Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 170219 in SC St.Suit 248519
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.1702 of 2019
(CNR NO.MHCC010046662019)
IN
S.C. (St.) SUIT NO.2485 OF 2019.
Mr.Shaikh Abdulla Ibrahim Shaikh & ors. }...PLAINTIFFS.
VERSUS
Municipal Corporation of Gr.Mumbai & Ors. }...DEFENDANTS.
Shri.Holmagi, learned advocate for the plaintiffs.
Shri.Kandekar, learned advocate for defendant Nos.2 & 3.
Shri.Ramchandani, learned advocate for defendant No.4.
CORAM: HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 06/05/2019)
1. By filing this Notice of Motion, defendant Nos.2 & 3 have
prayed to direct the plaintiffs to handover the keys of suit premises to
defendant Nos.2 & 3 as per the statement recorded in panchnama
dt.8/4/2019. Read the affidavit filed in support of Notice of Motion,
reply filed by plaintiffs and reply filed by defendant No.4. Heard
learned Shri.Kandekar advocate for defendant Nos.2 & 3, learned
Shri.Holmagi advocate for plaintiffs and learned Shri.Ramchandani
advocate for defendant No.4. Perused the entire record.
2. Arguments in Notice of Motion were heard on 3/5/2019
and matter was adjourned to 04/05/2019 for passing order but due to
paucity of time, this court could not take up this matter for passing
order on 04/05/2019 hence, by consent of learned advocates for both
the parties, this Notice of Motion is kept today in summer vacation for
passing order and accordingly, this order is being passed today.
3. Learned advocate for defendant Nos.2 & 3 argued that
plaintiffs had not vacated the suit premises hence, defendant Nos.2 & 3
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intimated the plaintiffs to vacate the suit premises by pasting notice at
the conspicuous place of the suit building on 04/04/2019 but thereafter
also, plaintiffs did not vacate the suit premises hence, defendant Nos.2
and 3 have taken action under Section 95A of MHAD Act for summary
eviction of the plaintiffs. He argued that at the time of locking the suit
premises after carrying out inventory of the articles removed from the
suit premises on 08/04/2019, plaintiff had requested the officer of
defendant No.2 & 3 to return the key of suit premises to the plaintiffs by
giving assurance that plaintiffs will handover said key to defendant
Nos.2 & 3 in this court on 09/04/2019 hence, officer of defendant No.2
& 3 had returned the key of suit premises to plaintiffs by recording
those facts in the panchnama prepared on 08/04/2019. He argued that
plaintiffs have not handed over the keys to defendant No.2 & 3 as was
agreed by them and thereby plaintiffs have committed breach of
undertaking given by them due to which, it is necessary to direct the
plaintiffs to handover the key of suit premises to defendant No.2 & 3 as
per statement recorded in the panchnama. He argued that it is the
responsibility of defendant No.4 to arrange for alternate temporary
accommodation to the plaintiffs and on request made by NOC holder/
defendant No.4 by sending letter dt.16/04/2019, defendant Nos.2 & 3
have made available transit accommodation for the plaintiffs at Borivali
and key of the said transit accommodation is already handed over to
defendant No.4. He argued that suit building is in dilapidated condition
and hence, it is necessary to direct the plaintiffs to handover the key of
suit premises to defendant Nos.2 & 3.
4. Learned advocate for the defendant No.4 argued that
defendant No.4 has already expressed his willingness to provide transit
accommodation to the plaintiffs which is made available by defendant
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Nos.2 & 3. He argued that defendant No.4 has already deposited the
requisite amount of transit rent for the said transit accommodation & if
the plaintiffs are of the opinion that said transit accommodation is not
suitable for them then defendant No.4 has expressed his willingness to
pay transit rent to the plaintiffs but plaintiffs have not approached
defendant No.4 either for accepting transit accommodation or transit
rent. He argued that defendant Nos.2 & 3 have already complied with
the provisions of Section 95A of MHAD Act & plaintiffs have already
vacated the two suit premises for which, they are held entitled to have
permanent alternate accommodation but the plaintiffs have taken key
away of the suit premises from defendant Nos.2 & 3 by giving assurance
that they will handover the key to the defendant No.2 & 3 in this court
on 09/04/2019 but plaintiffs did not keep their word and hence, the
Notice of Motion taken out by defendant No.4 be made absolute.
5. As against this, learned advocate for plaintiffs argued that
defendant Nos.2 & 3 have joined hands with the NOC holders and they
have taken coercive steps for evicting the plaintiffs from suit premises
though, two Notice of Motion taken out by the plaintiffs are pending in
this court for consideration. He argued that it is the responsibility of
NOC holder to provide transit accommodation to the plaintiffs and to
execute registered agreement for providing alternate permanent
accommodation to the plaintiffs but without getting those statutory
requirements complied with from defendant No.4, the officers of
defendant Nos.2 & 3 have adopted the coercive procedure by taking
help of the police for removing the plaintiffs from the suit premises. He
argued that plaintiffs have filed appeal before Hon'ble High Court
against order dt.16/03/2019 passed by this court in Notice of Motion
No.865/2019 & said appeal is pending. He argued that defendant Nos.2
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& 3 have acted arbitrarily for removing the plaintiffs from suit premises
and hence, plaintiffs cannot be directed to handover the key of suit
premises to defendant Nos.2 & 3.
6. It is not in dispute that Notice of Motion No.865/2019
taken out by the plaintiffs for injunction is rejected by this court as per
order dt.16/03/2019. Though there is substance in the argument of
learned advocate for plaintiffs that plaintiffs have taken out two Notice
of Motion after rejection of Notice of Motion No.865/2019, record
shows that plaintiffs have not tendered one of these two Notice of
Motion viz. registered Notice of Motion No.1442/2019 in the court till
date and the other Notice of Motion is yet not got registered by the
plaintiffs despite granting leave to register it.
7. In the affidavit filed in support of this Notice of Motion,
officer of defendant Nos.2 & 3 has contended that inventory of articles
in the suit premises is carried out by preparing panchnama by taking
help of the police and at the time of locking the suit premises, key of the
suit premises is handed over to the plaintiffs as plaintiffs had assured
that said key will be handed over back to defendant Nos.2 & 3 in this
court on 09/04/2019. Those statements have found support from the
copy of panchnama produced on record by defendant Nos.2 & 3.
8. It would be apposite to mention here that as per order
passed under Section 95A of MHAD Act, Competent Authority has held
that out of the five premises mentioned in plaint, plaintiffs are entitled
for permanent alternate accommodation in lieu of two premises. It
appears that as per the direction issued in the said order, officer of
defendant Nos.2 & 3 has resorted to provisions of Section 95A of
MHAD Act for summary eviction of plaintiffs from the suit premises
after the Notice of Motion No.865/2019 of plaintiffs is rejected by this
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court. Proviso of Section 95A of MHAD Act prescribes that it shall be
incumbent upon NOC holder to make available to all occupants
alternate temporary accommodation. Even the order passed by the
Competent Authority shows that Executive Engineer of M.B.R.& R.
Board was directed to initiate action under Section 95A of MHAD Act
against the non cooperating occupants in the suit building by ensuring
that developer has made arrangement for temporary transit
accommodation for those occupants. It means that for taking action of
summary eviction against the occupants, it was necessary for MHADA to
see that temporary alternate accommodation is made available by NOC
holder to the occupants in the building.
9. Defendant No.4 is the NOC holder. The statements made in
the affidavit filed in support of this Notice of Motion by the officer of
defendant Nos.2 & 3 show that defendant No.4 has requested defendant
Nos.2 & 3 by sending letter dt.16/04/2019 to arrange for alternate
temporary accommodation for the plaintiffs. It appears from the said
statement that temporary alternate accommodation was not made
available for the plaintiffs in respect of two premises by NOC holder
when action under Section 95A of MHAD Act for summary eviction was
taken by defendant Nos.2 & 3.
10. Statements made by defendant No.4 show that defendant
No.4 has expressed his willingness to provide temporary alternate
accommodation to the plaintiffs in respect of two suit premises and
defendant Nos.2 & 3 have made available transit accommodation for
plaintiffs at Borivali. Defendant No.4 has also expressed its willingness
to provide transit rent to the plaintiffs if the plaintiffs are of the opinion
that the transit accommodation made available to them is not suitable
to the plaintiffs. Learned advocate for plaintiffs submitted that it is
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necessary for NOC holder to execute registered agreement with the
plaintiffs for providing alternate permanent accommodation in the
redeveloped building. Learned advocate for defendant No.4 submitted
that defendant No.4 is ready to execute said agreement but plaintiffs
are adopting hostile approach for getting the agreement executed.
Learned advocate for plaintiffs, on the other hand, submitted that
plaintiffs are repeatedly expressing that they are very cooperative and
they are not against redevelopment of the suit building if defendants
are ready to comply with statutory provisions viz. to execute agreement,
to provide suitable temporary alternate accommodation and to pay the
amounts of corpus funds to the plaintiffs.
11. It appears to be an admitted fact that suit building is in
dilapidated condition & hence its redevelopment is being undertaken.
Since the suit building is in dilapidated condition, it is not a matter of
safety of plaintiffs only but it is the matter of safety of public at large.
However, the statements made in the affidavit filed in support of this
Notice of Motion by the officer of defendant Nos.2 & 3 do not show that
officer of defendant Nos.2 & 3 had taken care to get complied with the
requirements of proviso to Section 95A of MHAD Act from defendant
No.4/NOC holder in the matter of making available alternate temporary
accommodation for plaintiffs before taking action for summary eviction
in respect of the two suit premises for which, plaintiffs are held eligible
for alternate permanent accommodation. Said formality, as can be seen
from the copy of letter produced by defendant No.4, appears to have
got complied with on 16/04/2019 i.e. after taking action for summary
eviction of the plaintiffs.
12. Again, when officer of defendant Nos.2 & 3 had resorted to
Section 95A of MHAD Act for summary eviction, there was no reason
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for the said officer of defendant Nos.2 & 3 to handover the key of suit
premises to the plaintiffs after taking the said action, for any reason
whatsoever, even by accepting the alleged undertaking given by the
plaintiffs that plaintiffs will return back the key of suit premises to
defendant Nos.2 & 3 in court on 09/04/2019. Apparently, officer of
defendant Nos.2 & 3 has adopted a strange approach in that regard.
Since the key is handed over to the plaintiffs by the officer of MHADS, it
impliedly indicates that suit premises are still with the plaintiffs. As
mentioned above, plaintiff's learned advocate stated at the bar that
plaintiffs are very cooperative & plaintiffs are ready to cooperate in the
process of redevelopment of the suit building. Defendant Nos.2 & 3 can
adopt proper procedure as is prescribed in Section 95A and other
relevant provisions of Chapter VI & VII of MHAD Act if plaintiffs have
illegally kept the key of suit premises with the plaintiffs. Relief claimed
in this Notice of Motion cannot be granted as Section 95A of MHAD Act
has prescribed proper remedy for it which includes the procedure to be
followed by MHADA if the occupants are refusing to vacate the premises
in dilapidated building. Needless to mention that defendant Nos.2 & 3
can very well adopt the said procedure. Thus, an order.
O R D E R
Notice of Motion No.1702/2019 stands rejected but with
liberty to defendant Nos.2 & 3 to take appropriate action as is
prescribed in Section 95A of MHAD Act.
Costs in the main cause.
Date: 06/05/2019. (P.P.RAJVAIDYA)
Dictated on : 06/05/2019. Judge, C.R.No.12,
Transcribed on : 06/05/2019. City Civil Court,
Checked on : 06/05/2019. Gr.Bombay.
Signed on : 06/05/2019.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
06/05/2019 at 11.30 a.m. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI.P.P.RAJVAIDYA (CR No.12)
Date of pronouncement of Order 06/05/2019
Order signed by P.O. on 06/05/2019
Order uploaded on 06/05/2019
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