Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No. 4303/2019
in Suit No.2819/2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.4303 of 2019
(CNR NO. MH CC010110162019)
In
SUIT No. 2819 OF 2019
Mr. Rajesh Makwana ....Plaintiff
V/s.
1) Mumbai Building Repair & Reconstruction Board
2) Executive Engineers ....Defendants
Appearance:
Mr. S.S. Kudalkar, Advocate for the plaintiff.
Mr. K.N. Kandekar, Advocate for the defendants.
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 23 rd November, 2019.
ORDER
1. By this Notice of Motion the plaintiff has prayed for directing
the defendants, their agents, servants and employees to allot temporary
or permanent alternate accommodation in the nearby vicinity of
Mazgaon or South Mumbai in lieu of old suit premise Room No.13/144
Sant Sena Maharaj Marg, Mumbai and for restraining the defendants
from removing plaintiff and his family members from the suit premises
i.e Transit accommodation Room No.59, Chawl No.9, Antop Hill, Wadala
Transit Camp, Mumbai and newly alloted Transit Room No.214, Chawl
No.28, Wadala Transit Camp, Mumbai.
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2 Notice of Motion No. 4303/2019
in Suit No.2819/2019
2. In support of notice of motion, plaintiff has filed affidavit
and reiterated the contentions in the plaint. It is submitted that if the
relief of temporary injunction as sought for is not granted, plaintiff will
suffer irreparable loss and great hardship.
3. The defendants have filed affidavit in reply. It is averred
that the suit is not maintainable as it is filed without cause of action. It is
further submitted that the defendants had issued allotment letter dated
28.5.1985 and alloted transit room to the original tenant in Building
No.118, Gala No.3437, Transit Camp, Vikhroli, Mumbai in lieu of Room
No.4 situated at Kamathipura, 8th Lane, Mumbai400 008. The
defendants have not disputed that vide letter dated 11.03.2019 they
called upon the plaintiff to vacate the old transit accommodation and to
shift from Wadala to Gorai. Therefore, according to defendants
Government Resolution dated 11.03.2019 is inapplicable in the present
case. According to defendants, plaintiff is not in exclusive possession of
the suit premises and therefore he is not entitled for any relief as sought
in the notice of motion. It is pertinent to note that the defendants have
filed reply for Building No.118, Gala No.3427, Vikhroli, Mumbai in
respect of original tenant Tukaram Ramji whereas in the present notice
of motion it is averred by plaintiff that original tenant was Shri Dayalji
Kanji Makwana.
4. Heard learned Advocate for plaintiff and defendant Nos.1
and 2 at length.
5. Following points arise for determination. Findings against
each of them alongwith reasons are stated as below.
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3 Notice of Motion No. 4303/2019
in Suit No.2819/2019
SR. NOS. POINTS FINDINGS
1. Whether the plaintiff has
established prima facie case ?
No
2. Whether balance of convenience
tilt in favour of plaintiff ?
No
3. Who would suffer irreparable loss
if relief of injunction is granted ?
The defendants
4. What Order ? As per final order
As to point No.1
6. It is not disputed that grand father of plaintiff, Dayalji
Makwana was original tenant of Room No.13, 144, Sant Sena Maharaj
Marg, Mumbai (the original tenanted suit premises). It is also not
disputed that Dalyalji Kanji Makwana was residing with his family
members in the tenanted premises. Defendants have acquired the said
rooms as well as entire building was of opinion that the building was not
capable of being repaired or rendered fit for habitation at reasonable
expenses and were not considered for repairs under the MHADA Act.
Since the tenanted premises were in dilapidated and dangerous
condition, the office of defendants issued notice dated 27.09.1978 under
section 77(b) of MHADA Act to vacate the premises within seven days
from the date of receipt of notice. On 23.11.1983, the defendants as per
the MHADA Act issued allotment letter and alloted transit room to the
original tenant i.e. Room No.59, Transit Camp Chawl No.9, Wadala,
Mumbai in lieu of original tenanted premises. Grand father of plaintiff
Dayalji Makwana and his wife Mrs. Muniben Dayalji Makwana passed
away leaving behind plaintiff's father Mr. Jayantilal Dayalji Makwana as
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their legal representatives. The father of plaintiff died on 01.08.1992
leaving behind his wife Mrs. Kantaben Jayantial Makwana and plaintiff
as legal representatives.
7. It is averred by plaintiff that he was residing in Room
No.59, Transit Camp Chawl No.9, Wadala, Mumbai alongwith his
mother and she had executed affidavit and Indemnity Bond for
transferring transit room as well as permanent accommodation room in
the name of plaintiff. In response to the letter of defendants dated
02.05.2001, plaintiff had supplied all documents and vide letter dated
18.07.2013 reminded the defendants to allot transit/permanent
accommodation to him.
8. It is not disputed that the notice dated 13.07.2015 under
section 95 (A) (3) of the MHADA Act 1976, was issued by defendants
that the plaintiff has illegally occupied Room No.59, Transit Camp Chawl
No.9, Wadala, Mumbai and thereby ordered to vacate the premises. On
perusal of the said notice dated 13.07.2015, it reveals that the name of
the addressee is not mentioned in the said notice. Further more, Room
No.60, Chawl No9 is mentioned in the said notice whereas the plaintiff
has claimed relief in respect of Room No.59, Transit Camp Chawl No.9,
Wadala, Mumbai in the present suit. Therefore, it appears that without
mentioning the name of addressee and proper number of the premises,
notice dated 13.07.2015 was issued by the defendants.
9. According to plaintiff, he addressed the letter to the
defendants for allotment of another transit accommodation in lieu of old
tenanted premises as Room No.59, Transit Camp Chawl No.9, Wadala,
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in Suit No.2819/2019
Mumbai was in dilapidated condition. Defendant No.2 after considering
the report of Executive Engineer, prepared the report and requested to
the Deputy Chief Officer for allotment of transit room to the plaintiff.
The defendants and their officers visited suit premises in the Month of
December2017 with request to vacate the suit premises immediately.
Plaintiff has shown his willingness to hand over transit Room9/59 with
request to allot him new accommodation in the same vicinity. According
to plaintiff, without following due process of law, defendants alongwith
Contractor M/s. Shirke and Associates forcefully shifted all belongings of
plaintiff in Room No. 214, Chawl No.28, Wadala Transit Camp, Mumbai
without giving any allotment letter. Vide letter dated 11.03.2019,
defendants allot temporary transit accommodation at New M.H.B.
Colony, Gorai Road, Building No.9/C, Gala No.308 and directed to
vacate Room No.9/59. On perusal of said letter dated 11.03.2019, it
reflects that for the purpose of rehabilitation the said notice was issued
and the plaintiff was alloted Gala No.308 at Gorai Road.
10. Plaintiff has relied on the Government Resolution dated
13.09.2019. The recitals of the said resolution reveals that the original
tenants who are shifted in transit accommodation are entitled for
residence in the building which is rehabilitated. As per the documents
relied on behalf of plaintiff, he has already been alloted Gala No.308 in
Building 9/C at Gorai Road. In respect of availability of transit
accommodation as mentioned in para No.21 of the plaint, plaintiff has no
right to claim the said premises of his choice at this stage on the basis of
Government Resolution dated 13.03.2019. Accordingly, I am of the
opinion that no prima facie case has been made out by plaintiff in order
to grant interim relief as prayed in notice of motion. Hence, point No.1
is answered in negative.
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As to point No.2 and 3.
11. So far as balance of convenience and irreparable loss is
considered, I am of the opinion that defendants would suffer irreparable
loss, as the notice dated 11.03.2019 was issued for vacating Room
No.9/59 for rehabilitation. In such case if injunction as prayed is
granted, irreparable loss will be caused to defendants who is Competent
Authority providing transit accommodation to needy persons whose old
premises are vacated on account of dilapidated condition. Therefore,
point Nos.2 and 3 are answered accordingly.
As to point No.4
12. In view of forgoing discussion, plaintiff has not made out
any prima facie case for grant of interim injunction as sought.
Resultantly, I pass following order.
ORDER
1) Notice of Motion No.4303/2019 is dismissed.
2) Notice of Motion No.4303/2019 stands disposed off accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 23/11/2019
Dictated on : 23.11.2019
Transcribed on : 25.11.2019
Signed on : 27.11.2019
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in Suit No.2819/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
28.11.2019 12.05 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 23.11.2019
Order signed by P.O. on 27.11.2019
Order uploaded on 28.11.2019
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