Final Order 2

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1377 OF 2020
IN
STAMP NO. 4618 of 2020
Smt. Malini Ramchandra Aher, ]
Age years, Occupation: Housewife, ]
Indian Inhabitant of Mumbai, residing at ]
Room No.9, Building No.9, Colaba Transit ]
Camp, Colaba, Mumbai 400 005 and ]
Room No.6A, Gala No.604, M.H.B. Colony, ]
Gorai Transit Camp, Borivali, Mumbai. ].. Plaintiff
V/s
1. Mumbai Building Repair & ]
Reconstruction Board, Through Deputy ]
Chief Officer (T & C), MBRR&B, MHADA ]
Building, Bandra (East), Mumbai 400 051. ]
2. Executive Engineer, ]
A Divisional Office Mumbai Building Repair]
and Reconstruction, Colaba, Cuffe Parade, ]
Colaba, Mumbai – 400 005. ]..Defendants.
Appearance:
Advocate Mr. Kudalkar for the plaintiff.
Advocate Mr. Chandrashekhar for MHADA/for 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. 146, 7 Mavji Rathod Road, Mumbai
400009. 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. Gala No. 112, Building No.4A 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 of 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 her
lawful possession over the transit accommodation and would she be
entitled to protect her possession over it, till decision of the suit.
3. The case of the plaintiff in brief is that the defendant No.3
Mr. Kashinath Damodar Mhatre was the original tenant and occupier of
Room No. 146, 7 Mavji Rathod Road, Mumbai 400 009. The original
premises was owned by the Maharashtra Housing and Area
Development Authority (MHADA) and the defendant No.1 is the Board
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constituted under MHADA and the defendant No.2 is its responsible
officer. MHADA is the owner and landlord of that premises.
4. The defendant No.1 issued Vacation Notice dated
30.05.1982 and the defendant No.2 issued similar notice on 31.05.1982
to the defendant No.3/the original tenant to vacate Room No.146/7 as
that building was in dilapidated condition and was not suitable for
residence. He was directed to shift to the temporary transit
accommodation at Gala No.A-33/880, Sion Koliwada, Mumbai. The
defendant No.3 accordingly vacated the tenanted premises and shifted
to the said transit accommodation.
5. It is the case of the plaintiff that the defendant No.3 was in
dire need of money of Rs.2,30,000/- and therefore, he decided to assign
his rights over Room No.146/7 at Mavji Rathod Road to the plaintiff
and accordingly, he sold, transferred and assigned all his rights in that
premises to the plaintiff by executing Affidavit-cum-declaration, General
Power of Attorney and Sale Deed. The defendant No.3 was allowed to
occupy the transit accommodation till he makes alternative
arrangement for his residence and he agreed to vacate the transit
accommodation immediately after getting other premises for his
residence. By this way, the defendant No.3 continued to occupy the
transit accommodation at Gala No.A-33/880 at Sion Koliwada, Mumbai
till the year 2006.
6. The defendants passed an order dated 09.03.2006
declaring that the building of transit accommodation at Sion Koliwada
is dangerous and in dilapidated condition and is no more suitable for
residence. They therefore, ordered the defendant No.3 to vacate that
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premises and shift to another transit accommodation i.e. Room No.9,
Building No.9, Colaba Transit Camp, Colaba, Mumbai. According to the
plaintiff, she occupied that premises and she was paying rent in respect
of transit accommodation to the defendants under the receipts in the
name of the defendant No.3. By notice dated 04.12.2010, the
defendants directed the defendant No.3 to pay transit rent of Rs.3,000/-
per month, but the rent was revised by letter dated 12.08.2015,
24.08.2015 and 07.12.2015 and reduced it upto Rs.500/- per month.
The plaintiff has paid that rent in the name of the defendant No.3. In
the letter dated 07.12.2015 the defendants have noted that the plaintiff
is residing in transit accommodation Room No.9, Building No.9 at
Colaba Transit Camp as the purchaser of the defendant No.3.
7. Subsequently, in the year 2011, the defendants visited the
transit accommodation and threatened the plaintiff to vacate that
premises. She therefore, approached this Court by filing Suit
No.243/2011 through the defendant No.3 to protect her possession.
That suit was decreed on 29.06.2013 and the defendants were
restrained from dispossessing the plaintiff (present defendant No.3)
from the transit accommodation viz. Room No.9, building No.9, Colaba
Transit Camp, Colaba, Mumbai. Even the said premises went under
redevelopment and therefore, the plaintiff has asked for alternate
transit accommodation by her letter dated 09.06.2014.
8. The defendants informed the defendant No.3 by letter
dated 07.08.2014 that she is residing in the transit accommodation
Room No.9, Building No.9, Colaba Transit Camp, Colaba, but he is not
eligible to be a tenant in cess building. Therefore, his occupation in
transit accommodation in Room No.9, Building No.9 is not
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unauthorized. Consequently he was directed to vacate that premises
and to shift to transit accommodation at Building No.4A, Gala No.112,
MHB Colony, Transit Camp, Borivali, Mumbai solely on temporary basis
pending the inquiry of his eligibility. He accordingly, vacated that
premises under Certificate dated 16.03.2015 and shifted to aforesaid
transit accommodation, as per the order of the defendants passed on
27.12.2018.
9. According to the plaintiff, the defendant No.2 visited this
transit accommodation in the month of August 2020 and threatened the
plaintiff to vacate that premises failing which she will be evicted by
using force. According to the plaintiff, she is lawfully and peacefully
possessing the transit accommodation at Borivali Transit Camp Gala
No.112 and her title and right in earlier transit accommodation in Room
No.9C, Gala No.709 at MHB Colony, Gorai Transit Camp is admitted by
the defendants. Thus, according to her, the action proposed to be taken
by the defendants to evict her from the transit accommodation without
giving any other transit accommodation for her residence is illegal and
not in accordance with law. She has therefore, prayed that the
defendants be restrained from dispossessing the plaintiff and her family
from transit accommodation i.e. building No.4A, Gala No.112, MHB
Colony Transit Camp, Borivali, Mumbai.
10. The defendant Nos.1 and 2 have resisted this Notice of
Motion by filing reply contending therein that the suit is no
maintainable and deserves to be dismissed in limine as it is file by
suppressing of material fact and since the plaintiff has not come with
clean hands, she will not be entitled to get the relief as prayed in the
suit and in this Notice of Motion. It is their case that the transit
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accommodation at Gala No.112 in MHB Colony Transit Camp was
allotted to the defendant No.3 temporarily in lieu of his original
tenanted premises i.e. Room No.146/7 at Mavji Rathod Road which
went under redevelopment. The plaintiff is stranger to the original
tenanted premises and also to the transit accommodation allotted to the
defendant No.3. The plaintiff cannot acquire valid title or right to these
premises by virtue of unregistered Affidavit-cum-declaration, Power of
Attorney or Sale Deed. The defendant No.3 was not allowed to create
any third party rights in respect of the transit accommodation allotted
to him which is belonged to the defendant No.1. All the correspondence
pertaining to the old premises and the transit accommodations made by
the defendant Nos.1 and 2 is made to the defendant No.3 and not to the
plaintiff. Thus, the plaintiff has no existing right either in the old
premises or in the transit accommodation of the defendant No.3 and
thus, she cannot claim any relief against the defendant Nos.1 and 2.
11. The plaintiff has denied all the aforesaid allegations of the
defendants by filing rejoinder affidavit.
12. The defendant No.3 has not appeared in the suit. He is not
made party to this Notice of Motion. The plaint is not yet registered for
the reason best known to the plaintiff though it was lodged on
18.09.2020. Probably because this, the original tenant might not be
knowing this litigation. Even the plaintiff has not filed affidavit of
service on the defendant No.3. In the Notice of Motion, though the
temporarily relief is asked against all the defendants, it is submitted that
the plaintiff is asking the reliefs primarily against the defendant Nos.1
and 2. Thus, this Notice of Motion is to be decided without prejudice to
the rights of the defendant No.3.
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13. 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 Do the plaintiff prove the
prima-facie case ?
No
2 Whether balance of convenience lies in their
favour ? No
3 Whether irreparable loss would be caused to
the plaintiff, if this Notice of Motion is
rejected ?
No
4 What Order? As per Final Order.
R E A S O N S
Point No.1 to 3:
14. Mr. Suraj Kudalkar, the learned advocate for the plaintiff
submits that the plaintiff has produced ample documents on record to
prove his
prima facie possession and those documents are not disputed
by the defendants. The plaintiff has filed rejoinder affidavit wherein,
she 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 she filed an application before the
defendants for transferring the permanent alternate accommodation in
lieu of the old tenanted premises in her name, the defendants could
have accepted the transfer fee and transferred the said premises in her
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name. Thus, the plaintiff has proved her
prima facie case that she is the
lawful occupant in the transit accommodation i.e. Room No 112 which
is duly recognized by the defendants. Therefore the plaintiff is entitled
for the interim relief as prayed for.
15. On the other hand, Mr. Siddharth Chandrashekhar, the
learned advocate for the defendants submits that the plaintiff is not the
lawful tenant of the defendants in the old premises and the transit
accommodation which was allotted to the defendant No.3 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 the plaintiff as the lawful occupier of the old premises
or the transit accommodation. Therefore, she cannot ask for interim
protection to retain her possession over the transit accommodation
Room No.112.
16. Having considered the rival submissions, it would be clear
from the rival pleadings of the parties that the plaintiff is claiming her
lawful possession over the transit accommodation Room No.112 in
Building No.4A as she has purchased the original tenanted premises
from the defendant No.3 and on that basis, she had acquired possession
of Room No.9 in Building No.9. The letter of the defendants dated
27.12.2018 makes it clear that they had ordered the defendant no.3 to
vacate Room No.9 in Building no.9 and in lieu of it, he was ordered to
shift to Room No. 6A, Gala No.604, in New MHB Colony, Gorai Transit
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Camp, Borivali, Mumbai. The allotment order dated 07.08.2014 by
which, Room No.112 in Building No.4A was earlier allotted to the
defendant No.3 was canceled.
17. Under this backdrop, when the plaintiff comes before the
Court to ask for protection from her dispossession from Room No.112 in
Building No.4A, she has to prima facie prove that her possession is
lawful. There is nothing to show that the plaintiff was lawfully put into
possession of that premises. Insofar as her sale deed, affidavit-cum-
declaration and power of attorney are concerned, they are grossly
insufficient to prove a valid transfer or lawful possession. A valid
transfer of immovable property can only be made by a registered
instrument. None of these documents are registered. Secondly, the
vendor i.e. the defendant no.3 shall not be competent to make such
transfer. He was admittedly a tenant in the original premises. The
plaintiff has to establish that the defendant was competent to transfer
or the transfer made by him is required to be held as legal and valid as
per any law or public policy adopted by the Government, which the
defendants are bound to follow. There is nothing to show anything like
this.
18. Merely because the plaintiff acquired possession of the
transit accommodation of Room No.112 or she has paid the dues of the
defendant No.3, it
ipso facto does not confer any right on the plaintiff to
retain her possession and ask for injunction against the defendants. The
documents on record show that all the correspondence made by the
defendants pertaining to the tenanted premises or the transit
accommodation is made to the defendant No.3. There is some reference
of the name of the plaintiff in the correspondence to reduce the rent
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from Rs.3000 to Rs.500 but the defendants have nowhere admitted that
the plaintiff is their tenant of her occupation is legal. As such, those
documents do not come in aid of the plaintiff to prove the prima facie
case of having lawful possession over the Room No.112. The decree in
Suit No.243 of 2011 will not come to rescue the plaintiff because the
defendant No.3 was the plaintiff in that suit and the decree on
admission is passed in his favour and not in favour of the present
plaintiff.
19. 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 plaintiff is not to be considered as lawful, still the
defendants have to rehabilitate her and they cannot summarily evict
her.
20. 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, the plaintiff has any
remedy under any such circulars/orders, she has to pursue such remedy
before the Competent Authority and she cannot restrain the defendants
from taking any action in accordance with law. Merely because the
plaintiff has apprehension that defendants would evict her from the
transit accommodation, that
ipso facto does not give her right to
restrain the defendants. If she has no right to remain in a particular
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premises, she has to vacate it, else she would be liable to be evicted in
accordance with law.
21. It is the basic requirement of law that when a party asks an
equitable relief, he/she 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 by the plaintiff. Therefore, the question of
balance of convenience and irreparable loss does not fall for
consideration.
22. To sum up, the plaintiff would not be entitled to get the
interim protection as asked in prayer clause (b) of this Notice of Motion.
I do not find such prima facie case in favour the plaintiff. For the
reasons already recorded, the points of the balance of convenience and
irreparable loss need not be addressed. The defendants are free to take
appropriate action in accordance with law against the plaintiff, if she is
found to be in an unauthorized possession of the transit accommodation
i.e. Room/Gala no.112 in Building No 4A, at MHB Colony Transit Camp,
Borivali, Mumbai.
23. In the result, the point Nos. 1 to 3 are answered
accordingly and the following order is passed in answer to point No.4.
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O R D E R
1. The Notice of Motion No.1377 of 2020 is hereby
dismissed.
2. On request by the plaintiff, the interim protection
already granted shall continued for a period of one
month from the date of this order.
3. The Notice of Motion No. 1377 of 2020 stands
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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