Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3607 OF 2019
IN
SUIT NO. 2461 OF 2019
1. Jagdish Rampher Razak ]
and others ]..Plaintiffs.
V/s.
1. Oriental Contractors Pvt. ]
Ltd. and others. ]..Defendants.
Advocate Mr. V. R. Tripathi for the plaintiffs.
Advocate Mr. Shreepad Murthy alongwith Advocate Mr. Imtiaz Patel for
defendant Nos.1, 2, 5 and 6.
Advocate Ms. Mangal Kadam for defendant No.3/MHADA.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 22nd APRIL, 2022
ORDER
The Suit is instituted for the relief of declaration that the
Plaintiffs are the eligible occupants of the suit property and are entitled
to the permanent alternative accommodation. They have further sought
a mandatory injunction to the effect that Defendant Nos. 2 and 3 may
be directed to consider the documents of the plaintiffs and decide their
eligibility for the suit property. It is further prayed that the Defendant
Nos. 3 and 4 may be restrained from finalizing Annexure-II without
deciding the eligibility of the plaintiffs. They have further prayed for a
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perpetual injunction against the Defendants for restraining them from
demolishing the suit property without following due process of law.
2. The suit property is a shed admeasuring about 10’ X 8’
situated in the Compound of Balkrishna Niwas, I.N. Road/Deodhar
Road, Matunga (CR), Mumbai-400019 and it is hereinafter referred to
as suit property for the sake of convenience.
3. It is the case of the Plaintiffs that, their father Rampher @
Matapher acquired the suit property from the landlord on a monthly
rental basis. Rampher and thereafter the present Plaintiffs continued to
reside and conduct their ironing business in the suit property. Defendant
No. 1 is the developer and Defendant Nos. 5 and 6 are the original
landlords of the suit property.
4. It is the case of the Plaintiffs that, their father obtained the
license under the Shop and Establishments Act in June 1976 from the
MCGM for carrying out his ironing business in the suit property. It was
renewed from time to time and a fresh license was issued in the year
1976. The plaintiffs and their father have paid the required charges
from time to time. As the suit property was being used for commercial
as well as residential use, the father of the Plaintiffs obtained a ration
card on the address of the suit property in the year 1997. Plaintiff No.1
filled the census form in the year 1990 to the MCGM. Plaintiffs used to
send money to their native place and they have produced the
acknowledgments of the same since the year 1972. Plaintiff No. 1 has
obtained his voter’s identity card and the Aadhar card from the address
of the suit property.
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5. It is the case of the Plaintiffs that, the Suit building
Balkrishna Niwas is to be redeveloped under the scheme of MHADA.
The officers of the Defendant Nos. 3 and 4 came to the Balkrishna
Niwas for taking the measurements of the tenements and to record the
names of the occupants. Defendant Nos. 5 and 6 who were the
landlords accompanied the said officers. They measured all the
premises in the Balkrishna Niwas and also in the compound of the
Building, but not the suit property. The officers of the Defendant Nos. 3
and 4 called the Plaintiffs to produce their documents. Accordingly, the
Plaintiffs by letter of their Advocate dated 18/07/2019 submitted all the
documents to Defendant No. 3. The datum line was of 01/01/1995. It
was subsequently extended to the year 1996 and now upto 2011.
6. Plaintiffs have further stated that though they have paid the
rent to the landlords regularly, the landlords did not issue any rent
receipt. Then the plaintiffs came to know that all the defendants in
collusion with each other are in the process of finalizing Annexure-II
without including the name of the plaintiffs therein. The defendants
are trying to deprive the plaintiffs of getting permanent alternative
accommodation and to dispossess the plaintiffs from the suit premises.
On 15/08/2019, defendant Nos. 5 and 6 along with the representatives
of defendant Nos. 1 and 2 came to the suit property and threatened the
plaintiff to dispossess. Therefore, the plaintiffs were constrained to
institute the present suit.
7. Plaintiffs have filed the Notice of Motion and have prayed
that the defendant Nos. 2 and 3 may be restrained from finalizing the
Annexure-II during the pendency of the suit and that the defendants
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may be restrained from demolishing the suit property without following
due process of law.
8. Defendant Nos.1, 2, 5 and 6 have filed replies to the Notice
of Motion. They have denied all the contentions in the Notice of Motion
and have stated that the suit premises is not an authorized structure
and never assessed by MCGM authorities. Plaintiffs have not filed suit
for declaration and therefore they have no legal status and actionable
right in respect of the suit property. The suit is not maintainable
without the relief of declaration. Under D.C. Regulation 33(7) of 1991
and no person is entitled to the alternative accommodation unless he is
declared as entitled by MHADA. The suit property is a structure
constructed by plaintiffs without taking permission of the MCGM or the
landlords. It is not forming part of the structure of the building
recognized under D.C. Regulation 1991. The suit is not maintainable
unless the plaintiffs show that there is the structure that comes under
D.C. Regulation 1991. The plaintiffs are claiming the relationship of
landlord and tenant between defendants Nos. 1, 2, 5 and 6 and the
plaintiffs and therefore the suit is not maintainable before this Court.
9. The defendants have further stated that the electricity
connection and ration card are obtained by the plaintiffs without the
consent of the landlord. These documents do not authenticate the suit
structure. They do not create any tenancy right in favour of the
plaintiffs in respect of the suit premises. The plaintiffs are not entitled
to permanent alternative accommodation. For all these reasons they
have prayed for dismissal of the notice of motion. These defendants
have filed an additional affidavit in reply and they have reiterated all
the contentions in the earlier affidavit.
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10. The remaining defendants have not filed any reply.
11. Considering the Notice of Motion, affidavit in support
thereof, reply filed by the defendants and the documents filed on
record, the following points arise for my determination and my findings
to them are as stated below for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether plaintiffs have proved their
prima
facie case ?
Partly In the
Affirmative
2 Whether plaintiffs have proved that they
will suffer irreparable loss if the Notice of
Motion is dismissed?
Partly In the
Affirmative
3 In whose favour does the balance of
convenience lie?
Partly In favour of
the Plaintiffs
4 What order? As per final order
R E A S O N S
AS TO POINT NO.1 :
12. In support of their claim, plaintiffs have produced on
record a hand sketch showing the location of the suit property. They
have further produced on record a copy of the registration certificate of
establishment issued under the Bombay Shops And Establishments Act
1948. It stands in the name of father and plaintiffs. It appears that it
was issued for the ironing shop. It also appears that it was issued at the
address of the suit property for the first time in the year 1976. Plaintiffs
have produced on record another license issued under Bombay Shops
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and Establishments Act 1948 which stands in the name of the father of
the plaintiffs and shows the address of the suit property and it was
issued in that year 1979. The payment receipt of required charges is
produced at Exhibit-D which stands in the name of the father of the
plaintiffs and it was issued on 01/01/1981. Similar receipt is produced
which was issued on 31/12/1983. One receipt appearing to be issued
on 22/11/1978 is also produced on record. These documents
prima
facie show that the shop of the plaintiffs was in existence since the year
1979 at the address mentioned in the registration certificate.
13. Plaintiffs have stated that the suit premises was being used
for residential as well as commercial purpose. Therefore, the father of
the plaintiffs had obtained a ration card on the address of the suit
property. A copy of the ration card is produced at Exhibit-E. It stands
in the name of plaintiff Nos. 1 and 2. Plaintiffs have further produced
on record a copy of the application filed by plaintiff No.1. A receipt No.
0447352 is attached thereto. Plaintiffs have produced certain receipts
of money order showing that those of the suit property. Plaintiffs have
produced on record a copy of the Election Identity Card of plaintiff No.
1 which was issued at the address of the suit property on 11/02/2008.
Another account of plaintiff No. 2 is also produced on record.
14. All these documents
prima facie show that the plaintiffs are
in long-standing and settled possession of the suit property. It is
important to note that the defendants are coming with the case that the
structure occupied by the plaintiffs is constructed illegally and without
permission of the MCGM. The landlords have not taken any action
against the plaintiffs for removing the said structure. The MCGM also
has not issued any notice to plaintiffs about the said alleged
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unauthorized structure. Therefore, merely based on the contentions of
these defendants in the reply to the notice of motion or written
statement to the plaint, it cannot be said that the structure which
plaintiffs are occupying is unauthorized.
15. It is admitted position that the MHADA has not included
the name of plaintiffs in the list of eligible tenants who are entitled to
get permanent alternative accommodation against their old premises. It
is the case of plaintiffs that they were called for production of the
documents before the MHADA Authorities and they submitted the same
by letter of their advocate. A copy of the letter dated 18/07/2019 is
produced at Exhibit-K. It appears that the relevant documents were
annexed to that letter. However, the MHADA authorities did not reply
the same or did not pass any order regarding the eligibility of the
plaintiffs.
16. In the circumstances above, it is clear that when
prima
facie plaintiffs are in possession of the suit property, the defendants
have only two alternatives that are to hold the plaintiffs entitled for
permanent alternative accommodation and allot a temporary alternative
accommodation to them by the time the building is completed or hold
the plaintiff as ineligible and initiate an action by following due process
of law to remove the plaintiffs from the suit property. As I have earlier
observed when the plaintiffs are appearing to be in possession of the
suit property since the year 1979,
prima facie their possession is a
settled possession and the landlord has never objected to the same till
the institution of the present suit. In the circumstances, I have
concluded that the plaintiffs cannot be removed without following due
process of law.
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18. Learned Advocate for the defendant Nos. 1, 2, 5 and 6 have
relied upon the judgment in the case of Konark Structural Engineers
Pvt. Ltd. Vs. Boriwali Samarpan Cooperative Housing Society in
Arbitration Petition No. 383 of 2021. I have gone through the said
Judgment. In the present matter, suit premises is a single structure
being used for residential and commercial purpose. The eligibility of the
plaintiffs for the permanent alternative accommodation is yet to be
decided by the Competent Authority. Hence, with all respect to the
above ratio, I state that it is not applicable to the present matter.
19. It is also important to note that the structure is
independent of the structure of Balkrishna Niwas and therefore, there
would not be much effect on the redevelopment of that building, if the
relief of injunction is granted in favour of the plaintiffs. Given the
same, I have concluded that plaintiffs have proved their
prima facie case
to the extent of temporary injunction to the effect that the defendants
be restrained from demolishing the suit property till the final disposal of
this suit without following due process of law.
20. As far as the second relief that it is entering the name of the
plaintiffs in Annexure-II is concerned, MHADA is the Competent
Authority for the same and the statute provides the appropriate remedy
for the plaintiffs if they are aggrieved by the decision taken by the
competent authority. Therefore, plaintiffs are not entitled to the relief
claimed in prayer clause (a) of the Notice of Motion. Accordingly, I
answer point No. 1 partly in the affirmative.
AS TO POINT NOS.2 AND 3:
21. As I have earlier observed, plaintiffs are appearing to be in
long-standing possession of the suit property. Therefore, if they are
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highhandedly removed by the defendants from the suit property, they
will suffer irreparable loss. On the other hand, plaintiffs have equally
efficacious remedies for getting their names entered into Annexure-II.
Therefore, if that relief is rejected, the plaintiffs will not suffer any
irreparable loss. Given all the above discussion, I have concluded that
the balance of convenience partly lies in the power of plaintiffs.
Accordingly, I answer point number 2 partly in the affirmative and point
number 3 partly in favour of the plaintiffs and proceed to pass the
following order.
ORDER
1. Notice of Motion 3607 of 2019 is partly allowed.
2. The defendants, their servants, agents or anyone on their
behalf are temporarily restrained from demolishing the suit
property viz. Shed admeasuring about 8’ X 10’ situated in the
Compound of Balkrishna Niwas, I.N.Road/Deodhar Road,
Matunga (CR), Mumbai 400019 till final disposal of this suit
without following due process of law.
3. The remaining reliefs claimed in the Notice of Motion No.
3607 of 2019 are rejected.
4. The cost of this notice of motion will follow in the main cause.
5. Notice of Motion No. 3607 of 2019 is disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 22.04.2022 Gr.Mumbai.
Dictated on: 22.04.2022
Typed on : 22.04.2022
Signed on : 26.04.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28.04.2022 AT 2.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of Pronouncement of
Judgment/Order
22.04.2022
Judgment/Order signed by P.O. on 26.04.2022
Judgment/Order re-uploaded on 28.04.2022
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