Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 122019 in SCSU 66719
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.1220 OF 2019
(CNR No.MHCC010031462019)
IN
SHORT CAUSE SUIT No.667 of 2019.
(CNR No.MHCC010027882019)
Mangesh Chandrakant Kanade }...PLAINTIFF.
Versus
M.B.R. & R. Board & Ors. }...DEFENDANTS.
Shri.Redekar, learned advocate for the plaintiff.
Shri.K.N.Kandekar, learned advocate for defendants.
CORAM: HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 27/03/2019)
1. This Notice of Motion is taken out by the plaintiff seeking
relief to temporarily restrain the defendants from taking action of
dispossession of the plaintiff from the suit premises in pursuance of the
notices dtd.22/03/2018 and 16/01/2019 issued by defendant No.2 to
the plaintiff. Read the affidavit filed in support of the Notice of Motion
and reply filed by the defendants. Heard learned Shri.Redekar, advocate
for the plaintiff and learned Shri.Kandekar, advocate for the defendants.
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
plaintiff? ...Yes.
ii)Whether balance of convenience lies in favour
of the plaintiff? ...Yes.
iii)Whether irreparable loss will cause to the
plaintiff if injunction as prayed is not granted in
his favour? ...Yes.
iv)What order? ...As per final order.
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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 plaintiff argued that plaintiff is in lawful possession of
suit premises since the date of its allotment as per letter of allotment
dtd.14/08/1986 issued in the name of father of plaintiff yet, defendants
are claiming that possession of the plaintiff is unlawful. He argued that
suit was filed by the plaintiff seeking permanent injunction which was
dismissedindefault, Notice of Motion taken out for restoration of the
suit is rejected by this court and appeal filed thereafter by the plaintiff is
withdrawn by the plaintiff as it was submitted before Hon'ble High
Court on behalf of defendants that due process of law will be followed
for removing the plaintiff from the suit premises. He argued that
defendants had issued notice dt.22/03/2018 to the plaintiff to produce
documents to show plaintiff's lawful possession & accordingly, plaintiff
has produced various documents including copy of letter of allotment
but without considering the copy of letter of allotment, notice
dt.16/01/2019 is issued to the plaintiff under Section 95(A)3 of
MHADA Act which is illegal. He argued that if the defendants succeed
in removing the plaintiff from the suit premises on the basis of said
cryptic ordercumnotice, it will cause an irreparable loss to the plaintiff
and hence, it is necessary to grant temporary injunction in favour of the
plaintiff. In support of his argument, learned advocate for plaintiff has
placed reliance on the observations of Bombay High Court in a case of
Seema Santosh Jadhav Vs. MHADA reported in 2014(1) Mh.L.J. 284.
I have gone though the said authority.
4. As against this, learned advocate for the defendants
vehemently opposed the prayer for grant of interim injunction by
submitting that several opportunities were given to the plaintiff to
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produce authenticate documents to show his lawful possession over the
suit premises but plaintiff has not produced any authenticate documents
& rent receipts during inquiry hence, defendant No.2 has issued notice
dt.16/01/2019 for summary eviction of plaintiff under Section 95(A)3
of MHADA Act. He argued that copy of letter of allotment produced by
the plaintiff is sham & bogus document. He drew my attention to the
various observations made by City Civil Court Mumbai in the order
passed in Notice of Motion filed by the plaintiff in earlier suit and
argued that court had found that the letter of allotment is a false and
fabricated document. He further argued that plaintiff is trespasser and
plaintiff cannot be allowed to continue his said unlawful possession
over the suit premises due to which, temporary injunction cannot be
granted & hence Notice of Motion is liable to be rejected. In support of
his argument, learned advocate for defendants has placed reliance on
the observations of Hon'ble Supreme Court in a case of Masrool Ahmed
Vs. State of Uttarakhand and Ors. reported in (2019) 2 S.C.C 397. I
have carefully gone through said authority.
5. At the first instance, it would be apposite to mention here
that it is not in dispute that plaintiff is in possession of suit premises,
plaintiff had filed SC Suit No.3939/1989 in City Civil Court seeking
relief of perpetual injunction in respect of the same suit premises
against defendant/MHADA and said suit has been dismissedindefault.
It is also not in dispute that Notice of Motion taken out by the plaintiff
for restoration of the said suit was dismissed by this Court and appeal
was filed by the plaintiff against said order of dismissal before Hon'ble
High Court. It is also not in dispute that said appeal is dismissed by
Hon'ble High Court as withdrawn by the present plaintiff on the basis of
statement made in letter dt.02/04/2018 by Estate Manager of MHADA
that subsequent to dismissal of the suit, action is initiated against the
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plaintiff in accordance with the law. It does not appear to be in dispute
that MHADA had issued notice dt.23/03/2018 to plaintiff to produce
documents to show his lawful possession over the suit premises and
ultimately, ordercumnotice dt.16/01/2019 is issued by mentioning
that perusal of the documents produced by the plaintiff do not show
that plaintiff is lawful occupant of suit premises. Notice dt.23/03/2018
& notice dt.16/01/2019 issued to the plaintiff are challenged by the
plaintiff by filing the present suit by claiming relief that those notices be
declared as illegal & not binding on the plaintiff.
In the background of those admitted facts, I would now go
to consider the relief claimed by the plaintiff in this Notice of Motion for
grant of temporary injunction.
6. Plaintiff is claiming to be in possession of the suit premises
on the basis of letter of allotment dt.14/08/1986 issued in the name of
his father. Plaintiff has produced copy of said letter of allotment with
the plaint. Defendants have contended in their written statement that
said letter of allotment is sham & bogus. It appears to be the contention
of defendants that inquiry is conducted during which, sufficient
opportunities were given to the plaintiff to produce documents to show
his lawful possession but plaintiff failed to establish his lawful rights in
respect of the suit premises due to which, order is passed in accordance
with law for summery eviction of the plaintiff. It would be just to see
whether there is sufficient material for accepting the contention of the
defendants at this stage that the order passed by defendants for
summery eviction of the plaintiff is lawful?
7. As mentioned earlier, it does not appear to be in dispute
that by issuing notice dt.23/03/2018, defendants had directed the
plaintiff to produce documents to show that plaintiff is lawful occupant
in respect of the suit premises. I found substance in the argument of
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learned advocate for defendants that several opportunities were given
to the plaintiff to produce documents as said argument is supported by
the copies of the proceeding taken out by the defendant No.2. However,
merely because several opportunities were given to the plaintiff by
granting various adjournments, it is not sufficient for holding that the
order passed by defendant No.2 is legal.
8. It would be apposite to mention here that in the authority
of Seema Santosh Jadhav Vs. MHADA cited above on which reliance is
placed by learned advocate for the plaintiff, Hon'ble High Court has
considered in detailed the scope of Section 95A of MHADA Act. It is
held in Para9 of the said authority as;
''There can not be any dispute with regard to the power so
elaborated under section 95A of MHADA Act as brought in by
amendment 16 of 1998 with effect from 1551998. Admittedly, the
cases involved herein and the longstanding possession of the
occupants of the property based upon the allotment letters prior to
1551998 and ranging from years 19781986. Earlier section 66
though permits/empowers the Board to take action against the
unauthorised occupants, but that also, in my view, always on a
foundation that there is ''unauthorised occupation'' and therefore
the power is provided to evict such persons from the Authorities'
premises. There cannot be any doubt about the provision so
provided, if case is made out, the defendant and/or its officer need
to act within the framework of law. This itself means, that it is
necessary for the Authorities/Board to come to a basic conclusion
that the ''occupier'' is in possession of the premises''unauthorisedly''.
It also contemplates under section 95A in clauses (1) and (2). The
clause (3) therefore in such a situation required to be invoked to
evict such persons whose rights have been determined and still not
vacated and/or continue to retain the possession of their premises
unauthorisedly''.
9. In Para17 of the said authority, Hon'ble High Court has
observed as;
''The intended ejection from the premises by invoking the
summary eviction provisions without deciding the issue of fraud or
misrepresentation and wrong in the background of 25 years long
possession is a matter of great concern to all. The respondents if do
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not take action for such a long period, cannot be permitted to
invoke such summary proceedings by taking unilateral decision even
on the complicated issue of alleged fraud and misrepresentation and
a wrong. In spite of knowledge of alleged wrong deed/wrong if
authority and/or its officers, for known or unknown reasons do not
take any action for long, such action without giving an opportunity
to the occupants/occupiers is impermissible.''
10. It is clear from the observations quoted above that for
invoking the power for summary eviction under Section 95(A)3 of
MHAD Act, conclusion must be recorded by giving opportunity to the
occupant that such occupant is unlawful occupant. In the matter in
hands, plaintiff is all the way raising a contention that he is in
possession of the suit premises on the basis of letter of allotment issued
in the name of his father way back on 14/06/1986. Indeed,
observations are made by this court in the order passed in the Notice of
Motion taken out by the plaintiff in previously instituted suit that copy
of letter of allotment appears to be bogus and fabricated document but
those observations are recorded at interim stage while deciding the
primafacie case. Any conclusive finding to that effect is not recorded by
the court on merits by giving opportunity of adducing evidence to the
parties hence, those observations are not sufficient for accepting at this
stage that letter of allotment is fabricated document. Copies of
documents produced on record by defendants show that plaintiff had
produced the copy of said letter of allotment before defendant No.2
during inquiry. It does not appear that noticecumorder dt.16/01/2019
is issued on the basis of the observation recorded by the Court while
passing order in Notice of Motion in the earlier suit filed by the present
plaintiff & on that count also, those observations are not helpful to the
defendants at this stage.
11. It does not appear to be the contention of defendants that
any separate order is passed than notice dt.16/01/2019 for summary
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eviction of the plaintiff. Even there is no reference of passing of any
separate order in said notice. Perusal of notice dt.16/01/2019 shows
that there is no whisper therein in respect of the letter of allotment
produced by the plaintiff during inquiry. Defendants have contended in
their reply & written statement that said letter of allotment is sham &
bogus but as can be seen from the notice dt.16/1/2019, any such
conclusion is not recorded while issuing the said notice due to which, I
could find any force in the argument of learned advocate for
defendants, at least at this stage, that letter of allotment is sham &
bogus document.
12. It is the contention of the defendants that directions are
issued by the Government to take action for eviction against unlawful
occupants in the premises of MHADA. Said contention is supported by
the copy of letter produced by defendants alongwith list of occupants &
description of premises in possession of those occupants however, even
if such directions are given by the Government, it is excepted from the
officers of MHADA to take recourse to law while complying with those
directions. Indeed, it is mentioned in notice dt.16/01/2019 that rights
of plaintiff are not established on scrutiny of documents produced by
plaintiff however, as mentioned earlier, nothing is mentioned in said
notice in respect of genuineness or otherwise of the letter of allotment
produced by the plaintiff during inquiry. It is clear from the contents of
said notice that it is not mentioned in the said notice that the letter of
allotment is false & fabricated document. As is held by Hon’ble Bombay
High Court in a case of Seema Santosh Jadhav Vs. MHADA cited
above, it was essential for MHADA authority to pass reasoned order
while declaring that the plaintiff is unlawful occupant in the suit
premises which being not done, said notice cannot be said to be legal.
13. In a case of Masrool Ahmed Vs. State of Uttarakhand and
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Ors. cited above on which reliance is placed by learned advocate for the
defendants, it was found that possession of the appellant therein since
inception was unauthorized as there was no letter of allotment issued
by BMC in favour of said appellant. Here, in the matter in hands,
plaintiff has produced copy of letter of allotment which defendants are
claiming to be sham & bogus document but it does not appear to have
dealt with by defendant No.2 while concluding that plaintiff No.2 is
unlawful occupant in respect of the suit premises hence, expressing my
respects, I would say that said authority is not squarely applicable in the
present facts of the matter.
14. It appears from the copy of application filed during inquiry
by plaintiff before defendants that plaintiff has raised contentions about
his filing of application before Government for regularizing his
occupation over the suit premises & about pendency of his said
application however, it is not necessary at this stage to give much of
importance to the said aspect as it appears that defendant/MHADA has
not considered the copy of allotment produced by the plaintiff before
defendant No.2 during inquiry. Merely because several opportunities
were given to plaintiff during inquiry by granting several adjournments,
it cannot be held sufficient for accepting that the notice dt.16/01/2019
issued to the plaintiff by defendant No.2 is based on reasoned order
especially because, contents thereof do not show that defendant No.2
has considered the letter of allotment and held said letter of allotment
to be false and fabricated document.
15. There is substance in the argument of learned advocate for
defendants that plaintiff has not produced any rent receipt to show that
he ever paid rent of suit premises however, it appears from the material
available on record & contents of notice dt.16/01/2019 that defendants
have not followed the proper procedure & principles of natural justice
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before issuing notice dt.16/01/2019 to the plaintiff due to which, non
production of rent receipts by the plaintiff is not sufficient for holding
that said notice is legal. Plaintiff is in longstanding possession of suit
premises & he is claiming his possession as lawful on the basis of letter
of allotment dt.14/08/1986 which is not dealt with while issuing notice
dt.16/01/2019 hence, I hold that primafacie case and balance of
convenience both do lie in favour of the plaintiff. I am satisfied that if
plaintiff's longstanding possession over suit premises is not protected
from summary eviction on the basis of the notices impugned in this suit
till final disposal of suit, it will cause an irreparable loss to the plaintiff
hence, I hold that plaintiff is entitled for interim injunction. For these
reasons, I recorded my findings on Point Nos.(i) to (iii) accordingly.
16. Before passing the final order, it may be stated that in a
case of Seema Santosh Jadhav Vs. MHADA cited above, Hon’ble High
Court was pleased to grant liberty to MHADA to withdraw the order/
notice of summary eviction & pass a reasoned order after hearing the
parties. In the matter in hands also, defendant/MHADA can adopt the
said legal procedure for considering the genuineness or otherwise of the
letter of allotment produced by the plaintiff. Thus, an order.
O R D E R
Notice of Motion No.1220/2019 is allowed.
Pending final disposal of the suit, defendants are
temporarily restrained from dispossessing the plaintiff from the
suit premises Room No.306, described in detailed in the plaint,
in pursuance of notices dtd.23/03/2018 and 16/01/2019 issued
to the plaintiff by defendant No.2.
Costs in the main cause.
Date: 27/03/2019. (P.P.RAJVAIDYA)
Dictated on : 27/03/2019. Judge, C.R.No.12,
Transcribed on : 01/04/2019. City Civil Court,
Checked on : 03/04/2019. Gr.Bombay.
Signed on : 03/04/2019.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
03/04/2019 at 11.30 a.m. Mrs. Sushma Surve
UPLOAD DATE AND TIME NAME OF TYPIST
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 27/03/2019.
Order signed by P.O. on 02/04/2019.
Order uploaded on 03/04/2019
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