Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C.SUIT NO. 981 OF 2018
CNR MHCC010045052018
Sachin Pandurang Yelwe )...Plaintiff.
V/s.
1. Municipal Corporation of Greater
Mumbai and Ors. )...Defendants.
CORAM : HIS HONOUR I/C JUDGE
SHRI. GIRISH B. GURAO,(C.R.6)
( I/C of C.R. NO.8 )
DATE : 07/04/2018.
Ld.Adv. Mr. B.P.Shukla for the plaintiff.
Ld. Adv.Mr.Giri for the BMC/defendants
ORAL ORDER
The plaintiff has taken out this draft notice of motion for
the temporary mandatory injunction to direct the defendants or their
concern officers to restore the electricity connection of the suit premises
and also not to demolish the suit premises on the basis of notice dated
14/07/2014.
-- 1 of 7 --
2
2. Plaintiff is tenant of shop no.1, admeasuring 209.55 sq.ft.,
ground floor, Kamala Bhuvan, situated at CTS No. 2252 to 2254 , Kirol,
LBS Marg, Ghatkopar (West) , Mumbai 400 086 (hereinafter same is
referred as " suit premises"). Defendant no.1 is Municipal Corporation of
Greater Mumbai and defendant no.2 is landlord of CTS No. 2252 to
2254.
3. According to plaintiff, plaintiff's father and his uncle
Narhari Yewle were conducting business of tailoring in the name and
style of "Vijay Tailors and Cloth Merchants" in the suit premises.
Narhari Ramchandra Yewale was tenant of the suit premises. The
tenancy is created in the year 1973. After the death of Nahari,
plaintiff's father and thereafter plaintiff was doing the business in the
suit premises. Thereafter in the year 1995 , plaintiff changed the
business of tailoring and started new business of Dry Fruits namely M/s.
"Vijay Dry Fruits and General Stores". Narahi Yewle and plaintiff's
father have taken electricity connection in the suit premises. Now,
plaintiff pays the electricity charges. Defendant no.2 has given rent
receipts to the plaintiff. Defendant no.2 thereafter stopped to accept
the rent ,the plaintiff filed suit being RAD Suit no. 1334/2008 in Small
Causes Court at Mumbai. The suit is pending.
4. Thereafter defendant no.1 at the instigation of defendant
no.2 issued notice to plaintiff and other tenants on 14/7/2014 and
intending to pull down the building. However, defendant no.1 has not
followed the direction in WP(L) No. 1135/2014 of the Hon'ble High
Court. The said notice was issued under section 354 of the MMC Act.
Defendant under the guise redevelopment of the suit building,
convinced to plaintiff to sign on agreement of development in meeting
-- 2 of 7 --
3
dated 17/8/2017. Plaintiff has signed on the agreement with the hope
that he will get alternate accommodation.
5. Plaintiff further contended that on 8/9/2017 the officer of
the defendant no.1 visited and inspected the suit premises and
intimated the plaintiff to vacate the same. On 23/3/2018 defendant
no.1 issued a notice to vacate the suit premises. Thereafter on
2/4/2018 the electricity connection was disconnected.
6. According to plaintiff defendant no.2 has not provided any
alternate accommodation to the plaintiff. Defendant no.2 has not
executed any agreement with plaintiff. Thus , the notice of the
defendant no.1 is illegal and badin law. Therefore prayed to direct the
defendant to restore the electricity connection in the suit premises and
also not to demolish the suit structure.
7. Notice is served to defendants. Defendant no.1 filed
affidavit in reply of his officer Sandesh Pendharkar. According to
defendant no.1 , defendant's officer has inspected the suit premises and
it is found that the building is in dilapidated condition and dangerous
for human habitation. Therefore, notice was given to the landlord
/owner of the building. On 29/3/2014 the landlord produced the
report of Structural Audit of Suyog Structural Design Consultant. It is
reported that the suit building is beyond repair and it should be
demolished. Thereafter defendant again carried inspection and issued
notice to the plaintiff and other tenants on 14/7/2014. Prior to this,
officer of the defendant no.1 have measured the area in occupation of
this tenants and prepared the report. Thus, the defendant has followed
the direction of Hon'ble High Court in WP(L) no. 1135/14.
-- 3 of 7 --
4
8. Thereafter on 22/3/2018, notice was again issued to
occupier of the building , in the mean time some parts of the building
was collapsed and 90% tenants have vacated the building. Thereafter
on 2/4/2018 water connection and electricity connection disconnected.
The building is dangerous and dilapidated , therefore prayed to reject
the adinterim reliefs.
9. I have heard Shri Shukla advocate for the plaintiff and Shri
Giri advocate for the defendant/ Corporation.
10. Shri Shukla , advocate for the plaintiff has submitted that
the defendants are demolishing the suit property, work is in progress,
however, plaintiff has filed the suit therefore it was mandatory on
defendant no.1 to stop the demolition work. The defendant no.2 has
not executed any agreement with plaintiff. The suit premises is only the
earning source of the plaintiff. Defendants may demolish the other part
of the building. However, defendants malafidely started demolition
from the shop of the plaintiff. He further submitted that, defendant
no.2 has not provided any alternate accommodation to the plaintiff and
also not entered with an agreement with plaintiff. Therefore , plaintiff
being the tenant has right to occupy the premises. He further submitted
that the structural audit report produced by defendant no.2 is false and
bogus . Therefore, he prayed to grant interim protection as prayed.
11. Shri Giri advocate for defendant no.1 has submitted that
the demolition is going on. Notice is issued under section 354 of the
MMC Act in the year 2014. The plaintiff has filed the suit in the year
2018 , thus, every opportunity was given to the plaintiff to put his
-- 4 of 7 --
5
grievances. He has invited my attention to structural audit report and
contended that the building is in dilapidated and dangerous . The other
tenants have vacated the building . Plaintiff has no right to remain in
the suit premises. He further submitted that , part of the portion of the
suit premises is demolished, hence he prayed to dismiss the notice of
motion.
12. I have perused the documents filed by both the parties.
From the rent receipts produced by the plaintiff, it appears that
plaintiff's uncle Narahari was the tenant in the suit premises. It appears
that , thereafter plaintiff was carrying the business in the suit premises.
Some disputes arose between the plaintiff and defendant no.2 and suit
no. 1334/2008 is filed by the plaintiff in the Court of Small Causes at
Mumbai. The said suit is pending .
13. Now core question is whether plaintiff is entitled for relief
as prayed ? The plaintiff' contended that defendant no.1 be directed to
restore his electricity connection in the suit premises. However, from
the report of the Corporation, it reveals that the work of demolition is
going on. The structural audit report do so that the building is in
dilapidated condition and dangerous . Other tenants have vacated the
premises. Before demolition , the Corporation has carried out the
measurements of the occupancy of each member and prepared the list.
Thus, plaintiff has a remedy against the defendant no.2 to agitate his
grievance about the tenancy. The fact remains that the building is
dilapidated and dangerous. Further the demolition work is in progress,
therefore in such a circumstances, it cannot be directed defendant no.1
to restore the electricity supply in the suit premises. Hence, I find that
plaintiff has no prima facie case , balance of convenience does not lies
-- 5 of 7 --
6
in favour of plaintiff. Therefore, plaintiff is not entitled for any ad
interim reliefs as prayed, hence I pass the following order.
ORDER
1. Adinterim relief is hereby refused.
2. Draft notice of motion be registered.
(Girish B. Gurao )
Addl. Sessions Judge,
City Civil & Sessions Court,
Gr.Mumbai.
(I/c of C.R.No.8)
Date:07/04/2018.
Dictated on : 07/04/2018.
Transcribed on : 07/04/2018.
Signed on : 09/04/2018.
-- 6 of 7 --
7
“Certified to be True And Correct copy of the Original.
Signed Judgment/Order.”
Upload Date And Time
09.04.2018 at 5.15p.m.
Name of Stenographer
(Mrs. V.V.Mhatre)
Name of the Judge (With Court
room No.)
H.H.J Shri Kishore M. Jaiswal
(C.R. No.08)
Date of Pronouncement of
JUDGMENT / ORDER
07/04/2018
JUDGMENT / ORDER signed by
P.O.on
09/04/2018
JUDGMENT / ORDER uploaded on 09/04/018
-- 7 of 7 --