Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 (NM No.1391.20 in SU No.1164.2020)
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1391 OF 2020
IN
L.C. SUIT NO. 1164 of 2020
Laxmi Shayamsunder Parab
Aged 67 years, Indian Inhabitant,
Occ. House wife, Residing at 14-A,
Hamid Nagar, Kajupada Pipeline, Plaintiff
Kurla, Mumbai 400072
V/s
1. Maharashtra Housing & Area
Development Authority
Having its office at 4th floor, Griha
Nirman Bhavan, MHADA, Kala Nagar,
Bandra (E), Mumbai-400051
Defendants
2. Mumbai Bldg. Repair &
Reconstruction Board,
(M.B.R.R. Board), Kalachowky,
Mumbai 400034.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 10th November, 2020
Appearance:
Mr. Ganesh Murthy with Jamkhandi, advocate for the plaintiff.
None present for the defendants.
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ORAL ORDER
1. This Notice of Motion is taken out by the Plaintiff praying
to direct the defendants to allot MHADA premises to her as “Swan Mill
Workers” as per allotment letter dated 13.09.2012, by considering her
case, as per the order of the Hon’ble High Court passed on 28.06.2016
and 06.02.2018 in PIL No. 115/2012 and Writ Petition No. 252/2017
respectively and the defendants be further directed to issue provisional
allotment in the name of the plaintiff.
2. The case of the plaintiff in brief is that the deceased
husband of the plaintiff Mr. Shayamsunder Bhagwan Parab was a mill
worker, working in Sewree unit of Swan Mill Process House. He died
on 19.12.2004. The plaintiff is his widow. The Swan Mill was declared
sick and was stopped its operations in the year 1986. The Defendant
MHADA undertook a scheme for construction of the houses to the mill
workers on the land of the mill under “Development Control Regulation
No. 58”. The MHADA proposed to allot tenement No.1416 in building
No. 1-A to the plaintiff vide letter dated 13.09.2012.
3. The MHADA started process of data collection drive of mill
workers in the month of September 2010 and the State of Maharashtra
decided to consider the cases of legal heirs of deceased mill workers
vide letter dated 05.10.2011. Accordingly the defendants invited
applications from the mill workers and the legal heirs of deceased mill
workers for collection of data. The Plaintiff accordingly submitted her
application in prescribe form for allotment of the tenement to her. The
State of Maharashtra vide letter dated 20.06.2012 directed to conduct
to separate lotteries for two different units of “Swan Mill” located at
Sewree and Kurla, but it was further directed that only such of the mill
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workers, who were working in the particular unit of the Sewree will
consider, as eligible. The mill workers of “Swan Mill Limited Process
House (Jubilee Mills)” Unit were declared ineligible to get tenements,
both are Sewree and Kurla Units, though they were covered under
common code No. 57. After conducting lottery on 28.06.2012, the
plaintiff received the letter dated 13.09.2012 proposing the allotment of
the tenement No. 1416 in Building No. 1-A at Sewree. However
subsequently by letter dated 28.11.2014, the plaintiff was declared
ineligible to get allotment of any tenement.
4. According to the plaintiff, Girani Kamgar Karmchari Niwara
and Kalyankari Sangh filed PIL No. 115/2012 before the Hon’ble High
Court, on behalf of the mill workers including Swan Mill. The Hon’ble
High Court vide its order dated 28.06.2016 directed that if an
appropriate representation is made by the petitioner to the monitoring
committee containing all details within a period of six weeks, the
monitoring committee to decide the same within a period of three
months thereafter by taking appropriate decision and to issue directions
in terms of Sub-clause (c) of clause (9) of “Development Control
Regulation-58” by hearing all the parties. The plaintiff was not aware of
the said order and therefore she could not make such representation
before the Monitoring Committee. According to the plaintiff, the similar
order was passed by the Hon’ble High Court for allotment of the
premises in Writ Petition No. 252/2017 dated 06.02.2018.
5. The plaintiff visited the office of the defendant on
08.09.2020 to make representation as per the above orders, but the
officer of the defendants declined to entertain to her representation
saying that unless and until the plaintiff brings Court order, the
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defendant could not allot any premises to the plaintiff. This has given
raised to the cause of action to the plaintiff to file this suit and to ask
the interim reliefs as asked in this Notice of Motion.
6. The defendants though duly served with notice, did not
appear to contest this notice of motion. The plaintiff has filed written
notes of arguments reiterating all the facts as stated above. Since
nobody has appeared on behalf of the defendants, there is no option,
but to decide this notice of motion in their absence.
7. In view of the contentions of the plaintiff and the
submissions made on her 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.
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R E A S O N S
Point Nos.1 to 3:
8. At the outset, it shall be noted that the plaintiff has asked
the reliefs in this notice of motion which are the substantive reliefs
asked in the suit. Such reliefs cannot be granted as interim reliefs. The
entitlement of the plaintiff to get the premises is in question in the suit.
In so far as, question of granting provisional allotment letter is
concerned, such relief on so cannot be granted in absence of inquiry
and proof of the entitlement of the plaintiff.
9. It is own case of the plaintiff that her claim of the premises
has been disallowed by the defendants holding her as ineligible. As such
the plaintiff has to prove her eligibility before the Competent Authority
or before this Court in trial. Whether the directions issued by the
Hon’ble High Court are applicable to the case of the plaintiff or not is
also the subject matter of the trial of the suit. The order granting
provisional allotment to the plaintiff would amount to predetermination
of her rights without trial. If the plaintiff, succeeds to prove her
eligibility either under the scheme or as per the Hon’ble High Court
orders, she would be entitled to get decree in her favour. However, I am
unable to find any
prima facie case at this stage to hold that the plaintiff
is eligible mill worker as being the legal heir of deceased mill worker to
get the allotment in her favour. Therefore, the question of having
balance of convenience or irreparable loss to her will not arise. This
notice of motion is devoid of merit and is liable to be dismissed.
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10. In view of these reasons, point Nos.1 to 3 are answered
accordingly and as a result of this, the following order.
O R D E R
The Notice of Motion No.1391 of 2020 is dismissed and is
accordingly disposed of.
(SHIVAJI. R. SALUNKHE)
Judge
City Civil Court,
Date: 10/11/2020. Gr. Bombay.
Dictated on : 10/11/2020
Transcribed on : 10/11/2020
Signed on : 10/11/2020.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10/11/2020 At 12.20 p.m. MRS. V.D. PAHUARKAR
UPLOAD DATE AND TIME NAME OF TYPIST
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
10/11/2020
Judgment/Order signed by P.O. on 10/11/2020
Judgment/Order uploaded on 10/11/2020
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