Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM NO.1715/2019 IN SU NO.294/2018
MHCC010047162019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1715 OF 2019
IN
S. C. SUIT NO.294 OF 2018
Mrs. Sangeeta Shankar Unavane. ]...Plaintiff.
Versus
1. M/s. M.K. Builders & Developers
2. The Deputy Collector,
(Encroachment & Removal) & Competent Authority. ]…Defendants.
Appearance:
Ld. Advocate Vasim Khan for Plaintiff.
Ld. Advocate Harshal Damania for Defendant No.1/MCGM.
Ld. Advocate Kadam h/f Kapse for Defendant Nos.2 to 6.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 20/04/2023
ORAL ORDER
1. Plaintiff has taken out present notice of motion for grant of
interim relief of mandatory injunction restraining defendants from
disturbing possession of plaintiff over the suit premises i.e. R114 and
from dispossessing plaintiff from suit premises.
2. Perused the Notice of Motion, affidavit in support of Notice
of Motion, affidavit in reply of defendant No.1 and record. Heard
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arguments advanced by Ld. Advocate for plaintiff and Ld. Advocate for
defendant Nos.1 and 2.
3. Ld. Advocate for plaintiff vehemently argued that plaintiff
and her brother Ganesh Unavane were residing in a hut situated at
Gokul Sukhdeo Pawar Chawl, Pipe Road, Budh Colony, Kurla (W),
Mumbai 400 070 (h ereinafter referred to as the ‘old premises’).
Defendant No.1 is the developer and builder. Old premises of plaintiff
had undergone redevelopment under some Slum Rehabilitation
Scheme. The name of plaintiff’s brother was shown as eligible occupant
in Annexure II in respect of the old premises. As per the assurance
given by the defendant No.1 plaintiff and her brother Ganesh Unavane
had handed over the possession of the old premises to the defendant
No.1. Before demolition of old premises R304, 3 rd floor in transit
building was allotted to the brother of plaintiff as transit
accommodation. Defendant No.1 had agreed to provide permanent
alternate accommodation of 225 Sq.ft. free of cost in view of the old
premises. Brother of the plaintiff died on 27.03.2009. Before his death,
brother of plaintiff had transferred all his right, title and interest in
respect of the old premises and permanent alternate accommodation in
favour of the plaintiff. After completion of reconstruction of the
building when plaintiff approached defendant No.1 for allotment of the
permanent alternate accommodation at that time defendant No.1
handed over possession of R/G114, B Wing, newly constructed
building known as Shahid Jitesh C.H.S. as permanent alternate
accommodation (for the sake of brevity hereinafter referred as ‘suit
premises’). However, thereafter inspite of request, defendant No.1 did
not issue allotment letter and also not executed agreement for
permanent alternate accommodation in favour of plaintiff. Plaintiff is
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the heir of her deceased brother and she was occupant of old premises.
Being heir and legal representative of her brother Ganesh Unavane,
plaintiff is entitled for permanent alternate accommodation in lieu of
the old premises. However, defendants are avoiding execution of
permanent alternate accommodation in favour of plaintiff in place of
her brother Ganesh Unavane. Defendants threatened plaintiff to
dispossess plaintiff from the suit premises and therefore Ld. Advocate
for plaintiff prayed that Notice of Motion be made absolute.
4. On the other hand, Ld. Advocate for defendant Nos. 1 and
2 argued that plaintiff has not challenged the order passed by the
Competent Authority dated 29.03.2019 i.e. defendant No.2. As per
Section 35 of the Maharashtra Slum Areas (Improvement, Clearance
and Redevelopment) Act, 1971 (hereinafter referred to as ‘Slum Act’)
plaintiff has remedy to prefer appeal against the said order.
Competent Authority had prepared Annexure II and therein name of
the plaintiff or her brother Ganesh Unavane is not mentioned. On the
other hand, mother of plaintiff namely Smt. Housabai Shankar
Unavane’s name is mentioned in Annexure II GR 208 and therefore,
defendant No.1 has allotted R102, B wing to the sister and brother of
the plaintiff. After death of Ganesh Unavane defendant No.2 had asked
plaintiff to produce NOC of other heirs for the transfer of premises. R
114, B wing was allotted to one Mr. Arun Keshav Pawar and not to the
plaintiff. Plaintiff is in unauthorized occupation of the suit premises.
In order dated 29.03.2018 which is at Exh.8 to the affidavit in support
of Notice of Motion, occupation and possession of the suit premises by
the plaintiff is already held as an unauthorized. Plaintiff has not
produced any documents to show that plaintiff’s brother has transferred
his right in favour of plaintiff. Eviction order is already passed against
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plaintiff. As per Section 42 of the Slum Act eviction order is legal and
proper and this court has no jurisdiction. Therefore Ld. Advocate for
the defendant Nos.1 and 2 submitted that Notice of Motion be
dismissed.
5. Following points arise for determination and court has
recorded its decision thereon for the reasons stated there under:
Points Decision
(i) Whether prima facie case lies in favour of plaintiff ? No.
(ii) Whether balance of convenience lies in favour of
plaintiff ?
No.
(iii) Whether plaintiff will suffer irreparable loss if the
interim relief as prayed is not granted?
No.
(iv) What Order? As per final
order.
REASONS
AS TO POINT NOS.1 to 3:
6. As all these points are interconnected with each other they
are decided simultaneously in order to avoid repetition of facts.
7. In the present matter it is case of plaintiff that in view of
old premises defendant No.1 has handed over the possession of suit
premises to the plaintiff. However, defendant No.1 has not executed
any allotment letter or any agreement for providing Permanent
Alternate Accommodation in favour of plaintiff. On the other hand, as
per defendants, suit premises was allotted to one Mr. Arun Keshav
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Pawar and plaintiff is in unauthorized possession of the same.
Moreover, as per defendant No.1 plaintiff’s mother name was
mentioned in Annexure II and she was allotted R102, B wing.
Allotment letter Annexed with the affidavit in reply of defendant No.1
reveals that flat R102 was allotted to mother of plaintiff Smt. Housabai
Shankar Unavane. Admittedly, name of plaintiff is not mutated in the
Annexure II prepared by the Competent Authority in respect of old
premises. Plaintiff has not filed any document on record to show that
her name was incorporated in Annexure II prepared by Competent
Authority in respect of old premises. Therefore, as per letter at Exh.G
& H to the plaint it appears that plaintiff had applied to incorporate her
name in the Annexure II in place of her brother Ganesh Unavane and as
per letter at Exh.G the Competent Authority had informed the plaintiff
to file affidavit with the consent of all the heirs of Ganesh Unavane for
further action. Admittedly, till date the name of plaintiff is not
incorporated in Annexure II in place of her brother Ganesh Unavane.
As such till the name of plaintiff is incorporated in the Annexure II
prepared by the Competent Authority in place of her brother’s name till
then plaintiff is not having any right or interest in the old premises or
permanent alternate accommodation to be provided in lieu of old
premises.
8. From the order dated 29.03.2018 passed under Section
3(e) of the Slum Act it reveals that after giving opportunity of hearing
to plaintiff and Mr. Arun Keshav Pawar, Competent Authority held that
there is no record of allotment of the suit premises to plaintiff and as
per their record suit premises was allotted to Mr. Arun Keshav Pawar.
Therefore, Competent Authority hold that plaintiff is occupying the suit
premises unauthorisely and directed plaintiff to vacate suit premises
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within 15 days. Though, plaintiff has relied upon the above order,
plaintiff has not challenged the old order in the present suit. Moreover,
remedy of prefering appeal is available to plaintiff against the order at
Exh.A to the affidavit in support of Notice of Motion. From the matter
on record prima facie it appears that Competent Authority is having
jurisdiction to determine the fact whether plaintiff’s occupation is
authorized or unauthorized. Therefore, order dated 29.03.2018 passed
by the Competent Authority prima facie appears to be legal and
reasonable. Plaintiff also failed to produce on record any material to
show that her occupation in the suit premises is legal.
9. From the matter on record and above discussion, Court
find that plaintiff prima facie failed to show that plaintiff is having any
right or interest in the suit premises. Moreover, in view of the order
dated 29.03.2018 prima facie plaintiff’s occupation of suit premise
appears to be unauthorized. As such prima facie case does not lie in
favour of plaintiff. Moreover, if plaintiff succeeds to get her name
incorporated in Annexure II in place of name of her brother in that
case as per law defendants are bound to provide Permanent Alternate
Accommodation to the plaintiff in lieu of the old premises. As such
plaintiff’s rights are protected. Therefore, no irreparable loss is likely to
be caused to plaintiff, if the interim relief as prayed is not granted.
Moreover, defendant No.2 cannot be restrained from performing its
legal duties.
10. Considering above fact and matter on record court find
that plaintiff failed to prove that prima facie case and balance of
convenience lie in favour of plaintiff and plaintiff will suffer irreparable
loss if interim relief as prayed is not granted. Therefore, point Nos. 1 to
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3 are answered in negative.
As to point No.4:
11. Considering the matter on record and above discussion, in
view of negative decision as to point Nos. 1 to 3, present Notice of
Motion is liable to be dismissed. Hence, court proceeds to pass
following order :
ORDER
1) Notice of Motion No.1715 of 2019 is dismissed.
2) Notice of Motion No. 1715 of 2019 is disposed off accordingly.
Date : 20/04/2023. (Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :20/04/2023.
Typed on :23/04/2023.
Draft given on:24/04/2023.
Checked on :24/4/2023.
Corrected & signed on :25/4/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25/04/2023 at 5.20 p.m. Mrs. Poonam Y. Pawar
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
320/04/2023
JUDGMENT/ORDER signed by P.O.
on
24/04/2023
JUDGMENT/ORDER uploaded on 25/04/2023
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