Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion No. 1972 of 2018
In
St. No 6553 of 2018
Jyoti Janardan Mhatre & ors ...Plaintiff
V/s
The Municipal Corporation of Greater Mumbai
through its Municipal Commissioner.
AdvocatePriyanka Menon for plaintiff
Advocate Ms. Varsha Sawant for defendant MMC
Adv. P.D.Gandhi for defendant no. 2
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 8th August 2018.
(Court Room No.06)
O R D E R
1 Plaintiffs have taken out this notice of motion for grant of
following relief:
b) Pending the hearing and final disposal of suit, this Hon'ble Court be
pleased to grant temporary, prohibitory injunction order, restraining
the defendants, their officers, agents or any person claiming through
them from causing any nuisance, breach of peace and forcefully
evicting, dispossessing the Plaintiffs from the suit premises without
compliance of due process of law with further directions to the
Defendants to provide temporary water connection and sanitation/W.C
facility till the Plaintiffs vacate the suit premises in accordance with
law.
2 The facts in brief are as under:
Land bearing C.S.No. 231 (pt),232,442,787(pt),456,457 to
459 to 476, 699 admeasuring about 34,988 sq.mtrs of Parel Sewree
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Cross Road,F/south Ward, Mumbai400 015 is owned by defendant
No.1. Plaintiff no.1 is mother of plaintiff no. 2 & 3. Plaintiffs reside in
room no.1. Plaintiffs are in possession of the suit premises since 1940.
Plaintiffs have ration card, election identity card, Adhar Card, Bank
Passbook of Plaintiff no.1 and also school leaving certificate of plaintiff
No. 1's husband Janardhan Mhatre, birth certificate of plaintiff no.2 & 3
and death certificate of Janardhan Mhatre on the address of the suit
premises. The above survey numbers are decided to redevelop.
Accordingly, the Assistant Commissioner Estate, MCGM, Mumbai has
prepared plane table and annexture II. Name of Narayan Thakur is
mentioned as a principle tenant admeasuring the premises 4ft x 6ft.
The plaintiffs held eligible by remark as protected under sanction of
Deputy Municipal Commissioner, Zone II at Sr.No. 28. Thereafter on
11/3/2010, defendant no. 1 issued a notice to the plaintiff No. 1 and
informed that the redevelopment is going on. Plaintiff No. 1 held
eligible and entitled for rehabilitation by way of alternate permanent
accommodation in newly redeveloped building .
3 Plaintiff further avers that on 9/4/2012 and 12/4/2018,
Chandrakant Narayan Thakur visited the above suit premises and
orally directed the plaintiff to vacate the suit premises within two days.
He also threatened that on failure of plaintiffs to vacate the suit
premises he will evict them and throw their household articles on the
street. Immediately plaintiff filed a complaint in the police station.
4 Thereafter, plaintiff No. 1 has filed suit (L) 5306 of 2018
and Hon'ble Court granted ad interim injunction in favour of plaintiff.
Thereafter, on 25/4/ 2018,one person namely Mushtaq Ahmed Fazal
Khan aka Babubhai claiming to be associate of Defendant
No.2(developer) alongwith 7 to 8 men demolished the adjoining
premises attached to the Plaintiffs premises and in that process
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damaged and disconnected the Water Pipe of the plaintiff. Plaintiff has
filed the complaint to defendant no.1 and police. However, no action is
taken against the said Mushtaq Ahmed. Thereafter, the officers of
defendant no.1 and developer visited the locality with police on
30/4/2018 and they demolished the toilet (W.C) and thereby make
plaintiffs to live without water supply and sanitation facility. According
to defendant, the suit premises and premises occupied by the plaintiff is
different than annexture II. Plaintiffs requested to the defendant No. 2
to execute agreement with them as per law. However, defendant orally
forcing the plaintiff to vacate the premises and surrender their rights in
favour of Chandrakant Thakur. Defendants are not willing to execute
any agreement with the plaintiffs. Further, the said project have not
'Prior Environmental Clearance" therefore, defendant no.2 could not
develop the property. Hence, plaintiff prayed to grant interim
injunction as per prayer clause (b) of the notice of motion
5 Defendant no. 1 filed affidavit in reply of its officer Sanjay
Ramesh Thakur,F/S Ward. Defendant no. 2 filed affidavit in reply of
Humayun Shafi Ahmed Shaikh.
6 Defendants commonly denied that the officers of the
defendant no.1 & 2 threatened to plaintiff to vacate the suit premises.
Defendants denied that while they were demolished the adjacent
property, they cut the electricity and water connection supply of
plaintiffs . Defendants denied that plaintiffs are entitled for relief of
interim relief.
7 According to defendant no.1, the C.S. plot where the suit
premises is situate is owned by the defendant Municipal Corporation.
The said building on the said plot is categorized as C1 category. The
building is dangerous and unfit for human habitation therefore, the
occupants of the said buildings formed Cooperative Housing Society
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and the work of redevelopment of the said property is entrusted to
defendant no.2. There were in all 515 occupants. Out of them 365
occupants have vacated their premises. 105 occupants have executed
an agreement. Remaining 60 occupants including the plaintiffs have
not vacated the premises and they are not cooperating to the
defendants. In fact plaintiffs have executed agreement with defendant
no.2. Plaintiffs have occupied one room vacated by Chandrakant
Thakur. The name of plaintiff no.1 is entered in plain table annexture
II. Thus, the plaintiff No. 1 is eligible for permanent accommodation in
the newly constructed building.
8 Plaintiffs have filed suit no. (L) 5306 of 2018 against
Chandrakant Thakur and answering defendant. The Hon'ble Court has
granted status quo in that suit. Plaintiffs have not given the description
of the property. The Chandrakant Thakur is necessary and proper
party. Hence, the suit is not maintainable.
9 Defendant further contended that due to the illegal
occupation by plaintiffs of the room of Chandrakant Thakur the
development work is stalled. Hence, prayed to dismiss the notice of
motion.
10 According to defendant no.2, defendant no.2 is the
developer of the plots wherein suit premises is situate. On 14/9/2017,
defendant no.1 addressed a letter and directed defendant no.2 to shift
all the tenants by providing them alternate accommodation within 15
days of the receipt of the letter. The building in which suit premises is
situated is declared in C1 category and highly dilapidated. Thereafter,
defendant no.2 started shifting the tenants in alternate premises.
Defendant no.2 entered into an alternate agreement dated 18/9/2017
with plaintiff no.1. Plaintiffs gave possession of their premises to
defendant no.1 and plaintiff no.1 accepted the rent from defendant
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no.2 and executed possession receipt. Defendant no.1 has issued a
Letter of Intent dated 23/2/2018 in favour of defendant no.2 and
prescribed various terms and conditions. In the said letter of intent
stringent time line have been provided within which the defendant no.
2 has to complete the redevelopment project.
11 Defendant no.2 further avers that thereafter defendant
no.2 made inspection. It is found that one Chandrakant Thakur is
eligible for premises bearing Table survey no. D198 as shown in the
annexture II. The said Chandrakant Thakur has handed over possession
of the premises to defendant no.2. Thereafter, plaintiffs illegally and
unauthorizedly entered into the said premises of Chandrakant Thakur
and now claiming right, title and interest of the same. Due to the act of
plaintiffs the redevelopment work is stalled. Hence, prayed to dismiss
the notice of motion.
12 From the rival contention of both the parties, following
points arise for my consideration to which I record my findings against
them for the reasons given below:
Sr.No POINTS FINDINGS
1. Whether plaintiffs have made out
prima facie case?
In the negative
2. Whether balance of convenience lies in
favour of plaintiffs?
In the negative
3. To whom irreparable loss will be
caused if injunction is granted?
To the defendants
4 What order? As per final order
R E A S O N S
13 I have heard Ms. Priyanka Menon advocate for plaintiff.
Ms Varsha Sawant Adv. for defendant no.1 MMC and Shri P.D.Gandhi
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Adv.for defendant no.2
14 Ms Priyanka Menon advocate for plaintiffs submitted that
plaintiffs reside in the suit premises. The suit premises is in occupation
of the plaintiffs since 1940. Plaintiffs have ration card, electricity bills,
election identity card, birth certificate of plaintiff no.2 etc. on the
address of the suit premises. The suit premises is under redevelopment.
However, defendant no.2 did not provide alternate accommodation to
the plaintiffs. Defendant no.2 has also not executed agreement with the
plaintiff. Defendants threatened to the plaintiff to vacate the suit
premises. Defendants have to follow the due process of law. Unless and
until defendants do not follow the due process of law(providing
alternate accommodation, execution of agreement) defendants have no
right to evict the plaintiffs. However, defendants demolished the
adjacent structure and due to this they cut the water and electricity
connection. Defendants also demolished the toilet (W.C) of the
plaintiffs. Thus, defendants are harassing to the plaintiffs. She further
submitted that defendants have not obtained the clearance certificate
as required by law. If defendants succeed in evicting the plaintiffs,
irreparable loss will be caused to them. Plaintiffs have right in a newly
constructed building therefore, she prayed to restrain the defendants
from obstructing or dispossessing the plaintiffs from suit property and
also directing the defendants to connect the water and electricity
supply of the plaintiff. In support of her contention she relied on:
1 Prem Singh And Others V/s Birbal And Others (2006) 5
Supreme Court Cases 353.
2 Virendra Singh & Ors V/s Kashiram (deceased) through
LRs, AIR 2004 Raj 196.
3 Zhahid Ali S Haque and others V/s Stte of Maharashtra
and others 2010(3) Mh.L.J. 792 .
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15 Mrs Varsha Sawant advocate for defendant no.1 (MCGM)
has submitted that the suit premises is situate in one of the buildings
at Sewree. Defendant no.1 is the owner of the plots. It is noticed that
the said buildings are in a dilapidated and dangerous condition. After
inspection of the property, the defendant no.1 declared the said
buildings as a dilapidated and categorized in C1 Category. Thereafter,
the occupants formed a Cooperative Housing Society and work of
redevelopment is entrusted to defendant no.2. The officer of the
defendant no.2 had made plane table survey. It is found that plaintiff is
in possession of the room. Therefore, the name of plaintiff no.1 is
recorded in the annextureII. Thus, plaintiff is entitled for permanent
alternate accommodation in the newly constructed building. The
dispute is between plaintiff and defendant no.2 in respect of the
execution of the agreement, payment of rent etc. The officer of
defendant never threatened to the plaintiff to vacate the suit premises.
The suit premises is in dilapidated condition, the work of
redevelopment is stalled by illegal act of the plaintiffs. Therefore, it is
necessary to the plaintiffs to vacate the premises. Hence, she prayed to
dismiss the notice of motion.
16 Shri P.D.Gandhi advocate for defendant no.2 has
submitted that plaintiff No. 1 has executed alternate agreement with
defendant no.2. By the said agreement plaintiff No. 1 has accepted the
terms and conditions for the occupation of the premises in newly
constructed building. Plaintiff has signed every page of the agreement
and defendant no.2 has agreed to provide 320 sq. ft. carpet area flat.
Plaintiff no.1 has also issued a possession letter . Plaintiff no.1 has
accepted a cheque of Rs. 1,12,500/ as a rent from defendant no.2.
Thereafter, defendant no.2 has given the rent of Rs. 60,000/ to the
plaintiff.
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17 He further submitted that even Chandrakant Thakur who
is also held eligible for flat in the newly constructed building has
vacated his rooms and executed agreement with defendant no.2.
Plaintiffs have occupied one of the rooms of Chandrakant Thakur and
also claiming right over it. Thus, plaintiffs have acted illegally. The
defendant no.2 has to complete the redevelopment work within time
line as given by defendant no.1. He further submitted that plaintiffs
have suppressed the material facts from the Court i.e. execution of
agreement, acceptance of rent from defendant no.2. Thus, plaintiffs are
not entitled for interim relief of injunction. Plaintiffs have no right to
occupy one of the rooms which are vacated by Chandrakant Thakur.
Plaintiffs have already vacated their premises room no.1 and handed
over the possession to the defendant no.2. Therefore he prayed to
dismiss the notice of motion.
18 Advocate Mr. P.D.Gandhi for defendant no.2 has filed
notes of written argument. I have perused the same. In support of his
contention he relied on:
1 Arunima Baruah V/s Union of India (UOI) and Ors. in Civil
Appeal No 2205 of 2007 9Arising out of SLP (Civil) No of
2006)
2 Oswal Fats and Oils Limited V/s Additional Commissioner
(Administration), Bareilly Division Bareilly and Ors, Civil
Appeal No 7982 of 2002
19 By this notice of motion plaintiffs claimed temporary
prohibitory injunction to restrain the defendants from dispossessing
them from the suit premises and also the temporary mandatory
injunction to direct the defendants to reconnect the water and
electricity supply. The relief of injunction is an equitable relief. It is
well known Maxim of law of equity that" one who seeks equity must
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come in the Court with clean hands". For granting temporary
mandatory injunction plaintiff has to show strong prima facie case.
Plaintiffs have to prove the prima facie case i.e. there are triable issues
between the parties and balance of convenience in their favour.
Plaintiffs have to prove that they will cause irreparable loss in case of
refusal of injunction.
20 From the record it is not disputed that defendant no.1,
MCGM is owner of land bearing C.S. No. 231
(pt),232,442,787(pt),456,457 to 459 to 476, 699 admeasuring about
34,988 sq.mtrs of Parel Sewree Cross Road,F/south Ward, Mumbai400
015. Admittedly, plaintiffs were in possession of room no.1 in one of
the buildings on the said plot. Admittedly, the redevelopment work is
in progress and defendant no.2 is the developer appointed by the
occupants of the said plots by forming Cooperative Housing Society
namely Eklas Cooperative Housing Society .
21 According to plaintiffs, defendant no.2 has not executed
agreement in favour of plaintiffs Defendants threatened to dispossess
the plaintiffs and they also demolished the adjacent premises and
while demolishing the suit premises they cut the water and electricity
supply. Thus, defendants have not followed the due process of law.
22 It is admitted that plaintiff no.1 is affected tenant and she
is eligible for permanent accommodation in the newly constructed
building. Therefore, defendant no. 2 has to provide temporary
accommodation to the plaintiff and also to execute the agreement with
plaintiff no.1. In the plaint plaintiff has not filed any such documents
to show that defendant no.2 has acted as per the terms and conditions
of letter of intent.
23 However, according to both the defendants, the plaintiff is
eligible and the agreement is executed by defendant no. 2 with
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plaintiffs Defendants has produced annexture II . At Sr. No 28 plaintiff
is shown as a subtenant of Narayan Thakur and the remarks of
Assistant Commissioner is that plaintiff is protected under sanctioned
(DMC II) under No MDG/581 of 30/12/2011. Thereafter, plaintiff
no.1 has executed possession letter in favour of defendant no.2.
Plaintiff gave possession of room no.1 to defendant no.2 for
redevelopment. Plaintiff no.1 has accepted amount of rent of Rs.
1,12,500/. It is pertinent to note that thereafter on 21/1/2018,
plaintiff accepted Rs. 60,000/ from defendant no.2 as a rent. It is to
be noted that on 18/9/2017, an alternate agreement is executed
between plaintiff no.1 and defendant No. 2 by the said agreement
plaintiff agreed to accept permanent alternate accommodation of 320
sq ft. carpet area in newly constructed building. Thus, both the parties
bilaterally executed the documents. Plaintiffs have filed L.C.Suit No
5306 of 2018 against Chandrakant Thakur and defendant no. 1 . In
that suit plaintiffs have stated that defendant no.1 threatened to
disposes the plaintiffs from the suit premises and therefore the Court
directed the defendant no.1 to maintain status quo in respect of the suit
property. However, in the present suit said Chandrakant Thakur is not
party. According to defendant no.2, the said Chandrakant was in
possession of four rooms. On the basis of alternate agreement with him
he vacated his premises and plaintiffs occupied one of the rooms and
treating the same as suit premises. I find force in the contention of the
defendants because plaintiff have not given the correct description of
the suit property as per the provisions of order 7 rule 3 of Civil
Procedure Code, 1908.
In Prem Singh And Others V/s Birbal And Others
(2006) 5 Supreme Court Cases 353, Hon'ble Supreme Court
held that
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When fraudulent misrepresentation is with respect to
character of document, it is void, and when it is with
respect t contents of document, it is voidableDeed of
Documents".
In Virendra Singh & Ors V/s Kashiram (deceased)
through LRs, AIR 2004 Raj 196 Hon'ble High Court held that
All the agreements are contracts if they are made by the
free consent of parties competent to contract for a lawful
considerationWhere a person who is in a position to
dominate the will of another, enters into a contract with
him and the transaction appears, on the face of it or on the
evidence adduced to be unconscionable, the burden of
proving that it was not induced by undue influence shall
be on the person in a position to dominate the will of the
other.
In Zhahid Ali S Haque and others V/s Stte of
Maharashtra and others 2010(3) Mh.L.J. 792 Hon'ble High
Court held that:
Eviction notice to slum dweller did not record satisfaction
as to availability of clearanceNotice is liable to be set
aside.
24 However, in the present case, from the record it appears
that the redevelopment work is in progress. Plaintiff no. 1 has executed
agreement with defendant no.2 Plaintiff no1 has signed on each page
of the agreement. Therefore, I most respectfully submit that the ratio
laid down in the above rulings are not applicable to the case in hand.
The facts in the above rulings are different than the facts in the present
case.
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25 In the plaint, plaintiffs have contended that they are
eligible for permanent alternate accommodation as per annexture II.
However, defendant no. 2 has not executed any agreement. On the
contrary, defendant no. 2 has brought on record that plaintiff no. 1
accepted rent by cheque and cash from defendant no.2. Plaintiff No. 1
has executed agreement for alternate accommodation and also handed
over possession of her premises by possession letter. It has also come
on record that plaintiffs are illegally and unauthorizedly occupied the
room of Chandrakant Thakur. Plaintiffs have suppressed the material
facts from the Court. The contention of the plaintiffs is that defendants
have to follow the due process of law. I find that defendant no.1 and 2
have followed the due process of law. On the contrary as discussed
above plaintiff suppressed the fact that she executed agreement with
defendant no.2 and accepted rent from him.
In Arunima Baruah V/s Union of India (UOI) and Ors.
in Civil Appeal No 2205 of 2007 9Arising out of SLP (Civil)
No of 2006) Hon'ble Supreme Court held in para no. 10
that :
It is trite law that so as to enable the court to refuse to
exercise is discretionary jurisdiction suppression must be of
material fact. What would be a material fact, suppression
whereof would disentitle the appellant to obtain a
discretionary relief, would depend upon the facts and
circumstances of each case. Material fact would mean
material for the purpose of determination of the lis, the
logical corollary whereof would be that whether the same
was material for grant or denial of the relief. If the fact
suppressed is not material for determination of the lis
between the parties, the court may not refuse to exercise
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its discretionary jurisdiction. It is also trite that a person
invoking the discretionary, jurisdiction of the court cannot
be allowed to approach it with a pair of dirty hands. But
even if the said dirt is removed and the hands become
clean, whether the relief would still be denied is the
question.
Further in Oswal Fats and Oils Limited V/s Additional
Commissioner (Administration), Bareilly Division Bareilly
and Ors, Civil Appeal No 7982 of 2002, Hon'ble Supreme Court
in para no. 16 held that:
It is the duty of a party asking for an injunction to bring
under the notice of the Court all facts material to the
determination of his right to that injunction: and it is no
excuse for him to say that he was not aware of the
importance of any facts which he has omitted to
bring forward. If an applicant does not act with uberrima
fides and put every material fact before the Court it will
not grant him an injunction, even though there might be
facts upon which the injunction might be granted." His
Lordship rightly pronounced:" The Court, for its own
protection, is entitled to say: We refuse this writ.. without
going into the merits of the case on the ground of the
conduct of the applicant in bringing the case before
us"."Warrington,L.J. was also of the same opinion. In a
concurring judgment His Lordship observed: " It is
perfectly well settled that a person who makes an ex parte
application to the Court, that is to say, in absence of the
person who will be affected by that which the Court is
asked to dois under an obligation to the Court to make
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the fullest possible disclosure of all material facts within
his knowledge, and if he does not make that fullest
possible disclosure, then he cannot obtain any advantage
from the proceedings, and he will be deprived of any
advantage he may have already obtained by means of the
order which has thus wrongly been obtained by him.
26 Here in the present case plaintiffs have suppressed the
material facts from the Court. Therefore, plaintiffs are not entitled for
interim relief.
27 It is pertinent to note that there were in all 515 occupants
on the said plot. Out of them 365 occupants vacated their premises,
105 occupants have executed an agreements, 60 occupants inclusive of
plaintiff are disputing with defendants. Defendant no. 1 declared the
buildings in a C1 category i.e. dilapidated building. The Technical
Advisory Committee gave report that Assistant Commissioner , F South
Ward shall keep the structure under observation and shall take
necessary preventive measures such as cropping. Therefore, the
occupants on the said plot formed Eklas Cooperative Housing Society
and appointed defendant no.2 for redevelopment of the property.
Defendant no.1 being owner of the said plots executed letter of intent
and prescribed time line for redevelopment of the project. It appears
that plaintiffs even execution of agreement, execution of possession
letter, acceptance of rent from defendant no.2 disputing with
defendant no.2. Due to the act of plaintiffs and other some occupnts
the redevelopment project is stalled.
28 Defendants have followed the due process of law.
Defendant no.1 inspected the site and entered the name of plaintiff no.
1 in annexture II. Plaintiff no.1 executed agreement with defendant
no.2 and handed over possession of her premises. Plaintiffs have also
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accepted rent from defendant no.2 therefore it is for the plaintiff to co
operate the redevelopment project. Therefore, in such a circumstances,
I find that plaintiffs have no prima facie case, balance of convenience
does not lie in favour of plaintiff and if injunction as prayed is granted
then irreparable loss will be caused to defendants and other occupants
who have vacated their premises on the trust that they will get new
house in the building. Therefore, I answer the points accordingly and
pass the following order:
ORDER
1 Notice of Motion No 1972 of 2018 is dismissed with
costs.
2 Notice of motion disposed of accordingly.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 8/08/2018
Typed on : 9/08/2018
Signed by HHJ. :13/08/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
14/8/2018 Mrs. S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
8/8/2018
JUDGEMENT/ORDER signed by
P.O. on
13/8/2018
JUDGEMENT/ORDER uploaded
on
14/8/2018
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