Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M No.987/2020 in Suit No.515/2020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 987 OF 2020
(C.N.R. No. MHCC01-002702-2020)
IN
S. C. SUIT NO. 515 OF 2020
C.N.R. No. MHCC01-001997-2020)
Shafatulla Mehmood Ebadulla ]
Siddiqui ]..Plaintiff.
V/s.
Maharashtra Housing & Area ]
Development Authority. ]..Defendants.
Advocate Mr. Sakhalkar for the plaintiff.
Advocate Ms. Mangal Kadam for the defendant/MHADA.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 18th MARCH, 2020
ORAL ORDER
This notice of motion is taken out by the plaintiff seeking
direction against the defendant to consider his reply dated 12.02.2020
to the eviction Notice dated 10.02.2020 issued by the defendant and to
pass appropriate order accordingly and in the meantime, the defendant
to be restrained from dispossessing of the plaintiff from the suit
premises.
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2. In nutshell, the case of the plaintiff is that the plaintiff is in
possession of Room No.2 on the ground floor of “Mithawala Building”
No.78-86, Dadasaheb Phalke Road, Dadar (East), Mumbai-400 014.
(hereinafter called as ‘the suit premises’). The said building consists 50
tenements and is situated on a plot bearing CTS No.93. According to
the plaintiff, one Haji Noor Mohammad Haji Jan Mohammad Latif
Charities was the owner/ladlord of that room and one Omer Kasam
Budye was the tenant in it. Omer Kasam Budye inducted another
tenant namely Wahid Abdul Handgi in the suit premises and
subsequently, on 17.12.2008, the plaintiff was inducted as tenant in the
suit premises by Omer Kasam Budye and Wahid Abdul Handgi by way
of Memorandum, Power of Attorney and Declaration-cum-Indemnity
dated 17.12.2008. Since then, the plaintiff is in lawful possession of the
suit premises. According to the plaintiff, he is carrying on his business
in the said room by name “Uzma Arts” under the valid registration
certificate under Shop and Establishment Act by taking electricity
connection in his name. He describes the suit premises as a shop.
3. According to the plaintiff, the defendant/MHADA acquired
“Mithawala Building” in the year 1994 and thereby, the defendant/
MHADA became landlord of the said building. After acquisition,
MHADA has shifted the occupants of the first and second floors into the
transit camps but the ground floor has remained intact. The MHADA
has demolished the first and second floors of that building but the
occupants on the ground floor continued to occupy their respective
premises.
4. On 02.01.2020, the MHADA issued a letter to the
occupants of Mithawala Building informing that the Mumbai Municipal
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Corporation has approved the plans and the MHADA has decided to
start the reconstruction of new building by demolishing the ground
floor as well and called upon the occupants of the ground floor to
produce their proof of residence and on what right. The MHADA again
issued similar letter to the occupants on 15.01.2020.
5. The plaintiff came to know that M/s. Karimji Private
Limited is being shown as the owner of the land. The plaintiff asked for
relevant documents, but they were not provided. Earlier in the year
2007-2008, the MHADA had proposed to redevelop Mithawala building
and the occupants of the said building have executed their respective
consent letters in favour of M/s. Spark Builders and Infra Projects Pvt.
Ltd. The predecessor-in-title of the plaintiff namely Wahid Abdul
Handgi has also executed the consent letter on 18.06.2007 but the said
developer failed to start the work. Thereafter, all of sudden, at the
behest of the the other Developers, the MHADA is bent upon to get the
said building demolished without giving any assurance to the occupants
of the said building including the plaintiff of their rehabilitation in the
newly constructed building.
6. The plaintiff procured the plans under the Right to
Information Act and it was noticed that M.C.G.M. has approved the plan
for the construction of 23 tenements even though 50 tenants are
awaiting the redevelopment of the said building.
7. The MHADA issued notice dated 10.02.2020 to the
common to all occupants on the ground floor to vacate the suit premises
within a period of seven days and the plaintiff received the said notice
on 11.02.2020. The plaintiff immediately replied that notice through his
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advocate and submitted required documents showing his right and
possession over the suit premises. Under the circumstances, issuance of
notice to vacate the suit premises is illegal, as MHADA has not made
any provision for rehabilitation of the plaintiff. There is reasonable
apprehension to the plaintiff that he would be forcibly dispossessed
from the suit premises. To protect his possession, the plaintiff has come
with this Notice of Motion for reliefs as earlier mentioned.
8. The defendant/MHADA has resisted this Notice of Motion
by filing reply on 07.03.2020. According to MHADA, the suit itself is
false, frivolous, vexatious and not maintainable either in law or on the
facts and it is merely an abuse of the process of the Court. The plaintiff
has filed this suit in a surreptitious manner with malafide intention by
suppressing material facts and therefore, the suit is liable to be
dismissed. The plaintiff has not issued mandatory notice under section
173 of the MHADA Act before filing of the suit. Therefore, neither the
suit nor Notice of Motion is maintainable.
9. It is further case of the MHADA that Mithawala building
was originally consisting of ground plus two upper floors and was in a
dilapidated condition. The MHADA therefore, decided to demolish that
building and to reconstruct new building thereon in the year 1988-
1989. The MHADA therefore, demolished the first and second floor of
that building and the tenants residing therein were sent to transit camp.
Thereafter, the MHADA submitted proposal for the acquisition of the
suit building under section 92(1) of MHADA Act to the Special Land
Acquisition Officer who in turn, prepared list of original tenants and
published that list by notification in the Official Gazette on 23.03.1995.
As per the said list, Room No.2 is the residential premises and not a
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shop as stated by the plaintiff. As per the said list, one Mr. Noor Ahmed
Esar Khan is the original tenant in respect of Room No.2. The Special
Land Acquisition Officer completed the acquisition process and by the
notification dated 21.02.2007 published under section 93(5) of the Act,
in the government Gazette on 10.05.2007 and thereby, Mithawala
building was acquired by the defendant/MHADA.
10. According to the MHADA, though the first and second
floors were vacated and demolished, in order avoid any unauthorized
encroachment upon the plot, the ground floor was not demolished. The
tenants on the ground floor continued to reside in their premises but
some of the tenants preferred to vacate their premises and to apply for
transit accommodation. Accordingly, the transit accommodation was
provided to them. The Executive Engineer F-South Ward issued letter
dated 09.01.2020 to the Estate Manager to ascertain actual position in
respect of the suit premises. The Estate Manager issued reply to that
letter on 22.01.2020 and is disclosed that the tenant in respect of Room
2 (the suit premises) namely Noor Ahmed Esar Khan was already
allotted the transit accommodation in Building No.8, Flat No.107, New
MHB Colony, Gorai Transit Camp, Borivali.
11. After plan was approved by MCGM for the construction of
new building, the MHADA issued notice to the occupants on 02.01.2020
who were residing on the ground floor of Mithawala building and
requested them to submit the documents to substantiate their claim in
respect of the premises occupied by them. The reminder letter was also
issued on 15.01.2020. However, the plaintiff did not answer the same
and consequently, the MHADA had no option, but to issue notice to
vacate the suit premises on 10.02.2020.
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12. Thus, according to the MHADA, the plaintiff has no right,
title or interest in the suit premises. Actually, Noor Ahmed Esar Khan
was the tenant in the suit premises and he was provided transit
accommodation after vacation of the suit premises. If the plaintiff is
occupying the suit premises any way, his possession cannot be termed as
lawful and such possession cannot be protected as he being rank
trespasser. The MHADA therefore, contended that the plaintiff is not
entitled to any relief as asked for in this Notice of Motion.
13. Heard the learned advocate for the parties. The learned
advocate for the plaintiff has placed his reliance on Rent Receipt dated
31.03.1995 issued by one one Haji Noormahomed Janmahomed Latiff
Charities to show his lawful possession over the suit premises. That rent
receipt was issued to Omar Kassam Budye from whom the plaintiff has
acquired the alleged tenancy right. This receipt is the basis for the suit.
The careful perusal of this receipt shows that there is Room No.2
mentioned on that receipt and shop number has been canceled. This
shows that the suit premises was not a shop as alleged by the plaintiff.
The plaintiff has also produced on record Memorandum dated
17.12.2008 executed by and between Omer Kasam Budye and Wahid
Abdul Handgi on one part and the plaintiff on the other part, assigning
right in the suit premises to the plaintiff. It was executed by Omer
Kasam Budye before the Notary at Rathnagiri. However, last page
attached to it bears the signature of Wahid Abdul Handgi and the
plaintiff along with their photographs and it is sworn before the Notary
at Mumbai. The MHADA has challenged the genuineness of this
document calling upon it to be fabricated. The plaintiff has produced
on record General Power of Attorney executed by Omer Kasam Budye
and the same is the position of its execution as Memorandum. Wahid
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Abdul Handgi has also executed General Power of Attorney in favour of
the plaintiff, and it is executed before the Notary at Mumbai. The
Declaration-cum-Indemnity has been executed by both Omer Kasam
Budye and Washid Abdul Handi in favour of the plaintiff.
14. The plaintiff has produced the registration certificate of
Shop and Establishment wherein, the address of the suit premises is
mentioned and the certificate is issued for commercial use of the suit
premises. This Certificate is for the year 2017-2019. The Electricity Bill
produced by the plaintiff shows that the address of the suit premises
and it stands in the name of the plaintiff. The plaintiff has produced
letter issued by the MHADA to all the tenants of Mithawala Building on
02.01.2020 calling upon them to show their title deed in respect of the
premises in their possession. The reminder letter dated 15.01.2020 is
also produced on record. The copy of the property extract is also
produced. The plaintiff has produced the copy of irrevocable consent
given by Abdul Wahid Handgi to the Mumbai Building Repairs and
Reconstruction Board on 18.06.2007 for redevelopment of the suit
premises. The plaintiff has produced suit Notice dated 10.02.2020
issued to all occupants on the ground floor asking them to vacate the
suit premises within seven days. The plaintiff has replied that notice on
12.02.2020 and its copy is produced on record.
15. Mr. Sakhalkar, the learned advocate for the plaintiff
vehemently submits that all the documents produced by the plaintiff
would
prima-facie establish that the plaintiff is in possession of the suit
premises and MHADA cannot ask the plaintiff to vacate the suit
premises without considering the representation made by him by his
reply dated 12.02.2020. The high handed action proposed to be taken
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by the MHADA has to be stopped by granting temporary injunction as
sought by the plaintiff. The plaintiff has made out a
prima-facie case for
the same. The balance of convenience is lying in favour of the plaintiff
and if temporary relief is not granted, the plaintiff will literally come on
the street as he would be evicted from the suit premises and will loose
his tenancy right in redeveloped building.
16. Mrs. Mangal Kadam, the learned advocate for the
defendant/MHADA submits that the plaintiff is trying to practice fraud
upon the Court by submitting false and fabricated documents, so as to
protect his unauthorized possession over the suit premises. The
documents, such as Memorandum, Power of Attorney and Declaration-
cum-Indemnity shows such fraud on very face of it. They were partly
sworn before one Notary and the last page of it is sworn before different
Notary. These documents are not executed and signed by one uniform
process before one Notary. In support of her contention of fraud upon
the Court, she has relied upon the Judgment of the Hon’ble Supreme
Court in
S.P. Chengalvaraya Naidu (dead) by L.Rs. V/s. Jagannath
(dead) by L.Rs. and others reported in [AIR 1994 S.C.853], wherein it is
observed that;
“The Courts of law are meant for imparting justice
between the parties. One who comes to the Court,
must come with clean hands. It can be said without
hesitation that a person whose case is based on
falsehood has no right to approach the Court. He can
be summarily thrown out at any stage of the
litigation.” A litigant, who approaches the Court, is
bound to produce all the documents executed by him
which are relevant to the litigation. If he withholds a
vital document in order to gain advantage on the
other side then he would be guilty of playing fraud on
the Court as well as on the opposite party.”
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17. The learned advocate for MHADA further submits that the
plaintiff is not knowing the factual position in respect of the suit
premises. He is not aware that one Noor Ahmad Esar Khan was the
tenant in the suit premises, he has vacated it and has shifted to transit
camp. Anybody occupying the suit premises without permission of
MHADA illegally will not be entitled to claim valid tenancy right on the
basis of the documents like Memorandum, Power of Attorney and
Declaration-cum-Indemnity executed by the persons who had no right,
much less valid tenancy right over the suit premises. Thus, it would be
clear on the pleadings and documents of the plaintiff that he is trying to
grab the suit premises absolutely on false and fabricated documents.
18. Having considered the rival submissions and careful perusal
of the documents place on record, it
prima-facie appears that originally,
Room No.2 (the suit premises) was recorded in the name of Noor
Ahmed Esar Khan as a tenant and it was residential premises. The copy
of the Government Gazette dated 23.03.1995 makes it clear that the
defendant had proposed to acquire Survey No.93(Part) including
Building No.78-86 situated thereon. The land was owned by Haji Noor
Mohamed Haji Jam Mohamed Latif Charities and Mitawala Building
was one of the buildings standing thereon. The Government of
Maharashtra published the list of the tenants in that building in
Schedule-C of the the Government Notification dated 23.03.1995. As
per the said list, Room No.2 was standing in the name of Noor Ahmed
Esar Khan as a tenant therein.
19. The fact that the first and second floors have been
demolished and the tenants in the premises on the first and second floor
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have been accommodated in transit camp is not in dispute. It is also not
in dispute that the some of the tenants on the ground have also been
accommodated in transit camp. It is clear from the correspondence
made by the defendant to Mumbai Building Repairs and Reconstruction
Board on 06.01.2020 and the reply sent by that Board on 22.01.2020
that Noor Ahmed Esar Khan has got transit accommodation i.e. Gala
No.107 in Building No.8 in New MHB Colony, Gorai Road, Borivali for
Room No.2 which was in his possession. The Administrative and
Financial Approval for the cost of new building Rs.16,36,75,637/- has
also been granted on 04.01.2020.
20. All these documents makes it clear that Noor Ahmed Esar
Khan was the tenant in the suit premises and transit accommodation
has been allotted him as he has vacated the suit premises. As such, the
the Memorandum, Power of Attorney and Declaration-cum Indemnity
though executed by and between Omer Kasam Budye and Wahid Abdul
Handgi on one part and the plaintiff on the other part, they do not
convey valid tenancy right to the plaintiff. The plaintiff has placed
strong reliance on the rent receipt issued by the owner of Mithawala
Building namely Haji Noormahomed Haji Janmahomed Latif Charities
to Omer Kasam Budye on 31.03.1985. Subject to genuineness of this
receipt, such receipt does not create the valid tenancy right as the same
premises has already been given on the rent to Noor Ahmed Ahmed
Esar Khan and he was rehabilitated in transit accommodation. Unless
his tenancy rights are lawful terminated by the landlord, he could not
be entitled to induct any other person in the same premises nor any
person so inducted will acquire valid tenancy right over the suit
premises. The other documents such as Shop and Establishment
Licence, Electricity Bill etc. would be the proof of possession of the
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plaintiff, but those documents cannot establish the valid tenancy right
of the plaintiff. The original Memorandum, Power of Attorney and
Declaration-cum-Indemnity were asked to be produced for the
inspection of the Court as the defendant has come with the case of
forgery. They were accordingly, inspected. It is not possible at this
stage to give finding as to forgery of those documents. Those
documents are required to be prima-facie considered as they are and
accordingly considered. Even considering such documents to be
genuine, the plaintiff is not able to prove his prima-facie tenancy right
over the suit premises.
21. Along with original documents as referred above, the
plaintiff has produced photocopy of the rent receipt issued by the
defendant in the name of Omer Kasam Budye pertaining to Room No.2
which was issued on 07.04.1985 showing that the said receipt had been
issued by the defendant. However, the said receipt cannot create valid
tenancy right in the suit premises, rather such amount can be
considered as the compensation recovered by the defendant for
unlawful use of the said premises by the plaintiff.
22. As per the reliefs claimed in this Notice of Motion, the
plaintiff is claiming the direction that the defendant should consider the
reply of the plaintiff dated 12.02.2020 and to pass appropriate order. In
fact, the notice in question is issued by the defendant MHADA on
10.02.2020. The plaintiff filed reply on 12.02.2020 and has filed this
suit on 14.02.2020. Thus, the plaintiff has not left any scope for the
defendant to consider his reply and has straightway come with this suit
and now he prays that the defendant should consider his reply and to
pass appropriate order. Now, as per the reply filed by the defendant, the
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defendant has denied any tenancy right or lawful possession of the
plaintiff over the suit premises and has prima-facie established the said
fact.
23. Under this backdrop, direction to the defendant to consider
the reply of the plaintiff and to pass appropriate order would be futile
exercise as the defendant will definitely reject the claim of the plaintiff.
Thus, such temporary reliefs has became infructuous.
24. Secondly, temporary relief as asked by the plaintiff is that
the defendant should not dispossess the plaintiff from the suit premises
on the basis of the notice dated 10.02.2020. As per the reasons
recorded herein above, since the plaintiff has prima-facie failed to prove
his tenancy right and lawful possession over the suit premises, the
plaintiff will not be entitled to get any such reliefs. The plaintiff has no
prima-facie case for the same.
25. Insofar balance of convenience is concerned, even though
ground floor is demolished by the defendant and new building is
constructed by the defendant as per the approved plan and in the event,
the plaintiff proves his valid tenancy right or lawful possession over the
suit premises in the trial of the suit, he will be entitled to get alternative
accommodation in newly constructed building in due course. Therefore,
no balance of convenience will lie in favour of the plaintiff. Hence, no
irreparable loss will be caused to the plaintiff, if temporary relief as
prayed is refused.
26. In the result, I hold that the plaintiff will not be entitled to
get any temporary relief as asked by way of this Notice of Motion and
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this Notice of Motion is liable to be dismissed. In the result, I pass the
following order:
ORDER
1. Notice of Motion No. 987 of 2020 is hereby dismissed.
2. Ad-interim relief granted, if any, shall stands vacated.
3. Notice of Motion No. 987 of 2020 stands disposed of accordingly.
(S.R SALUNKHE)
Judge,
City Civil Court,
Date: 18/03/2020. Gr. Bombay.
Dictated on : 18/03/2020
Transcribed on : 19/03/2020
Signed on : 19/03/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/03/2020 At 02.20 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
18/03/2020
Judgment/Order signed by P.O. on 19/03/2020
Judgment/Order uploaded on 19/03/2020
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