Order 1

Order Details: Notice of Motion
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IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO.1162 OF 2019
S.P.C. Residence Welfare Association ]
Bhandup Association. ]...Plaintiff.
Versus
1. The Mumbai Corporation of ]
Greater Mumbai & Ors. ]...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 4th May, 2019.
Mr. Manojkumar Upadhyay, Advocate for plaintiff.
Ms. Tondwalkar, Advocate for MCGM/Defendant No.1.
Mr. Narayan, Advocate for defendant No.2.
Mr. Madhur Surana, Advocate for defendant No.9.
O R D E R
1. The plaintiff, claiming to be a registered Association of the
tenants of two buildings namely Pravin Kunj and Sharad Villa, has
sought adinterim relief to appoint the Commissioner to inspect the site
and to take fresh measurement of respective premises occupied by its
members, to declare that its members are entitled to transit
accommodation and to restrain the defendants from demolishing the
suit premises unless the defendant No.9 execute the Agreements with
the members of the plaintiff for providing the alternate accommodation.
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2. The Association has come with a case that the suit is challenging
the Notice issued under Section 354 of the MMC Act as it is issued
without following the guidelines laid down by the Hon'ble High Court in
Writ Petition No.1135 of 2014. On receiving such notice the occupants
/tenants requested the landlord to repair the building but he refused. He
told the occupants to vacate the buildings. In a meeting dated 25.4.2014
it was agreed to redevelop both the buildings. The landlord again in
May, 2015 asked the occupants to vacate the buildings. In a meeting
dated 29.5.2015 with the Assistant Municipal Commissioner, the
occupants were directed to submit the structural audit report. The
members of plaintiff appointed the structural Engineer who opined that
the building required major repairs. The members of plaintiff are ready
to repair the buildings but on 2.6.2015 Officers of defendant Corporation
prepared the Area Statement. The landlord is not ready to repair the
buildings and also to provide the alternate accommodation. Plaintiff
replied the Notice under Section 354 and submitted the structural audit
report. Thereafter, the members of plaintiff filed Suit No.1407 of 2015.
The defendant No.1 issued the Area measurement certificate dated
2.6.2015 however, it is not in accordance with the Area possessed by the
tenants. Plaintiff approached defendant No.1 about the difference in the
area. Plaintiff requested for fresh measurement however, it was denied
by the defendant No.1 Corporation. Defendant Nos.2 to 8, the owners,
have executed Development Agreement with defendant No.9. The
members of plaintiff obtained its copy and noticed that many Clauses are
against the Law. The area sought to be allotted after redevelopment is
also different than the actual area possessed by the plaintiff's members.
Defendant No.1 Corporation denied to resurvey and to grant fresh area
Certificate. All the defendants possess wrongful intention to deny the
plaintiff's rights. Defendant No.9 is not ready to execute the agreement
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and is not ready to provide transit rent to the members.
3. Advocate for the plaintiff submitted that the defendants have
purposely mentioned "SRA" etc. in the Development Agreement only to
provide accommodation of less area to the plaintiffs. They are trying to
apply provisions of SRA to negate the plaintiff's legal rights. Though the
plaintiff had filed earlier Suit, the relief in said suit and in the present
suit are different. Therefore, present suit is not barred. The area
Statement furnished by the defendant No.1 Corporation and the Area
mentioned in the Development Agreement is different. Plaintiffs are
ready for redevelopment however, their rights need to be protected. The
plaintiff's request for remeasurement to ascertain exact area possessed
by it's members need to be accepted. However, if before such
measurement the buildings are demolished, there would be no
opportunity to measure the actual area possessed by the members of the
plaintiff. Therefore, adinterim relief be granted to the plaintiff.
4. The Advocate for defendant No.1 Corporation submitted that
Corporation has nothing to do with the inter se dispute between the
plaintiff and the developer or the owners. The Corporation has followed
the due process of law. Corporation's stand is accepted by this Court in
earlier rounds of litigation. The plaintiffs have not challenged the Area
Statement issued by the Corporation. There is no necessity now to
accept the plaintiff's request. The plaintiff is trying to create hurdle in
the legal process being followed by the defendant Corporation. The
plaintiff is playing with life of its members as well as third parties.
5. The Advocate for owners i.e. defendants No.2 to 8 submitted that
in earlier rounds the plaintiff could not succeed. Sometimes its members
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file a suit and sometimes the plaintiff files a suit only to halt the process
of redevelopment. The Suit and the Motion is filed with malafide
intention. In earlier rounds of litigation this Court has rejected the
Notice of Motion. The plaintiff is trying to agitate same issue again and
again.
6. The advocate for Developer defendant No.9 submitted that the
earlier suits are dismissed. The adinterim reliefs sought are of such a
nature that if those are granted it will amount to granting final relief in
the suit. He submitted that many of the occupants /tenants have entered
into an Agreement with the developer defendant No.9. In such
circumstances, the suit by the association like plaintiff for all the
occupants is not maintainable without disclosing who are its members.
The tenants have already vacated the buildings and therefore, no relief
need be granted to the plaintiffs.
7. The adinterim relief in terms of prayer Clause (a), (c) and (d)
only is pressed.
8. The prayer Clause (a) is for an appointment of Commissioner to
inspect the site and take fresh measurement of respective premises
occupied by the members of the plaintiff.
9. As per plaintiff's own case defendant No.1 Corporation has issued
an Area Statement on 2.6.2015 which is Exh.I to the plaint. It appears
that since then till the end of April, 2019 the members of plaintiff's have
not disputed said area statement. In the plaint it has come with a case
that its members have disputed the Area Statement issued by the
defendant No.1 Corporation and have sought re measurement.
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However, the plaint, probably with an intention to suppress the truth,
does not disclose the date, month or year on which the dispute about the
Area Statement was raised by the members of the plaintiff. The
documents produced by defendant No.1 Corporation reveal that such
effort was made at the end of April, 2019 probably to create a cause of
action for present suit. Thus, it is clear that the plaintiff's members have
not disputed the Area Statement issued on 2.6.2015 for a considerably
long period. Even the reply given by the plaintiff to Notice under Section
354 of the MMC Act does not raise any dispute about the Area
Statement. It needs to be mentioned that said reply was given after Area
Statement is issued by the defendant No.1 Corporation. Thus the
present dispute raised by the plaintiff is after thought.
10. So far as the area mentioned in the Development Agreement
between defendants No.2 to 8 on one hand and defendant No.9 on
another, the plaintiff can rely upon the Area Statement issued by
defendant No.1 Corporation to seek their legal rights. Therefore,
execution of such development Agreement will not furnish any ground to
the plaintiff to agitate said issue before this Court.
11. The documents produced by the defendant No.9 Developer reveal
that many of the tenants or occupants of Pravin Kunj and Sharad Villa
buildings have signed the development Agreement with defendant No.9
agreeing to the terms and conditions of said agreement. The names of
such tenants when tallied with the names of occupants mentioned in
Area Statement reveal that almost 17 occupants have signed the
agreement. It also needs to be mentioned that the representative of
plaintiff's Association Mr. Ajay Sawla was the prosecutor in Suit No.1714
of 2018, who has also signed the development Agreement with the
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defendant No.9. The copy of plaint in Suit No.1714 of 2018 further
reveals that the plaintiff in said Suit i.e. Association of tenants has
pleaded in paragraph No.11 that defendant No.1 Corporation has issued
the Area Statement on 2.6.2015 however, said Area Statement was not
disputed in that suit. No relief was sought in respect of such Area
Statement. Thus when the opportunity was available with the plaintiff in
earlier Suit, no such relief was sought. On this count maintainability of
present suit disputing the Area Statement is questionable.
12. When almost 17 occupants / tenants have signed the Development
Agreement with defendant No.9, it is legally inappropriate for the
plaintiff's Association to agitate before this Court that it is representing
all the tenants or occupants of these two buildings. In such
circumstances, it is for the plaintiff Association to state before this Court
who exactly are its members. However, this is not done. Therefore, the
adinterim relief sought in respect of the premises of the members of the
Plaintiff and the injunction in respect of the members of the plaintiff
cannot be granted without knowing who its members are. Otherwise to
granting of such relief will be in vacuum and will create only ambiguity.
13. The plaintiff's have pleaded about the guidelines issued by the
Hon'ble Bombay High Court in Writ Petition Lodging No.1135 of 2014.
The guideline 'L' in the guidelines issued by the Hon'ble High Court is to
the effect that the rights of the tenants and/or his occupiers and/or
owners in respect of the said premises/ property will not be effected by
virtue of evacuation or demolition carried out by the Corporation.
14. In such circumstances, the dispute between the plaintiff and
defendant Nos.2 to 9 regarding payment of rent or alternate
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accommodation etc can be taken care of without stopping the process of
demolition has sought by the plaintiff void prayer Clause (c) and (d).
15. To sum up, the plaintiffs have virtually accepted the Area
Statement dated 2.6.2015 issued by the defendant No.1 Corporation.
Thus prima facie there is no need of appointment of Court Commissioner
as sought. Secondly the identity of members of the plaintiff's Association
is not ascertainable and therefore the relief for these people cannot be
asked for and even if asked cannot be granted. In such circumstances, I
hold that adinterim relief as sought cannot be granted and pass the
following Order:
ORDER
1. The request for grant of adinterim relief in terms of prayer Clause
(a), (c) and (d) is rejected.
2. Leave is granted to register the Notice of Motion.
3. Defendants to file reply to the Notice of Motion.
Sd/
(A.N. MARE)
Judge,
04/05/2019 City Civil Court, Mumbai.
Dictated On : 04.05.2019
Transcribed on : 04.05.2019
HHJ Signed on : 04.05.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
06.05.2019 03.10 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
04.05.2019
JUDGEMENT /ORDER signed by
P.O. on
04.05.2019
JUDGEMENT /ORDER uploaded
on
06.05.2019
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