Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.1313/2018 L.C.SU no.1163-2018
CNR :MHCCO1 0041862018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1313 OF 2018
IN
L.C. SUIT NO.1163 OF 2018
1. Muslim Ambulance Society and Anr. ]...Plaintiffs.
Versus
1. Municipal Corporation of ]
Greater Mumbai & 3 Ors. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 5th May, 2018.
Mr. Navin Parekh i/b S.K. Srivastava and Co., advocate for plaintiff.
Ms. Rawade with Ms. Surekha Parwadi, AO, for defendants.
ORDER
1. Plaintiffs have taken out this notice of motion seeking
interim injunction for restraining the defendants from
enforcing/implementing report of Technical Advisory Committee (for
short, TAC) dated 11.01.2018 and also from disconnecting essential
supplies like water, electricity and from demolishing the suit building.
2. The plaintiffs claim to be the tenant of the defendant
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corporation in the suit building consisting of ground plus one upper
floor, located at 141, Zakeria Masjid road, Mumbai. According to
plaintiffs the suit building has been let out in 1986. The plaintiffs run a
charitable medical/diagnostic center in the suit building and supply
various medical facilities to the poor people.
3. However, the defendants issued a notice dated 16.02.2017,
and reminder dated 05.07.2017 directing the plaintiffs to vacate the suit
building. By letter dated 11.07.2017, the plaintiffs requested the
defendant no. 3 to renew the lease so that poor and needy people
would be benefited. The defendants by issuing notice dated 07.09.2017,
informed the plaintiffs that the suit building has become dilapidated
and dangerous and therefore, to vacate the same immediately. The
defendants issued similar notices from time to time. Ultimately, it was
informed that as per the TAC report it is necessary to vacate the suit
building.
4. According to plaintiffs the defendants have not followed
the directions given in the judgment and order dtd. 23.06.2014 passed
in W.P. (L) no. 1135 of 2014 by the Hon'ble High Court of Bombay
(Coram : Anoop V. Mohta and A. A. Sayed, JJ). The plaintiffs submitted
that the suit building is not in dilapidated condition, as depicted in the
photographs filed on record.
5. The defendants opposed the motion by contending that the
license given to the plaintiffs came to an end. However, they are not
vacating the suit building. In addition to that it is contended that as per
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the TAC report the suit building has become dilapidated and dangerous
for human occupation and therefore, the same should be vacated
immediately so as to avoid any untoward incident.
6. Heard, respective advocates at length. The learned
advocate for plaintiffs submitted that in and average 2000 patients per
month take advantage of medical facilities in subsidized rates. Heavy
machinery is installed in the suit building and the same cannot be
removed. The defendants have not complied with the directions given
by the Hon'ble High Court in the case of MCGM vs. State of
Maharashtra and Ors. (Supra). The suit building is not listed in C 1
category. However, the defendants directly issued notice for vacating
the suit building. The defendants have not published the list of
dangerous buildings in spite of the directions given in the aforesaid
case. Lastly, he submitted that the defendants by issuing the
subsequent notices waived there earlier notice to vacate, and therefore,
interim injunction should be granted. He has placed reliance on the
following authority :
AIR 2014 Supreme Court 2895
M/s. Shah Ratansi Khimji and Sons vs. Proposed
Kumbhar Sons Hotel P. Ltd.
Ratio : Destruction of house/building constructed on
leasehold property, does not determine tenancy
rights of occupant.
7. On the other hand the learned advocate for the defendants
submitted that the TAC in, both, of its reports considered the condition
of the suit building and found that it is dilapidated and dangerous.
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According to her the scope of suit is very limited. The notice under
section 354 A of the Mumbai Municipal Corporation Act has not been
issued because the defendant corporation itself is the owner of the
building. In spite of issuing various notices requesting the plaintiffs to
vacate the suit building, the plaintiffs are not vacating it. The plaintiffs
are illegal occupants. She further submitted that the defendant no. 3,
being incharge of the suit building is authorized to issue notice to
vacate the suit building. She placed reliance on the following
authority :
2017(6) Mh. L. J. 227
Vimal Sudarshan Bafna vs. State of Maharashtra.
Ratio : An erstwhile lessee would have no right to
assert its possession and could not canvas a right to
the site. A litigious possession cannot be regarded as
lawful possession.
8. Considering the submissions made by the respective
advocates and the copies of documents placed on record, the following
points are decided for the reasons stated below:
SR.
NOS.
POINTS FINDINGS
1 Whether the plaintiffs have made out a prima
facie case?
In the negative.
2 Whether the points of balance of
convenience, hardship and irreparable loss lie
in favour of the plaintiffs?
In the negative.
3 Whether the plaintiffs are entitled to
temporary injunction as prayed for?
In the negative.
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REASONS
As to point nos.1 to 3:
9. The plaintiffs have instituted the suit seeking declaration
that the notices issued by the defendants to vacate the suit building and
the order are illegal and bad in law etc. The plaintiffs have also prayed
for consequential reliefs of permanent injunction.
10. It is necessary to look into the copies of documents placed
on record by respective parties. The plaintiff no. 2 is an authorised
signatory of the plaintiff no. 1 society. The copy of final notice dtd.
16.02.2017, issued by the defendant no. 3 to the plaintiffs prima facie
shows that the plaintiffs were occupying the suit building on leave and
license basis and in spite of earlier two notices they have not vacated
the suit building. The plaintiffs have not produced any documents to
show prima facie that the plaintiff no. 1 is a tenant in the suit building.
Prima facie the plaintiffs are relying on a receipt issued by the
defendant corporation which relates to the payment received from the
plaintiffs as rent from school building. The plaintiffs have not prima
facie explained as to which school they are running in the suit building.
Earlier there was Subhani Parda Municipal School as depicted from the
said receipt. Thus, it prima facie appears that the entire claim of
tenancy has been initiated by the plaintiffs on the word “ rent”
mentioned in the said receipt.
11. During the course of arguments the learned advocate for
the defendants tendered across the bar a copy of leave and license
agreement executed inter se the defendant corporation and Subhani
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Parda Municipal Urdu School for the period 01.04.2016 to 31.03.2017,
to which the plaintiff no. 2 is a signatory on behalf of the plaintiff no. 1
and the defendant no. 3 for the defendant corporation. In the said
agreement it is mentioned that the suit building is being used for
running T.B. and immunization, diagnostic center and dialysis center
etc. In the said agreement it is specifically mentioned in clause no. 3
that either party may terminate the license by giving 30 days clear
notice in writing. The clause no. 4 provides that if the plaintiffs fail to
vacate the suit building the education officer (the defendant no. 3
herein) shall be at liberty to enter the said premises and to remove any
goods found therein. Clause no. 5 provides that service of notice signed
by Education officer shall be deemed proper and sufficient. The clause
no. 7 provides that the said premise had been alloted by way of leave
and license only.
12. Considering the aforesaid agreement for leave and license
relating to the suit building, it is crystal clear prima facie that the
plaintiffs have no more rights than to use and occupy the suit building
only to the period specified in the said agreement. The plaintiffs have
not prima facie clarified as to how they got tenancy or leasehold rights
in the suit building and on the basis of what documents. A mere receipt
upon which word “rent” has been mentioned by a cashier will not prima
facie prevail on the aforesaid agreement and nullify its effect. The
plaintiffs have also not sought any declaration to the effect that the
plaintiff no. 1 has got tenancy right in the suit building.
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13. The documents on record show that there are series of
notices dated 07.09.2017, 11.09.2017, 31.01.2018, 07.02.2018,
17.02.2018, 23.03.2018 issued requesting the plaintiffs to vacate the
suit building. An additional ground appears to have been raised by the
defendants relating to dilapidated and dangerous condition of the suit
building, in the subsequent notices.
14. The Hon'ble High Court of Bombay in the aforesaid Writ
Petition which was filed by the defendant corporation seeking directions
for forcible eviction of occupants of the building Sohan Singh Mansion
and other buildings which were declared to be dilapidated and
dangerous by corporation, has issued various guidelines in paragraph
no. 9 (a to q), on submission of draft of minutes. Had it been the case
that the defendants had issued notice to vacate only on the ground of
dilapidated and dangerous condition of the suit building, then the
matter would be different and it was necessary to see whether the
aforesaid conditions were fulfilled by the defendants, including the
Technical Advisory Committee. However, here the relationship inter se
is governed by the agreement of leave and license, and thus upon
determination of agreement by a efflux of time or by notice to vacate,
the status of the plaintiffs would nothing more than trespassers or
illegal occupants, and therefore the plaintiffs cannot claimed any
equitable relief to protect there possession. In addition to that, prima
facie, the plaintiffs have suppressed the material fact that they are
occupying the suit building in capacity of licensees. Therefore, on this
count also the plaintiffs will not be entitled to equitable relief of
injunction.
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15. It appears that it is a dispute blown out of proportion, on
the basis of TAC report, though the scope is much limited to the
relationship of a licensor and licensee and determination of agreement
for leave and license. Therefore, intervention of this Court is not at all
warranted, in spite of an undisputed fact that the plaintiffs are
providing medical services at subsidized rates. Thus, the plaintiffs have
failed to make out a prima facie case. The points of balance of
convenience, hardship and irreparable loss do not lie in favour of the
plaintiffs. Thus, they are not entitled to the relief of interim injunction
as prayed for. It is also necessary to saddle with the costs of the motion
for suppression of material facts.
16. The learned advocate for the plaintiff, at this juncture
submits that the plaintiffs wish to prefer an appeal against this order
and therefore, it be stayed for six weeks. On the other hand, the
learned advocate for the defendants submits that there is no ground for
granting stay. Earlier, on 27.3.2018, a statement was recorded that no
coercive action will be taken against the plaintiff till next date. At the
same time, a statement of the plaintiffs was also recorded that the
defendants would not be responsible in case any untoward incident
takes place and if any loss or damage is caused to the patients, their
relatives and staff members of the plaintiffs. Considering the
submissions and in view of the aforesaid statements and the ratio laid
down in the case of Kranti Mohan vs. Fatechand reported in A.I.R.
1982 Bombay 263, “ a laudable principle is implicit in the system to give
fair deal to each litigant who is aggrieved by an order of Court and has
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legitimate right to move the higher court to ask for redress, and therefore,
a reasonable opportunity should normally be given, provided that the
prayer on the face of it does not appear to be vexatious or frivolous. The
principle is essential so as to instil a sense of confidence in the system of
administration of justice,” adinterim protection granted earlier to the
suit building is extended till 21.5.2018. It will not be extended further
on any count.
17. Thus, the following order is passed.
ORDER
1. Notice of Motion 1313 of 2018 is dismissed with costs.
2. Adinterim protection granted earlier to the suit building is
extended till 21.5.2018. It will not be extended further on
any count.
3. An ordinary copy of this order duly authenticated by the
Sheristedar of this Court be supplied to the plaintiffs and
the defendants.
Sd/
(M.S. Deshpande)
Ad Hoc Judge,
City Civil Court, Mumbai.
Dated: 05.05.2018
Dictated on : 05/05/2018.
checked on : 05/05/2018.
Signed by HHJ on : 05/05/2018.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 07.05.2018 At 11.20 a.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
05.05.2018
JUDGMENT/ORDER signed by
P.O. on
05.05.2018
JUDGMENT/ORDER uploaded
on
07.05.2018
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