Order 1

Order Details: Notice of Motion
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MHCC010034182018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1059 OF 2018
IN
SUIT NO. 199 OF 2018.
Smt. Rajjidevi Mehilal Kanojiya]..Plaintiff.
V/s.
M/s. Omkar Realtors Projects ]
Pvt. Ltd., and others. ]..Defendants.
Advocate Mr. G. S. Bhat for the plaintiff.
Advocate Mr. S. R. Gupta for the defendant No.2.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 17th JULY 2023
ORAL ORDER
The plaintiff has taken out present Notice of Motion
seeking reliefs in terms of prayer clause (a) and (b).
2. It is contention of the plaintiff that she is the owner of the
suit premises being Room No.15, G-40, Saibaba Nagar Part-I, Jeevraj
Ramji Barocha Marg, Dr. E. Moses Road, Near Dhobi Ghat, Mumbai-400
011 (Hereinafter referred to as the “suit premises”). The defendant No.1
is the developer who has undertaken to develop the slum area known as
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“Saibaba Nagar” under Slum Rehabilitation Scheme. The plaintiff and
her husband are the owner of the suit premises. The husband of the
plaintiff died on 23.11.2003. The defendant No.2 was permitted to use
the said premises along with her jointly without any charges or
compensation.
3. It is further contended that in the course of process of
redevelopment eligibility of the occupants of the slum area has been
finalized by the Competent Authority appointed by the SRA. The
Competent Authority has published/issued Annexure-II wherein the
plaintiff has been held as eligible at serial No.730 of Annexure-II.
4. It is further contended that since last 2 years the plaintiff
was required to stay at native place to look after agricultural land in
native place. The defendant No.2 who has no right of whatsoever
nature in the suit premises seems to have managed the staff members of
defendant No.1 and handed over the possession of the suit premises
without the knowledge and consent of the plaintiff and has also taken
money for temporary alternate premises. Since the plaintiff has been
held eligible for permanent alternate accommodation in the rehab
building, the plaintiff is therefore, entitled for permanent alternate
accommodation, the rent for temporary alternate accommodation and
all other benefits under the Slum Rehabilitation Scheme as applicable to
all other eligible occupants of the suit property. The defendant No.1 is
not eligible for any benefit under the Slum Rehabilitation Scheme
including the rent for the transit accommodation. Therefore, the
plaintiff has filed present suit and taken out present Notice of Motion
wherein she has pressed for relief under clause (b) that pending and
hearing and disposal of the suit the defendant No.1 be ordered and
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directed to reserve one flat for plaintiff in the proposed newly
constructed rehab building on the suit property.
5. The defendant No.2 has strongly opposed Notice of Motion
by filing his affidavit in reply. It is submitted that the plaintiff has not
come to this Hon’ble Court with clean hands. She has suppressed
various material facts and documents from this Hon’ble Court. The
defendant No.2 is the lawful owner and occupier of the suit premises.
He has been residing in the suit premises alongwith his family members
and all the relevant documents of the suit premises are standing in the
name of defendant No.2 such as Ration Card, Election Card, Aadhar
Card, Electricity Bill etc. The name of defendant No.2 is also included
in the Election Roll of the year 1995 at the address of the suit premises.
In the survey conducted by the State Government of Maharashtra, the
suit premises was surveyed in the name of the defendant No.2 and the
defendant No.2 has been held as lawful occupier of the suit premises
and the Survey Receipt in respect of survey done by the State of
Maharashtra providing Photo Pass bearing Survey Receipt No.1036535
dated 27.07.2000 has been done in the name of defendant no.2. Thus,
defendant No.2 has been in exclusive use, occupation and possession of
the suit premises and has been exclusively paying all the outgoing of the
suit premises to the BMC and other concerned authorities. The
defendant No.1 and the society of Slum Dwellers namely “Sai Baba
Nagar Co-op. Hsg. Soc. (Proposed) have also signed and entered into
Agreement dated 24.12.2014 in respect of the redevelopment of the suit
premises.
6. It is further contended that the defendant No.2 came to
know that behind the back of the defendant No.2, the name of the
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plaintiff was included/certified in the Annexture-II prepared in respect
of the redevelopment of the suit premises at Sr. No.730. Therefore, the
defendant No.2 filed Application dated 19.08.2015 before the
Competent Authority i.e. The Assistant Municipal Commissioner,
G/South Ward, Mumbai to correct the said mistake and include the
name of the defendant No.2 in the Annexture-II prepared for
redevelopment of the suit premises. However, till today, his name is not
included in the Annexture-II. Hence, defendant No.2 sent letter dated
30.05.2016 through advocate and applied to the competent authority
for including his name in the Annexture-II, but no reply is received in
respect thereof. It is submitted that the plaintiff has no concern with
the suit premises and therefore, Notice of Motion be dismissed with
costs.
7. Perused Notice of Motion and affidavit in reply filed by
defendant No.2. No reply has been filed by defendant No.1. Also
perused documents produced on record by both the parties. Heard
learned advocates for both the parties at length.
8. The following points arise for my determination and I have
recorded my findings to them for the reasons stated below.
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff has proved his
prima
facie case?
In the
Negative
2 Whether the balance of convenience lies in
favour of the plaintiff ?
In the
Negative
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3 Whether the plaintiff has proved that he
will suffer irreparable loss if the Notice of
Motion is rejected?
In the
Negative
4 What order? As per the final order
R E A S O N S
AS TO POINT NOS.1 TO 3 :
9. As all the three points are interlinked with each other, in
order to avoid repetition, I am discussing them together.
10. It appears from the rival pleadings that both the plaintiff
and defendant No.2 are claiming to be owners as well as occupiers of
the suit premises. According to the plaintiff, the plaintiff and her
husband are the owners of the suit premises. After the death of her
husband in the year 2003, she permitted defendant No.2 to occupy the
suit property alongwith the plaintiff gratuitously, being relative of the
plaintiff. The defendant No.2 has no right of whatsoever nature in the
suit premises. Since last 2 years the plaintiff was required to stay at
native place to look after agricultural land and during her absence,
defendant No.2 managed with defendant No.1 and handed over the
possession of the suit premises to defendant No.1 behind her back and
has also taken money for temporary alternate accommodation.
According to the plaintiff, she was in actual possession of the suit
premises. In the course of process of redevelopment eligibility of the
occupants of the slum area has been finalized by the Competent
Authority appointed by the SRA. The Competent Authority has
published Annexure-II wherein the plaintiff has been held as eligible at
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serial No.730 of Annexure-II. The copy of which is produced on record
at Exhibit-B. Therefore, according to the plaintiff, she is entitled to
permanent alternate accommodation. Therefore, she prayed that the
defendant No.1 be ordered and directed to reserve one flat for plaintiff
in the proposed newly constructed rehab building on the suit property
till pending and hearing and disposal of the suit.
11. As against this, the defendant No.2 has claimed that he is
the owner as well as occupier of the suit premises. However, the
defendant No.2 has not explained as to how he acquired the suit
premises. However, it is the contention of defendant No.2 that he is in
actual possession of the suit premises since many years and eligibility
for redevelopment scheme is being decided only on the basis of actual
occupancy and not on the basis of ownership. Therefore, he has made
correspondence with the Competent Authority for correcting the
mistake in the tenancy list and for deleting the name of the plaintiff and
including the name of defendant No.2 in the Annexture-II, to which no
reply is received. In order to prove the possession of the suit premises,
the defendant No.2 has produced on record copy of the Ration Card,
Election Card, Aadhar Card and Electricity Bills at the address of the
suit premises and filed Voter List dated 01.01.1995 and also produced
on record copy of Individual Agreement executed/entered into between
defendant No.1 and defendant No.2. On the basis of said documents, it
is claimed by defendant No.2 that he is the occupier of the suit
premises.
12. Per contra, the plaintiff has produced on record certain
documents to show that she was in possession of the suit premises. She
has produced on record copy of extract of Election Roll, copy of Ration
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Card and Electricity Bills at the address of the suit property and claimed
that she is in occupation of the suit property.
13. Now, admittedly, the defendant No.1, developer has
undertaken to develop “Saibaba Nagar” under Slum Rehabilitation
Scheme wherein the suit premises is situated. In the course of process of
redevelopment eligibility of the occupants of the slum area has been
finalized by the Competent Authority appointed by the SRA and the
Competent Authority has published Annexure-II wherein the plaintiff
has been held as eligible at serial No.730 of Annexure-II. However,
according to defendant No.2, the plaintiff has illegally got entered her
name in the Annexture-II. Further, it appears from documents produced
on record that the Competent Authority has issued notice to slum
dwellers dated 14.09.2015 for vacating their huts and had given them
hearing on 30.05.2015, It appears that since the plaintiff was not
residing in the hut, notice was served upon defendant No.2 who
remained present for hearing on behalf of the plaintiff.
14. The Competent Authority vide Order dated 10.10.2016
directed the plaintiff to vacate hut within 48 hours by accepting the
amount of rent offered by developer or by accepting the house provided
by the developer. Thereafter, the defendant No.2 challenged the said
order of Competent Authority before the Additional Collector, Mumbai
City, Mumbai who rejected the appeal of defendant No.2. However, by
considering the claim of defendant No.2, the Additional Collector
directed the Competent Authority to make necessary inquiry regarding
the occupancy of the applicant in the hut and to take necessary action
before demolishing their huts.
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15. Thus, it appears that as per the Order of the Additional
Collector, Mumbai, the Competent Authority is directed to make inquiry
and to decide the eligibility/claim of the defendant No.2 after verifying
the occupation and possession of the suit premises. Therefore, though
the name of the plaintiff is appearing in the Annexture-II, at this stage
of the suit, the matter regarding eligibility of plaintiff and defendant
No.2 is pending before the Competent Authority who has to take
decision of the same. Therefore, at this stage of the suit, the prayer of
the plaintiff that pending and hearing and disposal of the suit the
defendant No.1 be ordered and directed to reserve one flat for plaintiff
in the proposed newly constructed rehab building on the suit property
cannot be allowed. The said prayer is premature and unless eligibility is
decided by the Competent Authority, no such directions can be given as
prayed by the plaintiff.
16. Considering the facts of the case and the documents on
record, I have come to the conclusion that the plaintiff has failed to
make out
prima-facie case. The balance of convenience also does not
lie in favour of the plaintiff. In such circumstances, if Notice of Motion
is not allowed, no irreparable loss would be caused to the plaintiff. On
the other hand, the defendant No.2 will definitely suffer irreparable
loss, if Notice of Motion is allowed. Hence, I answer point Nos. 1 to 3 in
the negative.
AS TO POINT NO.4.
17. In view of negative findings to Point Nos.1 to 3, I hold that
the Notice of Motion is liable to be dismissed with costs. In the result, I
proceed to pass the following order:-
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ORDER
1. Notice of Motion No. 1059 of 2018 is hereby
dismissed with costs.
2. Notice of Motion No. 1059 of 2018 is disposed of
accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 17.07.2023 Gr. Bombay.
Dictated on : 17.07.2023
Transcribed on : 17.07.2023
Signed on : 19.07.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20/07/2023 At 4.00 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
17.07.2023
Judgment/Order signed by P.O. on 19.07.2023
Judgment/Order uploaded on 20.07.2023
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