Final Order 1

Order Details: Notice of Motion
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MHCC010051152020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1767 OF 2020
IN
SUIT NO. 3053 OF 2013.
Manisha Vijay Joshi and Others ] ..Plaintiffs.
V/s.
The Maharashtra Housing And Area ]
Development Authority and others. ] ..Defendants.
Appearance:
Advocate Adv. Mr. Rakesh Pathak for the plaintiff.
Advocate Ms. Mangal Kadam for defendant No.1 to 3 MHADA.
Advocate Ms. Purva Pendurkar h/f Adv. Rajiv Matkar for defendant No.
5.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 29th NOVEMBER 2023
ORAL ORDER
Plaintiffs have taken out the present Notice of Motion in
terms of prayer clause (a) to (c).
2. It is the contention of the plaintiff that the she has filed
present suit for reliefs more particularly stated in the plaint. Since
plaintiff raised various illegalities, breaches, omissions and violations
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about the NOC and IOD committed by the MHADA and MCGM and in
collusion and connivance with the defendant No.5, therefore, at the
instance of the Defendant No.5, MHADA had served the Show Cause
Notice dated 02.07.2013 to initiate Summary Eviction Under Section
95(A) of MHADA Act 1976. Plaintiff has sent detailed reply dated
08.07.2013 through his Advocate. However, eventually, defendant No.3
at about 11.00 a.m. has served 48 hours eviction notice dated
31.07.2013 under provision of Section 95(A) of MHADA Act 1976.
3. Defendant No.5 had compelled plaintiff to hand over
possession of the Suit premises without executing agreement for
Permanent Alternate Accommodation. Hence, plaintiff approached to
various forums including office of Lokayukt and Upa-Lokayukt and
pointed out the illegalities done by the defendant No.5, while, carrying
out the said redevelopment project. The Lokayukt dismissed the
complaint of plaintiff, but it is observed in the order that Chief Officer of
MHADA will direct to defendant No.1/Builder to enter into the
agreement as certified by M.B.R.R.B. and if the builder disobeyed the
directions issued by the Board, the Board and Planning Authority shall
withhold further permission. Pertinent to the said direction the Learned
Office of the Lokayukt, hearing was given by Chief Officer of MHADA
(Defendant No.1) on 23.08.2016 to defendant No.5. Thereafter, the
defendant No.5 through his forwarding letter dated 26.11.2023 had
furnished Draft Agreement on 26.11.2016 and offered Permanent
Alternate Accommodation in lieu of flat No.2, as per clause (p) of the
said Draft Agreement. The defendant No.5 has agreed and offered the
plaintiff total carpet area of 556.16 Sq.ft. However, defendant No.5,
with malified intention had not registered the said Draft Agreement
dated 26.11.2026.
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4. It is further contended that even after Order passed by the
Office of Learned Lokayukt, none of the officers of defendant Nos.1 to 4
have taken any steps for almost three years in this regard. Defendant
No.1, while issuing NOC to defendant No.5 has issued certified list of
tenants, wherein plaintiff was shown entitled for 42.79 Sq.ft. carpet
area for (36.11 + 6.68) in the said newly constructed building. In other
words, plaintiff is eligible for 460.58 sq.ft. carpet area. Thereafter,
defendant No.5, with malified intention, prepared one agreement for
Permanent Alternate Accommodation in October 2010 and without
consent and knowledge of plaintiff and paid stamp duty on 18.11.2010.
As per said alleged agreement defendant No.5 had offered plaintiff 388
sq.ft area for Permanent Alternate Accommodation, which is not
acceptable by the plaintiff. Thereafter, MCGM issued IOD dated
06.12.2012 to defendant No.5 for construction along with list of
occupants and area proposed to the occupants by defendant No.5 had
also been annexed. Plaintiffs name was shown at serial No.2. Defendant
No.5 had given proposal of 42.796 carpet area to him and to that effect
building plan had been submitted to the Mumbai Municipal Corporation
by defendant No.5. In the meantime, defendant No.5 has sent letter
dated 27.07.2017 to Chairman of Real Estate Regulatory Authority,
wherein he had shown total number of 11 tenants to be rehabilitated,
whereas, as per the said certified list issued by MHADA there are only 8
tenants.
5. It is further contended that four years have already been
lapsed from passing of order dated 13.05.2016 by Learned Lokayukt
and Officers of defendant No.1 to 3 are not paying any heed towards
the same, nor they have initiated any action against defendant No.5.
Hence, plaintiff has prayed for directing defendant No.1 to 3 to comply
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with direction given by Office of Lokayukt order dated 13.05.2016 and
for directing the defendant No.5 to execute the Permanent Alternate
Accommodation for the area 460 sq. ft. or 51 sq.mt., as shown in plan
submitted to the MCGM, Mumbai and for directing to defendant No.1 to
4 to withheld further permission granted to defendant No.5 for carrying
out any development activities on the suit premises.
6. Defendant No.5 filed his affidavit in reply to Notice of
Motion and strongly opposed the same. It is submitted that original
plaintiff himself has failed and neglected to execute the agreement for
Permanent Alternate Accommodation sent to him after paying stamp
duty on it. Plaintiff kept documents with himself for two years and later
on using his influence dumped it in the office of MHADA. Defendant
No.5 has already filed Eviction Suit against the plaintiff and evidence
and cross-examination in the suit is completed. In any case neither
defendant No.5 is bound, nor he shall execute any agreement with the
plaintiff for carpet area demanded by plaintiff. Further, there are total 8
families and 3 other residents, who are required to be rehoused in the
new building. New building has came up to 17th floor and is nearing
completion and at this stage only for his selfish motive plaintiff wish to
withheld the further premises of the project. In any case, the building
permission cannot be challenged in this Court, and such prayer is
beyond the jurisdiction of this Court. Hence, defendant No.5 prayed for
rejection of the Notice of Motion.
7. Perused Notice of Motion and Affidavit in support of Notice
of Motion. Defendant No.1 to 4 have not filed their say to the Notice of
Motion. Heard Learned Advocate for the Plaintiff, as well as the Learned
Advocate for Defendant No.5 and Defendant No.1 and 2.
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8. The following points arise for my determination and I have
recorded my findings to each of them for the reasons stated below;
Sr.
No.
POINTS FINDINGS
1. Whether the plaintiff has made out
prima
facie case?
In the
Affirmative
2. Whether the balance of convenience lies in
favour of the plaintiff ?
In the
Affirmative
3. Whether the plaintiff has proved that they
will suffer irreparable loss, if the Notice of
Motion is not allowed?
In the
Affirmative
4. What order? As per the final
order
R E A S O N S
AS TO POINT NO.1 TO 3:
9. During arguments, Ld. Adv for the plaintiffs submitted that
plaintiff is pressing for only prayer clause (b) in the Notice of Motion.
Heard Learned Advocates for both sides. From the rival submissions and
record of the case, it appears that the Suit premises is tenanted
premises. Plaintiffs are occupants and are in possession of the said Suit
premises. The building had gone for redevelopment. Defendant No.5 is
developer and landlord, who undertakes reconstruction of the Suit
premises under DCR rule 33(7). According to the plaintiffs, at the
instance of the defendant No.5, MHADA had served upon the plaintiffs
show cause Notice dated 02.07.2013 to initiate Summary Eviction
Under Section 95(A) of MHADA Act 1976. Defendant No.5 compelled
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plaintiff to handover possession of the Suit premises without executing
agreement for Permanent Alternate Accommodation. Whereas, it is
submitted on behalf of the MHADA that MHADA has directed to
defendant No.5, builder to provide Draft Permanent Alternate
Accommodation to the plaintiff. Accordingly, defendant No.5 has given
draft agreement to the plaintiff. Defendant No.1 had issued certified list
of tenants, wherein plaintiff in held eligible for total area of 47.03
sq.mtr. According to the defendant No.5, plaintiff himself failed and
neglected to provide accommodation for same to him by defendant
No.5. After paying stamp duty, he kept all documents for himself for two
years and now made false allegations against defendant No.5.
10. Whereas, it is submitted on behalf of the plaintiff that Draft
Agreement was given by defendant No.5 on 26.11.2016. As per Draft
Agreement, plaintiff is eligible for 418.72 sq.ft + 137.43 sq.mtr carpet
area in fungible from as per D.C. regulation, thus, total carpet of 556.16
(51.668 sq. mtr.) as Permanent Alternate Accommodation to the
plaintiff free of cost in the proposed new building. However, defendant
No.5 illegally and with malifide intention prepared draft agreement for
Permanent Alternate Accommodation in October 2010 without consent
and knowledge of the plaintiff, wherein, he offered plaintiff 388 sq.ft
area of Permanent Alternate Accommodation, which is not acceptable to
him. However, plaintiff has not produced on record said agreement for
Permanent Alternate Accommodation sent to him in October 2010. It is
submitted that plaintiff did not have said agreement as he has sent it to
the MHADA.
11. Now, it is pertinent to note that MHADA has certified
plaintiff as eligible for Permanent Alternate Accommodation and has
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directed defendant No.5, builder to provide Draft Permanent Alternate
Accommodation Agreement to the plaintiff. It is contention of the
defendant No.5 that he has filed Suit in Small Causes Court. Defendant
No.5 agreed to provide total carpet area 556.16 (51.668 sq.mtr) to the
plaintiff as and by way of Permanent Alternate Accommodation in lieu
of existing tenement subject to outcome of RAE 420/2013 is pending in
Small Causes Court filed by defendant No.5 against plaintiff. According
to the defendant No.5 said Suit is pending and therefore he is not
bound to provide agreed Permanent Alternate Accommodation to the
plaintiff.
12. However, I am not inclined to accept the submission made
on behalf of defendant No.5. Since, MHADA has certified the plaintiff as
eligible for Permanent Alternate Accommodation and directed to
defendant No.5 to execute the Permanent Alternate Accommodation
with plaintiff and since defendant No.5 agreed by draft agreement to
provide Permanent Alternate Accommodation to the plaintiffs, he
cannot avoid to execute the Permanent Alternate Accommodation to the
plaintiff on the ground that till decision of suit filed by him in Small
Causes Court he is not bound to execute Permanent Alternate
Accommodation to the plaintiff. Defendant No.5 is under obligation to
execute Permanent Alternate Accommodation with the plaintiff. For all
the above reasons, I hold that plaintiff is entitled to claim relief as
prayed in terms of prayer clause (b). Plaintiff has made out
prima-facie
case for grant of prayer clause (b) in the Notice of Motion as prayed.
The balance of convenience also lies in favour of the plaintiff. In such
circumstances, if Notice of Motion is not allowed in terms of prayer
clause (b), irreparable loss would be caused to the plaintiff. Hence, I
hold that Notice of Motion deserves to be allowed in terms of clause
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(b). Hence, I answer point Nos.1 to 3 in the affirmative.
AS TO POINT NO.4:
13. In view of findings to Point Nos.1 to 3, I hold that the
present Notice of Motion needs to be allowed in terms of clause (b). In
the result, I proceed to pass the following order:-
ORDER
1. Notice of Motion No.1767 of 2020 is absolute in terms
of prayer clause (b).
2. Notice of Motion No.1767 of 2020 in Suit No.3053 of
2013 stands disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 29.11.2023 Gr. Bombay.
Dictated on : 29.11.2023
Transcribed on : 30.11.2023
Signed on : 04.12.2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
08/12/2023 03.53 p.m. Mr. Ashok Sudhakar Patil
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room
No.)
HHJ SHRI. VAIBHAV V. PATIL,
(C.R.No.09)
Judge, City Civil & Sessions Court,
Mumbai.
Date of pronouncement of
Judgment/Order
29.11.2023
Order signed by P.O. on 04.12.2023
Order uploaded on 08.12.2023
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