Interim Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Draft Notice of motion
In
L.C.Suit No.821 of 2019
Om Trading ...Plaintiff
Versus
B.M.C. ...Defendants
Advocate Mr.Nitesh Acharya a/w Altaf Khan for plaintiff
Advocate Mr. G.O.Giri adv for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 26th March, 2019
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this draft notice of motion to
restrain the defendant Municipal Corporation, Gr. Mumbai from taking
any action of demolition on the basis of notice/order dated
22/03/2019 in respect of the premises being Godown 4,Ground floor,
Case no.11 Scheme no. 57, Sewree Cross Road, Sewree (West)
Mumbai 400 015(hereinafter same is referred as a suit premises).
Facts in brief are as under:
2 Plaintiff is Proprietor firm of Mr. Dilip Kariya an Indian
Inhabitant. Defendant is the Assistant Commissioner of Municipal
Corporation, Greater Mumbai, F south ward. Defendant is the owner of
various survey nos as mentioned in para no. 3 of the plaint total
admeasuring area 17635.76 sq.meters situate at Sewree Cross Road,
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Sewree, Mumbai. The suit premises is situate in the said survey
number. The above survey number went under development under
DCR 33(7). Defendant has prepared annexure II and the plaintiff is
shown as eligible for the premises in development. Defendant has
appointed developer for the development to carry out the development
work of the property. Inspite the application by the plaintiff still the
premises is not attorned. Hon'ble High Court in writ petition number
3646 of 2017 directed the defendant to decide such application.
3 Plaintiff further stated that there is inordinate and
continuous delay on the part of defendants in taking decisions and in
deciding various transfer and attornment applications. In fact the
developer had also not executed any agreement in favour of plaintiff.
However, defendant issued notice to plaintiff dated 22/03/2019 and
directed to vacate the premises within 48 hours.
4 According to plaintiff, the impugned order/ notice is illegal
and without jurisdiction. The defendant has not followed the principles
of natural justice. Still agreement is not executed in favour of plaintiff.
Hence defendant could not issue such type of notice and thus notice/
order is illegal and bad in law. Hence prayed to grant ad interim relief
till the decision of suit.
5 Shri Nitesh Acharya advocate for plaintiff has submitted
that the defendant is acted at the instance of the developer. In fact
developer till date has not executed any agreement with the plaintiff
and the developer has not provided alternative accommodation and
rent to the plaintiff. Defendant has not decided the attornment
application and suddenly the impugned notice is issued. He further
submitted that this notice is not either section of MMC Act. He has
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invited my attention towards the impugned notice. He further
submitted that as the defendant and developer have not performed
their part but they are threatening to plaintiff to vacate the premises.
Thus, by the very act of the defendant the rights of the plaintiff are
deprived. Hence, he prayed to grant interim relief.
6 Mr. G.O.Giri advocate for defendant has submitted that
the plaintiff is not cooperating in the development scheme. According
to him, the defendant prepared annexture II and held plaintiff eligible
for permanent accommodation as per the Development Control Rules.
However, plaintiff did not appear. The developer has deposited the
cheque of the rent with defendant. Even plaintiff has not accepted the
rent. Thus, the plaintiff is not cooperating in the development project.
He further submitted that IOD is issued and development work is in
progress. 70% tenants have given their consent and they vacated the
premises. Due to the non cooperation by the plaintiff, the project is
stalled. Hence, he prayed to refuse ad interim relief.
7 We are at ad interim stage. Plaintiff has to prove prima
facie case, balance of convenience and irreparable loss in case of refusal
of injunction. I have considered the submission advanced by both the
parties. I have also perused the documents on record. Admittedly, plots
wherein the suit premises is situated are owned by defendant
Municipal Corporation and went under development. From the record
it appears that 70% tenants consented the scheme and vacated the
premises. It also appears that very few tenants/occupants still have not
vacated the premises. Admittedly, plaintiff is occupant of commercial
area. The name of plaintiff is in annexureII and he is held eligible for
permanent accommodation in development scheme.
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8 I do agree that the notice dated 22/03/2019 is not either
section of the MMC Act. However, the notice is detail and self speaking.
In the notice it has specifically mentioned that the time limit for the
said project is four years and the defendant corporation will receive
the revenue amounting of Rs. 244 crore if the project is completed
within time limit. In the notice it has specifically mentioned that the
developer has submitted the plans and IOD is also issued. Further the
developer has deposited rent cheque of the plaintiff with defendant. It
has also mentioned that plaintiff is not cooperating to the development
project and still has not executed any agreement and due to non co
operation by plaintiff the project is delaying. Hence, on these grounds
the Assistant Commissioner, F south ward directed the plaintiff to
vacate the premises within 48 hours.
9 It is to be noted that from the record it appears that before
the development scheme, the cooperative society namely Eklas Co
operative society has been formed. As discussed above the development
work is in progress. The project is the Public Project and for the welfare
of the society. Plaintiff has not accepted the rent cheque. It also appears
that no agreement is executed between plaintiff and developer .
However it cannot be overlooked that plaintiff is eligible for the
premises in the project. Therefore merely at the instance of this plaintiff
the entire project cannot be stalled. Therefore I find that plaintiff has
no prima facie case, balance of convenience does not lie in favour of
plaintiff and if the ad interim relief is granted then irreparable loss will
be caused to defendant. Hence following order:
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ORDER
1 Ad interim relief is refused.
2 Draft NM be registered.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 26/3/2019
Typed on : 27/03/2019
Signed by HHJ. : 27/03/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
29/03/2019
S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
26/03/2019
JUDGEMENT/ORDER signed by
P.O. on
27/03/2019
JUDGEMENT/ORDER uploaded
on
29/03/2019
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