Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.2861 OF 2019
IN
SUIT NO.2042 OF 2019
(CNR NO.MHCC01-007894-2019)
Roshan Ramesh Patil & Ors. ).. Plaintiff.
V/s.
Neha Developers and Ors. ).. Defendants.
Appearances :-
Ld. Adv. Ms. Poorva Pendulkar for plaintiff.
Ld. Adv. Mr. Vijay Sharma for defendant No.1.
Ld. Adv. Mrs. Mangal Kadam for defendant No.2/MHADA.
Ld. Adv. Mrs. Chandramore for defendant No.3/BMC.
CORAM : HIS HONOUR JUDGE V. V. PATIL
COURT ROOM NO.09
DATE : 4th March, 2024.
ORDER
Plaintiffs have taken out present Notice of Motion seeking
reliefs therein against the defendants.
2. It is contention of the plaintiff that, plaintiffs were the
occupants of Haji Ismail Gani building which is since demolished
(hereinafter referred to as ‘ the old building’). There were total 63
occupants in the old building consisting of resident and commercial
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occupants. In the year 2009, the owners of the said property assigned
its development rights to defendant No.1 and entered into development
agreement dated 10.05.2010 with defendant No.1 for redeveloping the
said property and constructing the new building thereon. Defendant
No.1 was appointed as developer for redevelopment of the old building.
As per the development agreement, the defendant No.1 agreed to
provide 375. sq. ft. carpet area to all the occupants. After obtaining
written consent of not less than 20% of total occupants of the old
building, defendant No.2 has given NOC dated 28.09.2011 to defendant
No.1 for redeveloping the said property under DCR 33 (7). Plaintiffs
names are included in the list of occupants annexed to the said NOC.
Defendant No.3 sanctioned the building plan of the building proposed
to be constructed and issued IOD accordingly to defendant No.1. On or
about May, 2021, defendant No.1 forwarded copies of draft agreement
for permanent alternate accommodation to all the occupants. On
05.08.2013 plaintiffs also received copy of agreement for permanent
alternate accommodation. The plaintiffs requested defendant No.1 to
incorporate some points and required some additions/alterations in
some cluases at the said draft agreement . However, defendant No.1 did
not pay in heed. Dispute also arose about benefit of fungible area. In the
result, plaintiffs refused to vacate the suit premises and refused to
execute the agreement for permanent alternate accommodation.
Meantime, defendant No.1 entered into agreement with some of the
tenants of the old building and got it vacated by paying them monthly
cheques for 2 years for temporary alternate accommodation.
3. Defendant No.1 applied to defendant No.2 for adopting
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proceeding under Section 91 (A) of MHADA Act against plaintiffs and
others. Accordingly, on 03.01.2014, defendant No.2 compelled plaintiffs
to vacate the suit premises and shift to temporary alternate
accommodation. The plaintiffs filed Writ Petition (ST) No.19521/2010
in the Hon’ble High Court. Thereafter defendants did not comply with
the order of Hon’ble High Court in the Writ Petition. On 13.08.2014,
plaintiffs requested to sent draft agreement. However, defendant No.1
forwarded draft copy alongwith the plan only of 350 sq. ft. carpet area.
He was avoiding to execute and register agreement for 375 sq. ft. carpet
area, though the same was permissible in the scheme.
4. Somewhere in the year 2015, plaintiffs alongwith other
tenant Smt. Asha Wagela filed Writ Petition No.3225/2015 against State
of Maharashtra and defendant No.1 as defendant No.1 has not
mentioned the area i.e. 375 sq. ft. which was directed by Hon’ble High
Court by order dated 05.08.2014 in Writ Petition (ST) No.19521/2014
and for non-issuance of commencement certificate to defendant No.1. It
is further contended that, during pendency of the said petition,
defendant No.3 had issued commencement certificate without following
due process of law.
5. It is further contended that defendants has constructed new
building upto 18 floors. There is no occupation certificate to the said
building. On 27.03.2018, plaintiff’s advocate sent letter to defendant
No.3 and thereby called upon to furnish draft copy of permanent
alternate accommodation agreement but defendant failed to comply.
Hence, plaintiffs have taken out present Notice of Motion praying for
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grant of temporary injunction restraining defendant Nos. 1 to 3 for
carrying out or permitting any construction of building and for directing
them not to deal with or dispose of five vacant flats in rehab component
suit building and prayed to pass mandatory directions to provide each
of the plaintiffs the transit rent until the plaintiffs are put in possession
of their respective permanent alternate accommodation of 375 sq. ft.
area. The advocate for plaintiff has prayed for passing interim reliefs in
terms of prayer clause (a) of Notice of Motion.
6. Defendant No.1 filed his affidavit in reply to the Notice of
Motion and strongly opposed the same. It is submitted that the family of
plaintiff Nos. 2 and 3 is same but since they had two separate
tenements, hence, two transit accommodation were provided to them.
Inspite of providing two transit accommodation, both the plaintiffs
resided in one premises only and used the other premises as godwon to
store their unwanted articles and kept the premises closed. Since, the
premises was used as godown and was kept closed, it was infested by
rats and termites which caused nuisance to the other tenants of that
building and they filed complaint to the owner. Inspite of notices given
to plaintiff Nos. 2 and 3, they did not stop using the premises as
godown and remove the infested articles from the premises and hence,
owner terminated the license and took possession of the said premises.
7. Plaintiff No.4 was also provided transit accommodation on
Leave and License basis but for the entire period of 2 years. He did not
take possession of the said premises. Hence, owner terminated the
Leave and License agreement for which this defendant had to pay rent
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for the entire period of 2 years which was a loss to this defendant.
8. As per order dated 25.07.2019 of this Hon’ble Court, this
defendant vide order dated 20.09.2019 addressed to the advocate for
plaintiff forwarded two separate original Leave and License agreements
as temporary accommodation and requested him to obtain signatures of
plaintiff Nos. 2 and 5 and to return the same, so that the plaintiffs can
be put into the possession of the premises, as compliance of the order
dated 25.07.2019. However, no reply was received from advocate for
the plaintiff. Hence, defendant again sent reminder dated 27.09.2019 to
which also no reply was received from the plaintiff or their advocate.
Thereafter, defendant received letter dated 23.09.2019 sent by advocate
for plaintiff stating that agreements are not valid and making several
allegations. Thus, with malafide intention, the plaintiffs sent the said
letter. The plaintiff No.3 is still enjoying the use and occupation of the
accommodation provided by defendant. The plaintiff No.3 is already in
use and occupation of transit accommodation provided to her whereas
plaintiff no.5 never took possession of the transit accommodation
provided to him for 2 years. Since, the plaintiffs are not happy with the
present accommodation, defendant had arranged to provide another
accommodation. Plaintiffs have miserably failed to bring any evidence
to show that this defendant failed to comply with the order dated
25.07.2019. Thus, plaintiffs have no case for grant of reliefs as prayed.
Notice of Motion is devoid of merits and it be dismissed with cost.
9. Perused the Notice of Motion & Affidavit in support of
Notice of Motion. Also perused affidavit in reply filed by defendant
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No.1. Heard Ld. Advocate for both the sides. 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 plaintiffs have made out
prima facie case in their favour ? In the Negative.
2. Whether balance of convenience lies in
favour of plaintiffs ?
In the Negative.
3. Whether irreparable loss will be caused
to the plaintiffs, if present Notice of
Motion is not allowed ?
In the Negative.
4. What order? As per the final order
R E A S O N S
AS TO POINT NOs.1 to 3 :
10. As point No.1 to 3 are interrelated with each other, in
order to avoid repetition of discussion, I am discussing them together.
11. Advocate for the plaintiff filed written notes of arguments.
Advocate for defendant No.1 argued that earlier plaintiff had
challenged notices under Section 95(A) of MHADA Act, same was
rejected by this Court vide order dated 17.02.2014. Plaintiffs
challenged said order before Hon’ble High Court by filing Writ Petition
(ST) No.19521/2014 who pleased to dismiss the Writ Petition vide
order dated 05.08.2014. Therefore, plaintiff filed fresh Writ Petition
(ST) No.19521/2014 which was disposed of as withdrawn vide order
dated 28.11.2014. Thereafter, plaintiff also filed Writ Petition (L)
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No.571/2015 Hon’ble High Court which came to be dismissed with cost
of Rs.25,000/-. It is vehemently argued that out of 63 occupants, 53
had consented to redevelopment and had vacated the premises.
Thereafter, several occupants also vacated the premises and only 4
plaintiffs are remained who are opposing the redevelopment. Plaintiffs
filed several Writ Petitions which came to be dismissed by Hon’ble High
Court as well as by Hon’ble Supreme Court. In Writ Petition (L)
No.571/2015 observed the conduct of the plaintiff and imposed cost of
Rs.25,000/- while dismissing the Writ Petition. It is further submitted
that this Court vide order dated 25.07.2019, directed defendant No.1 to
provide temporary transit accommodation to plaintiff No.2 and 5 or
directed to pay rent in lieu of providing temporary transit
accommodation. Accordingly, defendant No.1 has already provided
temporary transit accommodation to plaintiff No.2 and and 5. It is
submitted that two transit accommodations were provided to plaintiff
No.2 and 3. However, both the plaintiffs resided in one premises only
and used other premises as godown to store their unwanted articles and
kept the premises closed. Despite of notices issued by defendant to
plaintiff Nos.2 and 3, they failed to remove the infested articles from
the premises and hence, the owner terminated the license and took
possession of the said premises. So far as plaintiff No.5 is concerned, he
was provided transit accommodation on Leave and License basis but for
the entire period of 2 years, he failed to take possession and hence,
owner terminated the Leave and License agreement. Defendant No.1
had paid security deposit of Rs.50,000/- to each of the said rooms.
Since, inspite of several requests, when plaintiff failed to execute
agreement, after 4 months, owners terminated the agreement and
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forfeited and adjusted the security deposit of Rs.50,000/- as rent for
unused premises. Thus, due to above acts of plaintiffs, defendant No.1
suffered loss of Rs.1 Lacs for no fault of him. Defendant has produced
on record copies of orders of Hon’ble High Court in Writ Petition on
record which fortifies his contention.
12. Defendant No.1 has produced on record two receipts of
Rs.50,000/- each paid to the owners towards the security deposit of the
rooms which also fortifies his contention that he had provided
temporary alternate accommodation to plaintiff Nos. 2 and 5 in
compliance of order of this Court dated 25.07.2019. Further, it can be
gathered that vide order dated 20.09.2019 and vide reminder letter
dated 27.09.2019, defendant No.1 forwarded two separate original
Leave and License agreement as temporary accommodation requesting
advocate for plaintiff to obtain signatures of plaintiffs No.2 and 5 and to
return the same, so that the plaintiff can be put into possession of the
premises as a compliance of order dated 25.07.2019. However, no reply
was received from plaintiff or their advocate to the said letters. It can be
seen that defendant No.1 has provided temporary alternate
accommodation to the plaintiffs in view of compliance of order dated
25.07.2019 but plaintiff Nos. 2 and 5 failed to execute Leave and
License agreement to take possession of the same. Plaintiff No.3 is
already in use and occupation of transit accommodation provided to
her. Therefore, plaintiffs are not entitled for transit rent as claimed.
13. For all the above reasons, I hold that, plaintiffs have failed
to make out prima facie case in their favour. Balance of conveyance also
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does not tilt in favour of plaintiffs. In such circumstances, no irreparable
loss will be caused to the plaintiff, if prayer in Notice of Motion is not
allowed. Hence, I answer point Nos. 1 to 3 in the negative.
As to point No.4 :
14. As point Nos.1 to 3 are answered in the negative, I hold that the
Notice of Motion is liable to be dismissed. In the result, I proceed to
pass the following order :-
ORDER
1. Notice of Motion No. 2861 of 2019 in Suit
No.2042 of 2019 is hereby dismissed with cost.
2. Notice of Motion stands disposed of accordingly.
(Order dictated & pronounced in open Court)
(V. V. PATIL)
Judge, City Civil Court,
Dated : 04.03.2024 C.R. No.09, Gr. Mumbai
Dictated on : 04.03.2024
Transcribed on : 05.03.2024
Signed on : 06.03.2024
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“Certified to be true and correct copy of the original signed order”.
06.03.2024
at about 16.30 p.m.
(Manisha D. Hirole)
Stenographer (Grade-I.)
Court Room No.09, Gr. Mumbai.
Name of the Hon'ble Judge : HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Order : 04.03.2024
Order signed by Hon'ble Judge on : 06.03.2024
Order uploaded on : 06.03.2024
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