Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1262/18
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
Notice of Motion No. 1262 of 2018
In
Suit No. 885 of 2018
Mrs. Sulochana Shankar Khedekar ...Plaintiff.
V/s.
The Deputy City Engineer (ZoneII)
Mumbai Building Repairs and
Reconstruction Board & Ors.. ...Defendants.
Appearances: Ld. Adv. Mr. Joseph for the plaintiff.
Ld. Adv. Mr. Kandekar for defendant Nos.1 & 2
Ld.Adv. Mr. Nalawade for defendant No. 3.
Ld.Adv. Mr. Bharat Jain for defendant No. 4.
Coram : D.K. Gudadhe, Adhoc Judge.
(C.R.No. 12)
Dated: 28th September, 2018
Order
1. This notice of motion is taken out by the plaintiff to
restrain defendants from implementing and enforcing order dated
12.03.2018, issued by defendant No. 2 in respect of suit room in a suit
for permanent injunction for the same. The facts of the plaintiff's case
in short are as under.
2. According to the plaintiff, she is a tenant in respect of
room No. 2, Ground Floor, Building No. 53, Kambatty Chawl,
Gharapure Path, Mumbai and the same has been more specifically
described in para one of the plaintiff. The suit and this notice of
-- 1 of 7 --
2 NM 1262/18
motion is in respect of this room and hereinafter referred to as suit
room for the sake of brevity.
3. The building in which suit room is housed alongwith other
buildings are proposed to be developed by MHADA Authorites i.e.
defendant Nos. 1 and 2. Not only this, as per the provisions of MHADA
Act, the redevelopment process even commenced. However, such
process is not being carried with the consent of 70% of tenement
holders of the suit buildings. But the MHADA authorities hand in
glove with the developers i.e. defendant Nos. 3 and 4 grant NOC to
them. Thereafter, defendant Nos. 3 and 4 also got the notice of
eviction issued by the MHADA Authorities as per the provisions of Sec.
95A of MHADA Act, 1976. Even before the receipt of this notice, the
plaintiff filed interpleader suit against defendant Nos. 3 and 4 who
claimed to be owner of the building in which suit room is housed. Not
only this, in that proceeding she also got injunction against the
defendant Nos. 3 and 4 who are builders, to implement the scheme of
redevelopments as proposed by MHADA, not to evict the plaintiff
without adopting due process of law. In spite of this order, defendant
Nos. 3 and 4 or any of them got the eviction notice issued to the
plaintiff. Since, the issuance of such eviction notice is perse illegal,
the plaintiff filed the suit and taken out this notice of motion to
restrain all the defendants from implementing or acting upon the said
notice.
4. However, during pendency of this notice motion, the
plaintiff came to be evicted in view of the said eviction order and
therefore, the plaintiff by way of amendment prayed for restoration of
the possession and further restrain defendants from proceeding ahead
-- 2 of 7 --
3 NM 1262/18
with the redevelopment project until disposal of the suit.
5. Defendant Nos. 1 and 2 filed their reply opposed the
plaintiff's case contending that the impugned notices are not null and
void on a ground that they have followed all the rules and regulations,
which are applicable of redevelopment of such project. They further
contended that the said project is implemented with the consent of
more than 70% of the tenement holders and even there is no dispute in
respect of ownership of the building in which suit room is housed.
Defendant No. 3 sold the property to defendant No. 4 and now
defendant No. 4 is a sole owner of the said building. In view of these
facts, according to them, there is no substance in the notice of motion
as well as suit and hence, deserves to be dismissed.
6. Defendant No. 3 did not file reply. Defendant No. 4 filed
detail reply. However, he filed an application to dismiss the suit
against it on a ground that it has already disposed of the said building
in favour of defendant No. 4 filed registered conveyance deed dated
27.11.2015. Defendant opposed the application on similar ground as
that of defendant No. 1 and 2 and prayed for dismissal of the notice of
motion.
7. On these rival contentions of the parties, the points that
arise for determination are as follows. I have given my findings thereon
for the reasons mentioned in the subsequent paras.
Sr.No. POINTS FINDINGS
1. Whether the plaintiff has got prima facie
case ? No.
-- 3 of 7 --
4 NM 1262/18
2. Whether the balance of convenience lies
in favour of the plaintiff ?
No.
3. Whether the plaintiff would suffer
irreparable loss, if injunction is withheld ? No.
4. What order? As per final order.
Reasons:
As to Point No.1:
8. From the pleadings of the plaintiff, it clearly seen that she
wants to say that the impugned notices are null and void because of the
two facts viz., 1) the project of redevelopment is not being implemented
with the permission of more than 70% occupier/tenant of the said
building, 2) there is ownership dispute over the building in which the
suit room is housed between defendant Nos. 3 and 4 and still MHADA
granted NOC. Therefore, lets see what the plaintiff has brought on
record in respect of this.
9. The plaintiff relied upon the documents, which referred to
and relied on in the plaint. However, from these documents, it nowhere
seen that the consent of more than 70% of the tenement holders was
not taken, nor there is any dispute between the owners of the said
building in which suit room is situated. On the contrary, the documents
which defendants filed clearly go to show that the redevelopment is
being implemented with the consent of more than 70% tenant and
further, it is seen that defendant No. 3 transferred his ownership right
to defendant No. 4 on 27.11.2015. In addition to this, what is
-- 4 of 7 --
5 NM 1262/18
important to note here is that defendant Nos. 1 and 2 being authority
has made a statement in respect of this and even filed some supporting
documents to it. Therefore, its statement cannot be easily brushed
aside simply because the plaintiff is saying that defendant Nos. 1 and 2
are hand in glows with builder.
10. The another point which has bearing on this fact is that if
the consent of 70% occupier/tenant were not taken then these tenants
would have raised their grievance before the competent forum. But
there appears no such grievance even the plaintiff's grievance is null on
the point that the implementation of the project and passing of the
impugned order is nullity because of the two grounds mentioned
earlier, but it is seen that there is no substance in it.
11. I am mindful of the fact that, it is the contention of the
plaintiff that he he had filed a suit for interpleader against defendant
Nos. 3 and 4 to decide who is her landlord and even the competent
forum granted injunction. But the said injunction is only to restrain
these defendant Nos. 3 and 4 from evicting the plaintiff without
adopting due process of law. Defendant No. 4 rightly approached
MHADA authority i.e. defendant Nos. 1 and 2 and they opposed the
impugned order which exfacie does not appear to be nullity. So the
contention of the plaintiff that despite injunction order issued by the Ld.
Small Causes Court, defendants have evicted them appears to be
substance less.
12. Further, apart from two objections referred earlier, it
appears that the plaintiff does not have any other grievance against the
implementation of redevelopment scheme. As observed earlier, the
-- 5 of 7 --
6 NM 1262/18
impugned notices do not appears to be null and void at least at this
stage. Therefore, in my humble opinion, the plaintiff has got no prima
facie case. Accordingly, I answer this point.
As to Point Nos. 2 & 3:
13. So far as these points are concerned, since the plaintiff has
got no prima facie case, I do not think she would suffer any
inconvenience and sustain any irreparable loss if injunction is not
granted. Accordingly, I answer these two points in the negative.
As to Point No. 4 :
14. In view of my findings to the above points and reasons for
the same, I hold that Notice of Motion deserves to be rejected.
Accordingly, I answer to this point and proceed to pass order in
following terms:
Order
1. Notice of Motion is hereby rejected.
2. Accordingly, Notice of Motion is disposed of.
(D.K. Gudadhe)
Adhoc Judge,
28.09.2018 City Civil Court, Gr. Bombay.
Dictated on : 28.09.2018
Transcribed on : 01.10.2018
Signed on : 06.10.2018
-- 6 of 7 --
7 NM 1262/18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 06.10.2018 5.00 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri D.K. Gudadhe
(C.R.No.12)
Date of Pronouncement of
JUDGMENT /ORDER
28.09.2018
JUDGMENT /ORDER signed by P.O. on 06.10.2018
JUDGMENT /ORDER uploaded on 06.10.2018
-- 7 of 7 --