Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1375 OF 2020
IN
STAMP NO. 4605 of 2020
Mr. Mohammad Yusuf Shaikh ]
Age 62 years, Occupation: Retired ]
Indian Inhabitant of Mumbai, residing at ]
Room No.14, Building No.19, ]
Colaba Transit Camp, Colaba, ]
Mumbai 400 005 and ]
Room No.9, Gala No.709, M.H.B. Colony, ]
Gorai Transit Camp, Borivali, Mumbai. ].. Plaintiff
V/s
1. Mumbai Building Repair & ]
Reconstruction Board, Through its Deputy ]
Chief Officer (T & C), having their head ]
office at MHADA Building, Bandra (East), ]
Mumbai 400 051. ]
2. Executive Engineer, ]
A Divisional Office Colaba Transit Camp, ]
Cuffe Parade, Colaba, Mumbai – 400 005. ].. Defendants.
Appearance:
Mr. Suraj Kudalkar, advocate for the plaintiff.
Mr. Siddharth Chandrashekhar, advocate for the defendant Nos.1 and 2.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 20th OCTOBER, 2020
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ORAL ORDER
The plaintiff, by this Notice of Motion, seeks two temporary
reliefs. First, that the defendants be directed to allot a permanent
alternate accommodation in the reconstructed building in lieu of the
suit premises i.e. Room No. 15,95A Kamekar Street, Mumbai- 400003.
The second relief asked is that pending the final disposal of the suit,
defendants be restrained from dispossessing the plaintiff from the
transit accommodation i.e. Room No. 9C, Gala No. 709, MHB Colony,
Gorai Transit Camp, Borivali, Mumbai. The plaintiff has also asked the
relief in the suit that the plaintiff be declared as the lawful occupant of
the suit premises. The first relief is the substantive relief asked in the
suit and is also dependent on further proof the plaintiff’s entitlement to
be declared as the lawful occupant of the suit premises. Therefore, the
first relief cannot be entertained or granted as the temporary relief.
2. Thus, the subject matter to be considered for the purpose of
this Notice of Motion is the transit accommodation and the question to
be
prima facie considered is, as to whether the plaintiff proves his
lawful possession over the transit accommodation and would he be
entitled to protect his possession over it, till decision of the suit.
3. The factual matrix relevant for deciding this question is
thus,
3.1 The plaintiff was the tenant in Room No. 15, 95A, Kamekar
Street, Mumbai-400003
(hereinafter called as ‘the old
premises’). It was cess building constructed prior to the
year 1940. The Maharashtra Housing and Area
Development Authority (MHADA) is the owner and
landlord of the said building. The defendant No.1 is the
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Board constituted under MHADA and the defendant No.2 is its
responsible Officer.
3.2. The defendant No.1 issued notice dated 14.11.1976 and the
defendant No.2 issued notice dated 23.11.1976 to the plaintiff to
vacate the old premises as it was in dilapidated condition and
was no more suitable for residence. The defendants allotted a
temporary transit accommodation to the plaintiff in a transit
camp bearing Room No.725, Chawl No. A-31, Sion Transit Camp,
Sion Mumbai, 400022
(hereinafter called as ‘the first transit
accommodation’). The plaintiff, with his family, shifted to that
accommodation.
3.3 The plaintiff, with his family, resided in the first transit
accommodation till the year 1993. By the time, the building in
which the first transit accommodation was situated, became
dilapidated. The defendants therefore, asked the plaintiff to
vacate the said premises and by modified allotment order
dated 11.11.1993, he was ordered to shift to Room No. 9,
Building No. 9, Colaba Transit Camp, Mumbai, 400005
(hereinafter called as ‘the second transit accommodation’).
The plaintiff, with his family, shifted to that premises accordingly
and resided there till the year 2005.
3.4 The defendants thereafter, issued another order dated
05.10.2005 to the plaintiff and he was thereby asked to shift to
another transit accommodation bearing Room No.14, Building
No.19, Colaba Transit Camp. Cuffe Parade, Mumbai, 400005
(hereinafter called as ‘the third transit accommodation’).
The plaintiff, with his family, shifted to that premises
accordingly. He obtained a ration card at that address. He
resided there till the year 2011.
3.5 According to the plaintiff, in the year 2011, the defendants asked
the plaintiff to vacate the fourth transit accommodation, else he
would be dispossessed by using force. The plaintiff therefore,
approached this Court by filing Suit No. 241 of 2011 seeking
restraint order against the defendants. When that suit was part
heard, the plaintiff remained absent due to illness and his
advocate failed to prosecute the suit. The suit was
consequently dismissed for non-prosecution on 04.10.2013. The
plaintiff has taken out the Notice of Motion No.2175 of 2017 for
restoration of that suit and the same is said to be still pending.
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3.6 Pending the Notice of Motion No.2175 of 2017 for
restoration of that suit, the defendants again issued letter
dated 09.08.2018 to the plaintiff thereby allotting Room No.9C,
Gala No. 709, MHB Colony, Gorai Transit Camp, Birivali,
Mumbai Mumbai
(hereinafter called as the ‘fourth transit
accommodation’) and asked the plaintiff to shift to that premises.
The plaintiff, with his family, shifted to that premises accordingly.
3.7. According to the plaintiff, on two occasions i.e. in the month of
August and September, 2020, the defendants visited the
fourth transit accommodation of the plaintiff and threatened him
to vacate that premises else, he will be removed therefrom by
using force. That has given rise to the cause of action for the
plaintiff to come before this Court.
3.8 At this stage, the plaintiff seeks protection from his
dispossession from the fourth transit accommodation by the
defendants without following due process of law.
4. The defendants, in their reply have specifically admitted in
para 5 that the fourth transit accommodation has been allotted to the
plaintiff temporarily in lieu of his old premises went under re-
development. The main objection of the defendants is in respect of the
irrevocable power of attorney dated 15.01.2020, executed by the
plaintiff in favour of one Shahid Ahmed Muneer Ahmad Shaikh in
respect of the old premises. The plaintiff has assigned his rights in the
old premises to Shahid Ahmed Muneer Ahmad Shaikh and intended to
shift elsewhere. According to the defendants, the effect of this is that
Shahid Ahmed Muneer Ahmad Shaikh would stand in the shoes of the
plaintiff not only in respect of the old premises but the fourth transit
accommodation allotted to the plaintiff also. This is not permissible
under the law. The tenancy rights in the old premises cannot be
transferred to third party in such a way on the basis of unregistered
irrevocable power of attorney and without the sanction of the
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defendants. The defendants do not recognize Shahid Ahmed Muneer
Ahmad Shaikh as their lawful occupant either in the old premises or in
any other transit accommodation allotted to the plaintiff. Thus,
according to the defendants, the plaintiff, who has committed breach of
the conditions in the allotment order of transit accommodation is not
entitled to ask for temporary relief against the defendants.
Consequently, this Notice of Motion is liable to be dismissed.
5. In view of rival contentions of the parties and the
submissions made on their behalf, the following points arise for my
determination with my findings thereon for the reasons recorded
thereunder;
S.No. POINTS FINDINGS
1 Does the plaintiff prove the
prima-facie
case ? Partly Yes.
2 Whether balance of convenience lies in his
favour ? Partly Yes.
3 Whether irreparable loss would be caused to
the plaintiff, if this Notice of Motion is
rejected ?
Partly Yes.
4 What Order? As per Final Order.
R E A S O N S
As to Point No.1 to 3:
6. Mr. Suraj Kudalkar, the learned advocate for the plaintiff
submits that the specific admission by the defendants that the fourth
transit accommodation has been allotted to the plaintiff temporarily in
lieu of his old premises, which is under re-development, dispenses with
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the
prima facie proof of the lawful possession of the plaintiff over both
the old premises as well as the fourth transit accommodation. Even
otherwise, the plaintiff has produced ample documents on record to
prove his
prima facie possession and those documents are not disputed
by the defendants. Thus, the plaintiff has proved his
prima facie case
that he is the lawful occupant in those premises duly recognized by the
defendants.
7. On the other hand, Mr. Siddharth Chandrashekhar, the
learned advocate for the defendants submits that the plaintiff is the
lawful tenant of the defendants in the old premises and the fourth
transit accommodation is allotted to him temporarily for his occupation
on certain conditions. He is not entitled to transfer or assign that
premises or even the old premises without sanction of the defendants.
Any such transfer does not bind the defendants. The defendants have
every right to evict any third person occupying the transit
accommodation illegally under any such transfer. The defendants do not
recognize Shahid Ahmed Muneer Ahmad Shaikh as the lawful occupier
of the old premises or the fourth transit accommodation. Therefore, he
cannot ask for interim protection to retain his possession over the fourth
transit accommodation.
8. Having considered the rival submissions, according to me,
since the defendants have not disputed the fact that the plaintiff
Mohammad Yusuf Shaikh is their tenant and fourth transit
accommodation was allotted to him as the tenanted premises was
acquired for redevelopment, there shall be
prima facie conclusion that
he has his lawful possession over the said transit accommodation. He
would also be entitled to get permanent alternate accommodation in
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new building which is under construction since 1976 and till then, he
would have right to have the transit accommodation.
9. This propels me to come to the objection of the defendants
that the plaintiff has transferred or assigned his rights to Shahid Ahmed
Muneer Ahmad Shaikh. It is own case of the defendants that there can
be no such valid transfer or assignment by an unregistered power of
attorney executed by the plaintiff on 15.01.2020 in absence of sanction
of the defendants. Curiously to note that, this suit is shown to have
been filed by the plaintiff but the plaint is verified and signed by Shahid
Ahmed Muneer Ahmad Shaikh as the Constituted Attorney (C.A.) of the
plaintiff. Even the affidavit in support of this Notice of Motion shows
that the name of deponent is mentioned as Mr. Mohammad Yusuf
Shaikh but it is actually sworn in by Shahid Ahemad Muneer Ahamed
Shaikh as his Constituted Attorney.
10. It can be further noticed that it is not mentioned in array of
parties (cause title) that the plaintiff is suing through his Constituted
Attorney but plaint is signed and verified by his Constituted Attorney.
The plaint is lodged on 18.09.2020 but for the reasons best known to
the plaintiff and his Constituted Attorney, it is not got examined and
registered till this date.
11. Be that as it may, the terms in the irrevocable power of
attorney dated 15.01.2020 makes it
inter aia clear that Shahid Ahmed
Muneer Ahmad Shaikh was allowed to enroll his own name in the
Society/Authority/Builder as the owner of the old premises and shall
get alternate accommodation in newly constructed building in his own
name and shall also be competent to sell, transfer or assign the said
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premises. Shahid Ahmed Muneer Ahmad Shaikh has filed rejoinder
affidavit wherein, he contends that the tenancy in respect of tenanted
premises can validly be transferred on the basis of Affidavit executed by
the tenant. He further contends that had he filed an application before
the defendants for transferring the permanent alternate accommodation
in lieu of the old tenanted premises in his name, the defendants could
have accepted the transfer fee and transferred the said premises in his
name. Thus, according to Shahid Ahmed Muneer Ahmad Shaikh, the
plaintiff was competent to make such transfer even by mere affidavit.
12. Thus, it appears from the contentions of Shahid Ahmed
Muneer Ahmad Shaikh that this suit not filed by the plaintiff through
his Constituted Attorney but it is filed by his Constituted Attorney
claiming his own rights over the suit premises on the basis of the power
of attorney executed by the plaintiff in his favour on 15.01.2020. The
suit claim shall stand on either footing. Either it may be the claim of
Mohammad Yusuf Shaikh seeking permanent alternate accommodation
in new building and till then, right to have possession over the fourth
transit accommodation; or it may be the similar claim on his own right
by Shahid Ahmed Muneer Ahmad Shaikh by virtue of the
Affidavit/Power of Attorney.
13. If, the suit claim is the claim of Mohammad Yusuf Shaikh, it
is the contention of Shahid Ahmed Muneer Ahmad Shaikh that he has
transferred his tenancy rights in the old premises to him by the
document dated 15.01.2020 validly. Therefore, Mohammad Yusuf
Shaikh would have no locus standi to file such suit as he has no right
remained either in the old premises or in the fourth transit
accommodation. On the other hand, if the suit is filed by Shahid Ahmed
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Muneer Ahmad Shaikh claiming his own rights over the old premises
and the fourth transit accommodation, then it is not explained as to
why Mohammad Yusuf Shaikh is arrayed as the plaintiff.
14. However, since the suit is filed in the name of the
Mohammad Yusuf Shaikh and Shahid Ahmed Muneer Ahmad Shaikh
has verified and signed the plaint as his Constituted Attorney, the suit is
required to be necessarily presumed to have been filed by Mohammad
Yusuf Shaikh claiming his own rights. The rights, if any, of Shahid
Ahmed Muneer Ahmad Shaikh would be the subject matter of the suit,
if he is so claiming, as they are dependent on the proof of validity of
transfer of tenancy in his name.
15. Understood in this way, the plaintiff has produced a copy of
the order issued by the defendants on 09.08.2018, by which, the fourth
transit accommodation was allotted to the plaintiff on certain
conditions. The condition No.4 says that “
under any circumstance, no
unauthorized occupancy rights created or any change made in the
transit accommodation. If it is found to be so, it will be treated as the
breach of condition and the allotment order will be revoked and
appropriate action will be taken in accordance with law”.
16. It would go without saying that the plaintiff, while asking
for any protection from the Court, has to
prima facie prove that he is
the lawful occupant of the old premises and by virtue of it, he is entitled
to have possession over the fourth transit accommodation. Admittedly,
Shahid Ahmed Muneer Ahmad Shaikh was neither the tenant in the old
premises nor he was the allottee of the fourth transit accommodation.
Therefore, he has no locus standi to file the suit and ask for interim
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protection to retain his possession over the fourth transit
accommodation.
17. The tenancy rights of Mohammad Yusuf Shaikh over the
old premises and his possession over the fourth transit accommodation
are not denied by the defendants. It is specifically contended by the
defendants that the plaintiff Mohammad Yusuf Shaikh has parted with
possession of the fourth transit accommodation to Shahid Ahmed
Muneer Ahmad Shaikh in breach of the condition of the allotment
order. The contention appears to be based on the contents of the power
of attorney dated 15.01.2020. The relevant contention is to the effect
that “
the plaintiff, due to personal reasons intending to shift to some
other place permanently by handing over his room premises (the fourth
transit accommodation) in favour of Shahid Ahmed Muneer Ahmad
Shaikh”.
18. If such is the position, then the plaintiff will not be entitled
to get second interim relief i.e. protection from dispossession. To get
such relief, the plaintiff shall
prima facie prove his possession over the
fourth transit accommodation. The own documents of the plaintiff show
that he has parted with possession to Shahid Ahmed Muneer Ahmad
Shaikh and has shifted elsewhere. Shahid Ahmed Muneer Ahmad
Shaikh is not disclosing whether he is asking relief of interim protection
for himself or for the plaintiff. He cannot ask such relief for the plaintiff
on the basis of the power of attorney dated 15.01.2020 as this
document shows that the plaintiff has assigned his rights in the old
premises to him and parted with its possession to him. If he is asking
such relief for himself based on the power of attorney dated
15.01.2020, he cannot do so because he is the stranger to the old
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premises and also to the fourth transit accommodation. The legality and
validity of transfer or assignment of rights by the plaintiff in his favour
is in question and would be the subject matter of the suit.
19.
Prima facie, it appears that such transfer or assignment is in
breach of the conditions of allotment order of fourth transit
accommodation. As a result of this, the Constituted Attorney of the
plaintiff namely Shahid Ahmed Muneer Ahmad Shaikh cannot be
recognized as the lawful occupant of the fourth transit accommodation
and thus, he will not be entitled to get interim relief of protection of his
unlawful possession over the fourth transit accommodation. The
question whether he will be entitled to get permanent alternate
accommodation in new building in lieu of old premises is the question
sub-judice in the suit and as already stated, the same cannot be
addressed at this stage.
20. It is the basic requirement of law that when a party asks an
equitable relief, he is bound to disclose all relevant facts and shall come
before the Court with clean hands. Because, any attempt to conceal
some facts or present the facts in a manner not expected by law would
ultimately expose such party when such facts are scrutinized on the
touchstone of the concept of a prima facie case. The intentional mixture
of claim in the name of lawful occupant by the unlawful claimant rests
on self-contradictory pleas and that has resulted in failure to prove the
prima facie case of either.
21. No doubt, the plaintiff being lawful occupant of the old
premises, he would be entitled get permanent alternate accommodation
in new building and till then, he would be entitled to have possession
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over fourth transit accommodation, so far he remains the the lawful
occupant. If it is found that he has lawfully assigned his rights in the old
premises to Shahid Ahmed Muneer Ahmad Shaikh, he would get the
new premises. But, in any event, he cannot claim the same reliefs for
himself and for the plaintiff at a time.
22. Thus, the position is this, that the plaint averments do not
disclose the fact that the plaintiff has assigned or transferred his
tenancy rights to Shahid Ahmed Muneer Ahmad Shaikh but at the same
time, the power of attorney dated 15.01.2020 filed by the plaintiff
discloses such assignment. The plaintiff introduces Shahid Ahmed
Muneer Ahmad Shaikh as his Constituted Attorney. Therefore, Shahid
Ahmed Muneer Ahmad Shaikh shall act for the plaintiff and not for
himself in the suit. The case which is not pleaded in the plaint need not
be considered. Thus, the power of attorney dated 15.01.2020 is
required to be just ignored for the purpose of this Notice of Motion.
23. Having done so, as the suit claim stands, the plaintiff
Mohammad Yusuf Shaikh being lawful tenant of the old premises and
lawful allottee of fourth transit accommodation, would have every right
to enjoy possession of fourth transit accommodation, so long he does
not get the permanent alternate accommodation in new building, in lieu
of his old premises. There shall be interim protection for his possession
from the disturbance by the defendants on assumption of illegal
assignment or parting with possession to third party. At the same time,
it shall be noted that if third party is found in possession of the fourth
transit accommodation, it would be the primary duty of that party to
show that his possession is lawful. Failing which, neither the plaintiff
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nor that party is entitled to get interim protection to continue an
unauthorized possession of that party.
24. Mr. Kudalkar, the learned advocate for the plaintiff has
produced a copy of the circular dated 21.05.2015 issued by the
defendants. According to him, by that circular, the defendants have
adopted policy to rehabilitate even encroachers prior to 01.04.2009 in
vacant Transit Camp accommodations. Therefore, even assuming that
the possession of Shahid Ahmed Muneer Ahmad Shaikh is not to be
considered as lawful, still the defendants have to rehabilitate him and
they cannot summarily evict him.
25. It is difficult to be convinced with the aforesaid submissions
because, this circular dated 21.05.2015 has itself made clear that it is
applicable to the Transit Camps at Bharat Nagar, Bandra (E), Antop Hill,
Wadala and Bandra Reclamation, Bandra (W) and not to the Transit
Camp at Gorai Road, Borivali. Secondly, if at all, Shahid Ahmed Muneer
Ahmad Shaikh has any remedy under any such circulars/orders, he has
to pursue such remedy before the Competent Authority and he cannot
restrain the defendants from taking any action in accordance with law.
Merely because Shahid Ahmed Muneer Ahmad Shaikh has
apprehension that defendants would evict him from the fourth transit
accommodation that
ipso facto does not give him right to restrain the
defendants. If he has no right to remain in a particular premises, he has
to vacate it, else he would be liable to be evicted in accordance with
law.
26. To sum up, it is the plaintiff Mohammad Yusuf Shaikh and
no other person, much less, his Constituted Attorney Shahid Ahmed
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Muneer Ahmad Shaikh would be entitled to get the interim protection
as asked in prayer clause (b) of this Notice of Motion. I find such prima
facie case in favour the plaintiff. For the reasons already recorded, the
balance of convenience lies in favour of the plaintiff and irreparable loss
would be caused to him if such interim protection is not granted. In
absence of such protection, he would be deprived of his rights in the old
premises and also in the fourth transit accommodation. Since, the rights
of the plaintiff are not denied by the defendants, no loss would be
caused to them in granting such interim relief. The defendants are free
to take appropriate action in accordance with law against any person
including Shahid Ahmed Muneer Ahmad Shaikh, if he is found to be in
an unauthorized possession of the fourth transit accommodation.
27. In the result, the point Nos. 1 to 3 are answered
accordingly and the following order is passed in answer to point No.4.
O R D E R
1. The Notice of Motion No.1375 of 2020 is made absolute
partly in terms of prayer clause (b).
2. The defendants are temporarily restrained from dispossessing
the plaintiff Mr. Mohammad Yusuf Shaikh and his family
members from the fourth transit accommodation viz. Room
No.9C, Gala No.709, MHB Colony, Gorai Transit Camp,
Borivali, Mumbai till final disposal of the suit.
3. On request by the plaintiff, the interim protection earlier
granted shall continued for a period of one month from the
date of this Order.
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4. The Notice of Motion No.1375 of 2020 is disposed of
accordingly.
(SHIVAJI. R. SALUNKHE)
Judge
City Civil Court,
Date: 20/10/2020. Gr. Bombay.
Dictated on : 20/10/2020
Transcribed on : 20/10/2020
Signed on : 20/10/2020.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
21/10/2020 At 2.15 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
20/10/2020
Judgment/Order signed by P.O. on 20/10/2020
Judgment/Order uploaded on 21/10/2020
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