with the occupants of Room No.3 &
Gala No.1 & those defendants are ready to provide transit as well as
permanent accommodations and all other lawful benefits to occupants
of those two tenements due to which, I could not find any force in the
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contention of the plaintiffs that those defendants are denying execution
of agreements in respect of all premises. Plaintiffs can still execute the
agreements & vacate the tenement mentioned in Notice dtd.20/2/2019
issued u/s.95A of MHADA Act in respect of the two tenements
mentioned in the notice. The scope of said notice can not be allowed to
be traveled by the plaintiffs beyond the tenements mentioned in the
said notice. It appears that plaintiffs have not approached the court with
clean hands as they have included the three other tenements in the suit
while challenging the said notice.
15. Learned advocate for defendant No.4 argued that in the
authorities cited at the bar by him, it is held that the process of
development can not be allowed to be stalled at the instance of few
persons when more than 70% occupants have consented for the
redevelopment. Learned advocate for the plaintiff submitted that the
facts in all those authorities are different as, according to him, transit
accommodations were provided to the occupants in the matters referred
to in those authorities but, here in the matter in hands, defendants are
not ready to provide transit & permanent accommodation as well as
corpus amounts to all the plaintiffs due to which, according to him,
these authorities are helpful to the plaintiffs & not to the defendants.
16. I could not find any force in the said argument of learned
advocate for the plaintiff especially because, plaintiff No.1 is already
held eligible & his name is appearing in the list of eligible persons. So
far as other plaintiffs are concerned, it is the contention of the plaintiffs
that all the plaintiffs had formed a joint family with father of plaintiff
No.1 & wife Meharunnisa of plaintiff No.1. Besides the plaintiff No.1,
name of his wife Meharunnisa is also appearing in the list of eligible
persons. Plaintiffs are claiming rights through father of plaintiff No.1 &
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wife Mehrunnisa of plaintiff No.1. Considering it, it appears that all the
plaintiffs will get benefits including transit accommodations in lieu of
Room No.3 & Gala No.1 in respect of which, notice under Section 95 A
of MHADA Act is issued & on that count, the progress of redevelopment
cannot be permitted to be stalled at the instance of the plaintiffs by
granting interim injunction.
17. Even otherwise also, plaintiffs can very well challenge the
order passed under Section 95A of MHADA Act by filing Appeal before
the concerned Appellate Authority & if they succeed in the said Appeal,
they will be entitled for all the benefits for which, according to them,
they are entitled to in lieu of the other three tenements than the two
tenements mentioned in the notice. At this stage, suffice it to say that
the material produced on record by the plaintiffs is not sufficient for
accepting that they are lawful occupants of all five tenements described
in plaint as suit premises hence, I hold that neither prima facie case nor
balance of convenience do lie in favour of the plaintiffs. In the result,
there is no question of causing any irreparable loss to the plaintiffs if,
injunction as prayed is not granted in their favour. For all these reasons,
by recording my findings on Point Nos.(i) to (iii) accordingly, I pass the
following order.
O R D E R
Notice of Motion No.865 of 2019 stands rejected.
Costs in the main cause.
Date: 16/03/2019. (P.P.RAJVAIDYA)
Direct dictated on : 16/03/2019. Judge, C.R.No.12,
Checked on : 18/03/2019. City Civil Court,
Signed on : 18/03/2019. Gr.Bombay.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
18/03/2019 at 11.40 am Mrs. Y.M. SAKHARKAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI.P.P.RAJVAIDYA (CR No.12)
Date of pronouncement of Order 16/03/2019
Order signed by P.O. on 18/03/2019
Order uploaded on 18/03/2019
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