Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 86519 in St.248519
IN THE BOMBAY 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 Plaintiff.
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.
CORAM : HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 02/03/2019)
1. This Notice of Motion is taken out by the plaintiff seeking
relief of temporary injunction for restraining the defendants from
demolishing the suit premises by enforcing the notice issued under
Section 95(A) of MHADA Act. Learned advocate for plaintiffs is pressing
for adinterim relief pending final decision of Notice of Motion. He
submitted that plaintiffs are not pressing the adinterim relief against
defendant No.1/BMC. Read the reply filed by defendant Nos.2 & 3 so
also, by defendant No.4. None appeared for defendant Nos.5 to 9.
2. Learned advocate for the plaintiffs argued that plaintiffs are
occupants of total 5 suit premises described in the plaint as the room
No.2, premises 1A, 1B and premises No.1 and Gala No.3 as tenants of
defendant Nos.5 and 9 and rent receipts have been issued in the names
of plaintiffs by their landlords but defendant Nos.2 & 3 have joined
hands with defendant No.4 for denying rights of plaintiffs in all 5 suit
premises. He argued that notice under Section 95(A) of MHADA Act is
issued illegally by defendant Nos.2 & 3 to plaintiffs thereby threatening
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the plaintiffs of removing forcibly from the suit premises if the same are
not vacated by the plaintiffs. He further argued that plaintiffs are ready
to cooperate the process undertaken for redevelopment but defendant
No.4 is not ready to execute agreement in respect of all 5 premises in
favour of the plaintiffs and hence, plaintiffs have not vacated the suit
premises. He argued that if action under Section 95(A) is taken by
defendant Nos.2 & 3 pending decision of this Notice of Motion, the
legitimate rights of plaintiffs will be violated hence, it is necessary to
grant adinterim protection to the plaintiffs from action in view of the
notice issued under Section 95(A) of MHADA Act.
3. As against this, learned advocate for defendant Nos.2 & 3
vehemently opposed the prayer for grant of adinterim relief by
submitting that order is passed by Competent Authority before issuance
of notice under Section 95(A) of MHADA Act & it is specified in the said
order that despite giving opportunity, plaintiffs failed to produce any
documents to show that plaintiffs are having total 5 tenements in the
old building due to which, it is ordered that action under Section 95(A)
of MHADA Act shall be taken against the plaintiffs. He argued that said
order is passed lawfully by taking into consideration the relevant record
and it is directed to defendant No.4 to provide NR tenement in newly
constructed building to Smt.Mehrunisa Shaikh Abdulla who is occupant
of Gala No.1 and to plaintiff No.1 who is occupant of Room No.3. He
argued that plaintiffs can challenge the said order by filing appeal
within 45 days and the remedy of suit is not available to them. He
further argued that if the plaintiffs succeed in appeal, they will get
tenements as per their entitlement and there is no question of causing
any irreparable loss to the plaintiffs if adinterim relief is not granted.
4. Learned advocate for defendant No.4 argued that plaintiffs
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have not come before the court with clean hands as, according to him,
plaintiffs have suppressed the passing of order dtd.15/02/2019 before
issuance of notice under Section 95(A) of MHADA Act. He further
argued that plaintiffs have already filed four RAD suits for declaration
of tenancy rights before Small Causes Court and Small Causes Court has
refused to grant temporary injunction in favour of plaintiff hence,
plaintiff have filed the present suit. He further argued that defendant
No.4 is ready to execute agreements & provide transit accommodations
as well as permanent accommodation as per the order passed under
Section 95(A) of MHADA Act and not beyond that. He further argued
that plaintiffs are trying to stall the process of development under the
guise of challenge to notice under Section 95(A) of MHADA Act which
cannot be permitted as, according to him, other 132 occupants in the
suit building have already vacated their respective premises. In support
of his argument that the process of redevelopment cannot be allowed
to be stalled at the instance of the plaintiffs, learned advocate for
defendant No.4 has placed reliance on Judgment dtd.07/04/2017 of
Hon'ble Bombay High Court in Appeal (Lodg) No.82 of 2017 in
Arbitration Petition No.141 of 2017 in a matter between Mrs. Laxmi
Venkat Bhinala and others V/s. Pratham Varadvinayak Developers
LLP & Ors.. He argued that said Judgment is confirmed by Hon'ble
Supreme Court as per order dtd.04/05/2017 passed in Petition (S) for
Special Leave to Appeal(C) No(s).13929/2017. He has also placed
reliance on the observations in a case of Calvin Properties & Housing
Vs. Green Fields Cooperative Housing & Ors. reported in 2014(2)
Bom. C.R.398. I have gone through those authorities.
5. At the outset, it may be stated that there is substance in the
argument of learned advocate for defendant No.4 that notice under
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Section 95(A) of MHADA Act is issued to the plaintiffs in respect of two
rooms only viz. room No.3 & Gala No.1 in the suit building. Perusal of
said notice shows that it is issued to plaintiff No.1, his wife Meharunisa
Shaikh Abdulla & two others. Copy of order dt.15/02/2019 is produced
on record by contesting defendants. Perusal of said order suggests that
Competent Authority has mentioned therein that opportunity of hearing
was given to Smt.Mehrunisa Shaikh Abdulla and plaintiff No.1 before
passing the said order. Plaintiffs have contended that said Mehrunisa is
the wife of plaintiff No.1. In the course of argument, learned advocate
for plaintiffs stated at the Bar that wife of plaintiff No.1 has expired in
year 2012. He submitted that plaintiffs are producing copy of death
certificate of said Mehrunisa. Copy of death certificate though is
produced by the plaintiff earlier today, the same is not in respect of
Mehrunisa but is copy of death certificate of one Ismail Abdulla.
6. May that it be so, perusal of order passed under Sec.95(A)
of MHADA Act shows that the claim in respect of other suit premises
than the room No.3 and Gala No.1 is rejected on the ground that other
premises are not reflected in the tender list and existing building plan
however, perusal of reply filed by defendant No.4 primafacie shows
that said defendant No.4 has not denied existence of these three
premises as it is mentioned in para 7 of reply that those three premises
are unauthorized and illegal and not certified by MHADA. It is further
mentioned in said para that shop No.1 and 1A are illegal premises
which are constructed illegally in a space in between shop No.8 and
common bathroom by the plaintiffs by committing encroachment. It
appears to be the contention of defendant No.4 that plaintiffs are trying
to take advantage of encroachment made by them.
7. I do agree with the argument of learned advocate for
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defendant No.4 that defendant No.4 is supposed to provide transit rent
and transit accommodations to the occupants as is certified by MHADA
and not beyond that. There is substance in the argument of learned
advocate for defendant No.4 that the process of redevelopment cannot
be allowed to be stalled at the instance of some of the persons when
more than 70% of the occupants have given their consents and vacated
their respective tenements for development purposes however, as
mentioned earlier, the contentions raised by the defendant No.4 prima
facie show that other three premises are also in existence in the suit
building. Only thing is that defendant No.4 has contended those three
premises are unauthorized & illegal premises. Said aspect will have to
be considered while deciding the Notice of Motion finally. Learned
advocate for plaintiffs requested to grant some time to plaintiffs to
explain the said aspect either by filing rejoinder or by producing
documents especially because, it appears from the contentions of
defendant No.4 that other three premises are in existence.
8. In a case of Mrs. Laxmi Venkat Bhinala and others V/s.
Pratham Varadvinayak Developers LLP & Ors. cited above on which
reliance is placed by learned advocate for defendant No.4, Hon'ble
Bombay High Court has observed as “...However, since the redevelopment
is resisted by only four persons presently, we are of the view that interest
of justice would be served if we still grant an opportunity to the appellants
to cooperate by vacating the existing premises and structures in their
occupation and possession. We grant them time to do so and to hand over
vacant and peaceful possession thereof to the first respondent or the
competent authorities so as to cause a demolition and removal of the same
from the site. However, all this would be without prejudice to their legal
rights and contentions, particularly noted by us and equally their
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statements in the affidavitinreply to the Arbitration Petition. Merely
because they hand over vacant and peaceful possession that would not be
construed as their having accepted the legality and validity of the project
as a whole and particularly the documents, approvals and plans, if any,
on record. They can raise all contentions as permissible in law either in
reply to the Arbitration Petition or in substantive proceedings.”
9. It does not appear in dispute that other occupants in the
building have already vacated their respective tenements however, as
mentioned earlier, advocate for the plaintiffs made a statement at the
Bar that Mehrunisa has expired in year 2012. It is mentioned in the
order passed under Section 95(A) of MHADA Act that Mehrunisa was
personally present & she was heard before passing said order. There is
substance in the argument of learned advocates for contesting
defendants that plaintiffs have not mentioned anything in plaint about
not giving of opportunity of hearing to them before passing order under
Section 95(A) of MHADA Act in capacity of heirs of Mehrunisa &
remedy to file appeal against said order is available for the plaintiffs
however, copy of order shows that it is mentioned therein that hearing
was given to Mehrunisa & not to her heirs. It will be a matter for
consideration while deciding the Notice of Motion finally by giving
opportunity to defendant/MHADA to produce appropriate material to
show that notice on behalf of said Mehrunisa was accepted by either of
the plaintiffs.
10. Learned advocate for defendant No.4 submitted that
opportunity should be given to defendant No.4 also to file detailed reply
to the Notice of Motion. Admittedly, notice is given to plaintiff No.1 &
Mehrunisa in respect of the two premises out of the five suit premises
mentioned in the plaint whereby, direction is given to vacate those two
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premises within 7 days. Said period of 7 days is expiring today. Having
regards to it & reasons mentioned hereinabove so also, keeping in
mind the observations in the authority cited above, I am of the opinion
that interest of justice will be protected if short time of four days is
granted for filing detailed reply to defendants & for filing rejoinder by
the plaintiffs with direction to defendant Nos.2 to 4 not to take any
action in connection with notice issued under Section 95(A) till next
date & with further direction that the Notice of Motion will be heard
finally on that date itself. If the further action in connection with notice
is not stayed for short period, the very purpose of filing this Noticeo of
Motion may get frustrated hence, an order.
O R D E R
Defendant Nos.2 to 4 shall not take further steps in
connection with notice issued under Section 95(A)of MHADA Act
till next date.
Liberty is given to defendant Nos.2 to 4 to fie additional
reply and documents, if any, to the Notice of Motion with
direction that copies of additional reply and documents shall be
served upon the plaintiff's advocate on or before 05/03/2019.
Plaintiffs shall be at liberty to file their rejoinder, if any, to the
reply and additional reply of defendants on 06/03/2019.
The Notice of Motion will be heard finally on 06/03/2019
and no adjournment will be granted to either party on that date.
Date: 02/03/2019. (P.P.RAJVAIDYA)
Dictated on : 02/03/2019. Judge, C.R.No.12,
Transcribed on : 02/03/2019. City Civil Court,
Checked on : 02/03/2019. Gr. Bombay.
Signed on : 02/03/2019.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
02/03/2019 at 12.45 p.m. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 01/03/2019
Order signed by P.O. on 02/03/2019
Order uploaded on 02/03/2019
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