Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1648/2020 in Suit 1350/2020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1648 OF 2020
IN
S.C. SUIT NO. 1350 OF 2020
CNR NO. : MHCC01-004961-2020
Mohammed Mujeeb Rahmatullah Shaikh
Proprietor of Mujib Chicken Shop …Plaintiff
Versus
The Board of Trustees of Mumbai Port
Trust & Ors. ...Defendants
Appearance:
Advocate Smt. Sushmita Lawane for Plaintiff.
Advocate Mr. Nand Kishore i/b DSK Legal for Defendants.
CORAM : SMT. S.S. NAGUR,
JUDGE, (C.R.NO.20)
DATE : 08/02/2021
ORDER
The Notice of Motion is filed by the plaintiff thereby temporarily
restraining the defendant nos. 1 to 3 from dispossessing the plaintiff
from the suit premises i.e. Gala no. 402, Ground Floor, New Market
Building, B.P.T. Colony, Nadkarni Park, Wadala (E), Mumbai 400 037.
2. Brief facts of the plaintiff’s case is as under :-
The plaintiff is a proprietor of Mujib Chicken Shop and doing the
business of selling chicken. The suit is filed against the trustees of
Mumbai Port Trust as defendant no. 1 who are the owners of the land
wherein the building of the suit premises is in existence. The Mumbai
Port Trust Consumer Society Limited as a defendant no. 2, who has
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inducted him in the suit premises on behalf of defendant no. 1 for the
welfare of workers of the defendant no. 1. The plaintiff is doing the
business in the suit premises since 2001 and is in lawful occupation and
possession.
3. The plaintiff stated that the defendant no. 2 has given him
proposal to supply or sale Chicken to their members, who are the
workers, labourers and officers of the defendant no. 1. They gave offer
that against acceptance of the said proposal, the defendant no. 2 on
behalf of the defendant no. 1 is ready to give a space i.e. the suit
premises at free of charges wherein the plaintiff can do business. The
plaintiff had documents, however in the flood of the year 2005 the
documents are destroyed and the xerox copy is available with him on
which he has relied to prove his possession in the suit premises.
4. The plaintiff stated that he filed an application on 24.10.2020 to
the electricity service provider to install new electricity meter in the suit
premises. He has deposited Rs.21,000/- with the office of the defendant
no. 1, who issued receipt to him. In the pandemic, he could not do the
business due to restrictions and thereafter it is continued peacefully but
all of a sudden on 29.10.2020 one Mr.Ranavade who is a Welfare
Officer i.e. the defendant no. 3 working in the office of defendant no. 1
sent some unknown persons without issuing any notice to him and
asked him to vacate the premises in weeks time. Hence, the plaintiff has
apprehension that he will be dispossessed from the suit premises.
Hence, the notice of motion to protect his possession in the suit
premises.
5. The defendant filed reply through affidavit of Rajendra Ramgude,
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the authorized representative of the defendant nos. 1 to 3. The
defendants have denied the contents of Notice of Motion in toto. The
plaintiff has suppressed the fact that the defendant No. 2 Consumer
Society was liquidated by the Assistant Registrar of the co-operative
societies vide order dated 09.12.2011 and this was well within the
knowledge of the plaintiff. The plaintiff is fully aware of liquidation of
defendant no. 2 but deliberately with a view to mislead the Court,
impleaded the defendant no. 2 in the suit. The plaintiff is a rank
trespasser into the suit premises who has forcefully and without
necessary permission of the defendant no. 1 has occupied the suit
premises and undertaken illegal alterations therein.
6. The defendant stated that the defendant no. 2 was a Co-operative
Society registered under the Maharashtra Co-operative Societies Act
1960 with the Registrar of Co-operative Society, which was formed by
the employees of the defendant no. 1. The society was named BPT
Kamgar Sahakari Grahad Mandal Ltd. (“Consumer Society”). The
defendant no. 1 vide Monthly Tenancy Agreement dated 01.04.1969
allotted to the Consumer Society Flat Nos. 26 and 33 in Building No. 2
of the Bombay Port Trust Quarters, Antop Village Extension, Wadala,
Mumbai. Clause 5(c) of the Agreement provides that the Society shall
not assign, sub-let, under-let or part with possession of the premises
without permission of the defendant no. 1.
7. The defendant no. 1 in the year 1973, constructed a new market
building at Nadkarni Park. The defendant no. 1 at the request of the
Consumer Society allotted premises on the ground floor and first floor
of the New Market Building at a nominal rent. The premises were
allotted for welfare of the employee to run a co-operative consumer
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store for the residents/ employees of the defendant no. 1. In the new
market building the Consumer Society was allotted 3 separate stalls of
4.28 sq.meters for running consumer store and other premises of 342
sq. meters on the ground floor for running the Consumer Society. The
Consumer Society was allotted the premises for use by the Estate dept
in May 1988 on the first floor of the new market building in addition to
the ground floor space and 3 stalls on the ground floor for running
consumer stores for the residents/ employees of the defendant no. 1.
8. The defendant stated that the plaintiff had approached
Mr.Ranavade during the first week of October 2020 seeking No
Objection Certificate and for electricity connection at the New Market
Building Stall Nos. 1 & 2 being the suit premises. During his routine
visit to the New Market Building on 29.10.2020, Mr. Ranavade noticed
that the shutters of Stall Nos. 1 and 2 were closed and the said shutters
were newly painted without obtaining prior permission of the defendant
no. 1. Mr. Ranavade contacted the plaintiff over his mobile and sought
explanation as to how the plaintiff came to occupy the suit premises
without the permission of the defendant no. 1. Mr. Ranavade informed
the plaintiff that he has no authority to paint the stalls/ shutters or
make any alteration to the suit premises. Mr. Ranavade was doing his
official duty to ensure that the property of defendant no. 1 are not
trespassed and misused illegally by people like plaintiff therein. The
plaintiff is a rank trespasser and not in possession of the suit premises.
No cause of action arose. Hence prayed to dismiss the Notice of Motion.
9. In view of above pleadings of plaintiff and defendant, the
following points arise for my determination and the reasons with
finding thereon are as under :-
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POINTS FINDING
1) Whether the plaintiff has made
out a prima facie case?
No
2) In whose favour balance of
convenience lies?
Defendant
3) Who will suffer irreparable
loss?
Defendant
4) What order? Notice of Motion is dismissed.
R E A S O N S
10. Heard advocate Advocate Smt. Sushmita Lawane for Plaintiff
and Advocate Mr. Nand Kishore for Defendants. Perused the contents of
plaint, affidavit-in-support of Notice of Motion and reply affidavit of the
defendant. I have also gone through the documents relied by both the
parties.
As to point no. 1
11. The plaintiff has come with a case that he is in possession of the
suit premises as per the agreement between him and the defendant no.
2 since 2001. The plaintiff to prove his possession in the suit premises
has relied on the documents annexed to the plaint. The letter dated
27.12.2002 (Exhibit ‘B’) issued by Mumbai Port Trust Consumer Society
Ltd. to the plaintiff whereby allowing the plaintiff to sell chicken to the
members of the society. The Agreement between the Mumbai Port Trust
Consumer Society and the plaintiff (Exh. ‘C’) with terms and conditions
stating that he will sale the chicken to the members of the society on
credit of Rs. 500/- and he will maintain the card in which there may be
stamp and sign of the officer of the society. He will be given cheque on
every 10th day of the month for sale on credit. The plaintiff has also
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relied on the card on each persons consumed by him for the year 2003.
The receipts issued by the society and the information of the members
of the society, who purchased the chicken from him. All the documents
pertaining to the year 2003.
12. The plaintiff has relied on the letter dated 16.09.2003 wherein he
has stated that he is unable to pay Rs. 5000/- per month to the society
and the same amount be reduced to Rs. 2000/- and also stated that he
has not received the credit amount from the society. The plaintiff has
relied on the Income Certificate issued by the society dated 28.06.2004
stating that the plaintiff will be selling chicken to the members of the
society for Rs. 500/- on credit basis. The sale is to the extent of
Rs.30,000/- to 40,000/-. The letter is issued by the defendant no. 2 to
plaintiff on 12.06.2005 to pay Rs.24,000/- towards selling the goods in
the society for the year 01.06.2004 to May, 2005.
13. The Annexure VIII dated 27.10.2020 from PTC India Ltd to
plaintiff to deposit Rs. 21,000/- for temporary electric supply. The
Clause 4 to the Note states that,
“In the event of failure to observe any of the above or other
standing rules and regulation governing to the temporary
electric supply, the temporary electric supply will be
discontinued immediately without giving any notice.”
14. The letter dated 24.10.2020 issued by the plaintiff to the
Manager, PTC India, requesting for new electric meter connection in the
above address. The receipt dated 27.10.2020 of deposit of Rs.21,000/-
for temporary electric supply. Annexure VII dated 27.10.2020 to PTC
India Limited by Mrs.Godbole, A.S., Meed Billing Co. stated that
“the
department has no objection for obtaining electrical connection from
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Mbpt network on Free of Cost/chargeable basis. The entire expenditure
in this regard shall be borne by M/s. Mujib Chicken Shop”. Annexure
VIII issued by PTC India Limited provides temporary electric supply or
extension of electric supply to the plaintiff on deposit of Rs.21,000/-.
15. On the other hand, the defendant has relied on the Monthly
Tenancy Agreement between the defendant no. 1 and defendant no. 2.
The agreement between defendant no. 1 and 2 is a monthly tenancy of
Port Trust. The duration of tenancy is month to month commencing
from 1st April 1969. Clause 4 of the Agreement states that,
“the premises to be used for consumers stores and society’s office
in connection therewith only and no change or deviation in user
shall be made without obtaining prior sanction in writing for the
same from Chief Labour Officer” ;
Clause 5(c) states that,
“Not to assign, sub-let, under-let or part with possession of the
premises hereby let or any part thereof or any interest therein” ;
Clause 5(h) states that,
“Not to affix or display any sign boards, name plates, sky signs
or advertisements painted illuminated or otherwise unless the
consent in writing of the Chief Labour Officer shall have
previously been obtained thereto. Provided always that no such
consent shall be required in respect of sign board or
advertisements relating to the business carried by the tenant” ;
Clause ‘O’ states that,
“To permit the Trustees of the Port of Bombay, their Chief
Labour Officer and Chief Engineer, Bombay Port Trust, and all
persons authorised by them to enter upon and inspect the
premises let hereby at any time and from time to time for the
purpose of inspecting the state condition and user thereof or to
afford access to them for the purpose of repairing or altering
cables pipes or drains or adding others or for the purpose of
repairing or cleansing the premises hereby let or any other part
of the building in which the premises are situate or repairing or
altering adjoining premises or the structure of the said building
generally.”
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The letter dated 17.05.1978 issued by Chief Labour Officer in respect of
allotment of accommodation to the society in the new market building
of Nadkarni Park and internal decoration of the society’s premises
wherein the location, the area and the facilities shows pan-bidi shop in
front of Swavalamban Store, Vegetable Stall in front of Swavalamban
Store and vegetable stall in front of Sahakar Store. It also shows the
accommodation allotted for stores/stalls in the New Market Building is
as under:-
The accommodation earmarked for the Society’s above
Stores/ Stalls in the new Market Building and the
nominal rent to be charged therefor will be as follow:-
Location of accommodation and user Area
Ground Floor
1. Accommodation for consumer store
2. Stall No. 1 for sale of pan-bidi
3. Stall No. 2 for sale of onions, potatoes etc.
4. Stall No. 3 for sale of vegetables
342
4.28
4.28
4.28
First Floor
5. Society’s office 63
16. The defendant has also relied on the order of the Co-operative
society dated 09.12.2011, the defendant no. 2 Consumer Society was
liquidated.
17. The letter issued by the Sr. Administrative Officer of Mumbai,
Mumbai Port Trust dated 23.11.2020 to Sr. Accounts Officer stating that
Mujib chicken shop applied for permanent electric supply connection
for commercial purpose. They deposited Rs.21,000/- which was
forwarded vide C.R. Note No. 03/01 dated 04.11.2020. However, the
said electric connection was discontinued as the documents submitted
were not in order. Therefore, to refund the deposited amount i.e.
Rs.21,000/- to M/s.Mujib Chicken Shop. The letter issued by Deputy
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Chief Mechanical Engineer-I regarding electrical supply connection
provided to Mujib Chicken Shop at ground floor of market building. The
para 4 of the letter shows that,
“Further, the old and invalid agreement submitted by the Mr.
Mujib Chicken Shop was with Mumbai Port Workers Co-op
Housing Society instead of Mumbai Port Trust. Due to oversight
by M/s. PTC India Limited, new electric connection on temporary
basis had been given by PTC on 28.10.2020. It is now noticed
that the said agreement was not valid, therefore, PTC was asked
to disconnect electric supply immediately on 29.10.2020 and
issued letter by the Sr. Administrative Officer of MEED to Finance
Department for refund the subject Security Deposit on
23.11.2020.”
18. The plaintiff has to prove prima facie possession in the suit
premises. The plaintiff has relied on the document of the year 2003-
2004. It is the case of the plaintiff that in the flood of July, 2005, the
documents were lost. The plaintiff is claiming to be in possession since
2001. The documents relied by the plaintiff is only for about one year
i.e. 2003-2004. There is no document on record from 2006 till date to
show that he is in continuous settled possession of the suit premises.
Suddenly, during the lockdown in the month of October, there is a
document from the plaintiff to show that he has obtained temporary
electricity connection from the department by depositing Rs.21,000/-.
The officer of the department Mr. Ranavade when visited the premises
found that the said shop was painted, therefore he has immediately
called the plaintiff and told him to vacate the premises.
19. The Agreement of the defendant no. 1 with the defendant no. 2
shows that without permission of the defendant no. 1 they cannot let
out/create the third party interest. In the present case, there is no
document to show that the defendant no. 2 had obtained permission
from the defendant no. 1 to allow the plaintiff to do the business in the
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shop. The defendant no. 2 Consumer Society was liquidated by
Assistant Registrar of Co-operative Society vide order dated 09.12.2011.
20. The documents relied by the plaintiff does not show his settled
possession in the suit premises. Those documents are for the year 2003-
2004 and suddenly there is document of October 2020 for obtaining
temporary electric connection. Only on the basis of the documents
getting back to 2003-2004, the plaintiff cannot claim to have possession
of the suit premises. The conditions on which the plaintiff was allowed
to do the business was to maintain the diary and get the cheque for the
sale of the goods through cheque. The plaintiff to show his settled
possession in the suit premises, could have filed the documents i.e. the
diary and the cheque/ bank pass book/ statement of account received
by him from the society.
21. Advocate for defendant has relied on authorities reported in :-
(i) Thomas Cook (India) Limited Vs. Hotel Imperial & Ors. :
MANU/DE/0298/2006 that license does not create any interest in the
property. It merely permits another person to use the property and (ii)
Mahadeo Savlaram Shelke and Ors. Vs. Puna Municipal Corporation
and Ors. : MANU/SC/0673/1995 that no injunction can be granted
against true owner at the instance of unlawful possession. I have gone
through the authorities relied by the defendants. In the present facts
of the case, the plaintiff has failed to show prima facie settled
possession in the suit property.
22. The plaintiff has failed to show his continuous possession in the
suit premises. Hence, I hold that the plaintiff has not made out a prima
facie case and answer point no. 1 in negative.
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As to point nos. 2 to 4
23. The plaintiff has relied on the document of the year 2003-2004 to
show his possession in the suit premises. Thereafter there is document
of October 2020 showing that he has applied for new electric
connection and was provided the new electric connection on deposit of
Rs. 21,000/-. However, the defendant no. 1 has discontinued the supply
of electricity. The plaintiff has not shown his continuous possession in
the suit premises. He has not made out prima facie case. Therefore,
balance of convenience is in favour of defendant. In case injunction is
granted, the defendant will suffer irreparable loss and there will be a
trend set to show the possession of any year and get the possession by
Court’s order by relying on few documents. Hence, balance of
convenience is not in favour of the plaintiff. Therefore, no irreparable
loss will cause to the plaintiff. Accordingly answering point nos. 2 to 4
and pass the following order :-
ORDER
1. The Notice of Motion is dismissed.
2. Accordingly, Notice of Motion is disposed of.
(SMT. S.S.NAGUR )
Judge
Dt.: 08/02/2021 City Civil Court,
Gr. Mumbai
Dictated on : 08.02.2021
Transcribed on : 12.02.2021 & 16.02.2021
Checked & Signed on : 17.02.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
22/02/2021 11.00 a.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.20)
Date of Pronouncement of
Judgment/Order.
08/02/2021
Judgment/order signed by P.O on 17/02/2021
Judgment/order uploaded on 22/02/2021
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