Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1445 OF 2020
IN
S.C. SUIT NO. 2279 of 2018
Mrs. Farida Juzer Nagree and others. ].. Plaintiffs
V/s
1. Maharashtra Housing and Area ]
Development Authority and others. ]..Defendants.
Appearance:
Advocate Mr. J.A. Udaipuri for the plaintiffs.
Advocate Mr. Chandrashekhar for defendant Nos.1 and 2.
Advocate Mr. Bhadang a/w Advocate Mr. N.A. Ghatte for defendant
No.3.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 26th NOVEMBER, 2020
ORAL ORDER
This Notice of Motion is taken out by the plaintiffs for
granting temporary injunction restraining all the defendants from
evicting the plaintiffs and/or demolishing their premises in their use,
occupation and possession in the subject building at 182, Yusuf Meher
Ali Road, (180/184), Burhani Manzil (Ashrafi Manzil), Mumbai-400003
(hereafter called “the suit premises”). The cause of action for moving
this Notice of Motion is the issuance of notice dated 07.10.2020
purported to have been issued under section 95A(1) of the MHADA Act.
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2. Earlier, the plaintiffs had filed Notice of Motion
No.2954/2018 seeking the similar relief, based on the notice issued by
the defendant Nos.1 and 2 on 16.07.2018. The notice dated 16.07.2018
reads as under:
“Sir,
Mumbai Building Repairs and Reconstruction Board
has issued No Objection Certificate for Redevelopment of
Subject property vide letter under reference.
Developer M/s. Classic Corporation has informed
this office above tenants/occupants are not co-operating
for redevelopment of the property and not vacating the
room inspite of all other tenants/occupants have vacated
their rooms/office premises. They also requested to
vacate the above mentioned room/offices under section
95-A of the MHADA Act 1976 and Hon’ble CO/RR has
passed the order to take action under section 95A of
MHADA Act vide letter under reference. During the
hearing taken on 14.05.2018 for 95A action you have
submitted the documents of occupancy and the
inspection has been carried by this office on 14.06.2018,
accordingly the corrected tenants/occupants list has been
submitted to higher authorities for approval.
However, it is hereby requested you to vacate
the premises within 24 hours time limit from the receipt
of this letter, otherwise action as deem fit will be taken
please note.”
3. The Notice of Motion No.2954/2018 was contested by the
defendants
inter-alia contending that the notice dated 16.07.2018 is not
issued under section 95A(1) of the MHADA Act, but it was just
intimation to the plaintiffs to vacate their respective premises, so that
the development project can be started. My learned predecessor decided
the said Notice of Motion on 03.12.2018 holding that the notice issued
by the defendant Nos.1 and 2 on 16.07.2018 is the notice under section
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95A(1) of the MHADA Act. He found that the
prima-facie case and
balance of convenience lie in favour of the plaintiffs and also found that
in case the injunction as prayed for is not granted, the plaintiffs would
suffer irreparable loss. In the result, the Notice of Motion was made
absolute in terms of prayer clause (a), thereby temporarily restraining
the defendants from evicting the plaintiffs from their respective
premises or demolishing their respective premises pending the hearing
and the decision of the suit. The plaintiffs were
prima-facie found to be
the lawful occupants of their respective premises and thus, they were
entitled to have temporary and permanent alternative accommodation.
4. The grievance of the plaintiffs in the suit is that, the
defendant No.3/Developer is not executing the agreement for
permanent alternate accommodation with the plaintiffs as per the
requirements of law and also not providing the temporary alternate
accommodation in habbital condition. The plaintiffs have no objection
for redevelopment, provided the defendant No.3 makes such provision
for the plaintiffs. As such, MHADA had issued the eviction notice and
that had given cause of action for the plaintiffs to file that suit and to
take out the Notice of Motion No.2954/2018.
5. After decision of the Notice of Motion No.2954/2018, the
defendant No.3 filed Review Petition No.4 of 2019 seeking to review the
order passed in Notice of Motion No.2954/2018. By hearing both the
sides, my learned Predecessor rejected the said Review Petition by order
dated 22.02.2019. It is stated by the plaintiffs that the defendant No.3
has challenged the order passed in Notice of Motion No.2954/2018 in a
Writ Petition before the Hon’ble High Court, which is pending.
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6. The defendant Nos.1 and 2 again issued notice dated
07.10.2020 to the plaintiffs by specifically mentioning therein that it is
issued under section 95A(1) of the MHADA Act and thereby ordered
that the plaintiffs shall hand over vacant possession of their respective
premises within seven days, failing which, summary eviction as laid
down under section 95A(2) of the MHADA Act 1976 will be initiated.
7. It is the case of the plaintiffs that this notice is issued to
give go by to the injunction order passed in Notice of Motion
No.2954/2018 and to achieve the intended purpose of demolishing the
premises of the plaintiffs by alternate way. The plaintiffs have produced
on record the copies of the orders passed by the Hon’ble High Court in
Writ Petition Urgent No.2 of 2020 and the subsequent orders passed
therein and it is contended on their behalf that even in absence of
injunction order in this matter, the defendants are not entitled to
demolish the premises of the plaintiffs. The plaintiffs are in fact, at
better position as they have an order of injunction in their favour
restraining the defendants from taking any such coercive action.
8. The defendant Nos.1 and 2 have resisted this Notice of
Motion by filing reply
inter-alia contending therein that they have
invoked action under section 95A(1) of the MHADA Act, which is for
summary eviction of non-co-operative occupants. Therefore, the Notice
of Motion taken out by the plaintiffs is not maintainable as there is
separate cause of action, based on this Notice dated 07.10.2020. It is
further contended that a reasoned order has been passed after
considering the reply and documents of the plaintiffs. The project is
being stalled because of non-cooperation of the plaintiffs. The
defendant No.3 has made provision for temporary alternate
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accommodation for the plaintiffs by removing all the defects noticed by
the MHADA Authority earlier, but the plaintiffs are not ready to occupy
the said premises. There is absolutely no
prima facie case in favour of
the plaintiffs nor balance of convenience lies in their favour. Thus, no
irreparable loss would be caused to the plaintiffs in case, the injunction
as sought by them is refused
9. 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 plaintiffs prove the
prima-facie case ? Yes
2 Whether balance of convenience lies in their
favour ?
Yes
3 Whether irreparable loss would be caused to
the plaintiffs, if this Notice of Motion is
rejected ?
Yes
4 What Order? As per Final Order.
R E A S O N S
Point Nos.1 to 3:
10. Mr. Udaipuri, the learned advocate for the plaintiffs has
relied upon the Judgment of the Hon’ble Madras High Court of in
Shanita Holding SDN, BHD, Malaysia and other Vs Shanita Hotel Trichy
Pvt. Limited and other decided on 13.02.2009 wherein, it is held that
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an order of ad-interim injunction passed under Order XXXIX Rule-1 or 2
of C.P.C., whether ex-parte or otherwise is appealable. Thus, according
to the learned advocate for the plaintiffs the proper course of action for
the defendants is to challenge the order passed in Notice of Motion
No.2954/2018, if they feel aggrieved thereby and they cannot just
ignore that order and issue fresh notice to evict the plaintiffs from their
respective premises. The defendant No.3 has already challenged that
order and therefore, there was no propriety for the defendant Nos.1 and
2 to issue such notice of eviction and demolition afresh.
11. He has further relied upon the Judgment of the Hon’ble
Supreme Court of India in
Advocate General, State of Bihar V/s.
Madhya Pradesh Khair Industries Ltd., decided on 05.03.1980. This
ruling is relating to the contempt of the Court. A separate Contempt
Notice of Motion is pending for hearing and therefore, this ruling is not
necessary to be considered while deciding the present Notice of Motion.
12. Mr. Bhadang, the learned advocate for the defendant No.3
has relied upon the Judgment of the Hon’ble Supreme Court of India in
Sajid Abdul Sattar Urankar and others Vs. State of Maharashtra and
others reported in 2011(5)Mh.L.J.
131, wherein it is held that;
“Once there is an amalgamation of two properties, a
composite scheme of redevelopment is envisaged.
Seventy percent of the tenants/occupants taken in
the scheme as a whole must indicate their consent.
The scheme is to ensure to the benefit of the entire
body of them. To require consents to be obtained
individually for each building in a composite
scheme will defeat the purpose of the scheme,
besides being tardy. This will virtually amount to a
veto being conferred on a small group of occupants
to obstruct the scheme though the large body of
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them in excess of seventy percent has agreed. The
island city of Mumbai has numerous congested
areas where it is desirable in the interest of urban
planning to execute composite redevelopment of
adjoining properties. Where this is sought to be
achieved, the requirement of seventy percent must
apply to the occupants taken as a whole. In the
present case, the properties comprised in CS 1101
and CS 1102 are being redeveloper under DCR
33(7) as part of a composite project. Amalgamation
of the two plots has been sanctioned. Since the
project is being treated as a composite project of
redevelopment, the total number of occupants
involved is 105, comprised of 88 occupants of CS.
1102 and 17 occupants of CS. 1101. None of the
occupants of CS 1102 has made any complaint and,
as a matter of fact, all of them have shifted out of
their erstwhile tenements so as to facilitate the
process of redevelopment. Similarly, 7 of the 17
occupants of CS 1101 have also shifted out.
Therefore, even if all the 10 petitioners were to be
treated as persons who have not consented to the
scheme for redevelopment that would not make any
difference to the computation of the figure of
seventy percent.”
13. By relying on the above ruling, the learned advocate for the
defendant No.3 submits that the plaintiffs are non-cooperating
occupants. There is consent of 70% of the members of composite
redevelopment project undertaken by the defendant No.3. The
defendant Nos.1 and 2 therefore, competent to take action under
section 95A(1) of the MHADA Act for summary eviction of such non-
cooperating members.
14. While arguing on the point of scope of section 95A(1) of
the MHADA Act, the learned advocate for the defendant No.3 has
further relied upon the Judgment of the Hon’ble Supreme Court of India
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in
Radhika George and others Vs. Maharashtra Housing and Area
Development Authority others reported in 2012(5)Mh.L.J. 229,
wherein it is held thus;
“The object of the legislature by introducing the
amendments was to give an opportunity to the
occupants of old structures who were unable to
develop them for lack of resources, to move to
better accommodation at the same time create
additional housing for general consumption. The
State Government revised the FSI and encouraged
housing development schemes by MHADA either
by itself or by the housing societies. Section 95-A
was enacted to enable speedy implementation of
such redevelopment schemes. The provision is to
ensure seamless implementation of the project.
When the housing societies decide to get their
premises redeveloped, care should be taken that its
members should have premises to stay when the
original building is demolished and is being
reconstructed. The members should not be left in
lurch being out of shelter while the redevelopment
goes at its own pace. Thus, what the authority
needs to examine is whether its a collective
decision i.e. whether 70% of members have
consented, whether permissions like the NOC are
in order and whether the developer has provided
adequate transit accommodation. Once the
authority under section 950A finds that these
requirements are fulfilled, all that it does is to be
direct the members to shift to the transit
accommodation awaiting reconstruction.”
15. It is also held in the above cited Judgment that the
proceeding under section 95A(1) of the MHADA Act cannot be
converted into a full fledged judicial proceedings as if the authority is
trying a civil suit. The rights of the parties cannot be determined under
section 95A(1) of the MHADA Act. It is also held that the Legislature
has not provided any appeal from the order passed under section
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95A(1) of the MHADA Act. The Writ Court therefore, granted full
opportunity to the appellants to find as to whether any failure of the
justice has occasion by the impugned order.
16. Mr. Bhadang, the learned advocate for the defendant No.3
submits that the order passed in Notice of Motion No.2954/2018 cannot
be an impediment in taking action in accordance with law. The
injunction is not issued prohibiting the defendant Nos.1 and 2 from
taking action against the plaintiffs in accordance with law. The notice
challenged in Notice of Motion No.2954/2018 was not the notice issued
under section 95A(1) of the MHADA Act, but it was just an intimation
to enable the plaintiffs to vacate their respective premises as per the
negotiation taken place during the inquiry before the Competent
Authority of MHADA. The plaintiffs failed to act as per the said
intimation and therefore, the defendant Nos.1 and 2 are constrained to
proceed under section 95A(1) of the MHADA Act against the plaintiffs
which they were competent to do. The plaintiffs have not shown any
justifiable reason to retain their respective premises and therefore, they
are liable to be summarily evicted.
17. Having anxiously considered the rival submissions, the
dispute involved in this Notice of Motion is very short. While hearing
the Notice of Motion No.2954/2018, it was found that the Developer
has not discharged his obligations as laid down under section 95A of
the MHADA Act. Without providing suitable temporary alternative
accommodation to the plaintiffs and without entering into an
agreement for permanent alternate accommodation, the law does not
permit the defendants to evict the plaintiffs from their respective
premises. This finding as is reflected from the order of my learned
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predecessor is under challenge. Secondly, the contentions of the
defendants that the Notice dated 16.07.2018 is not the notice under
section 95A(1) of the MHADA Act, but it is just an intimation is
negatived by my learned predecessor holding that the said notice is
necessarily a notice under section 95A(1) of the MHADA Act.
18. Under this backdrop, it is not permissible for this Court to
revisit the said finding and to take a different decision, particularly
when, the earlier decision is under challenge. Secondly, once this Court
has held that the notice dated 16.07.2018 is a notice under section
95A(1) of the MHADA Act, there is no propriety for the defendants to
issue the same notice once again. This Court cannot sit in appeal against
its own order to consider whether the notice subsequently issued on
07.10.2020 is a notice under section 95A(1) of the MHADA Act and
consequently, the earlier notice dated 16.07.2018 is just an intimation.
19. In view of these reasons, I find that the
prima-facie case in
favour of the plaintiffs that they are already protected from eviction or
demolition by an order passed in Notice of Motion No.2954/2018 and
as such, their protection cannot be revoked on the basis of the
subsequent similar notice issued against the plaintiffs. Since, the
defendant No.3 has challenged the order passed in Notice of Motion
No.2954/2018 in Writ Petition, the legality of the said order can be
tested in the said Writ Petition. Thus, the balance of convenience does
not lie in favour of the defendant No.3, but it lies in favour of the
plaintiffs. No irreparable loss would caused to the defendant No.3 for
the same reason, but if, this Notice of Motion is dismissed, it will
amount to revoke the injunction order earlier passed in favour of the
plaintiffs and thus, they would suffer irreparable loss as they would be
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evicted and their premises would be demolished in execution of such
subsequent notice.
20. In the result, I hold that this Notice of Motion deserves to
be made absolute in terms of prayer clause (a) by restraining the
defendants from evicting the plaintiffs or demolishing their respective
premises in subject building at 182, Yusuf Meher Ali Road, (180/184),
Burhani Manzil (Ashrafi Manzil), Mumbai-400 003. In the result, point
Nos.1 to 3 are answered accordingly and as a result of this, the
following order.
O R D E R
1. The Notice of Motion No.1445 of 2020 is made
absolute in terms of prayer clause (a).
2. The defendants are temporarily restrained from
evicting the plaintiffs and/or demolishing
their premises in their use, occupation and
possession in the subject building at 182, Yusuf
Meher Ali Road, (180/184), Burhani Manzil
(Ashrafi Manzil), Mumbai-400 003 till decision
of the suit.
3. The cost will follow the result of the suit.
4. The Notice of Motion No. 1445 of 2020 stands
disposed of accordingly.
(SHIVAJI. R. SALUNKHE)
Judge
City Civil Court,
Date: 26/11/2020. Gr. Bombay.
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Dictated on : 26/11/2020
Transcribed on : 26/11/2020
Signed on : 26/11/2020.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
26/11/2020 At 12.05 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
26/11/2020
Judgment/Order signed by P.O. on 26/11/2020
Judgment/Order uploaded on 26/11/2020
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