Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 3725-19 in S.C.SUIT no.8366-99
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 3725 OF 2019
(CNR no. MHCC01-010132-2019)
IN
SHORT CAUSE SUIT NO. 8366 OF 1999
(CNR no. MHCC01-006717-1999)
HIGH COURT SUIT NO. 1659 OF 1999
1. Mumbai Building Repairs and Reconstruction
Board (M.B.R.R.B),
A Unit of MHADA, having office at Gruha
Nirman Bhavan, Kala Nagar,
Bandra (East), Mumbai.
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2. Executive Engineer,
F/South Division, M.B.R.&R.Board, “Annex
Bldg”, BMC Bldg, 3rd Floor, Above Kirti
Mahal Hotel, Parel, Mumbai 400 012.
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Applicants
Versus
1. Mrs. Puran Parviz Niroo
Residing at 2-B/11, Tata Mills
Co-Op. Hsg. Soc. Ltd., Elphinstone Road,
Parel Mumbai 400 012.
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Plaintiff
And
1. Farangis Kaikushrooo Yazadani (Deleted)
2. Fardoon Rustom Afagh
residing at 2-A/24, Tata Mills Co-op. Hsg.
Soc. Ltd., Elphinstone Road,
Parel, Mumbai 400 012.
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3. Hormus Rustom Afagh
residing at 1-A/14, Tata Mills Co-op. Hsg.
Soc. Ltd., Elphinstone Road,
Parel, Mumbai 400 012.
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2 NM no. 3725-19 in S.C.SUIT no.8366-99
4(a) Mahvash Daryush Nowzary
(i) Age 65 years, Occu : Nursing,
residing at 296, Killdeer Street,
Oshawa Ont., LIG 6X3, Canada
(ii) No.4, Apt.22, 5th Floor,
Tata Housing Society, Elphinstone Road,
Parel, Mumbai 400 012.
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4(b) Mahindokt Mazdiyasni
Age 57 years, Occu: Nursing,
residing at 1327, Pinehurst Avenue,
Oshawa Ont, L1H 8J8, Canada.
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4(c-1) Parvin Pariboz Mazdiyasni
Age 51 years, Occu: Teacher,
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4(c-2) Tania Pariboz Mazdiyasni
both residing at 9B/302, Golden Oak CHS
Ltd., Kalpak, S.M. Road, Antop Hill,
Mumbai 400 037.
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5. Minocher Rustom Afagh
residing at Sheriar, 3rd Floor, Taushiar
Building, St. Paul’s Street,
Dadar, Mumbai 400 014.
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6. Behram Merwan Ibteda,
residing at Room No.35, 2nd Floor, Rahim
Mansion, 44, Gokhale Estate, Cross Lane,
Parel, Mumbai 400 012.
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Defendants
And
1. The Court Receiver,
High Court, Bombay, having office at Bank
of India Building, 2nd Floor, M. G. Road,
Mumbai 400 032.
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3 NM no. 3725-19 in S.C.SUIT no.8366-99
2. Rockford Structures Pvt. Ltd.,
A Company registered under the Companies
Act, 1956 having its Registered office at 209,
2nd floor, Konark Shram,
Tardeo, Mumbai-400 034.
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Appearances:-
Ld. Advocate Mr. Shamim for the Plaintiff.
Ld. Advocate Mr. Sharad Waghchaure for Respondent no.2.
Ld. Advocate Mr. Sawant for Defendants no.4a,4b,4c-1,4c-2.
Ld. Advocate Mr. Jay Yadav for Defendant no.5.
Ld. Advocate Mr. Rajesh Dubey for Defendant no.6.
Ld. Advocate Mrs. V. S. Prabhu for applicant/MHADA.
None for other defendants.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 4)
DATED : 15th February, 2020.
O R A L O R D E R
1. The instant Notice of Motion is filed by third parties viz.
Mumbai Building Repairs and Reconstruction Board (M.B.R.R.B.), a
Unit of MHADA (applicant no.1) and its Executive Engineer
(applicant no.2) against parties in the suit, the Court Receiver,
Bombay High Court, and the landlord Rockford Structures Pvt. Ltd.
(respondent no.2). Even though there are 3 main prayers in the
Notice of Motion, it is stated by Ld. Advocate for the Applicants
that they are pressing only prayer clause (a) which reads as under :-
(a) That this Hon’ble Court be pleased to grant leave to
the Applicants to initiate action under Section 95A of
MHADA Act against the Court Receiver (Respondent
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4 NM no. 3725-19 in S.C.SUIT no.8366-99
No.1 herein) for getting vacant and peaceful possession
of the commercial premises known as ‘New Persian
Bakery’ admeasuring 594 sq. mtrs. Standing on the
property bearing C.S. No.50 situated at St. Paul Street,
Dadar, Mumbai 400 014;
2. The Ld. Advocate for the Applicants has contended that
MHADA, the Statutory Authority, empowered to initiate action under
Section 95A of Maharashtra Housing and Area Development Act,
1976 (hereinafter “MHADA”) is approached by the respondent no. 2
landlord for getting vacant and peaceful possession of the
commercial premises known as ‘New Persian Bakery’ ( subject
matter of the present suit) but is unable to initiate action without
leave of the Court due to the fact that the suit premises is in
possession of court receiver. The primary objection to this
application by Notice of Motion is that the Applicants are not parties
to the instant suit and therefore, the reliefs claimed in the Notice of
Motion cannot be granted. Ld. Advocates for the defendants have
taken me through Order of Division Bench of Hon’ble Bombay High
Court in A.O. (St.)No.19868 of 2018 in Notice of Motion No.1013 of
2013 in this suit dated 02.04.2019 wherein the Hon’ble Bombay
High Court granted liberty to the present applicants to make
application for grant of leave to this court to proceed under Section
95A of the MHADA Act and the issue “whether such application is
tenable in law?” was kept open for being decided by this Court.
Therefore, Ld. Advocates for the defendants are right to the extent
that the Hon’ble High court did not decide the issue “whether such
application is tenable in law?”
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5 NM no. 3725-19 in S.C.SUIT no.8366-99
3. It is trite that under Order I Rule 8A of The Code of
Civil Procedure, 1908, the Court can permit person or a body of
persons to present opinion or to take part in the proceeding only if
it is in public interest to allow such person to present his or its
opinion on the question of law. There is no other similar provision
in C.P.C. to permit third party to take part in the proceeding.
However, the facts of the instant Notice of Motion disclose that
neither the present applicants nor respondent no.2 have interest in
adding them as parties nor they are going to be affected by decision
of this Court if the prayers in the plaint are granted or refused. In
other words, the present applicants have absolutely no interest in
the outcome of the suit but due to appointment of Court Receiver in
respect of the suit premises by Order dated 29.04.1999 the
applicants are incapable to exercise their statutory power under
Section 95A of MHADA Act.
After going through the plaint allegations and prayer clauses
therein, the dispute between the plaintiff and the defendants herein
is in respect of Partnership firm which is carrying on its business in
the suit premises. The Court Receiver came to be appointed by
minutes of Order dated 19.04.1999 to conduct the business in the
suit premises after appointing any of the parties to the suit as its
agent. There is no whisper in the plaint about the redevelopment
project undertaken by the landlord and that is not the controversy
in the suit. Ld. Advocate for the respondent no.2 landlord has
pointed out that out of 37 tenants 36 have already vacated their
premises and their structures are demolished but redevelopment
could not be started due to the fact that the parties to this litigation
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6 NM no. 3725-19 in S.C.SUIT no.8366-99
have not vacated the suit premises.
4. Ld. Advocate for the applicants has submitted that the
applicants are not claiming eviction of the parties from the suit
premises by instant Notice of Motion but they are only praying for
permission to initiate action under Section 95A of the MHADA Act.
It will be useful to reproduce Section 95A of the MHADA Act which
reads as under:-
95A. Summary eviction of occupiers in certain cases-
(1) Where the owner of a building or the members of the
proposed co-operative housing society of the occupiers of
the said building, submits a proposal to the Board for
reconstruction of the building, after obtaining the written
consent of not less than 70 percent of the total occupiers
of that building and a No Objection Certificate for such
reconstruction of the buildings is issued by the Board, to
the owner or to the proposed co-operative housing
society of the occupiers, as the case may be, then it shall
be binding on all the occupiers to vacant the premises;
Provided that, it shall be incumbent upon the holder of
such No Objection Certificate to make available to all the
occupants of such building alternate temporary
accommodation.
(2) On refusal by any of the occupant to vacate the premises
as provided in sub-Section (1), on being approached by
the holder of such No Objection Certificate for eviction of
such occupiers, it would be competent for the Board,
notwithstanding anything contained the Chapter IV and
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7 NM no. 3725-19 in S.C.SUIT no.8366-99
Chapter VII of this Act, to effect summary eviction of
such occupiers.
(3) Any person occupying any premises, land, building or
structure of the Board unauthorisedly or without specific
written permission of the Board in this behalf shall,
notwithstanding anything contained in Chapters VI and
VII of this Act, be liable for summary eviction.
(4) Any person who refuses to vacate such premises or
obstructs such eviction shall, on conviction, be punishable
with imprisonment for a term which may extend to one
year or with fine which may extend to five thousand
rupees, or with both.
Section 95A contemplates summary eviction of occupiers.
In this matter, proposal for reconstruction of the building was given
to the applicants after obtaining written consent of not less than
70% of the total occupiers of the building, the applicant no.1 issued
No Objection Certificate for such reconstruction to the respondent
no.2 landlord and therefore, it was binding on all occupiers to
vacate their respective premises. Sub Section 3 of the above Section
confers power on present applicant no.1 to summarily evict an
occupant occupying any premises without specific written permission
to the board. In this case none of the parties to the litigation are
claiming that they have received such permission from the applicant
no.1 Board. Therefore, the applicant no.1 is well within its authority
to initiate action under Section 95A of the MHADA Act.
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8 NM no. 3725-19 in S.C.SUIT no.8366-99
5. Coming back to the question of maintainability of this
application by third party, Ld. Advocate for the respondent no.2 has
cited judgment Narayandas Nathumal Hemrajani and others
Vs.Taraben Kalimuddin Mulla Fakhri Society and others [AIR 1998
Gujarat 12]. In that case third party had approached in regular Civil
Suit No.158 of 1996 after Court Receiver came to be appointed and
the Court Receiver took possession of entire parcel of land
comprising land admeasuring 3883.70 square metres possessed by
third parties. Since, they were directly affected though not
concerned with subject matter of the suit, they approached Civil
Court and filed objection. The Civil Court stayed operation of the
Order of appointment of Court Commissioner. In a challenge to the
said orde,r the Hon’ble High Court has decided the issue of
tenability of application by third party in the suit in paragraph no.9.
The said paragraph can be gainfully reproduced as under:-
9. Mr. Shah for the respondents has vehemently argued that
the petitioners not being parties to the suit have no right to
come before this Court and file revision application except
with express leave of Court. Of course, Mr. Shah has not
been able to show any express provision which requires
leave of the Court. Be that as it may. It is true that the
petitioners are third parties to the suit but, on facts, cannot
be such as total strangers because the record shows that
aggrieved by the first order of appointment of Receiver
passed below Annexure-F dated 13.02.1997, the petitioners
approached the trial Court vide Exh.51 at Annexure-I and
filed objections and prayed for stay of operation of the
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9 NM no. 3725-19 in S.C.SUIT no.8366-99
order. Accordingly exercising inherent powers the trial
Court stayed operation of the order dated 17.03.1997. Thus,
the petitioners though not parties to the suit were very
much before the Court and at one point of time considering
the objections the Court had issued appropriate orders. In
my views, in these circumstances and facts of this case they
have right to approach this Court without leave when they
are aggrieved by any order. By saying so I do not lay down
a broad proposition of law that in all cases a third party
can approach this Court under Section 115 and challenge
legality of any order to which he is not a party. In the
facts and circumstances of this case, the petitioners though
not parties tot he original litigation yet are not totally
strangers and had already made their appearance before the
Court, consequently, in my view for all purposes are parties
to the litigation. What is required under law for proper
adjudication of dispute is presence of proper and necessary
parties by whatever mode. In a given case, plaintiffs may
not join and implead all necessary and proper parties, yet
having come to know one can appear before the Court and
pray for appropriate relief and thereby presence can confer
the status as being party.
The above ratio squarely applies to the instant case. In
view of the above principle, the application by third parties is
maintainable. As stated herein earlier the applicants and respondent
no.2 have no interest in the outcome of the suit but they are
affected by the order of appointment of Court Receiver in as much
as they are unable to initiate proceeding under Section 95A of the
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10 NM no. 3725-19 in S.C.SUIT no.8366-99
MHADA Act as suit premises is in possession of the Court Receiver
as
custodia legis. After going through the scheme of Section 95A of
the MHADA Act it provides procedure for summary eviction of the
occupants of any premises. The applicant no.1, being a statutory
body, is under obligation to follow principles of natural justice
before taking any drastic action such as eviction from the premises.
Merely because Court Receiver is appointed under Order XL Rule 1
of The Code of Civil Procedure, 1908 for management of the
business being run in the suit premises it does not take away rights
of statutory authority under the MHADA Act. Therefore, the prayer
clause (a) in the Notice of Motion will have to be granted. Hence,
following order:
ORDER
1. Notice of Motion No. 3725 of 2019 is allowed in terms of
prayer clause (a).
2. The opportunity of hearing shall be given to the parties in this
suit before taking any decision by applicant no.1 under Section
95A of The Maharashtra Housing And Area Development Act,
1976.
3. Costs in cause.
sd/-
(C. V. Marathe)
Judge,
Date : 15.02.2020. City Civil Court, Gr. Mumbai.
Dictated on : 15.02.2020
Transcribed on : 15.02.2020
Signed by HHJ on : 17.02.2020
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11 NM no. 3725-19 in S.C.SUIT no.8366-99
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 17.02.2020 at 1.52 p.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
15/02/2020
JUDGMENT/ORDER signed by
P.O. on
17/02/2020
JUDGMENT/ORDER uploaded
on
17/02/2020
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