Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1610-19 in Suit No. 1096-19
CNR NO.MHCC0100435719
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 1610 OF 2019
IN
L.C. SUIT NO. 1096 OF 2019
Mrs. Premabai Amarbhai Heliya ....Plaintiff
Versus
The Municipal Corporation of Greater Mumbai & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 06th May, 2019
Appearance:
Ld. Adv. Babita Pandey for the plaintiff.
Ld. Adv. Mr. Anil Mishra for deft.no. 2 & 3.
Ld. Adv. Smt. Patil for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks injunction restraining
the defendant nos. 1 to 3, from shifting the plaintiff to the newly
constructed building in the plot of Western Railways.
2. The prayer made by the plaintiff for temporary injunction reads
as under:
a) That the defendants be restrained by a temporary or
mandatory order of injunction of this Hon'ble Court from forcing the
plaintiff from shifting to newly constructed building which is
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constructed in plot of Western Railways and the NOC obtained from
Western Railways in lieu of redevelopment wherein the undertaking has
been given of demolishing the newly constructed buildings on their own
cost and the said fact is not disclosed in tripartite agreement dated
24.03.2004 signed by the defendants for the said redevelopment.
b) That pending the hearing and final disposal of the suit the
Defendants, their servants, agents and any other persons, claiming
through them be restrained by an order of temporary or permanent
injunction from not to put pressure upon the plaintiff due to monsoon
to shift in newly constructed buildings of defendant no. 2 and evict,
demolish the tenements of defendant no. 1 allotted to the plaintiff as a
staff quarter.
3. The cause for the notice of motion is mentioned in the affidavit in
support of notice of motion. In paragraph ''k'', it has observed as follows:
k. The plaintiff state that there is a great apprehension of
forceful eviction from the suit quarters by the defendant no. 3 in
collusion with defendant no. 1 & 2 and they can demolish the suit
tenements at anytime in future without informing about the same to the
plaintiff. The plaintiff state that the plaintiff is having good case on
merit and having the documents which proves that the shifting of
plaintiff in newly constructed building has no future due to undertaking
given by the defendant no. 3 just to get NOC granted to carryout
construction. Therefore in the interest of justice the plaintiff's case may
be considered and justice be given to the plaintiff.
4. The cause points out that the plaintiff had apprehension the
forceful eviction from the suit quarters and would forcefully demolish
the suit structure. The plaintiff had not specifically pointed out the
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overtact to show as to how the defendant is forcefully trying to evict the
plaintiff from the suit premises. The defendant in their say had pointed
out that 200 families have already shifted to the new building.
The main objection of the plaintiff to shift to the new premises is
that no objection given by the Western Railways.
It points out in affidavit in support of notice of motion in clause
''i'' is as under:
(i) The plaintiff state that through Application under Right To
Information Act, 2005 plaintiff gathered some information about the
whole redevelopment work carried out by the defendants. Through RTI
plaintiff came to know that the work of redevelopment was given to the
defendant no. 3 without falling for any tenders from other developers
and also it was learnt from RTI that defendant no. 1 had issued eviction
notices upon plaintiff and other staff declaring the staff quarters as
dilapidated even without carrying out any structural audit report, the
plaintiff further state that plaintiff came to know through RTI that the
newly construction site is situated within 30 mtrs of Western Railway
boundary which is in violation of Railways rules also information has
come in hands of plaintiff that Western Railway authority had issued
''STOP WORK'' on 12.04.2007 upon the defendant no. 3 due to
violations of Railways Rules and Regulation. The plaintiff state that
through RTI plaintiff got to know some shocking facts about
authenticity of redevelopment work carried out by the defendant no. 3
i.e. to get the No Objection Certificate from Western Railways the
Director of defendant no. 3 had given undertaking that ''do hereby
agree and affirm that we will not claim any compensation for the
proposed building on above land plot and shall demolish the same at
our own cost as and when the Railway authority ask to do so for
their expansion programme in future.
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We are fully aware that NOC is for the proposed work as
referred above and is given on this undertaking only. This is binding
on us as well as our successors administrators and legal heirs.''
Hence, the image is clear that defendant no. 3 has built the new
building in plot of land which belongs to the Western Railways and if in
future times if Western Railway will require such land to expand the
railways then the newly constructed buildings wherein defendant no. 3
is giving flats to the plaintiff and other staff on an ownership basis can
be demolished on own cost and therefore, shifting in new construction
of defendant no. 2 society is at risk and at any point of time plaintiff
will be homeless as it will be allotted on ownership basis. The plaintiff
has come to know this fraud played by the defendants when more than
200 families have already shifted in newly constructed buildings of
defendant no. 3 and therefore there is no future security to the
plaintiffs. Plaintiff is not annexing these documents with plaint just to
avoid heavy plaint, plaintiff undertakes to produce all these documents
taken out under RTI at the time of evidence.
It is apprehension that the shifting would create complications.
5. The alleged apprehension of the plaintiff depends upon the
happening of future event. Admittedly, the plaintiff is the employee of
the defendant corporation and has retired from the service. The plaintiff
was issued notice dated 27.08.2016 for eviction from the dilapidated
structure. The said notice is not challenged in the present suit. The
reliefs claimed in the suit are perpetual and mandatory injunction
without praying for substantial relief.
It is also not in dispute that the plaintiff is allotted the alteration
accommodation. The plaint does not disclose that the present quarter
relating which the notice was issued is not in dilapidated condition. It
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is to be noted that the structure in which plaintiff at present is residing
is old structure. It therefore has to be inferred that the suit building is
in dilapidated condition. It may be dangerous to reside in the old
dilapidated building. It would be risking lives.
6. The ground for seeking relief of restraining the defendant from
dispossessing them from the suit premises is based merely on future
apprehension. It is also required to be noted that the employees of the
defendant corporation cannot claims statutory rights to be used on
ownership basis. In municipal properties they have no right to continue
in their possession and occupation of public property.
7. The Hon'ble High Court in Writ Petition No. 1320/2000 in case of
Shri D.J. Rane & Ors. V/s The Municipal Commissioner & Ors. In
paragraph no. 10 to 13, it had observed as follows:
10. We have considered the submissions. We have perused the
prayers in the Petition as well as the pleadings. We find that the
petitioners have prayed for allotment of permanent alternate
accommodation (flats) on ownership basis in the building constructed
on the said plot. We find that the basis for claiming allotment of
permanent alternate accommodation on ownership basis in the
reconstructed property of the Municipal Corporation is that the
petitioners were a part of scheme under DCR 33 (7) and had given their
consent for implementation of the scheme. We find that the Municipal
Corporation resolved that the petitioners would not be given tenements
on ownership basis but would remain allotees of staff quarters on leave
and license basis in the surplus tenements coming to the Municipal
Corporation free of cost. On the other hand, the labour stafff/class IV
employees would be given the surplus tenements on ownership basis in
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the reconstructed building. This was a clear policy decision of the
Municipal Corporation and approved by its improvement committee
and its General Body. We find that there is no prayer in the petition for
the setting aside of these resolutions of the Municipal Corporation
including its revised resolutions passed in the year 2000. We have
noted the submission of Shri Dakhepalkar, the learned Senior Counsel
appearing for the Petitioners, that prayer (a) is wide enough to include
the setting aside of these resolutions. However, the mere claim to
permanent alternate accommodation on ownership basis cannot be
equated with a prayer to set aside the resolutions approving the policy
of the Municipal Corporation. We find that the Municipal Corporation
has in fact taken an informed policy decision to treat the class IV
employees in the same manner as the conservancy employees, and
grant them preferential treatment under the Rules of the Municipal
Corporation.
11. We find that this Court in More Jeevan Yashwant (Supra)
has considered identical issue arising herein viz. Municipal employees
claiming permanent occupation of Municipal property. In paragraph 39
of the judgment, this Court has held thus:
39. It is high time that we clarify that those in possession of
public property have no right to continue in their possession and
occupation. The municipal servants must realize, like others, that they are
public servants. The Municipal Corporation must realize that it is a
trustee of the public property. They do not have authority to dispose of
these properties as if they belong to them exclusively. They are made over
to the municipalities for municipal administration and governors.
Therefore, the local authorities and Municipal Corporations are as much
bound by the mandate of Article 14 of the Constitution of India, as these
employees. This Court cannot perpetuate and illegal act by its writ. Equal
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protection of the law postulates that those not entitled to any relief based
on a right cannot continue to insist on the same. Once a leave and license
arrangement in law does not confer any right, title and interest in the
property, much less of tenancy, then, we do not see how the Municipal
property, coming in the petitioner's possession during the course of their
service, places them in a different class. They are comparable with those
municipal servants to whom municipal premises are allotted in lieu of
payment of House Rent Allowance. The House Rent Allowance is paid
because those occupying their own or rented premises should be in a
position to bear the monetary liability. In some cases, the salary is not
enough to meet these expenses and therefore, such schemes, namely,
payment of House Rent Allowance or grant of housing accommodation in
lieu thereof, are proposed and implemented. These schemes are
implemented so as to assist the municipal employees and public servants
and in return, it is expected that they render efficient and prompt services.
The municipal services are rendered to fulfill the mandate of the
Constitution of India and Sections 61 and 63 of the MMC Act. We need
not highlight as to what are the duties of the Municipal Corporation and
its functions. There is enough indication in that regard in the MMC Act
itself. That contains both, the obligatory and discretionary duties.
Eventually, all municipal services are rendered for the welfare and benefit
of the residents of the city. The Municipal Corporation themselves occupy
a constitutional status. The Constitution envisages establishment and
incorporation of a Municipal Corporation so as to ensure better and
quality municipal governance. Given this status, the municipal employees
ought to be aware that if they occupy municipal properties during the
course of their services, then, they are also obliged to handover these
premises on their retirement or superannuation so that the Municipal
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Corporation can utilize them for housing those who have entered the
services or existing employees. Given the shortage of accommodation,
there is a huge waiting list. Hence, we find that the contrary impression
that parties like the petitioners and municipal authorities entertain needs
to be dispelled forthwith. None can, therefore, take a decision to handover
municipal properties to anybody save and except in accordance with law.
No provision has been brought to our notice in the MMC Act, which
obliges the Municipal Corporation to make a provision for housing its
retired employees. Therefore, there is no statutory right, which can be
claimed in such matters.
12. This Court further in paragraph 40 held thus:
''The municipal property can be disposed off only in
accordance with Section 92 of the MMC Act. The petitioners ought to be
aware of this settled legal position and as annunciated in the MMC Act.
No public property can be disposed off even by a public body except as
authorised by law. If we agree to the request of the petitioner, none would
ever vacate staff or service quarters, but retain them even after their
retirement. Those in public service and fulfilling the criteria of a public
servant would then have to wait for allotment of premises in the event they
require them. We cannot direct a Municipal Corporation and particularly
the Municipal Corporation of Greater Mumbai, which has a work force of
more than one lakh employees, to grant the permanent occupancies and in
the form requested.''
13. It is thus clearly held by this Court that the Municipal employees
have no right to claim permanent occupancies and that this Court
cannot direct the Municipal Corporation to grant permanent
occupancies claimed by the Municipal employees. It is held that the
Municipal Corporation must realize that it is a trustee of public
property. These properties have been made over to Municipalities for
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municipal administration and governance. It is thus clear that there
cannot be any statutory right of the Municipal employees to claim
permanent occupancy of Municipal property. The plaintiff have already
been superannuated. The plaintiff is provided alternate
accommodation. The apprehension depends upon happening of future
event.
8. It clears that the municipal employees have no right to claim the
permanent occupancies on the residence provided to them by virtue of
their service.
It needs to be noted that the building is in dilapidated condition.
So also, the plaintiff is getting alternate accommodation.
The plaintiff has failed to make out the primafacie case. The
balance of convenience does not lies in favour of the plaintiff. The
plaintiff is not entitled for the injunction as prayed for. The plaintiff
would not be put to irreparable loss, if the temporary injunction is
refused. In the result, following order is passed:
ORDER
The Notice of motion no. 1610/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 06.05.2019 City Civil Court, Mumbai.
Dictated on : 06.05.2019
Transcribed on : 06.05.2019 & 07.05.19
Signed by HHJ on : 10.05.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 13.05.2019 at 10.21 am.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
06.05.2019
JUDGMENT/ORDER signed by
P.O. on
10.05.2019
JUDGMENT/ORDER uploaded
on
13.05.2019
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