Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1528 OF 2019
(CNR NO. MH CC010040562019)
IN
L.C. SUIT NO. 1485 OF 2019
CNR NO. MH CC010037062019)
Shaikh Mohammed Shamim Hakim ]
Kasim, ].. Plaintiff.
V/s.
1 Maharashtra Housing Area and ]
Development Authority and 17 others ]..Defendants
Advocate Mr. Altaf Khan for the plaintiff.
Advocate Mrs. Prabhu for defendant nos.1 and 2.
Advocate Mr. Bhandang for defendant nos.3 to 18.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 5th AUGUST 2019
ORAL ORDER
This Notice of Motion has been taken out by the plaintiff
for granting temporary prohibitory injunction order staying the effect,
implementation operation of the impugned order dated 08.03.2019 in
all manners qua the suit premises.
-- 1 of 26 --
2 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
2 In support of notice of motion, the plaintiff has filed his
affidavit. He has placed his reliance in the pleadings in the plaint. It is
averred that the plaintiff has made out prima facie case. If prayers are
not granted sought in the notice of motion, irreparable harm and injury
will be caused to the plaintiff Hence, prayed for allowing notice of
motion.
3 Defendant nos.1 and 2 have filed affidavit in reply by filing
an affidavit of Mr. Nilesh B. Suryawanshi, the Executive Engineer of DI
Ward of M.B.R. and R Board of defendant no.1. He has opposed this
notice of motion and denied each and every allegations made by the
plaintiff in the plaint, which are contrary to and inconsistent with what
is stated by the defendant in his affidavit.
4 It is contended that the plaintiff has not given statutory
notice under section 173 of the MHADA Act. The suit is not
maintainable as these defendants have not yet passed the order under
section 95(A)(2) of the MHAD Act 1976 against the plaintiff although
earlier show cause notice dated 30.08/2018 was given to the plaintiff in
respect of the suit shop no.33A under section 95(A)(1) of MHAD Act
1976. Though the opportunity was given to the plaintiff for hearing on
07.09.2018 at the office of the Executive Engineer of DI Ward of
M.B.R. and R Board of defendant no.1, neither the plaintiff nor his any
representative attended the hearing.
5 It is further contended that the plaintiff is in occupation
and possession of shop no.3 on the ground floor of the suit building
known as “Ibrahim Manzil” in the Bhendi Bazar area and the said
building is a cessed building of about 70 years old and consist of ground
-- 2 of 26 --
3 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
plus two upper floors. In the said suit building there were 40 tenants/
occupants, out of which 23 tenants/occupants have already vacated
their respective premises in the said building. The plaintiff has not
vacated his suit shop in the said building.
6 Defendant no.3 is the owner of the said land along with
suit building. The said land and the suit building standing thereon are
a part of a cluster redevelopment. The principle approval from the
Government of Maharashtra has been given for the said cluster
redevelopment project of the Bhendi Bazar area vide TPB
4310/4761/CR3/11/UD11 dated 22.07.2011. Accordingly, the letter
of intent (LOI) is issued to defendant no.3 by the Deputy Chief Engineer
(B.P.), City of MCGM on 10.08.2011 and revalidated from time to time.
7 It is further contended that the suit building is very old and
it is in dilapidated condition. Defendant no.3 as per terms and
conditions of LOI has allotted transit accommodation/given
compensation/rent to all the tenants/occupants for vacating their
premises and shifting in temporary accommodation. Defendant no.3
vide their letter dated 02.05.2018 have also requested the plaintiff to
vacate his premises and to shift to temporary accommodation by
executing the agreement with defendant no.3 trust, so as to avoid any
further mishaps, accident and/or losses of life and property. Even, the
Executive Engineer of C1 Division of M.B.R.R. Board vide his notice
dated 22.01.2018 has also issued notice under section 77(b) of MHDA
Act 1976 to the tenants/occupants of the suit building with the request
to vacate the said premises immediately. Inspite of this notices to vacate
the suit premises, the plaintiff has failed to hand over the peaceful
-- 3 of 26 --
4 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
possession of his premises. Hence, defendant no.3 has issued one letter
dated 11.06.2018 to the plaintiff for vacating the premises. Then on
30.08.2018, show cause notice was issued under section 95(A)(1) of
MHAD Act 1976 to the plaintiff and called upon for hearing on
07.09.2018. As the plaintiff remained absent, order has been passed on
08.03.2019 to hand over the vacant and peaceful possession of the
premises within a period of seven days, failing which summary eviction
as laid down under section 95(A)(2) of MHAD Act 1976 will be
initiated.
8 It is further contended that defendant no.3 has complied
with all the requirements, as set out under section 95(A) of the MHAD
Act 1976 and has also received 70% consent of all the
tenants/occupants of the said building. Therefore, defendant No.3 trust
was given the LOI from the planning authority. The entire
redevelopment scheme is the public Housing project, undertaken by
defendant no.3 is being obstructed by the occupants of the subjected
premises. Therefore, it is necessary that action of summary eviction is
initiated and vacant and peaceful possession of the suit premises is
handed over to defendant no.3 to facilitate the said cluster
redevelopment scheme in larger interest of majority of
tenants/occupants, who have also consented and vacated the respective
premises for implementation of the Housing scheme under D.C.R. 33(9)
read with AppendixIII of D.C.R. of Greater Mumbai 1991.
9 It is further contended that on 25.04.2014, the then
Executive Engineer vide a letter, issued to the tenant/occupant of the
said suit building along with a list of certified tenants/occupants of the
suit building and it was marked to defendant no.3 also. The plaintiff
-- 4 of 26 --
5 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
has been certified as the eligible tenant/occupant as part of the
aforesaid list and they have also measured the carpet area of the
plaintiff's premises as 37.48 sq. meters, which is @ 404 square feet.
10 It is further contended that non vacation by the plaintiff of
the suit premises in the said building is indirectly posing a great danger
to their own lives as well as to the lives and properties of neighbouring
tenants/occupants and even to the passerby. Moreover, delay in taking
any action of vacation of the suit premises will stall the whole public
housing project. Not only this, but indirectly it will cause prejudice to
the tenants/occupants, who have vacated their respective tenements
and who are eagerly waiting for their permanent houses. After initiating
the summary eviction the plaintiff will be requested to shift himself into
the temporary accommodation and from there to shift in permanent
accommodation. Therefore, by passing the summary eviction order
under 95(A)(2) MHAD Act no harm or loss or prejudice would be
caused to the plaintiff as alleged. Hence, prayed for dismissal of notice
of motion.
11 Defendant nos.3 to 18 appeared and defendant no.13 being
a trustee of defendant no.4 has filed affidavit in reply. The plaintiff has
filed suit belated and afterthought and with an intent to prolong the
vacation process initiated by defendant no.2 i.e. MBRRB under section
95A of the Maharashtra Housing and Area Development Act. Defendant
no.3 is a public charitable trust created under a Deed of Trust dated
23.01.2009 registered under the provisions of Maharashtra Public Trust,
1950, with its main object being the upliftment of the lives of more than
twenty thousand residents of the the Bhendi Bazar area, admeasuring
approximately 16.5 acres equivalent to about 66,773.13 square meters
-- 5 of 26 --
6 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
and bearing 280 separate cadastral survey numbers. The plaintiff is in
occupation and possession of shop no.3 (the suit premises) on the
ground floor of a building known as “Ibrahim Manzil (“said building).
The said building is about 70 years old and consists of ground floor plus
2(two) uppers floors and is situated on land bearing C.S. No.4303,
situated at Ibrahim Raheemtulla Road, Bhendi Bazar, Mumbai. The
said building was occupied by 44 tenants/occupants out of which 27
tenants/occupants have vacated their respective premises in the said
building. The plaintiff has not vacated its respective premises in the
said building.
12 Defendant no.3 is the owner of the said land and the said
building. The said land and the said building standing thereon are a
part of a cluster redevelopment scheme comprised of several
dilapidated buildings being undertaken by defendant no.3 in
accordance with Regulation 33(9) read with AppendixIII of the
Development Control Regulations of Greater Bombay under the Urban
Renewal Scheme. In view of dangerous condition of the said building,
defendant no.2 has issued noticed dated 28.03.2011 under section
76(a), 77 and 90 of the MHAD Act to all the tenants/occupants of the
said building.
13 The High Power Committee constituted under Regulation
33(9) of the DCR granted a Letter of Intent dated 10.08.2011 to
defendant no.3 with the necessary permissions to implement the
Scheme on the terms and conditions set out therein. On 25.04.2014,
defendant no.2 vide its letter issued to the tenants/occupants of the said
building, a list of the certified tenants/occupants of the said building.
Defendant no.2 has measured the total builtup area of the suit
-- 6 of 26 --
7 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
premises at 44.07 sq. meters or 475 square feet. The Chief Officer of
defendant no.2 has issued a demolition order dated 30.09.2016 for the
said building. On 31.08.2017, Mumbai was hit with heavy rainfall and
Hussain Building i.e. a building that forms a part of the Scheme
collapsed on a Shed Shop. The untoward incident caused the death of
33 residents and passersby.
14 It is further contended that on 05.04.2018, defendant no.2
has issued a warning notice to the tenants/occupants of the dilapidated
condition of the said building. On 02.05.2018, defendant no.3 has
issued a notice to the plaintiff, asking him to vacate the suit premises in
the said building and take rent from defendant no.3 to shift into
temporary alternate accommodation of their choice. Subsequently,
defendant no.3 addressed a letter dated 10.05.2018 to the plaintiff
calling upon him to vacate the suit premises and accept rent in lieu of
transit accommodation promptly. It was stated in the said letter that in
the event the plaintiff failed to shift to vacate the suit premises,
defendant no.3 shall be compelled to initiate proceedings under section
95A of the MHAD Act. On 30.08.2018, defendant no.2 has issued a
notice 95A of the MHAD Act to the plaintiff and given an opportunity
for hearing on 07.09.2018. Pursuant to the hearing on 07.09.2018, as
the plaintiff was not present., order has been passed on 08.03.2019.
Defendant no.3 has complied with all the prerequisites under section
95A of the MHAD Act and has received 70% consent of the
tenants/occupants of the said building, received an NOC from the
planning Authority and is also providing rent in lieu of transit
accommodation. The plaintiff has wrongly alleged that the plaintiff was
present at the hearing provided by defendant no.2 on 07.09.2018. The
plaintiff has raised objection with respect to the 95A Notice and 95A
-- 7 of 26 --
8 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
Order for the first time only vide the plaintiff's advocate letter dated
31.03.2019.
15 It is further contended that defendant no.3 is providing
rent in lieu of alternate accommodation as compensation to the plaintiff
at Rs.250/ per square feet for total area of the suit premises as a matter
of policy and as provided to similarly placed tenants. The plaintiff and
defendant no.3 shall execute a Temporary Alternate Agreement which
shall set out the rent that shall be provided to the plaintiff until the
plaintiff's permanent accommodation is constructed and handed over.
Furthermore, the Temporary Alternate Agreement shall set out details
of the area and location of the permanent accommodation that will be
provided to the plaintiff, as has been previously done with similarly
placed tenants. Prior to handing over the possession of the permanent
alternate accommodation, defendant no.3 shall execute a Permanent
Alternate Accommodation Agreement (PAA) with the plaintiff and the
same shall be stamped and registered by defendant no.3 at their own
cost and expenses. The plaintiff shall be rehabilitated in Sub Cluster 6A
of the Scheme which is the same Sub Cluster in which the plaintiff is
presently located.
16 It is further contended that the plaintiff in malafide manner
and as an afterthought has sought to disrupt the Scheme and
contravene the directions under the 95A Order, by filing the the present
suit and notice of motion to achieve ulterior motive. Nonvacation by
the plaintiff of the suit premises in the said building is in effect posing a
threat to their own lives, as well as the lives of their relatives residing
with them, neighbouring tenants and passersby. The delay in vacation
-- 8 of 26 --
9 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
of the suit premises is disrupting the execution of the scheme and is
adversely affecting the tenants/occupants of Bhendi Bazar Area. The
entire Scheme is being controlled by MHADA, so far as the
tenants/occupants of Bhendi Bazar are concerned. The plaintiff's rights
are sufficiently protected.
17 It is further contended that the circular referred by the
plaintiff is irrelevant as the same pertains to a redevelopment scheme
under Regulation 33(10) of the DCR. This Court has no jurisdiction to
try and entertain the suit. The plaintiff has not established primafacie
case. Hence, prayed for dismissal of notice of motion with costs.
18 The plaintiff has filed rejoinder by filing affidavit.
19 Heard the learned advocate Mr. Altaf Khan for the plaintiff
and the learned advocate Mrs. Prabhu for defendant nos.1 and 2.
Heard the learned advocate Mr. Bhandang for defendant nos.3 to 18.
20 In view of pleadings, the following points arise for my
determination. I have recorded points and findings thereon alongwith
the reasons are as follows:
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff has established
prima facie case ?
In the
Negative.
2 Whether balance of convenient lies in
favour of the plaintiff ?
In the
Negative
-- 9 of 26 --
10 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
3 To whom irreparable loss would be
caused, if this notice of motion is
allowed ?
To the
Defendants
4 What Order ? As per final Order
R E A S O N S
21 Before going to discuss on the points, I would like to
mention that it is not in dispute that the Government of Maharashtra
has granted the principle approval on 22.07.2011 for the cluster
redevelopment project of the Bhendi Bazar area and the letter of intent
(LOI) is issued to defendant no.3 by the Deputy Chief Engineer (B.P.),
City of MCGM on 10.08.2011 under Urban Renewal Cluster
Redevelopment Scheme of Bhendi Bazar under DCR 33(9). Defendant
no.3 is a public charitable trust created under a Deed of Trust dated
23.01.2009 registered under the provisions of Maharashtra Public Trust,
1950, with its main object being the upliftment of the lives of more than
twenty thousand residents of the the Bhendi Bazar area, admeasuring
approximately 16.5 acres equivalent to about 66,773.13 square meters
and bearing 280 separate cadastral survey numbers. Defendant no.3 is
the owner of the said land and the said building. The said land and the
said building standing thereon are a part of a cluster redevelopment
scheme comprised of several dilapidated buildings being undertaken by
defendant no.3 in accordance with Regulation 33(9) read with
AppendixIII of the Development Control Regulations of Greater
Bombay under the Urban Renewal Scheme.
22 Admittedly, the plaintiff is the tenant of Ibrahim Manzil,
suit premises shop no.033A Situated on ground floor, C.S. No.4303,
-- 10 of 26 --
11 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
Ibrahim Rahemtulla Road, Bhendi Bazar, Mumbai 400 003 having area
admeasuring 424 sq. feet and MBR&R Board has issued list of tenants in
which, the suit premises is included for redevelopment of this property
under Reg No.33(9) of DC Regulation, 1991. The plaintiff has been
certified as the eligible tenant/occupant as a part of certified list
prepared.
23 By this suit, the plaintiff has challenged the impugned
notice and impugned order dated 08.03.2010 issued by defendant no.2
in respect of the suit premises under section 95A of the MHAD Act
being illegal, null, void and badinlaw. The plaintiff has admitted that
the basic intention of the project is the betterment and upliftment of the
plaintiff and for his rehabilitation. According to the plaintiff, he has not
opposing the implementation of the project and he is seeking proper
transit accommodation/transit rent fairly decided, adjudicated by the
proper authority. The plaintiff has denied that the building is in
dilapidated condition. According to the plaintiff, the temporary
alternate accommodation agreement claimed by the Developer is also
prepared unilaterally. The draft Agreement provided to the plaintiff
does not disclose anything about the details of area and location of the
permanent accommodation. The private builder has claimed of
providing commercial premises on second floor, whereas, he has kept
the ground floor areas exclusively for their sale components. The
present commercial premises of the plaintiff is situated on the ground
floor. In this background, let us consider points.
AS TO POINT NO.1
24 The plaintiff has filed on record copy of impugned show
cause notice dated 30.08.2018 and subsequent Order dated 08.03.2019
-- 11 of 26 --
12 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
It appears that defendant no.2 has issued notice under section 95A(1)
MHAD Act in respect of suit building Ibrahim Manzil mentioning
therein in respect of the principle approval from the Government of
Maharashtra for the said cluster redevelopment project of the Bhendi
Bazar area vide TPB4310/4761/CR3/11/UD11 dated 22.07.2011 and
issuance of letter of intent (LOI) to defendant no.3 by the Deputy Chief
Engineer (B.P.), City of MCGM on 10.08.2011 and further mentioned
about revalidating the same from time to time and requested to execute
the Agreement with defendant no.3 and vacate the premises by shifting
to the transit accommodation. Defendant no.2 has also mentioned in
respect of issuance of notice dated 22.01.2018 under section 77(b) of
MHDA Act 1976 to the tenants/occupants of the suit building with the
request to vacate the said premises immediately. Further, in the said
notice, defendant no.2 has mentioned that due to old age and
dilapidated condition of the suit building, it is prone to any serious
mishaps, collapse and disaster endangering the lives and properties of
the other tenants/occupants.
25 It is urged by the learned advocate for the plaintiff that the
suit building is not in dilapidated condition. It is urged by the learned
advocate for defendants that the State of Maharashtra has approved the
project of Bhendi Bazar and issued Letter of Intent on 10.08.2011 and
it is under Regulation 33(9) read with AppendixIIIA of the
Development Control Regulation. It is urged that the present cluster
redevelopment scheme comprised of several dilapidated buildings and
in view of the dangerous condition of the said building notice dated
28.03.2011 was issued by defendant no.2 under section 76(a), 77 and
90 of the MHAD Act, 1976 to all the tenants/occupants of the said
building.
-- 12 of 26 --
13 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
26 Defendant nos.3 to 18 have filed on record copy of notice
dated 10.05.2018 issued to the plaintiff by defendant no.3 and copy of
the same has been given to defendant nos.1 and 2. It appears that in
the said notice, defendant no.3 has mentioned in respect of issuance of
notice by defendant no.3 on 28.03.2011 for taking necessary action
immediately, in view of the facts that the most of the buildings coming
under the said cluster redevelopment project have outlived its life and
standing in a dilapidated condition. Accordingly, it appears that notice
dated 10.05.2018 was issued to the plaintiff by defendant no.3 and it
was made clear that defendant no.3 asked the plaintiff to vacate non
residential premises, in lieu of rental compensation that SBUT will offer
as per policy, and shift to alternate accommodation and along with the
said letter, defendant no.3 has sent Draft Agreement for temporary
alternate accommodation to the plaintiff.
27 Thus, primafacie it appears that defendant no.2 informed
the plaintiff that the suit premises was found to be dangerous/unfit for
human habitation and asked the plaintiff to vacate the said premises.
Further, it appears that defendant no.3 called upon the plaintiff to
execute the agreement with defendant no.3 and vacate the premises.
However, the plaintiff has not vacated the suit premises. Further, a
perusal of section 95A of MHAD does not indicate that for issuance of
notice to vacate under section 95A of the said Act, the building is
required to be in dilapidated condition.
28 Section 95A of MHAD Act provides where the owner of a
building or the members of the proposed cooperative housing society of
the occupiers of the said building, submits a proposal to the Board for
-- 13 of 26 --
14 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
reconstruction of the building, after obtaining the written consent of not
less than 70 per cent of the total occupiers of that building and a No
Objection Certificate for such reconstruction of the buildings is issued
by the Board, to the owner or to the proposed cooperative housing
society of the occupiers, as the case may be, then it shall be binding on
all the occupiers to vacant the premises. Even, there is punishment
provided in section 95A of the MHAD Act against such person, who
refuses to vacate such premises or obstructs such eviction. Therefore, in
the background of Letter of Intent under the said Cluster
Redevelopment Scheme sanctioned by the State of Maharashtra under
Regulation 33(9) of the Development Control Regulation in favour of
defendant no.3, I am of the view that there is no substance in the
arguments of the learned advocate for the plaintiff to take into
consideration condition of the said building. Apart from, in view of the
documents tendered by the defendants, prima facie it is acceptable that
the suit building is in dilapidated condition and it is very old building.
In view of issuance of notice under section 77(b) of the MHAD Act,
submissions of the advocate for the plaintiff that the suit building is not
in dangerous condition has no merits.
29 The plaintiff has not challenged the principle approval has
been given from the Government of Maharashtra for the said cluster
redevelopment project of the Bhendi Bazar area vide TPB
4310/4761/CR3/11/UD11 dated 22.07.2011 and accordingly,
issuance of letter of intent (LOI) to defendant no.3 by the Deputy Chief
Engineer (B.P.), City of MCGM on 10.08.2011 and revalidated from
time to time.
-- 14 of 26 --
15 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
30 Further, it appears primafacie that defendant no.2 has
issued letter to the tenant/occupants of the suit building and list of
certified tenants/occupants of the suit building. A copy of the said list
was given to defendant no.3. Primafacie, it reveals that the plaintiff
has been certified as the eligible tenant/occupant as part of the said list.
It appears that the defendants have also measured the carpet area of the
plaintiff premises. Thereafter, it seems that on 30.09.2016, defendant
no.2 has issued demolition order for the said building whereby the
Chief Officer of defendant no.2 has opined that the said building,
amongst other buildings, abuts a road and the said building should be
demolished to avoid any mishap or accident and further permitted to
consider objections/suggestions raised by tenants/occupants of
respective buildings.
31 The defendants have filed on record Warning Notice issued
by defendant no.2 to the tenants/occupants of the suit premises by
giving reference of L.O.I. for cluster redevelopment under DCR 33(9) of
Bhendi Bazar area. It appears that by the said letter, the occupants of
the said building were called to their respective premises and requested
to shift to transit accommodation provided by defendant no.3.
Thereafter, on 02.05.2018, defendant no.3 has issued notice to the
plaintiff asking him to vacate the suit premises in the said building and
take rent from defendant no.3 to shift into temporary alternate
accommodation of his choice. The said letter was received by the
plaintiff.
32 Thereafter, on 10.05.2018, again defendant no.3 has issued
-- 15 of 26 --
16 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
letter by mentioning seven days warning to the plaintiff and requested
him to vacate the suit premises and to cooperate to defendants for
demolition of the suit building and failing which it was informed to the
plaintiff that proceedings under section 95A of the said Act, for eviction
of the premises of the plaintiff will be initiated. Draft copy of the
Agreement was also annexed with the said letter. It appears that inspite
of the same, the plaintiff has not vacated the suit premises. Thus,
primafacie, it appears that the defendants have time and again
informed the plaintiff to vacate the suit premises by disclosing issuance
of Letter of Intent in view of approval from the Government of
Maharashtra for cluster of redevelopment project of Bhendi Bazar area.
33 In the above circumstances, on 30.08.2018, defendant no.2
has issued notice under section 95A of the MHAD Act and informed the
plaintiff that the suit building is very old and in a highly dilapidated
condition and had almost outlived its life. The plaintiff was also
informed that as per the terms and conditions of the Letter of Intent had
allotted the transit alternate accommodation/rent compensation to the
occupant/tenant for vacating from the premises and shifting to transit
accommodation and further mentioned that accordingly, the many of
the tenants shifted to transit accommodation. It is further mentioned
that defendant no.3 called upon the plaintiff to execute the agreement
wit defendant no.3 and to vacate the premises by shifting to the
temporary transit accommodation to avoid loss of life and property and
even it is further mentioned that defendant no.2 vide letter dated
22.04.2018 sent notice under section 77(b) MHAD Act and requested
the plaintiff to vacate the premises.
-- 16 of 26 --
17 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
34 Thus, by issuing notice, defendant no.2 called upon the
plaintiff to execute the agreement with defendant no.3 and to vacate
the premises by shifting to the temporary transit accommodation within
seven days from the date of receipt of the said notice. Inspite of this
notice, the plaintiff has not vacated the suit premises. As per the
provisions of MHADA, if the occupants refuses to vacate the premises on
being approached by the holder of such 'no objection certificate' for
eviction of such occupiers, the Board is empowered to effect summary
eviction of such occupiers notwithstanding anything contained in
Schedule IV and VII of the Maharashtra Housing Area Development
Act,1976. Further, primafacie, a perusal of section 95 of MHAD Act
clearly indicates that for invocation of powers under section 95A of the
MHAD Act, three conditions were required to be satisfied i.e. (i)
proposal to the Board for reconstruction of the building to be made by
the owner of a building or the members of the proposed cooperative
housing society of the occupiers of the said building after obtaining the
written consent of not less than 70% of the total occupiers of the
building, (ii) no objection certificate for such reconstruction of the
building is issued by the Board to the owner or to the proposed co
operative housing society of the occupiers and (iii) all the occupants of
such building are made available alternate temporary accommodation
by the holder of such no objection certificate. No objection certificate
for reconstruction granted by the High Power Committee is binding on
all the occupants to vacate the premises.
35 The learned advocate for defendant nos.3 to 18 has placed
his reliance in Radhika George and others V/s. Maharashtra Housing
-- 17 of 26 --
18 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
and Area Development Authority and others reported in 2012(5)
Mh.L.J. 229, wherein Their Lordships has held that;
“The authority issuing the notice under section 95A
of the MHAD Act needs to examine whether it is
collective decision i.e. whether 70% of the members
have consented, whether the permissions like the no
objection certificate are in order and whether the
developer has provided adequate transit
accommodation or not. Once the authority under
section 95A finds that these requirements are
fulfilled, all that it does is to direct the members to
shift to the transit accommodation awaiting
reconstruction. It is further held that the proceedings
under section 95A of the Act cannot be converted
into a full fledged judicial proceedings as if the
authority is trying a civil suit. The provision is not
intended to provide a forum to adjudicate the
dispute interse between the society, members and
the developers.”
36 Thus, considering the compliance of section 95A MHAD
Act, it appears that notice under section 95A(1) of MHAD Act has been
issued to the plaintiff and even prima facie, it appears that opportunity
was given to the plaintiff to remain present for hearing in the office of
defendant no.2 on 07.09.2018 at 5 p.m. It appears that the concerned
authority of defendant no.2 has issued notice under section 95A of
MHAD Act and the notice is not issued for adjudicating dispute
between the rights of the parties interse.
-- 18 of 26 --
19 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
37 Further, the learned advocate for defendant nos.3 to 18 has
placed his reliance in Rashida Shabbir Tinwala and Another V/s.
Bombay Building Repairs and Reconstruction Board and Another
reported in Writ Petition (L) No.1662/2015 with Writ Petition (L)
No.328/2015 in which the present defendant no.3 was respondent no.2
and the said Writ Petition was filed for challenging notice issued by
MBRRB under section 95A of the MHAD Act in respect of room no.27
on second floor and petition no.2 is in occupation of Shop no.32 on the
ground floor of a building called Sardharia Building situated at City
Survey No.3635, 123/127 Pakmodia Street, Bhendi Bazar, Mumbai3.
The said building is a part and parcel of present scheme and letter of
intent dated 10.08.2011. Considering the same Letter of Intent in
favour of present defendant no.2, it has been held that no separate or
independent no objection is required as contemplated under section
95A of the MHAD Act. The reason for coming to this conclusion is one
which is quite simple. The NOC contemplated under section 95A is
issued by the MBRRB under section 79 of the MHAF Act, 1976. the
highest ranking officer of the MBRRB is a party to granting the LOI and
therefore, it is further held that once HPC has issued the Letter of Intent
for Cluster Redevelopment, there is no question of granting separate
NOC, as contemplated under section 95A(1) of the MHAD Act. Thus,
prima facie, it reveals that all conditions prescribed in MHAD Act has
been satisfied by the defendants and thus, defendant no.2 has justified
in issuing notice of eviction under 95A of MHAD Act.
38 Further, the learned advocate for defendant nos.3 to 18 has
placed his reliance in Rashida Hussain Kathawalla and other V/s.
The Executive Engineer reported in Writ Petition (L) No.1554/2019
-- 19 of 26 --
20 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
decided on 12.06.2019. In view of this authority and considering the
present notice in hands, I am of the opinion that in this case also all the
conditions prescribed under section 95A of MHAD Act has been
complied with.
39 It is urged by the learned advocate for the plaintiff that the
Executive Engineer of MBR & R Board, who has issued notice has no
such delegation of power to exercise function of the board. Nothing has
been tendered by the defendants showing delegation of power to
Executive Engineer. On the other hand, it is argued by defendant nos.3
to 18 that this argument is never raised at the time of hearing and even
not pleaded. It is raised for the first time by the plaintiff in written
submission. The new plea without pleadings and even submissions
earlier cannot be raised. He has placed his reliance in State of
Rajasthan and another V/s. H.V. Hotels (P) Ltd. and another
reported in (2007)2 S.C.C.468. With respects the principle held is
applicable to the present set of facts. There are no pleadings in respect
of challenging authority of issuance of notice by the Executive Engineer
of defendant no.2. Further, the defendants have filed a letter dated
08.07.2019, addressed by the Chief Officer of the Board to defendant
no.2, the Board has ratified the actions of defendant no.2. Thus, prima
facie, it appears that defendant no.2 had the authority to pass the order
under section 95A of the MHAD Act. Therefore, it is not acceptable that
notice under challenge was issued by Executive Engineer without
authority.
40 Further, the learned advocate for the defendants has placed
his reliance in Noorjahan Jahangir Ghadiali V/s. State of
Maharashtra reported in Writ Petition (L) No.380 of 2016 decided
-- 20 of 26 --
21 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
on 12.02.2016, wherein it is observed in paragraph no.5 as below;
“The grievance that there is no identification of the
permanent alternate accommodation is not possible
to be redressed at this stage. Once the
redevelopment project envisages construction of
several buildings, then the location and identity of
the tenement, which will be offered to the Petitioner,
cannot be predecided. Respondent no.5 has stated
before us that the redevelopment would be carried
out in accordance with all the terms and conditions
of the project and upon construction, the buildings
would be duly handed over to the statutory body,
namely Maharashtra Housing and Area Development
Authority or its unit. Once such is the nature of the
redevelopment and there is an assurance given that
the redevelopment would be completed and the
construction of buildings and thereafter handing over
the same to the statutory will take place in phase
wise manner, we do not think that in Writ
Jurisdiction we should interfere at the instance of the
sole Petitioner, who says that he is inconvenience
because of the order passed under section 95A of the
Maharashtra Housing and Area Development Act,
1976. That power, which vested in the authority is to
facilitate redevelopment and reconstruction of the
buildings which are old and dilapidated, which have
been existing for number of years or decades
together, then, all the more we should not interfere
in Writ Jurisdiction. Like everybody else, the
petitioner suffered some inconvenience, but that by
itself is no ground to interfere. The petitioner is
found eligible for permanent alternate
accommodation and for transit benefits and after
completion of the project, there would be an
allotment by lottery system and at that stage all
units/tenements would be included in the lottery and
which are part of the newly constructed buildings.
Therefore, we are disinclined to consider Mr.
Mooman's request to give some time to vacate the
premises.”
-- 21 of 26 --
22 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
41 Further, the learned advocate for the plaintiff has placed
his reliance in New Woodlands Cooperative Housing Society
Limited and another V/s. State of Maharashtra and others reported
(2006)6 AIRBomR24 and advanced arguments that under
Regulation 33(7) of the Development Control Regulations (“DCR”)
mandates informing the tenants/occupants of a cessed building in the
island city about the location and area of the permanent alternate
accommodation to be offered to them. It is urged by the learned
advocate for defendant nos.3 to 18 that the said authority dealt with
Regulation 33(7) of the DCR. Present redevelopment is under DCR
33(9) i.e. cluster redevelopment.
42 Thus, in such facts and circumstances, as the facts in hands
are different, authority cited is not applicable to the present set of facts.
As the scheme undertaken by defendant no.3 is under Regulation 33(9)
of the DCR, which pertains to reconstruction and redevelopment of
Clusters of Buildings under the Cluster Development Scheme. The
Hon'ble high Court in Noorjahan Jahangir Ghadiali V/s State of
Maharashtra and others (Writ Petition (L) No.380 of 2016) passed
orders, which pertains to the redevelopment scheme undertaken by
defendant no.3 under Regulation 33(9) of the DCR.
43 Thus, in this background, the learned advocate for
defendant nos.3 to 18 has placed his reliance In Sugrabai Gulam Abas
Tambawala V/s. The Chief Officer, M.B.R and R Board in Writ
Petition No.1811 of 2019. The said petition has been filed by one of
the tenants of Potia Building in respect of room nos.1 and 1K, 2nd floor,
11Dhaboo Street, Bhendi Bazar, Mumbai against defendant no.3. It is
-- 22 of 26 --
23 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
in respect of same Letter of Intent dated 10.08.2011 issued in favour of
present defendant no.3, whereby defendant no.3 became entitled to
develop the large number of properties in the area of Bhendi Bazar,
Mumbai covering 16.5 acres under Regulation 33(9) of the
Development Control Regulations 1991. While deciding this Writ
Petition above cited authority by defendants have already been taken
into consideration. With respects the principle held is applicable to the
present set of facts.
44 Thus, further it appears that defendant nos. 3 to 18 in their
written submission in paragraph no.27 stated as follows;
“Without prejudice, we repeat and reiterate that
upon the plaintiff vacating its respective premises,
defendant no.3 shall execute a temporary
alternate accommodation agreement with the
plaintiff, which shall set out the rent that shall be
provided to the plaintiff until the plaintiff's
permanent accommodation is constructed and
handed over. Furthermore, the temporary
alternate accommodation agreement shall set out
details of the area and location of the PAA that
will be provided to the plaintiff, as he has been
previously done with similar placed tenants. Prior
to handing over possession of the PAA and within
two months from the receipt intimation of
disapproval for the cluster where the plaintiff is
being rehabilitated, Defendant no.3 shall execute
a PAA agreement, which shall be stamped and
registered by the defendant at their own costs and
expense.
45 Thus, it discloses primafacie that defendant no.2 has
issued notice under section 95A of the MHAD Act dated 30.08.2018 and
accordingly passed order on 08.03.2019 legally by making all the
compliance of mandate of section 95A of MHAD Act. Therefore, there is
-- 23 of 26 --
24 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
no substance in arguments advanced by the learned advocate for the
plaintiff. In the facts and circumstances, I hold that the plaintiff has
failed to establish Primafacie case in his favour. Hence, I answer point
no.1 in the negative.
AS TO POINT NOS.2 AND 3:
46 So far as point nos. 2 and 3 are concerned, it appears that
the suit building is very old one and it is accepted prima facie that non
vacation by the plaintiff of the suit premises in the said building is
indirectly posing a great danger to their own lives as well as properties
of neighbouring tenants/occupants and even to the passerby. Further,
delay in taking any action of vacation of the suit premises will stall the
whole public housing project and it will cause prejudice to the
tenants/occupants, who have already vacated their respective
tenements and who are eagerly waiting for their permanent houses.
Therefore, the balance of convenience is tilted in favour of the
defendants only. If this notice of motion is allowed, irreparable loss
would be caused to the defendants and tenants/occupants, who have
vacated their respective tenements and who are eagerly waiting for
their permanent houses Hence, I answer point nos.2 and 3 accordingly.
47 In the light of my above discussion and findings as to point
nos. 1 to 3, this notice of motion is to be dismissed. With this, I proceed
to pass the following order:
ORDER
1. Notice of Motion No.1528 of 2019 is hereby dismissed with
costs.
-- 24 of 26 --
25 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
2. Notice of Motion No.1528 of 2019 stands disposed of accordingly.
(S. P. PONKSHE)
Judge,
Date: 05/08/2019. City Civil Court,
Gr. Bombay.
Dictated on : 05/08/2019
Transcribed on : 2122 /08/2019
Signed on : 26/08/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
27/08/2019 At 3.55 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
05/08/2019
Judgment/Order signed by P.O. on 26/08/2019
Judgment/Order uploaded on 27.08.2019
-- 25 of 26 --
26 N/M No. 1528/2019 in L.C.Suit No. 1485/2019
-- 26 of 26 --