Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Notice of Motion 2115 of 2018
In
S.C.Suit No. 2943 of 2018
MHCC010068262018
All India Animal Welfare Association (AIAWA) ...Plaintiff
V/s
Municipal Corporation of Greater Mumbai and anr. ..Defendants
Advocate Mr.Maulik Tanna for plaintiff
Advocate Mr.V.P.Kumawat for defendant/MMC
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 18th January, 2019
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this notice of motion for the
following reliefs:
(a) This Hon'ble Court be pleased to pass an order and in the
interest of justice Court Receiver, High Court Bombay, be appointed as
Receiver under Order XL, Rule 1 of the Civil Procedure Code, 1908 in
respect of the suit premises more particularly described in the Exhibit C
and the Plaintiff be put in possession of suit premises as an agent of the
Hon'ble Court Receiver on such terms as the Hon'ble Court may deem
fit and proper, pending the hearing and final disposal of the suit.
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b) Pending the hearing and final disposal of the present suit
this Hon'ble Court be pleased to pass a temporary order and injunction
restraining from creating any third party rights alienating,
encumbering, parting with possession of the suit premises Exhibit C,
pending the hearing and final disposal of the suit.
The description of suit premises is as under:
2 All that piece and parcel of land and ground alongwith all
permanent structures standing thereon situated at Dog Kennel Pound,
situated at Sakpal Marg, C.S. no.1 (Part) Lower Parel Division,
Mahalxmi (East) Mumbai originally admeasuring 105.1230 sq mtrs
alongwith 24 cages and additional portion of land of which
measurements are not provided by the MCGM to the Plaintiff which
consists of open space between Compound Wall and Main kennel i.e.
House Galli and isolation ward and the room for puppy killing and
additionally the original shelter plot (erstwhile dog pound) allotted by
the MCGM to the Plaintiff in or about the year 197273
3 Facts in brief are as under:
Plaintiff is an association registered under the Maharashtra
Public Trust Act, 1950 vide Registration Certificate dated 14th
May,1953 issued by the Charity Commissioner, Greater Bombay and
Societies Registration Act 1860 vide registration certificate dated
22nd August,1955. The main objective of the plaintiff is to care for
stray dogs and cats in every respect particularly in the city of Mumbai
and for that purpose the defendant no. 1 allotted to the plaintiff a small
plot of land at Mahalaxmi Dhobi Ghat where the defendant no. 1 had
their dog pound to exterminate stray dogs. The allotted plot was a part
of larger area reserved by the defendant no.1 for the purpose of an
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animal hospital and animal welfare activities.
4 Plaintiff does humanitarian work. Defendant no. 1 by letter
dated 12/02/1973 granted permission to the petitioner to put a fencing
5feet from the outer wall on the east and north sides of their structure
and also allowed the plaintiff to use the open ground on the west side
between the old lethal chamber and their rescue kennel so as to make
available to the plaintiff an additional area 667 sq ft. at a nominal rate
of Rs. 1/ per month.
5 According to plaintiff, plaintiff was allowed to use and
occupy the suit premises by the defendant no.1 since the year 1970.
Plaintiff is using the premises from 1973 to conduct an activity of the
trust. Plaintiff from the year 1975 till the year 2006 had requesting the
defendant no.1 to enter into an agreement of lease. Defendant no.1
negotiated with the plaintiff for entering into a lease agreement in
respect of the suit premises but defendant no.1 never finalized the lease
agreement. Defendant no.1 did not pay heed to the requests of the
plaintiff to enter into an agreement in respect of the suit premises.
Therefore, plaintiff had filed writ petition no. 447 of 2007 before
Hon'ble High Court, at Bombay. The Hon'ble High Court in the said
writ petition by order dated 20/04/2007 directed the defendant no.1
to forthwith execute the necessary agreement with the plaintiff for
providing Dog Shelter/Sterilization centre. However, defendant no.1
to utter disregard for the orders of the Hon'ble High Court, did not
enter into any agreement with the plaintiff till date. Plaintiff is in
possession of the suit premises since the year 1970 continuously
without any hindrance or obstruction of the defendant no.1.
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6 In or about 3/06/1975, the defendant no.1 sanctioned
further constituting 5 bays alongwith the rear portions in the then
kennel building . Plaintiff acknowledged the said sanction and
requested the defendant to enter into an agreement. The plaintiff was
performing nearly 200 sterilizations per month from 1997 at
dilapidated dog kennel/shelter at Mahalaxmi. The plaintiff employed
its fund and endeavor to the said activities.. However, due to bad
shape and dilapidated condition of dog kennel/shelter, it became
difficult to run the said centre. Because of seepage, the equipments
installed by the plaintiff are being spoiled. Plaintiff further contended
that defendant no.1 had been irregular in payment of electricity
charges for said dog kennel and plaintiff faced threat of disconnection
of electricity from BEST undertaking. Therefore on 28/03/2015,
plaintiff wrote letter to the defendant no.1. However, defendant did not
give any reply . Now the payment of electricity Rs. 63,839/ is
outstanding.
7 Plaintiff further stated that on 24/04/2017, the officer of
the defendant no.1 at about 10.30 a.m. entered into the suit premises
without giving any notice to the plaintiff. At that time the two
representatives of the plaintiff namely Mr. Nirahu Ramlakhan Singh
kennel supervisor, Mr. Sagar Chandrakant Sasanewardboy were
present. The said representative informed the plaintiffs trustee
telephonically that the officers of defendant no.1 had started throwing
out the articles of the plaintiff out of the suit premises. Plaintiffs trustee
Ms Jigeesha Thakore immediately went to the police station and lodged
a written complaint against the illegal forcible eviction of the plaintiffs
from the suit premises. On 24/04/2017 some police personnel
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accompanied the plaintiff's trustee on the suit site. However, by then
the damage was done by defendant no.1 Thereafter defendant no.1
wrote a letter to the plaintiff and informed the plaintiff about the
dispossession from the suit premises.
8 According to plaintiff, defendant has no right to dispossess
the plaintiff without following the due process of law. Defendant
illegally dispossessed the plaintiff from the suit premises. Defendants
have forcibly taken the articles of the plaintiff. However, defendants are
intending to create third party interest in the suit premises. Hence,
prayed to allow the notice of motion.
9 Notice is served to the defendants. Defendant no. 1 filed
reply cum written statement at Exh.2. Defendant denied that
defendant avoided to execute lease agreement in favour of plaintiff.
Defendant denied that defendant forcibly dispossessed the plaintiff.
Defendant denied that plaintiff is entitled for the reliefs as sought,
10 According to defendant, defendant is the Municipal
Corporation for Gr. Mumbai . In a writ petition no. 1596 of 1998,
Hon'ble High Court passed order and stopped extermination of stray
dogs and sterilization program was undertaken to control dog
population in Mumbai. Defendant in the year 1994, stopped
extermination program suemoto and started Animal Birth Control
Program.. In 1994,, NGO's namely Welfare of Stray Dogs (WSD), All
India Animal Welfare Association (Plaintiff), Bombay Society for
Prevention of Cruelty to Animals. In Defence of Animals was allowed to
work for Animal Birth Program. Prior to 1994, plaintiff was working
outside premises of Mahalaxmi Dog Control office. The premises in
question is the conservancy department room belongs to defendant
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No. 1 and is located near Mahalaxmi Dog Control and not within its
compound. Thus, the place used for extermination of stray dogs was
not in use since 1994. Hence, it was decided to allow the plaintiff to
use this place for sterilization of stray dogs in the year 1994.Plaintiff is
one of the NGO alongwith WSD,BSPCA and IDA out of which WSD
and IDA are leading performers of the program. Defendant no.1
sponsored programe as per directions of Hon'ble High Court.. However
during 2011 onwards defendant no.1 directed to execute an
agreement in respect of dog sterilization program. Plaintiff failed to
execute the agreement. Thus, defendant issued a letter to the Secretary
of AIAWA for executing the MOU for implementing ABC (Animal Birth
Control)Program vide letter dated 05/09/2005 and 28/09/2011 but
plaintiff failed to execute the agreement and sent letters contending
that some paragraphs be added but never took the follow up to
execute and register the agreement.
11 The responsibility of upkeep of premises and to maintain
the same in good condition was entrusted to plaintiff. But plaintiff
miserably failed to maintain the said premises. The condition of the
premises was bad hence he made some repairs but plaintiff
intentionally and deliberately avoided to vacate the premises for
repairs. The dog kennel was in possession of plaintiff was in bad
condition and unhygienic condition and non cooperation on behalf of
plaintiff and for the same reason dogs were dying after sterilization
operations therefore defendant no.1 stopped providing dogs to the
plaintiff. Plaintiff violated the rules of Animal Birth Control and hence
subsequently the services of plaintiff was terminated. It was also
observed that the plaintiff fraudulently registered its name in the
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electricity bill without consent or permission from the defendants.
12 According to defendant, the performance of plaintiff was
very poor, therefore payments were withheld since 2011. Plaintiff has
not signed Memorandum of Understanding. There were complaints
against plaintiff of veterinary doctor of defendant no.1. Dr. Shivali
Gangawane with respect of unhygienic condition of dog kennel.
Plaintiff was informed about discontinuation of providing dogs for
sterilization dated 12/11/2014 and ordered for vacating of the
premises.
13 Plaintiff had filed Public Interest Litigation before the
Hon'ble High Court bearing no 83 of 2016 against these defendants,
in which plaintiff claimed many reliefs in that PIL. The officer of the
defendant filed affidavit of reply and after hearing both the sides the
Hon'ble High Court pleased to pass order and disposed of PIL with
liberty to plaintiff to approach proper forum in appropriate proceeding
for redressal of his grievance if so desire.
14 The suit premises is owned by defendant No. 1. Defendants
No. 1 took possession of the suit premises after following the due
process of law. Plaintiff is not at all concerned with the suit premises
therefore plaintiff has not entity to file the suit . Hence, amongst these
grounds defendant prayed to dismiss the notice of motion.
15 Plaintiffs trustee Ms Jigeesha Thakore had filed her
additional affidavit and affidavit in rejoinder and denied the contention
made in the plaint. According to plaintiff, defendant no.1 has not
followed the due process of law and forcibly evicted the plaintiff from
the suit premises.
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16 From the rival contention of both the parties following
points arise for my consideration to which I record my findings against
them for the reason given below:
Points Findings
1 Whether the plaintiff has made
out prima facie case?
In the negative
2 Whether balance of
convenience lies in favour of
plaintiff?
In the negative
3 To whom irreparable loss will
be caused if injunction is granted?
To the defendant No. 1
4 What order? As per final order
REASONS
17 I have heard Mr. Maulik Tanna advocate for plaintiff and
Mr. V.P.Kumawat advocate for defendant no.1/MCGM. Plaintiff has
filed written arguement at Exh.3 and defendant no.1 has filed written
argument at Exh.4.
18 Mr. Tanna advocate for plaintiff has submitted that
plaintiff is a Trust registered under Maharashtra Public Trust Act and
Societies Registration Act. Plaintiff has engaged in the activity of care
for stray dogs and cats in every respect particularly in the city of
Mumbai. Plaintiff has allotted the plot somewhere in the year 1970.
Thereafter another portion is also allotted to the plaintiff. Plaintiff was
entrusted with the work of Animal Birth Control of dogs. He has invited
my attention towards the orders in the writ petition. According to him
the Hon'ble High Court in writ petition no. 447/2007 directed the
defendant Municipal Corporation to execute an agreement in favour of
plaintiff. However, the Municipal Corporation did not execute the
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agreement and therefore breached the order of Hon'ble High Court . He
further submitted that defendant no.1 has not paid the electricity
charges. Defendant no. 1 is intending to create third party interest in
the suit premises. Plaintiff was in possession of the premises since
1970. The possession of plaintiff was settled possession therefore
defendant had no authority to dispossess the plaintiff without
following the due process of law. However, on 24/4/2017 the officer
of the defendant entered into suit premises, they threw the articles of
the plaintiff and forcibly took possession of the premises. Hence, in
such a circumstances it is necessary to appoint Court receiver and
appoint the plaintiff as a agent of the Court Receiver. Hence, he prayed
to allow the notice of motion. In support of his contention he relied on
1 Evaristo s/o Manuel Sequeira and another V/s Parish Priest
and another 2009 (4) Mh L.J
2 In Rame Gowda (Dead) By Lrs V/ M.Varadappa Naidu
(Dead)by LRs and another.(2004) 1 Supreme Court Cases
769
19 Shri V.P.Kumawat advocate or defendant no.1 has
submitted that plaintiff was running its activity at the side of
Mahalaxmi Dhobi Ghat. In the year 1994 the suit premises was given to
the plaintiff to implement the programe of Animal Birth Control.
However, it was noticed that the performance of the plaintiff was poor.
Plaintiff has failed to carry the said program with true spirit. The
veterinary Doctor of defendant namely Dr. Shivali Gangawane visited
the center of the plaintiff many times. However, she found that the
hygienic condition of the dog is not good and therefore she made
complaint about the center of the plaintiff. She further complained that
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plaintiff was not running the center properly and therefore the
defendant stopped to send dogs to the plaintiff from 2011. In the year
2014, defendant directed the plaintiff to vacate the premises.
Thereafter, on 24/04/2017 the officer of the defendant visited the
premises and found that the premises was in abandoned condition. The
health officer found that there were 17 dogs in the premises. The cats
were taken into custody of some unknown person. claiming to be
servant of plaintiffs organization. Entire articles were shifted outside
the premises and thus the possession is taken. According to him
plaintiff was not in settled possession. The premises was given to the
plaintiff to run Animal Birth Control Center. However, the
performance of the plaintiff was poor. Hence the same is taken in
possession by the defendant no.1. Hence he prayed to dismiss the
notice of motion.
20 Plaintiff is the All India Animal Welfare Association.
Plaintiff is registered trust. The said trust is also registered under the
Societies Registration Act. According to plaintiff the main object of the
plaintiffs trust is to take care for stray dogs and cats in the City of
Mumbai. From the documents produced by plaintiff it appears that the
the head Supervisor of defendant no. 1 somewhere in the year 1973
alloted the additional space to the plaintiff for extending their Dogs
Kennel at Mahalaxmi siding. Admittedly, plaintiff was in possession of
the premises to carry out the purpose of trust. Thereafter writ petition
no. 447 of 2007 had filed by plaintiff and other NGO's before the
Hon'ble High Court. The Hon'ble High Court directed the defendant
no.1 to execute necessary agreement with the plaintiff forthwith.
Earlier to this writ petition no 1596/98 was filed before the Hon'ble
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High Court. Hon'ble High Court in that writ petition directed the
defendant Municipal Corporation to take a program of sterilization of
dogs and in view of the order of this writ petition the plaintiff was
entrusted the wok of sterilization of dogs under Animal Birth Control
Rules. From the documents produced by both the parties, I find that
there is exchange of correspondence between the plaintiff and
defendant no.1 in respect of execution of agreement. However, there
was dispute between the parties in respect of terms and conditions of
the lease agreement and thus till today no lease agreement is executed
between the parties.
21 As no lease agreement is executed between the parties,
hence, the plaintiff was merely allowed to carry its center in the
aforesaid plot .
22 Till 2006, defendant no.1 has provided dogs to the plaintiff
for sterilization. However, according to defendant no.1 the
performance of the plaintiff was poor. The condition of the dogs kennel
was unhygienic and therefore defendant no.1 stopped the supply of
dogs to the plaintiff. It also appears that veterinary doctor of defendant
no.1 namely Shivali Gangawane visited the premises and found that
the condition of dogs is not good accordingly she made report to the
defendant no.1. During the period plaintiff had filed Public Interest
Litigation no. 83/2016 before Hon'ble High Court. The Hon'ble High
Court held that since it is a sponsored programme of the corporation in
terms of directions of the Hon'ble High Court it cannot be treated as a
private contract between the parties. If the petitioner has any other
vested right, the same cannot be asserted in this PIL. The Hon'ble High
Court in para no. 5 held that with the aforesaid observations PIL is
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disposed of with liberty to the petitioner to approach proper forum in
appropriate proceeding for redressal of its grievances, if so desire.
23 Thereafter on 24/04/2017 the Assistant Health Officer
wrote a letter to the plaintiff and in the same letter it has contended
that premises at Mahalaxmi Dogs Control Office was visited and found
to be in extremely shabby condition and in an abandoned stage . 17
dogs were taken into custody and have been sent to BSPCA for medical
examination and treatment required . Cats found in the premises were
taken into custody by an unknown person claiming to be servant of
plaintiffs organization. The entire scrap was kept at side the building
but within the premises and plaintiff was directed to take custody of all
items. According to defendant, the defendant is in process of
repair/demolition/reconstruction of the premises. Thus, the defendant
no.1 has taken possession of the premises on 24/4/2017. Thereafter,
plaintiff made several complaints to the police station about the thefts
of articles.
24 Now the question is whether plaintiff was in settled
possession and plaintiff is entitled to recover the possession by way of
interim injunction. The plaintiff has sought possession of the premises
on the ground that defendant forcibly evicted the plaintiff from the suit
premises. As discussed above according to plaintiff, defendant
dispossessed the plaintiff on 24/4/2017. Plaintiff has filed the present
suit for declaration that defendant no.1 has illegally disposed the
plaintiff from suit premises and for recovery of the suit premises from
defendant no.1 The title of the suit is that suit is under section 5,37 and
38 of the Specific Relief Act. Admittedly, this is not a summary suit
under section 6 of the Specific Relief Act.
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25 In Evaristo s/o Manuel Sequeira and another V/s Parish
Priest and another 2009 (4) Mh L.J Hon'ble High Court held that:
The only thing that is required to be seen is whether the
plaintiffs were in possession and whether he has been
dispossessed without following due process of law and that
too within 6 months of institution of the suit. The trial
Court has totally ignored the law and found that since the
plaintiffs had lost their job they had no right to retain the
possession. Morally, they did not have and may not have,
but that did not give right the defendants to forcible
dispossess them.
In Rame Gowda (Dead) By Lrs V/ M.Varadappa Naidu
(Dead)by LRs and another.(2004) 1 Supreme Court Cases 769
Hon'ble Supreme Court held in para no. 5 that:
"few relationships are as vital to man as that of possession, and
we may expect any system of law, however primitive, to provide
rules for its protection... Law must provide for the safeguarding
of possession. Human nature being what it is, men are tempted
to prefer their own selfish and immediate interests to the wide
and long term interests of society in general. But since an attack
on a man's possession is an attack on something which may be
essential to him, it becomes almost tantamount to an assault on
the man himself; and the possessor may well be stirred to
defend himself with force. The result is violence, chaos and
disorder.
"In English law possession is a good title of right against anyone
who cannot show a better. A wrongful possessor has the rights
of an owner with respect to all persons except earlier possessors
and except the true owner himself. Many other legal systems,
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however, go much further than this, and treat possession as a
provisional or temporary title even against the true owner
himself. Even a wrongdoer, who is deprived of his possession,
can recover it from any person whatever, simply on the ground
of his possession. Even the true owner, who takes his own, may
be forced in this way to restore it to the wrongdoer, and will not
be permitted to set up his own superior title to it. He must first
give up possession, and then proceed in due course of law for
the recovery of the thing on the ground of his ownership. The
intention of the law is that every possessor shall be entitled to
retain and recover his possession until deprived of it by a
judgment according to law.
Legal remedies thus appointed for the protection of possession
even against ownership are called possessory. While those
available for the protection of ownership itself may be
distinguished as proprietary. In the modern and medical civil
law the distinction is expressed by the contrasted terms
petitorium and possessorium .(a possessory suit)
Hon'ble Apex Court further held in para no. 9 that:
An occupation of the property by a person as an agent or
a servant acting at the instance of the owner will not
amount to actual physical possession. The Court laid
down the following tests which may be adopted as a
working rule for determining the attributes of " settled
Possession"
(i) that the trespasser must be in actual physical
possession of the property over a sufficiently long period:
(iii) that the possession must be to the knowledge (either
express or implied) of the owner or without any attempt
at concealment by the trespasser and which contains an
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element of animus possidendi. The nature of possession
of the trespasser would, however, be a matter to be
decided on the facts and circumstances of each case.
(iii) the process of dispossession of the true owner by the
trespasser must be complete and final and must be
acquiesced to by the true owner and
(iv) that one of the usual tests to determine the quality of
settled possession, in the case of cultural land would be
whether or not the trespasser, after having taken
possession, had grown any crop. If the crop had been
grown by the trespasser, then even the true owner, has
no right to destroy the crop grown by the trespasser and
take forcible possession.
26 Here in the present suit plaintiff was allowed to carry her
Dog Kennel and dog sterilization center in the suit premises. The
defendant Municipal Corporation had under taken the said program as
per the directions of Hon'ble High Court. Thus there is no lease
agreement between the plaintiff and defendant no.1. In view of the test
laid down by Hon'ble Apex Court supra the possession of the plaintiff
cannot be termed as settled possession. On the contrary the possession
of the plaintiff is amounts to be only authorization by defendant no 1 to
carry dog sterilization center.
27 From the record it appears that the performance of the
plaintiff was poor. The dogs kennel was unhygienic. Therefore,
defendant no.1 stopped to sent dogs to the plaintiffs center particularly
from the year 2011. Plaintiff was also directed to vacate the premises
however, plaintiff has not vacated the premises. On 24/4/2017 the
premises was found in abandoned condition. From the photographs
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produced by defendant no.1 it appears premises is in dilapidated
condition and requires urgent repairs. The said plot is reserved for
animal hospital. The General Manager, Devnar abettoir
has given report dated 23/10/2018 to the Assistant Commissioner, G
South Ward and informed that the said building is given to the plaintiff
to implement Animal Birth Control Programe. Plaintiff has not followed
the rules of sterilization. The said premises is in need to construct
animal hospital. Similar letter is also written by the Assistant Engineer
maintainable, G south ward for permission to demolish the structure as
the same is in pathetic condition and the said proposal is also approved
28 Thus from the above discussion, I find that the suit
premises was merely allowed to the plaintiff to run Animal Birth
control center. However, plaintiff failed to keep the premises in
hygienic condition. The performance of the plaintiff was poor from
2011. Defendant no.1 stopped to sent dogs to the plaintiff for
sterilization on 24/4/2017. The officer of the defendant found that the
premises was in abandoned condition. The possession of the plaintiff
was not settled possession. Hence, in such a circumstances I find that
the property is owned by defendant no.1 Municipal Corporation, Gr
Mumbai and defendant is in need of the said premises for construction
Animal Hospital. Therefore it cannot be said that the suit premises is in
danger and being wasted. Therefore, I come to the conclusion that
plaintiff failed to prove prima facie case, balance of convenience does
not lie in favour of plaintiff. If temporary injunction as prayed is
granted then irreparable loss will be caused to the defendant no.1. The
said plot is reserved for animal hospital and if the order of injunction is
granted defendant will be deprived from constructing animal hospital.
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Therefore, I answer points accordingly and pass the following order:
ORDER
1 Notice of motion no. 2115 of 2018 is hereby
dismissed.
2 Costs in cause.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay
Dictated on : 18/01/2019
Typed on : 21/01/2019
Signed by HHJ. : 22/01/2019
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
24/01/2019 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
18/01/2019
JUDGEMENT/ORDER signed by
P.O. on
22/01/2019
JUDGEMENT/ORDER uploaded
on
24/01/2019
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